On February 28, 2023, the California Fourth District Court of Appeal, Division One, issued an opinion in Billauer v. Escobar-Eck (D079835), affirming the trial court’s denial of an anti-SLAPP motion stemming from a public debate over a Church construction project.
The Appellant (Billauer) ran several social media sites as a “neighborhood activist.” The Respondent (Escobar-Eck) ran a land use and strategic planning firm in San Diego. The “All People’s Church” had hired Escobar-Eck’s company in 2019 to obtain City approval for a Church campus. During a Zoom presentation by Escobar-Eck to a Church planning group on November 11, 2020, Billauer, as a participant in the meeting sent a chat to Escobar-Eck stating: “I’m going to make sure you get sent back to where you came from.” Over the span of the next six months, from November 11, 2020 to April 8, 2021, Billauer continued the onslaught through a series of five posts on Instagram and Facebook, attacking Escobar-Eck. On December 10, 2020, Escobar-Eck fired back with a Twitter post to Billauer’s employer, Wells Fargo, labeling Billauer as a cyberbullying racist.
This social media campaign resulted in litigation on February 16, 2021, when Billauer sued Escobar-Eck for libel due to her tweet to Wells Fargo. Escobar-Eck filed a demurrer, a motion to strike, and a cross-complaint of her own for libel. Billauer answered and filed an anti-SLAPP motion to the cross-complaint.
The thrust of the opinion centered on the second-prong of the anti-SLAPP analysis – whether Escobar-Eck established a probability of prevailing on the merits. Billauer first argued that an absolute privilege applied to his posts under California Civil Code section 47(b) for “publications” in “judicial proceedings.” The Court rejected this argument because Billauer did not present any evidence that he made these posts in an effort to aide City officials in their preparation for any official public meeting.
Billauer also argued that his statements amounted to mere opinion, and not assertions of fact. The Court also rejected this argument, noting that Billauer’s posts painted Escobar-Eck as “an unscrupulous person who will lie, cheat and defame others to achieve her objectives.” The Court also noted these posts “appear to be claiming that Escobar-Eck is a corrupt person, and because she represents the Church in trying to get this project approved, that the project must be crooked as well.”
Billauer took issue with one post authored on a Facebook account, saying that he did not author that post. But, the Court rejected this argument, noting that an identical post appeared on an Instagram account, which Billauer did in fact control.
Finally, Billauer argued that Escobar-Eck had achieved “public figure” status, and as such, needed to present evidence of malice. The Court determined that significant evidence of malice existed, specifically due to the Zoom chat message that Billauer sent on November 11 – the message “reek[ed] of vengeance” – noted the Court.
This opinion seems to provide a clarification of existing law – that the absolute privilege under section 47(b) will only apply to social media posts if the proponent offers evidence of a design to aide officials in the deliberative process for future official government meetings.
This document is intended to provide you with information about trending law related developments and news. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.