BRIGGS v. EDEN COUNCIL FOR HOPE AND OPPORTUNITY (1997)

This appeal requires us once again to examine the scope of the anti-SLAPP statute (Code Civ. Proc., § 425.16) to decide whether the lawsuit qualifies as a SLAPP suit. ¹  We conclude that the underlying conduct of defendant was not a matter of public significance and the trial court erred in granting defendant's special motion to strike.

FACTS

Plaintiffs Dan and Judy Briggs are the owners of rental properties in Hayward and Castro Valley.   Defendant Eden Council for Hope and Opportunity (ECHO) is a non-profit organization, funded in part by grants from the County of Alameda and the City of Hayward.   ECHO provides counseling, mediation, and referral services related to landlord-tenant disputes.

Plaintiffs allege that ECHO engaged in a pattern of harassment by giving false information to plaintiffs' tenants and making defamatory statements about plaintiffs.   Specifically, plaintiffs have complained about the following incidents.

Assistance to Ford. In 1990 one of plaintiffs' tenants, Pamela Ford, who is African-American, complained to ECHO that she was receiving a less favorable electricity offset than another tenant who is white.   Although ECHO's investigation found no basis for the claim of racial discrimination, ECHO assisted Ford in filing a complaint with Department of Housing and Urban Development (HUD) and, later, a successful complaint in small claims court.

Noncompliance with Subpoenas.   In connection with their appeal in the Ford case, plaintiffs subpoenaed ECHO's files, but ECHO refused to comply without a court order.   In an unrelated civil action plaintiffs also sought ECHO's files and eventually obtained a court order compelling production of the documents and awarding plaintiffs sanctions.

HUD files.   During the HUD investigation in the Ford case, staff members of ECHO referred to plaintiff Dan Briggs as a “drunk,” a “jerk,” a “redneck,” and a “racist.”  (Plaintiffs learned of these statements after subpoenaing the HUD files in the unrelated civil suit.)

KKK comment.   In 1991, plaintiff Dan Briggs telephoned ECHO seeking the names and addresses of the ECHO board members so that he could complain to each of them about ECHO's failure to comply with the subpoena.   Briggs asked to speak to Caroline Peattie, the assistant executive director, and the receptionist gave Peattie a telephone message slip.   Peattie eventually returned the call, and during the telephone conversation, she noted “KKK” on the telephone message slip.  (Plaintiffs learned of the KKK comment after they obtained ECHO's files in response to the subpoena.)   The message slip was seen by other ECHO staff members.

ECHO Board Meetings.   The minutes of the ECHO board meetings (which also came to light when plaintiffs obtained ECHO's files) reveal that at one meeting a discussion was held on whether Briggs was mentally unbalanced.   The executive director's notes expressed the view that Briggs was on a “witchhunt.”   At another meeting, the executive director reported that Briggs had made racist comments to the City's staff while complaining about the City's funding of ECHO.

Advice to Bond. Another of plaintiffs' tenants, Diana Bond, punctured her refrigerator while trying to defrost it;  the refrigerator was repaired.   A year later, when the refrigerator malfunctioned and plaintiffs refused to repair or replace the refrigerator, Bond consulted ECHO. She eventually moved out and took the faulty refrigerator with her.   Plaintiffs then deducted the costs from her security deposit, but Bond successfully sued plaintiffs in small claims court.   Plaintiffs allege that ECHO gave Bond false and malicious advice.

Remarks to other tenants.   When plaintiffs' tenants, Kirk and Gay-Rita Poates, consulted ECHO, a staff member commented, “We know what kind of people you're dealing with.”   In another incident, ECHO became involved in a dispute between two roommates, also tenants of plaintiffs.   An ECHO staff member told one tenant “this [has] happened [before] with Dan and Judy.” The tenant understood the remark to be negative.

