Filed 10/27/23 Nelson v. Wells CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHRIS NELSON,

Plaintiff and Appellant,

v.

NOEL WELLS,

Defendant and Respondent.

 B320223

 (Los Angeles County

 Super. Ct. No. 

 20STCV48299)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gregory Wilson Alarcon, Judge. Reversed.

Clark Hill, Bradford G. Hughes, Richard H. Nakamura, Jr. 

and Tiffany B. Hunter for Plaintiff and Appellant.

Liang Ly, Jason L. Liang and John K. Ly for Defendant and 

Respondent.

________________________________________
2

A record producer sued a singer/songwriter for defamation. 

The dispute arose when respondent Noel Wells sent an e-mail to

a music group about her experience while working on an album, 

two years earlier, with appellant Chris Nelson. Wells used the 

word “predatory” to describe Nelson’s conduct.

Wells moved to strike Nelson’s complaint as a Strategic 

Lawsuit Against Public Participation (SLAPP). The anti-SLAPP 

law allows courts to strike claims arising from a defendant’s First 

Amendment activity “in connection with a public issue” unless 

the court determines that there is a probability that the plaintiff 

will prevail on the claim. (Code Civ. Proc., § 425.16, subd. 

(b)(1).)1 The trial court granted Wells’s motion.

On de novo review, we conclude that Nelson’s lawsuit does 

not fall within the anti-SLAPP law. Wells’s private e-mail about 

Nelson is not “speech in connection with a public issue or an issue 

of public interest.” (§ 425.16, subd. (e)(4).) Nor is it “artistic

speech.” Because Wells did not establish a prima facie case, 

Nelson did not have to show a reasonable probability of

prevailing on the merits. We reverse.

FACTS AND PROCEDURAL HISTORY

Nelson’s Complaint

Nelson “is a well-established record producer, musician, 

and businessman.” He owns a Los Angeles recording studio

frequented by “well-known artists and musicians” who work with 

him or use his recording equipment. Nelson strives to promote 

diversity in music by working with “all musicians regardless of 

race, ethnicity, gender, or sexual orientation.”

1 Undesignated statutory references are to the Code of Civil 

Procedure.
3

In 2020, Wells contacted music manager Tom Wironen, 

with whom Nelson had a professional relationship. Wells said 

Nelson was “predatory” toward her and other young female 

musicians. Nelson alleges that this false statement about him

was “intended to interfere with and damage [his] business and 

working relationship with the music manager.”

Nelson’s complaint asserts causes of action for defamation; 

false light; intentional infliction of emotional distress; intentional 

and negligent interference with prospective economic relations; 

and seeks injunctive relief.

Wells’s Anti-SLAPP Motion

Wells moved to strike Nelson’s complaint as a SLAPP,

asserting that she was sued for exercising her right to free 

speech. Wells declared that she knew Nelson for seven years. In 

2018, he offered his studio to record her first album, free of

charge, and donated his services as producer; she only had to pay 

for a studio engineer. After they began, Nelson suggested 

recording more songs for a longer album on the same terms—free 

studio time and free producer services.

While Wells was recording, Nelson allowed other artists to 

interfere with her studio time. When she objected, he proposed 

changing their agreement, seeking 50 percent of the song-writing 

credit and 50 percent of the royalties. Wells was shocked. She 

felt Nelson’s request was “unusual and out of line with industry 

norms, but it was also predatory and designed to take advantage

of my naivete with the music industry.”

When Wells confronted Nelson, he claimed his proposal 

was within industry standards. Disbelieving, she stopped 

recording with him. He ceased communication and refused to 

return the songs she recorded in his studio, which delayed the 
4

release of her album. Nelson returned the recordings to Wells 

after she hired a lawyer. Wells was traumatized by her 

experience with Nelson.

Two years later, Wells saw an Instagram posting by one of 

her favorite bands, Big Thief, showing them in Nelson’s studio. 

Big Thief asked people to recommend places “to create in” near 

Los Angeles. Wells decided to “shar[e] my experience working 

with Plaintiff” in a private message she sent to Big Thief.

In an e-mail entitled, “Los Angeles recording space/Chris 

Nelson,” Wells wrote that she saw “a photograph of you recording 

in Chris Nelson’s space,” saying “I feel it’s important as a creative 

to let you know about that recording environment and what 

happened to me in case it informs your recording situation in the 

future.” Nelson “brought me into his orbit by claiming to let me 

use his space for free.” Later, “I began to realize that he was 

slowly changing the terms of our agreement which eventually 

ended with him trying to pull an incredibly predatory move on 

me. Once I realized he was making these moves in bad faith, I 

attempted to end working with him and he [with]held my music 

from me . . . while refusing to communicate at all.”

