California Supreme Court Watch

#20-188 Geiser v. Kuhns, S262032. (B279738; nonpublished opinion; Los Angeles County Superior Court; BS161018, BS161019, BS161020.) Petition for review after the Court of Appeal affirmed an order awarding attorney fees in a civil action. The court limited review to the following issue: How should it be determined what public issue or issue of public interest is implicated by speech within the meaning of the anti-SLAPP statute (Code of Civ. Proc., § 425.16, subd. (e)(4)) and the first step of the two-part test articulated in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150, and should deference be granted to a defendant’s framing of the public interest issue at this step?

Review granted: 7/22/2020

Case fully briefed: 2/16/2021

Cause argued and submitted: 6/8/2022

Opinion filed: Judgment reversed: 8/29/2022

See the California Court of Appeal Opinion.

See the Petition for Review.

See the Oral Argument.

In the news:  S.C. Clarifies Procedure in Gauging If Speech Is Protected, Metropolitan News-Enterprise (Aug. 30, 2022).

See the California Supreme Court Opinion.  (Geiser v. Kuhns et al. (2022) 13 Cal.5th 1238.)

“The case before us features a sidewalk picket purporting to protest a real estate company’s business practices after the company evicted two long-term residents from their home. The Court of Appeal held the activity at issue to be beyond the scope of anti-SLAPP protection, concluding that the picket did not implicate a public issue and concerned only a private dispute between the company and the residents it had evicted. We granted review to clarify the proper application of [FilmOn.com Inc v. DoubleVerify Inc. (2019) 7 Cal.5th 133]’s two-part test. Applying both steps of the FilmOn analysis, we hold that the sidewalk protest constitutes protected activity within the meaning of section 425.16(e)(4). We remand for further proceedings consistent with this opinion.”

“In order to determine the scope of section 425.16(e)(4)’s protection [under FilmOn‘s two-part test], we first ‘ask what “public issue or [] issue of public interest”‘ is implicated by the challenged activity. (FilmOn, supra, 7 Cal.5th at p. 149.) Second, we look to the ‘functional relationship’ between the challenged activity and the ‘public conversation’ about that issue, and ask whether the activity ‘”contribute[s]”‘ to public discussion of the issue. (Id. at pp. 149–150.) We explained that it is FilmOn’s second step, not its first, that usually plays the more prominent role in screening anti-SLAPP motions because caselaw ‘demonstrate[s] that virtually always, defendants succeed in drawing a line — however tenuous — connecting their speech to an abstract issue of public interest.’ (Id. at p. 150.)”

“The Court of Appeal, applying FilmOn, emphasized that ‘[t]he only evidence of the specific content of the speeches during the demonstration at plaintiff’s residence was that the demonstrators demanded plaintiff personally come out of his home.’ We find unpersuasive this narrow parsing of the record because it ignores inferences that can reasonably be drawn from the events described in defendants’ declarations.”

“We now make explicit the standard that is implicit in the analysis above: FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute. Only when an expressive activity, viewed in context, cannot reasonably be understood as implicating a public issue does an anti-SLAPP motion fail at FilmOn’s first step.”

“‘Speech is often provocative and challenging.’ (Terminiello v. City of Chicago (1949) 337 U.S. 1, 4.) But our legal tradition recognizes the importance of speech and other expressive activity even when — perhaps especially when — it is uncomfortable or inconvenient. The Legislature enacted the anti-SLAPP statute to safeguard that tradition against those who would use the judicial process to chill speech they oppose. [¶] Here, the Court of Appeal erred in holding that the demonstration outside Geiser’s home did not constitute speech in connection with a public issue under the anti-SLAPP statute’s catchall provision. We reverse the judgment of the Court of Appeal and remand this matter to that court for further proceedings consistent with this opinion.”

Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger, Groban, Jenkins, and Guerrero concurred.