PROCEDURAL HISTORY

After plaintiffs filed their complaint against ECHO for defamation and infliction of emotional distress, ECHO filed a special motion to strike the complaint under the anti-SLAPP statute.   ECHO asserted that plaintiff's claims were based upon statements connected to issues pending before official proceedings of executive and judicial bodies.   Plaintiffs argued in opposition that the lawsuit did not qualify as a SLAPP suit as ECHO's activities did not involve issues of public significance.   The trial court granted the motion, dismissed the complaint, and awarded ECHO attorney fees and costs of $70,689.   Plaintiffs have filed two separate appeals, which we have consolidated.   In A072446, plaintiffs challenge the judgment of dismissal, reiterating that ECHO failed to meet its initial burden of establishing that the lawsuit arises from an act in furtherance of the right of free speech on a public issue.   In A074357, plaintiffs challenge the award of attorney fees.

DISCUSSION

The remedy authorized by the anti-SLAPP statute is a special motion to strike any cause of action which arises from an “act of [the defendant] 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 ․” (§ 425.16, subd. (b);  see generally Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446.)

 The special motion to strike a SLAPP suit is a drastic and extraordinary remedy.   It not only allows an early dismissal of the plaintiff's complaint;  it also authorizes an award of attorney fees to the prevailing defendant. (§ 425.16, subds.(b), (c).)   For the reasons explained below, we hold that the trial court erred in granting the special motion to strike.   Accordingly, we reverse the judgment of dismissal and the order awarding attorney fees and costs.

1. In connection with official proceeding

Subdivision (e) of section 425.16 defines an “act in furtherance of a person's right of petition or free speech ․ in connection with a public issue” to include “[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, or [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.”

In the present case, respondent ECHO contends that plaintiffs' lawsuit qualifies as a SLAPP suit because it is based upon petitioning activities which fall within phrases [1] and [2] of section 425.16, subdivision (e).²  ECHO asserts that statements made in assisting tenants Ford and Bond to complain to HUD and to file small claims court actions, including ECHO's efforts to resist plaintiffs' subpoenas, qualify as statements within an official proceeding under phrase [1]. Further, ECHO asserts that statements made in response to plaintiffs' efforts to challenge ECHO's public funding were connected to the issues under consideration by HUD or the courts and therefore fall within phrase [2].

On two previous occasions, this division has been called upon to examine the scope of the anti-SLAPP statute, and on both occasions we gave the statute a narrow interpretation.   First, in Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1120-1121, 1129, 55 Cal.Rptr.2d 909, we concluded that in light of the legislative history and the declared legislative purpose of the anti-SLAPP statute, the statute applies only to lawsuits which are based upon activities closely tied to the right to petition and the freedom of speech.³  We emphasized that the challenged petition or speech must have been “in connection with a public issue.”  (Zhao, supra, 48 Cal.App.4th at p. 1127, 55 Cal.Rptr.2d 909.)   Specifically, we held in Zhao that within phrase [2] of section 425.16, subdivision (e), the “issue under consideration or review by a legislative, executive, or judicial body” must be a public issue.  (48 Cal.App.4th at p. 1127, 55 Cal.Rptr.2d 909.)   More recently, in Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633, 1638-1639, 58 Cal.Rptr.2d 613, we followed the reasoning of Zhao to hold that within phrase [1] the statements made before an official proceeding must be on a public issue.   In sum, we have concluded that the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding.  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613;  Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127, 55 Cal.Rptr.2d 909.)

Recently, Division Four of this district has disagreed with our interpretation of the anti-SLAPP statute.  (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1045-1048, 61 Cal.Rptr.2d 58;  see also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650, 49 Cal.Rptr.2d 620.)   The Braun court reasoned that the Legislature equated a public issue with the authorized official proceeding to which it connects.   Hence, it is the setting itself-an official proceeding-that makes the issue a public issue:  “all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.”  (Braun, supra, at p. 1047, 61 Cal.Rptr.2d 58.)