The e-mail continues, “I also witnessed incredibly 

predatory behavior from him toward young females including 

young female musicians, and I felt like because I had a slightly 

higher profile, he was using working with me to try and lure in 

other more naïve women into his orbit.” Noting Big Thief’s 

popularity, Wells opined that “promoting [Nelson] and his space 

may invite other younger women to work with [him] who may not 

have the same protections in place as you have.” She closed by 

expressing hope that “there are some good safe spaces for you to 

be able to use while you visit Los Angeles.”
5

Wells declared that she shared her experience to protect

Big Thief. An artist’s decision on who to work with and where to 

record has an “impact in the music world” and “on the quality of 

the music that is produced.” Wells believed that working with 

Nelson would affect Big Thief’s creative process.

Wells argued that her e-mail furthered “artistic speech” 

because it could affect a band’s decision who to hire to create 

music. It involved “an issue of public interest” because the 

subject was someone in the public eye or could affect large 

numbers of people; the activity occurred in the context of an 

ongoing controversy, dispute, or discussion; or it affected a 

community similar to that of a governmental entity.

Wells asserted that Nelson cannot prevail on the merits.

Her statements are not defamatory–they are personal opinions—

and are privileged; she did not portray Nelson in a false light; 

there was no outrageous and extreme conduct causing emotional 

distress; Wells did not intend to contact Wironen; and there is no 

proof she interfered with a business opportunity.

Nelson’s Opposition

Nelson did not submit a declaration in support of his 

opposition. He argued that Wells’s statements did not involve an 

issue of public interest. He is a private individual and the subject 

matter of her e-mail does not affect a broad segment of the 

population. In any event, Wells acted with actual malice, sending

her e-mail before Big Thief requested studio recommendations on 

Instagram. Wells’s statements were later posted on a site 

created by Nelson’s ex-girlfriends as part of “a vengeance plot to 

destroy [his] reputation.”

Nelson argued that he is likely to prevail on his claims. 

Wells’s statements are defamatory per se: They allege that he 
6

committed crimes and took advantage of female musicians or 

impugn his character by accusing him of unethical and predatory 

practices, without supporting evidence.

Wells’s Reply

Wells replied that she engaged in protected acts furthering 

artistic speech and concerning an ongoing, public discussion on 

social media about Nelson, a person in the public eye. His 

complaint alleges that he works with “numerous” artists, which 

could affect a substantial number of people.

Nelson did not show a probability of prevailing on his

claims. He did not address her claim of privilege. Nor did he 

show with admissible evidence that she acted with malice or that 

any artist or manager stopped working with him after Wells’s 

e-mail about her personal experience.

The Court’s Ruling

The court granted Wells’s motion to strike Nelson’s 

complaint. It deemed the incident “straightforward,” involving

Wells’s e-mail to a music group advising it not to use Nelson’s 

recording studio because he tried to change the terms of her 

agreement in a “predatory” manner. The court found that Wells’s 

e-mail did not involve an issue of public interest. Nelson is not in 

the public eye; the e-mail was not shown to affect a substantial 

number of people; and there was no “ongoing” public discussion.2 

Her private e-mail did not enter the public sphere. Despite 

finding no issue of public interest, the court found this is “artistic 

speech” that advances or assists in the creation of music.

2 The court noted that Wells sent her e-mail to Big Thief on 

July 16, 2020; the band posted its request for input on places to 

work the following day.
7

After finding a prima facie case to apply the anti-SLAPP 

law, the court found that Nelson did not show a probability of 

prevailing on the merits. He offered no declaration to establish 

the elements of his claims. He did not show he was defamed,

placed in a false light, or suffered severe or extreme emotional 

distress; he presented no evidence that the statements disrupted 

any economic relationship or caused him harm.

Motion For Reconsideration

Nelson sought reconsideration, citing a recent case 

involving commercial speech. He declared, “I never pulled a 

predatory move on defendant Wells,” who thanked him for his

work on her album. He offered 200 pages of new evidence, mostly

text messages from 2018. Wells objected that the evidence was 

untimely and irrelevant, and the commercial speech case is 

inapposite. The court “did not discern a material change in law 

requiring reconsideration” and denied the motion.

DISCUSSION

The anti-SLAPP law is construed broadly. (§ 425.16, subd. 

(a).) It is “a procedure for weeding out, at an early stage, 

meritless claims arising from protected activity” (Baral v. Schnitt 

(2016) 1 Cal.5th 376, 384) “when those claims risk chilling 

‘continued participation in matters of public significance.’ ” 

(Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 871.) 

An order granting an anti-SLAPP motion is appealable. (§ 

425.16, subd. (i).) Our review is de novo. (Geiser v. Kuhns (2022) 

13 Cal.5th 1238, 1250.)

A two-step analysis applies. First, the moving defendant 

must show that plaintiff’s claims arise from activity protected by 

section 425.16. If protected activity is involved, the second step 

shifts the burden to the plaintiff to show a probability of 
8

prevailing on the merits. (Baral v. Schnitt, supra, 1 Cal.5th at 

pp. 384–385, 396; Olson v. Doe (2022) 12 Cal.5th 669, 678–679.)

