D'Arcy v. Schulte

Filed 4/24/20 D’Arcy v. Schulte CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
PATRICK D’ARCY et al.,
Plaintiffs and Respondents,
v.
BRETT SCHULTE,
Defendant and Appellant.
G057203
(Super. Ct. No. 30-2017-00916754)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, James Di
Cesare, Judge. Affirmed.
Law Office of Benjamin G. Ramm and Benjamin G. Ramm for Defendant
and Appellant.
Patrick J. D’Arcy, in pro. per., for Plaintiffs and Respondents.
* * *

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Attorney Patrick D’Arcy and his law practice (collectively D’Arcy) sued
Brett Schulte, among others, for allegedly defaming him in reviews on a web site called
Ripoff Report. Schulte moved to strike D’Arcy’s complaint under Code of Civil
Procedure section 425.161 (the anti-SLAPP statute). Schulte argued that the defamation
claim against him arose from acts in furtherance of free speech in connection with a
public issue, and D’Arcy would not be able to demonstrate he was likely to prevail on the
claim. Following briefing, the trial court denied the motion, finding it a “close call.”
Although Schulte had demonstrated the defamation claim arose from free speech in
connection with a public issue, D’Arcy had met his burden of minimal merit sufficiently
to permit his claim to proceed.
We find the trial court reached the right result. Because of the specific
nature of the allegedly defamatory statements, however, we do not agree with the trial
court that the public interest or issue requirement was satisfied. Accordingly, this matter
does not fall within the ambit of the anti-SLAPP statute. The trial court, therefore,
properly denied the motion, and we affirm its order.
I
FACTS
We limit our review of the facts to those directly involving Schulte,
omitting mention of other defendants wherever possible.
A. Background
BASTA is “a nonprofit law firm devoted exclusively to low-income
tenants” and represents them in unlawful detainer trials. BASTA generally demands jury
1 Subsequent statutory references are to the Code of Civil Procedure.

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trials in such cases. Suffice to say that among landlords trying to evict tenants, BASTA
is not a popular organization.
D’Arcy often represents landlords, and on his web site, he has frequently
written blog entries about BASTA, referring to them, among other things, as “the firm
that deadbeat tenants turn to.” (Capitalization and boldfacing omitted.) D’Arcy stated
BASTA is “feared by many landlord attorneys – and for good reason – they will stall you
to death with their litigation tactics, and force landlords to pay them off or else endure
huge legal fees to fight them. The legal work they produce is mostly crap, but they are
experts at finding small mistakes that can stop an eviction cold.” BASTA, D’Arcy stated,
gets “a slice of the action” whenever they recover money for their clients. There is much
more that D’Arcy has written about BASTA, but for the purpose of providing some
relevant background, it is fair to conclude that D’Arcy harbored a very poor opinion of
this law firm.
B. The Ripoff Report Post
In April 2016, a post was made on the web site Ripoff Report about
D’Arcy. Ripoff Report says it is “a worldwide consumer reporting Web site and
publication, by consumers, for consumers, to file and document complaints about
companies or individuals. While we encourage and even require authors to only file
truthful reports, Ripoff Report does not guarantee that all reports are authentic or
accurate. Be an educated consumer. Read what you can and make your decision based
upon an examination of all available information.”
The initial post about D’Arcy was made by an individual purportedly
named Zach Gellar, which stated D’Arcy was “incompetent” and had mishandled his
unlawful detainer case.
Schulte commented on the post about D’Arcy under the name “John.” The
post was as follows:

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“I have never been represented by Mr. D’Arcy, however I found his web
page when reasearching [sic] the excellent non-profit ‘BASTA’ that represented me in
my case . . . and won for what it’s worth. Mr. D’Arcy seems to really dislike BASTA
and rants about them on his . . . web page (in third person no less). Based on that, here’s
my oppinion [sic] on Attorney Patrick J. D’Arcy.
“His website is oc-attorney.com with the title ‘Patrick J. D’[A]rcy - A
Professional Law Corporation’ and states that his practice includes Real Estate Law,
Backruptcy [sic] Law, Criminal Defense Law, and Business Litigation. What that tells
me is this guy isn’t good enough at anything to specalize [sic], and that he’s so desperate
for work he’ll take anything he can get. If you’re good at something, you specalize [sic].
His obsession with BASTA is hard to understand . . . I asked about Patrick J. D’Arcy at
BASTA and they didn’t even remember him at first. He thinks he’s a big deal, no one
else seems to. Then they laughed. He’s sort of a joke there.
“If you wonder WHY Patrick J. D’Arcy is considered a joke at BASTA, I
encourage you to read his own website oc-attorney.com [sic] It reads more like the
ravings of a crazy person than an attorney. As I mentioned previusly [sic], he writes
about himself in third person, which is often a sign of mental illness, and brags that LA
Weekly wanted to interview him for their article about BASTA but he ‘refused’. Oh sure
Patrick D’Arcy, you turned down press . . . because you’re so modest? This guys [sic] is
desperate for attention. And not only that, his writting [sic] is pretty bad. But I guess
that’s what you’d expect from Cal State Northridge.
“As of this writting [sic] BASTA had over 48 positive Yelp reviews from
happy clients . . . and Patrick J. D’Arcy has zero. He’s disproportionately represented
here on RipOff Report though . . . [sic] Decide for yourself what that means.”
In April 2017, D’Arcy filed the instant lawsuit, and he amended his
complaint on July 26. D’Arcy claims in his brief that Schulte “was quickly connected to

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BASTA . . . [and] is a BASTA IT manager, and was even served the [complaint] at
BASTA’s office.”
Schulte was named in the complaint as “John D.” The first amended
complaint (the complaint) alleged Schulte’s statement on Ripoff Report was defamatory
on five grounds:
“a. In the title of the fake ‘review’ it states, ‘Incompetent Attorney.’
“b. The basis for ‘Incompetent Attorney’ is not supported by any facts, and
is therefore defamatory on its face. Mr. D’Arcy has defeated BASTA at bench trials, a
jury trial and even on appeal.
“c. The fake review falsely states that Mr. D’Arcy suffers from ‘mental
illness.’
“d. The fake review falsely impugns Mr. D’Arcy’s truthfulness about being
interviewed for the LA Weekly article regarding BASTA. In fact, Mr. D’Arcy requested
that the magazine NOT quote him, as confirmed by an email with Hillel Aron, the author
who published the article.
“e. The allegation that Mr. D’Arcy has ‘zero’ positive Yelp reviews as of
March 17, 2017 is false. Mr. D’Arcy had 5 star reviews on February 4, 2016 from
‘Manuel C.’ (on an eviction case) and on June 10, 2016 from ‘Fred J.’ (an eviction).”
(Record references omitted.)
We limit our evaluation of the alleged defamatory statements to the
statements pleaded in the complaint set forth above. “In defamation cases California
follows a . . . pleading rule[] under which ‘the words constituting an alleged libel must be
specifically identified, if not pleaded verbatim, in the complaint.’” (Glassdoor, Inc. v.
Superior Court (2017) 9 Cal.App.5th 623, 635.)
After much wrangling over discovery, Schulte filed the instant anti-SLAPP
action. After a number of delays and continuances, the motion was heard in December
2018, and denied by the trial court. Schulte now appeals.

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II
DISCUSSION
A. D’Arcy’s Request for Judicial Notice
D’Arcy requests we take judicial notice of a number of documents in two
categories. The first is one of the California State Bar’s Rules of Professional Conduct.
The second category consists of 13 exhibits which, as D’Arcy describes them, “were not
before the trial court and not yet a part of the record.” (Capitalization and boldfacing
omitted.)
“Matter[s] to be judicially noticed must be relevant to a material issue.”
(People ex rel. v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Because all of
the documents are only relevant to the second prong of the anti-SLAPP analysis, which
we do not reach here, they are not relevant.2 Accordingly, the request is denied.
B. The Anti-SLAPP Statutory Framework
The anti-SLAPP statute states: “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or free speech
under the United States Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) The purpose of the anti-SLAPP statute is to dismiss
meritless lawsuits designed to chill the defendant’s free speech rights at the earliest stage
of the case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2,
disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002)
2 We would not take judicial notice of the documents offered for the first time on appeal,
as nothing here qualifies as the unusual circumstances under which that would be
appropriate. (See Haworth v. Superior Court (2010) 50 Cal.4th 372, 396-397; Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