 We cannot accept this construction of the anti-SLAPP statute.   Certainly not every issue before the courts and other official bodies is a public issue, and we find it doubtful that the Legislature thought otherwise.   (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613;  see Zhao v. Wong, supra, 48 Cal.App.4th at p. 1131, 55 Cal.Rptr.2d 909.)   Furthermore, such a broad reading of the anti-SLAPP statute would have legal consequences beyond the statute's declared purpose, as the anti-SLAPP statute would supplant the statutory privilege for statements made in official proceedings (Civ.Code, § 47, subd. (b)).  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613;  see Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1129-1130, 55 Cal.Rptr.2d 909.)   We remain committed to our earlier position that a lawsuit qualifies as a SLAPP suit only if it challenges a statement on a public issue made in an official proceeding or a statement made in connection with a public issue under review in an official proceeding.  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613;  Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127, 55 Cal.Rptr.2d 909.)

2. A public issue

In Zhao, we held that the allegedly slanderous press interview did not involve a public issue even though the interview pertained to a pending will contest:  “[T]he mere fact that a lawsuit was pending has no significance in determining the existence of a public issue․   The existence of a public issue depends rather on whether the statements possessed the sort of relevance to self-government that places them in a specially protected category of First Amendment values․”  (Zhao, supra, 48 Cal.App.4th at pp. 1131-1132, 55 Cal.Rptr.2d 909, citing Connick v. Myers (1983) 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708.) ⁴  Similarly, in Linsco, we held that the defendants' representation of investors in securities arbitration proceedings did not involve a public issue.  “Although arbitration proceedings may arguably involve an exercise of the right of petition, the mere fact that IAS's conduct occurs within and pertains to arbitration proceedings does not create a public issue.”  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613.)

 In the present case, too, we conclude that ECHO's activities did not take on public significance simply because they were directly or peripherally related to proceedings before a court or an administrative body.

To determine whether challenged speech or conduct was on a “public issue,” we have looked for guidance to decisions of the United States Supreme Court involving discipline of public employees for expression on matters of “public concern.”  (Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1121, 1132, 55 Cal.Rptr.2d 909.)   In Ericsson GE Mobile Communications, Inc. v.C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1602, 57 Cal.Rptr.2d 491, Division Three of this district took the same approach and construed those federal precedents as calling for an examination of “whether the speaker was advancing a purely private interest or speaking out as a concerned public citizen to inform the general public about possible wrongdoing.”

In Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613, we found that the defendant was advancing a purely private interest in representing individual investors in disputes between those investors and their stockbrokers.  “Such disputes over individual investment losses are matters of private, not public, concern.   Plaintiffs' lawsuits do not arise from statements ‘in connection with a public issue.’ ”   Likewise, the Ericsson court held that statements made by the defendant in the course of providing engineering services to the county were advancing the defendant's purely private interest in fulfilling its contractual obligations and were not for the purpose of speaking out on a public issue.  (49 Cal.App.4th at p. 1603, 57 Cal.Rptr.2d 491.)

 In the present case, even if we accept ECHO's assertion that its activities on behalf of the tenants involved the right to petition, we reject ECHO's contention that housing issues are inherently issues of public significance.   The housing issues advanced by ECHO here were matters of purely private concern.   Whether Ford was overcharged for electricity and whether Bond was entitled to a refund of her security deposit were not matters of political, social or other concern to the community;  they were issues of significance only to plaintiffs and the individual tenants.⁵

Nor is it enough that ECHO itself is publicly funded.   While the local governments have concluded that the tenant counseling services provided by ECHO are of overall benefit to the community, ECHO's statements under challenge here pertained to private landlord-tenant disputes;  they were not for the purpose of speaking out on a public question.⁶

3. Probability of prevailing on the merits

 Under the anti-SLAPP statute, the party bringing the motion to strike has the initial burden of making a prima facie showing that the lawsuit qualifies as a SLAPP suit, i.e., that it arises from an “act ․ in furtherance of [a person's] right of petition or free speech ․ in connection with a public issue.”  (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 820, 33 Cal.Rptr.2d 446;  accord, Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 742, 36 Cal.Rptr.2d 687.)   Once that initial burden is satisfied, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim. (§ 425.16, subd. (b);  Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880.)