Wells’s E-mail Does Not Fall Within Section 425.16

We focus on “the defendant’s activity that gives rise to his 

or her asserted liability” (Navellier v. Sletten (2002) 29 Cal.4th 

82, 92) and “whether the cause of action is based on the 

defendant’s protected speech or petitioning activity.” (Id. at 

p. 89.) An act in furtherance of a person’s constitutional rights 

includes the exercise of the “right of free speech in connection 

with a public issue or an issue of public interest.” (§ 425.16, 

subd. (e)(4).)3 The parties and trial court applied the public 

issue/public interest provision here.

In applying this provision, “First, we ask what ‘public issue 

or . . . issue of public interest’ the speech in question implicates—

a question we answer by looking to the content of the speech. 

(§ 425.16, subd. (e)(4).) Second, we ask what functional 

relationship exists between the speech and the public 

conversation about some matter of public interest. It is at the

latter stage that context proves useful.” (FilmOn.com Inc. v. 

DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150 (FilmOn), italics 

added.) It “demands ‘some degree of closeness’ between the 

challenged statements and the asserted public interest.” (Id. at 

p. 150.)

3 A defendant “must demonstrate activity qualifying for 

protection” in one of the four categories listed in section 425.16, 

subdivision (e). (Wilson v. Cable News Network, Inc. (2019) 7 

Cal.5th 871, 887–888 (Wilson).) This subdivision also shields 

statements made in official proceedings or in public on matters of 

public interest. (§ 425.16, subd. (e)(1)–(3).)
9

A public issue may be involved if “the subject of the speech 

or activity ‘was a person or entity in the public eye’ or ‘could 

affect large numbers of people beyond the direct participants’ 

[citation] . . . and whether the activity ‘occur[red] in the context of 

an ongoing controversy, dispute or discussion’ [citation], or 

‘affect[ed] a community in a manner similar to that of a 

governmental entity’ [citation].” (FilmOn, supra, 7 Cal.5th at pp. 

145–146.)

Neither the complaint nor the evidence shows that Nelson 

is in the public eye. He alleges he “is a well-established record 

producer, musician, and businessman” whose studio is used by 

“well-known artists and musicians.” Though Nelson’s clientele 

may be in the public eye, Wells did not show that he sought or 

obtained public attention. No evidence suggests that Wells’s 

e-mail “ ‘could affect large numbers of people beyond the direct 

participants.’ ” (FilmOn, supra, 7 Cal.5th at p. 145.) Her e-mail 

was private, sent directly to Big Thief to disparage Nelson’s 

business practices.4

The complaint and evidence do not show that Wells’s e-mail

was part of “ ‘an ongoing controversy, dispute or discussion.’ ” 

(FilmOn, supra, 7 Cal.5th at pp. 145–146, italics added.) Wells 

declares that she responded to Big Thief’s post; however, her 

evidence belies the claim. Wells sent her e-mail on July 16, 2020; 

Big Thief posted its request for input on creative workplaces on 

4 Wells’s e-mail was addressed to “Big Thief” but Nelson’s 

pleading alleges that it was sent to “Tom Wironen.” The parties 

do not explain the relationship, if any, between Wironen and Big 

Thief. In any event, the e-mail was private, received by a music 

manager or a few band members. The recipient does not affect 

our analysis of the motion to strike.
10

July 17, a day later. Wells’s e-mail about Nelson and his studio 

was unsolicited, sent before Big Thief sought recommendations.

Her dispute with Nelson was not ongoing, having ended two 

years earlier.

Du Charme v. International Brotherhood of Electrical 

Workers (2003) 110 Cal.App.4th 107 (Du Charme) is instructive. 

After Du Charme was terminated as a union manager, the union 

posted on its Web site a defamatory statement saying he was 

removed “ ‘for financial mismanagement.’ ” (Id. at pp. 110, 113.) 

The trial court ruled that section 425.16 did not apply. The post

was not made in connection with an official proceeding nor was 

the issue one of public interest. (Id. at p. 112.)

The appellate court affirmed, finding that the union’s post 

about Du Charme did not concern an issue of public interest. It 

did not impact “ ‘a broad segment of society’ ” or affect a 

community “ ‘in a manner similar to that of a governmental 

entity.’ ” The court distinguished a case in which members of a 

homeowner association with over 3,000 residents questioned the 

performance and competence of their association’s general 

manager, part of an ongoing controversy aimed at changing the 

association’s governance. (Du Charme, supra, 110 Cal.App.4th at 

pp. 115–116, 118, describing Damon v. Ocean Hills Journalism 

Club (2000) 85 Cal.App.4th 468, 479–480.)