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29 Cal.4th 53, 67-68, fn. 5.)
An “‘act in furtherance of a person’s right of petition or free speech under
the United States or California Constitution in connection with a public issue’ includes:
(1) any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2) any written or
oral statement or writing made in connection with an issue under consideration or review
by a legislative, executive, or judicial body, or any other official proceeding authorized
by law, (3) any written or oral statement or writing made in a place open to the public or
a public forum in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).)
To determine whether an anti-SLAPP motion should be granted or denied,
the trial court engages in a two-step process. “‘First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one arising
from protected activity. The moving defendant’s burden is to demonstrate that the act or
acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right
of petition or free speech under the United States or California Constitution in connection
with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).)’” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
If that threshold is met, courts then look to the second step, determining
whether the plaintiff has demonstrated a probability of prevailing on the merits. To do
so, the plaintiff must state and substantiate a legally sufficient claim (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123), thereby
demonstrating the case has at least “‘“minimal merit.”’” (Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1105.)
On appeal, “[w]e review an order granting an anti-SLAPP motion de novo,

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applying the same two-step procedure as the trial court.” (Cole v. Patricia A. Meyer &
Associates, APC, supra, 206 Cal.App.4th at p. 1105.) In conducting our review, “[w]e
consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3.)
C. Protected Activity
We must first decide whether the challenged claims arise from acts in
furtherance of Schulte’s right of free speech or right of petition under one of the
categories set forth in section 425.16, subdivision (e). In doing so, “[w]e examine the
principal thrust or gravamen of a plaintiff’s cause of action to determine whether the
anti-SLAPP statute applies . . . .” (Ramona Unified School Dist. v. Tsiknas (2005) 135
Cal.App.4th 510, 519-520.)
As a defamation case, there is no doubt that Schulte’s right of free speech is
implicated. But because that speech was not before an official body, the anti-SLAPP
statute only comes into play if the speech was “‘in connection with a public issue’” or “an
issue of public interest.” (§ 425.16, subds. (e)(3), (4).)
D. Public Issue or Issue of Public Interest
As noted above, section 425.16, subdivision (e)(3), states “any written or
oral statement or writing made in a place open to the public or a public forum in
connection with an issue of public interest” is within the scope of the anti-SLAPP statute.
The same is true of subdivision (e)(4), which states that the following is within the ambit
of the anti-SLAPP statute: “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection with
a public issue or an issue of public interest.” Either provision may be relevant here; it
does not really matter. What matters is whether Schulte’s review on Ripoff Report, and

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the allegedly defamatory statements it includes, fulfills the public issue or interest
requirement.
One case provides the following definition of public issue or interest:
“(1) The subject of the statement or activity precipitating the claim was a person or entity
in the public eye. [Citations.] [¶] (2) The statement or activity precipitating the claim
involved conduct that could affect large numbers of people beyond the direct participants.
[Citations.] [Or] [¶] (3) The statement or activity precipitating the claim involved a
topic of widespread public interest.” (Commonwealth Energy Corp. v. Investor Data
Exchange, Inc. (2003) 110 Cal.App.4th 26, 33 (Commonwealth Energy).) In that case,
the court found an offer of investment services to a small group of investors in a
competing firm did not constitute a matter of public interest. (Id. at p. 34.)
Another case set forth that “‘public interest’ does not equate with mere
curiosity. [Citations.] Second, a matter of public interest should be something of
concern to a substantial number of people. [Citation.] Thus, a matter of concern to the
speaker and a relatively small, specific audience is not a matter of public interest.
[Citations.] Third, there should be some degree of closeness between the challenged
statements and the asserted public interest [citation]; the assertion of a broad and
amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s
conduct should be the public interest rather than a mere effort ‘to gather ammunition for
another round of [private] controversy . . . .’” (Weinberg v. Feisel (2003) 110
Cal.App.4th 1122, 1132-1133 (Weinberg).)
Further, in the context of the anti-SLAPP statute, “public issue” and “public
interest” refer to issues of “public concern.” (Rivero v. American Federation of State,
County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 929.)
The trial court found the public issue or interest requirement was satisfied
because Schulte’s “post herein touches upon matters of public concern and likely
interests a significant number of people. After all, both plaintiff and BA[S]TA are