In the proceedings below, ECHO devoted little of its arguments to the threshold question whether the lawsuit qualifies as a SLAPP suit.   Instead, ECHO primarily argued that plaintiffs could not prevail on the merits.   We express no opinion on that separate question, for we have concluded that ECHO failed to carry its initial burden of showing that plaintiffs' complaint comes within the scope of the anti-SLAPP statute.   If, as ECHO vigorously argued here, plaintiffs' lawsuit is entirely meritless, ECHO may attack it through the normal procedure of a motion for summary judgment.  (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1133, 55 Cal.Rptr.2d 909.)

The judgment of dismissal in A072446 and the order awarding attorney fees and costs in A074357 are reversed.   Costs on appeal are awarded to appellants.

I dissent from the majority's holding that a nonprofit, publicly funded fair housing counseling organization that assisted tenants in pursuing legal claims against their landlords was not acting in furtherance of the right of petition or free speech in connection with a public issue, and thus is not entitled to protection from the landlords' retaliatory lawsuit.   I believe the trial court was correct in striking the landlords' lawsuit as a SLAPP (strategic lawsuit against public participation) that was aimed at punishing the nonprofit organization for assisting tenants in understanding and defending their legal rights.  (Code Civ. Proc., § 425.16.)

The nonprofit organization, respondent Eden Council for Hope and Opportunity (ECHO), counsels tenants and landlords on fair and nondiscriminatory housing practices and is partially funded by the City of Hayward and the County of Alameda.   ECHO counseled several tenants of appellants Dan and Judy Briggs, and the present lawsuit arises from ECHO's statements and activities in counseling these tenants and assisting them in prosecuting claims against the Briggs, including a complaint for racial discrimination in housing.   The Briggs accuse ECHO of imparting “misinformation” about housing rights to the Briggs' tenants over the years and encouraging them to take legal action against the Briggs.   The Briggs have brought this action after failing in their efforts to constrain ECHO's counseling activities through complaints to ECHO's board of directors and the County of Alameda's supervisors.

Specifically, the Briggs complain that ECHO defamed them and inflicted emotional distress upon them by assisting a tenant with filing a discriminatory housing complaint with the federal Department of Housing and Urban Development (HUD);  assisting that same tenant in filing a complaint in small claims court alleging improper electricity charges on a single meter;  making unfavorable comments or innuendoes about Dan Briggs' racial attitudes during the HUD investigation and in consultation with other tenants;  resisting a subpoena for ECHO's records on tenants who pursued actions against the Briggs;  and advising a tenant in a dispute over a refrigerator repair and security deposit deduction.   The complaint is founded entirely upon ECHO's activities done “in the course of counseling tenants in landlord/tenant disputes,” as the Briggs concede.

I believe ECHO's tenant counseling activities are protected by the anti-SLAPP statute that permits a trial court to strike causes 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 or California Constitution in connection with a public issue․”  (Code Civ. Proc., § 425.16, subd. (b).)  Acts in furtherance of a person's rights of petition or free speech in connection with a public issue are statutorily defined to include:  (1) statements made before a legislative, executive, or judicial proceeding, or any other official proceeding, and (2) statements made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding.  (Code Civ. Proc., § 425.16, subd. (e).)  The Briggs' suit arises from ECHO's petitioning on behalf of tenants and ECHO's statements made in official proceedings or in connection with those proceedings challenging the Briggs' housing practices.

The majority recognizes that ECHO's activities on behalf of tenants involve the right to petition, but reject the contention that those petitioning activities were “in connection with a public issue.”   The majority maintains that ECHO's activities were of no public significance because their counseling related to specific disputes between the Briggs and their tenants that were “matters of purely private concern.”   I agree with the majority that a defendant qualifies for anti-SLAPP protection only if the challenged suit arose from the defendant's petitioning or speech “in connection with a public issue,” but disagree with the majority's conclusion that ECHO's counseling on housing rights was not “in connection with a public issue.”

The Public Issue Element.

The Legislature expressly declared that its intent in enacting the anti-SLAPP statute was “to encourage continued participation in matters of public significance” and thus granted a person protection from lawsuits arising from “any act of that person in furtherance of the person's right of petition or free speech ․ in connection with a public issue.”  (Code Civ. Proc., § 425.16, subds. (a), (b).)   If the statute said no more, there would be no question that a defendant lodging an anti-SLAPP motion must make a prima facie showing that plaintiff's suit arises from an act in furtherance of defendant's right of petition or free speech in connection with a public issue.   But the statute further provides that an “ ‘act in furtherance of a person's right of petition or free speech ․ in connection with a public issue’ ” includes “[1] any ․ statement ․ made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;  [2] any ․ statement ․ 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;  or [3] any ․ statement ․ made in a place open to the public or a public forum in connection with an issue of public interest.”  (Code Civ. Proc., § 425.16, subd. (e).)

The public issue, or public interest, element is expressly included in only the third definitional category of the anti-SLAPP statute, which has led some courts to conclude that the statute protects any statement made before or in connection with an official proceeding even if the statement does not concern a public issue.  (E.g., Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650, 49 Cal.Rptr.2d 620.)   We have rejected this interpretation of the anti-SLAPP statute as contrary to the express declaration of legislative intent and general statutory provision protecting a person's exercise of constitutional rights of petition and free speech in connection with a public issue.  (Code Civ. Proc., § 425.16, subds. (a), (b);  Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633, 1639, 58 Cal.Rptr.2d 613;  Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1127, 55 Cal.Rptr.2d 909.)   I agree with the majority that “the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding.  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639, 58 Cal.Rptr.2d 613;  Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127, 55 Cal.Rptr.2d 909.)”  (Maj. opn., ante, p. 437.)

The Meaning of “Public Issue.”

I depart from the majority's determination that ECHO's counseling activities were not in connection with a public issue.   The majority maintains that ECHO's activities were of no public significance because its counseling related to specific disputes between the Briggs and their tenants that were “matters of purely private concern.”   I believe the majority has focused its attention in the wrong place.   Particular disputes between landlords and tenants may be “matters of purely private concern” to those parties, but a community legal aid organization assisting tenants is not engaged in a purely private concern.

The distinction between public and private cannot be drawn with a bold unwavering line:  an issue's public or private nature will depend on the situation.   As an aid to determining whether a defendant's statement concerns a public issue within the meaning of the anti-SLAPP statute, we have found it appropriate to consult United States Supreme Court decisions construing the meaning of “public concern” and “public issue” in the area of law that has developed to protect public employees' free expression.  (Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1121, 1132, 55 Cal.Rptr.2d 909.)

In striking a balance between a public employer's interest in regulating the speech of its employees and an employee's right of free expression, the United States Supreme Court has held that a public employer cannot dismiss or discipline an employee for the employee's expression on matters of “public concern.”  (Connick v. Myers (1983) 461 U.S. 138, 142-146, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708.)   Speech on matters of public concern “ ‘is more than self-expression;  it is the essence of self-government’ ” and “speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,” ’ ” entitling it to special protection.  (Id. at p. 145, 103 S.Ct. at 1689.)   The basis for the rule protecting a public employee's expression on matters of public concern and the basis for the anti-SLAPP statute are alike-to foster citizen participation in “public affairs” and matters of “public significance.”  (Id. at pp. 144-145, 103 S.Ct. at 1688-1689;  Code Civ. Proc., § 425.16, subd. (a).)  In determining the contour of “public issue” under the anti-SLAPP statute, the meaning ascribed to “public concern” and “public issue” in Connick and its antecedents is helpful.  (Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1121, 1132, 55 Cal.Rptr.2d 909.)