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regular players in the landlord-tenant litigation world.” The court analogized to two
cases involving homeowner’s associations which concluded issues concerning
architectural guidelines and management were of sufficient public interest to satisfy the
requirement. But as one of those cases stated, “public interest” generally applies only to
private conduct if that conduct “impacts a broad segment of society and/or that affects a
community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468, 479.) The other case the trial court cited,
Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468, quoted the
same language.
We do not dispute that the actions of homeowners associations can impact
their communities similar to the manner in which a government entity might. But a
homeowners association as a party to the dispute is distinguishable from the instant case.
BASTA is a law firm that represents poor clients. D’Arcy is a lawyer who strongly
dislikes and litigates against BASTA. Neither has a government’s power or an effect on
society similar to a government entity.
Schulte argues that the Ripoff Report comment was made in connection
with an issue of public interest – the use of juries to resolve unlawful detainer actions.
“This topic has been the subject of bills introduced in the California Assembly . . . ,
discussions by industry lobbies . . . , and reporting in the media . . . D’Arcy joined this
debate both by commenting extensively on the organization that is most closely
associated with this issue” – presumably BASTA.
While this might be true under other circumstances, the topic of the lawsuit
is not political comments relating to the use of juries in unlawful detainer actions. The
alleged libelous statements here all concern D’Arcy personally – his alleged competence,
whether he displays characteristics of someone who is mentally ill, whether or not he was
interviewed for a magazine article, and whether he has any positive Yelp reviews. These
are not issues of interest to anyone but D’Arcy and his clients and potential clients (if we

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assume the last two are of interest to anyone besides D’Arcy at all). Thus, the alleged
defamatory statements are not those which “could affect large numbers of people beyond
the direct participants” (Commonwealth Energy, supra, 110 Cal.App.4th at p. 33) or “a
substantial number of people” (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133).
The topics directly addressed in the defamation claim are also not of
“widespread public interest” (Commonwealth Energy, supra, 110 Cal.App.4th at p. 33);
rather, they are “matter[s] of concern to the speaker and a relatively small, specific
audience” (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133). Moreover, there is not
a “degree of closeness between the challenged statements and the asserted public interest
[citation]; the assertion of a broad and amorphous public interest is not sufficient.”
(Ibid.) The challenged statements are specifically about D’Arcy and his competency,
mental state, and honesty.
In Consumer Justice Center v. Trimedica International, Inc. (2003) 107
Cal.App.4th 595, we rejected the defendant’s contention that a broad, nonspecific interest
in the general subject of the litigation was sufficient to satisfy the public interest
requirement. “Trimedica argues that ‘herbal dietary supplements and other forms of
complementary medicine are the subject of public interest.’ As support, Trimedica cites
regulations of herbal supplements by the Federal Trade Commission and the Food and
Drug Administration pursuant to acts of Congress. Yet Trimedica’s speech is not about
herbal supplements in general. It is commercial speech about the specific properties and
efficacy of a particular product . . . . If we were to accept Trimedica’s argument that we
should examine the nature of the speech in terms of generalities instead of specifics, then
nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute.”
(Id. at p. 601.)
This is an even weaker case because of the extremely tenuous connection
between the alleged defamatory statements and any subject that might be a public issue or
of public interest. Any public interest would be on the general topic of low-income

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tenants and how their eviction cases are processed by the legal system, including the use
of jury trials. The allegedly defamatory statements do not even touch this topic.
Schulte’s motives for making the statements are simply irrelevant. What matters is their
content, and the content entirely relates to D’Arcy and his personal characteristics.
Schulte simply cannot abstract the topic until it becomes general enough to fit the public
interest requirement. (Consumer Justice Center v. Trimedica International, Inc., supra,
107 Cal.App.4th at p. 601.)
Accordingly, we conclude the complaint does not satisfy the “arising from”
prong of the anti-SLAPP analysis.
E. Minimal Merit
Because we conclude that the first prong of the anti-SLAPP analysis was
not met, we need not consider whether D’Arcy’s defamation claim had minimal merit.
F. D’Arcy’s Request to Reverse a Trial Court Finding
In his respondent’s brief, D’Arcy requests we “affirm the trial court’s
ruling, except where D’Arcy was determined to be a limited public person . . . , and as to
that ruling, to hold that D’Arcy is a private individual.”
We decline. First, D’Arcy failed to cross-appeal, and we do not grant
affirmative relief based on a request in a respondent’s brief. Second, we have no
jurisdiction to do so in any event. The expedited, interlocutory appeals in anti-SLAPP
motions permit this court to review a trial court’s decision to grant or deny an anti-
SLAPP motion (§ 425.16, subd. (i)), not to decide collateral matters unnecessary to our
review of the motion. Accordingly, D’Arcy’s request is improper.

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III
DISPOSITION
The court’s order is affirmed. D’Arcy is entitled to his costs on appeal.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.

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