Connick assisted our determination in Zhao that allegedly slanderous statements to a newspaper reporter were not on a public issue.   In Zhao, the defendant allegedly accused his brother's lover of murdering the brother and forging a will leaving the victim's estate to her.  (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1118, 55 Cal.Rptr.2d 909.)   Defendant denied making the accusation, but alternatively sought protection for the accusation under the anti-SLAPP statute as a statement made in connection with an issue under consideration by a judicial body-in this case, the issue of the will's validity that was contested by the decedent's father.  (Id. at pp. 1118, 1131, 1133, fn. 18, 55 Cal.Rptr.2d 909.)   We concluded that the accusation, while intriguing, did not concern a public issue and was therefore not protected by the anti-SLAPP statute.  (Id. at pp. 1131-1132, 55 Cal.Rptr.2d 909.)

Public significance did not attach to a private individual's testamentary bequest to another private individual.   The suggestion of foul play underlying the will contest did have public interest in the limited sense that it excited curiosity, but public titillation is not public interest within the meaning of the anti-SLAPP statute.  (See Zhao v. Wong, supra, 48 Cal.App.4th at p. 1132, 55 Cal.Rptr.2d 909.)   No public issue or public interest was connected with the alleged accusation of murder and will forgery because it had no “relevance to self-government”-that is, the statement said nothing about any matter of “political, social, or other concern to the community” upon which the community governs itself.  (Ibid.;  Connick v. Myers, supra, 461 U.S. at p. 146, 103 S.Ct. at 1689-1690.)   Contrary to a recent criticism of Zhao, our inquiry into the challenged statement's relevance to self-government did not erect a “lofty” hurdle to a defendant seeking the protection of the anti-SLAPP statute;  we simply sought a fair construction of the meaning of “public issue.”  (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1046-1047, 61 Cal.Rptr.2d 58;  Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1121, 1132, 55 Cal.Rptr.2d 909.)   In discerning the meaning of that concept, we also found that the challenged statement was not an attempt to influence official action, and thus could not be construed as a public issue on that basis.  (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1132, 55 Cal.Rptr.2d 909.)

I believe a fuller articulation of the meaning of “public issue” is necessary.   In determining whether a public employee's speech addresses a matter of public concern (and thus is protected from the employer's sanctions) the United States Supreme Court looks to “the content, form, and context of a given statement, as revealed by the whole record.”  (Connick v. Myers, supra, 461 U.S. at pp. 147-148, 103 S.Ct. at 1690.)   A similar approach should guide our determination of whether a defendant's challenged statement was in connection with a public issue within the meaning of the anti-SLAPP statute (and thus is protected from oppressive litigation).  (Ericsson GE Mobile Communications, Inc. v.C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1602, 57 Cal.Rptr.2d 491.)

An exhaustive list of factors for assessing whether a challenged statement's content, form, and context demonstrate its connection to a public issue is not possible, but we have already discerned some relevant factors.   A statement's content suggests that it concerns a public issue where the statement addresses a matter of “political, social, or other concern to the community” that affects the public good, or represents an attempt to influence official action.   (Connick v. Myers, supra, 461 U.S. at p. 146, 103 S.Ct. at 1689-1690;  Zhao v. Wong, supra, 48 Cal.App.4th at p. 1132, 55 Cal.Rptr.2d 909.)   Mismanagement of public funds is an example of a matter of concern to the community affecting the public good.  (Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at pp. 1040-1041, 61 Cal.Rptr.2d 58.) ¹  Another example of a matter of community concern is land development on an archeological site.  (Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 737, 741-742, 36 Cal.Rptr.2d 687.)

The form of a statement may strongly indicate its connection to a public issue, as with testimony before a government agency.   Of course, governmental activity is not essential to the creation of a public issue.  (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1121, 55 Cal.Rptr.2d 909;  Connick v. Myers, supra, 461 U.S. at p. 148, fn. 8, 103 S.Ct. at 1691, fn. 8.) “Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.   Examples are product liability suits, real estate or investment scams, etc.”  (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 650, 49 Cal.Rptr.2d 620.)

The statement's context is also relevant to assessing whether it is connected with a public issue.   A public issue is suggested where a speaker acts as a concerned citizen attempting to inform the general public about an issue of perceived public significance, and is less apparent where the speaker is advancing a purely private interest.  (Ericsson GE Mobile Communications, Inc. v.C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th at p. 1602, 57 Cal.Rptr.2d 491.)   In Ericsson, a consulting firm was hired by a county to evaluate competing proposals for a law enforcement public communications system and submitted a report criticizing the one communications company and delineating several technical issues that would have to be resolved were the county contract awarded to it.  (Id. at pp. 1594-1595, 57 Cal.Rptr.2d 491.)   The communications company and county were unable to resolve those issues and the contract was awarded to the company's competitor.  (Id. at pp. 1595-1596, 57 Cal.Rptr.2d 491.)   The company sued the consulting firm for intentional interference with economic advantage and the appellate court rejected the consulting firm's claim that the complaint should be stricken under the anti-SLAPP statute.  (Id. at p. 1596, 57 Cal.Rptr.2d 491.)   The court held that the consulting firm's report was not speech in connection with a public issue, noting that the firm was advancing its purely private interest in fulfilling its contractual obligations to the county.  (Id. at p. 1603, 57 Cal.Rptr.2d 491.)

While a speaker's motivation-whether for public enlightenment or private gain-is a relevant consideration, it is not the case that a speaker's self-interest disqualifies his or her statements from protection under the anti-SLAPP statute.   Persons exercising rights of petition or free speech are often motivated, at least in part, by self-interest.   A person's standing to bring a lawsuit depends on such self-interest, but the lawsuit may well protect the public good.   But conduct meant to advance purely private interests does suggest the absence of a public issue.

ECHO's Counseling Activities Were in Connection With a Public Issue.

I believe that ECHO's alleged defamatory statements and other conduct in counseling tenants occurred “in connection with a public issue.”  (Code Civ. Proc., § 425.16, subd. (b).)  Fair and nondiscriminatory housing practices are undeniably a matter of concern to the community that affects the public good, as demonstrated by pervasive and detailed legislative regulation of housing practices, including the practices challenged by the Briggs' tenants with ECHO's assistance.  (E.g., Gov.Code, § 12955 [prohibiting housing discrimination];  Civ.Code, § 1940.9 [establishing procedures for apportioning utility costs from single meter];  Civ.Code, § 1950.5 [regulating security deposits].)  I agree with the majority that housing issues are not “inherently” issues of public significance, but the issues do assume public significance where, as here, a nonprofit organization's community counseling on housing practices is attacked.   We must consider the situation as a whole, looking not just at the content of the challenged statements but also to the form and context of the statements.  (Ericsson GE Mobile Communications, Inc. v.C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th at p. 1602, 57 Cal.Rptr.2d 491.)

ECHO's speech includes statements made during a HUD investigation of racial discrimination and advice given to tenants seeking legal assistance.   All of the challenged speech and activities occurred “in the course of counseling tenants in landlord/tenant disputes,” as the Briggs concede.   ECHO's publicly supported mandate is to provide the very services that gave rise to this lawsuit.   In providing counseling on fair housing practices, ECHO “was acting as a concerned citizen attempting to inform the general public about an issue of public significance.”  (Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th at p. 1603, 57 Cal.Rptr.2d 491.)   ECHO was not advancing a “purely private interest” for its advantage.   (Ibid.)

I disagree with the majority's conclusion that ECHO's counseling activities were not connected with a public issue because the counseling “pertained to private landlord-tenant disputes.”  (Maj. opn., ante, p. 444.) The majority has focused on the nature of the underlying disputes and neglected the broader context.   An individual tenant's dispute with her landlords over a refrigerator repair is not a concern to the community affecting the public good, but a community legal aid organization's freedom to assist tenants in such disputes is a concern to the community affecting the public good.

This case is distinct from Linsco, relied upon by the majority, where we held that securities dealers' lawsuits seeking to enjoin the allegedly unauthorized practice of law by a private company representing complaining investors were not SLAPP suits.  (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at pp. 1635-1640, 58 Cal.Rptr.2d 613.)   The dealers' lawsuits challenged the company's legal capacity to represent investors-it did not challenge the company's statements or activities during its representation of investors.  (Id. at pp. 1636-1637, 1639, 58 Cal.Rptr.2d 613.)   The dealers' causes of action in Linsco arose not from the defendant company's statements made in official proceedings but from the company's appearance in the proceedings through unlicensed laypersons who purported to represent investors.   In Linsco, the defendant company was sued because of its allegedly illegal representation of individual investors, not because it made statements in official proceedings enforcing fair securities practices.

Here, ECHO is being sued because it assisted tenants in enforcing fair housing practices and made statements in connection with official enforcement proceedings.   The anti-SLAPP statute was designed to prevent exactly this type of lawsuit and the danger it presents that participation in matters of public significance will “be chilled through abuse of the judicial process.”  (Code Civ. Proc., § 425.16, subd. (a).)  I would affirm the judgment.

FOOTNOTES

1.   SLAPP is an acronym for Strategic Lawsuit Against Public Participation.  Section 425.16 of the Code of Civil Procedure, the anti-SLAPP statute, is designed to expose and dismiss at an early stage nonmeritorious actions which are filed “to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  (Code Civ. Proc., § 425.16, subd. (a).)  (All further section references are to the Code of Civil Procedure.)

2.   ECHO does not rely upon phrase [3], which is expressly limited to the use of a public forum in connection with an issue of public interest.

3.   Subdivision (a) of section 425.16 of the Code of Civil Procedure provides:  “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.   The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”

4.   Zhao's reference to Connick has been misconstrued as an assertion that “the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government.”  (Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at pp. 1046-1047, 61 Cal.Rptr.2d 58.)   In fact, we simply adopted Connick's philosophical observation that speech on public issues is the foundation of self-government;  we did not require the defendant to demonstrate that his allegedly slanderous remarks to a newspaper reporter pertained to self-government.  (Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1121-1122, 1132, 55 Cal.Rptr.2d 909.)   We did require the defendant to demonstrate that his challenged statements were on a public issue, and we found the demonstration inadequate.  (Id. at pp. 1132-1133, 55 Cal.Rptr.2d 909.)The Braun court also misunderstood Zhao to hold that the anti-SLAPP statute “does not protect free speech activities which are unrelated to petitioning efforts.”  (Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at p. 1046, 61 Cal.Rptr.2d 58.)   We imposed no such limitation on the protection afforded by the anti-SLAPP statute.

5.   We recognize that matters of public interest may include nongovernmental activities involving disputes between private persons and entities, “especially when a large, powerful organization may impact the lives of many individuals.   Examples are product liability suits, real estate or investment scams, etc.”  (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at pp. 650-651, 49 Cal.Rptr.2d 620 [in view of extent of church's membership and assets, together with media coverage, practices of Church of Scientology were matters of public interest];  accord, Zhao v. Wong, supra, 48 Cal.App.4th at p. 1121, 55 Cal.Rptr.2d 909.)   Here, however, the Briggses' conduct in renting out their residential properties cannot be said to have widespread impact or to “affect[ ] the common interest of a substantial part of the community.”  (Zhao, supra, at p. 1121, 55 Cal.Rptr.2d 909.)

6.   We cannot agree with the dissent's characterization of ECHO's assistance to tenants Ford and Bond as activities of “ ‘a concerned citizen attempting to inform the general public about an issue of public significance.’ ”  (Dis. opn., at p. 444.) The particular statements challenged in plaintiffs' lawsuit were neither addressed to the general public nor related to an issue of interest to anyone other than the participants in the private landlord-tenant dispute.

1.   Despite the Braun court's disagreement with Zhao, I believe our reasoning under Zhao would have reached the same conclusion and extended anti-SLAPP protection to accusations of mismanagement at a publicly funded medical institution.

DOSSEE, Associate Justice.

STEIN, J., concurs.