Du Charme states that use of a Web site “should not turn 

otherwise private information . . . into a matter of public 

interest.” Statements must concern “a topic, person or entity of 

widespread public interest.” (Du Charme, supra, 110 Cal.App.4th 

at p. 117.) The union’s posting “was presumably of interest to the 

membership . . . but unconnected to any discussion, debate or 

controversy” because Du Charme’s termination “was a fait 
11

accompli; its propriety was no longer at issue.” (Id. at p. 118.) 

“To grant protection to mere informational statements, in this 

context, would in no way further the statute’s purpose of 

encouraging participation in matters of public significance.” 

(Ibid.)

Wells’s feeling of betrayal—when Nelson no longer wanted 

to work for free—is not a public issue or matter of public interest. 

The parties’ 2018 business deal is not an ongoing controversy, 

dispute or discussion but a fait accompli occurring two years 

before the e-mail, which did not address a matter of widespread 

public significance. “[A]bsent unusual circumstances, a gardenvariety employment dispute concerning a nonpublic figure will 

implicate no public issue.” (Wilson, supra, 7 Cal.5th at p. 901.) 

Wells did not show that her e-mail “was made in connection with 

a public issue or an issue of public interest within the meaning of 

the anti-SLAPP statute.” (Du Charme, supra, 110 Cal.App.4th at 

p. 119.)

The trial court found, as we do, that Wells’s e-mail did not

involve a public issue or matter of public interest. However, the 

court mistakenly viewed artistic speech as an alternative to the 

element of “public interest.” This was legal error. Application of 

section 425.16, subdivision (e)(4) is expressly limited to issues of 

public interest. (Briggs v. Eden Council for Hope & Opportunity

(1999) 19 Cal.4th 1106, 1117.)

Wells relies on “artistic speech” cases involving “casting 

decisions” in an artistic endeavor. For example, a television 

station acted “ in furtherance of the right of free speech’ ” when

selecting news anchors, which is “essentially casting decisions 

regarding who was to report the news” (Hunter v. CBS 

Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1521), and news 
12

reporting “is a matter of public interest.” (Id. at p. 1527.) 

Likewise, “selection of a drummer is analogous to a ‘casting 

decision[]’ regarding who is to perform music during a concert or 

studio performance, and thus is ’an act in furtherance of the 

exercise of free speech,’ ” where the defendant’s concerts “were of 

interest to the public” to whom he “sold millions of records and 

had hundreds of thousands” of followers on social media. 

(Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1106, 1109; 

see also Tamkin v. CBS Broadcasting, Inc. (2011) 193 

Cal.App.4th 133, 144 [public interest in writing, casting, and 

airing a popular show].) In Wilson, supra, 7 Cal.5th at pages

897–898, CNN’s action in firing an employee for plagiarism was 

in furtherance of its speech rights because its broadcasts include 

“extensive ‘speech in connection with a public issue or an issue of 

public interest.’ ” Although “[c]reating a television show is an 

exercise of constitutionally protected expression” (Musero v. 

Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802, 816), the 

private misappropriation of script ideas did not contribute to a 

public conversation on a matter of public interest. (Id. at pp. 

821–822; see also Li v. Jenkins (2023) 95 Cal.App.5th 493, 501

[private decision to exclude plaintiff from compensation and 

credit for a popular television show did not contribute to any

public discussion of the show or its themes].)

Unlike the defendants in the cases cited above, Wells was 

not creating music with Nelson or Big Thief when she sent her 

disparaging e-mail. She was not taking constitutionally 

protected steps to advance her artistic endeavors, nor was she 

employed by Big Thief to help them create music. This is not 

akin to a casting decision by a person or entity who is creating 

and presenting shows to the public. Her unsolicited effort to 
13

weigh in on Big Thief’s future workplace is not itself creative or 

artistic speech. Her private message must meet the requirement 

that it involve a public issue or matter of public interest as stated 

in FilmOn, supra, 7 Cal.5th at page 149; however, the e-mail did 

not contribute to any public debate of widespread interest.

“FilmOn.com’s second inquiry requires us to determine 

whether a functional relationship exists between the speech in 

question and the public conversation about the issue of public 

interest. It is not sufficient that the speech merely ‘ “refer to a 

subject of widespread public interest; the statement must in some 

manner itself contribute to the public debate.” ’ (FilmOn.com,

supra, 7 Cal.5th at p. 150 [citation], italics added.) In conducting 

this inquiry, we ‘must consider the particular context of the 

speech, including the speaker’s identity; the “purpose” of the 

speech; the nature of the audience and the intended audience; 

and the “timing” and “location” of the communication.’ ” (Bishop 

v. The Bishop’s School (2022) 86 Cal.App.5th 893, 906; Geiser v. 

Kuhns, supra, 13 Cal.5th at pp. 1249–1250 [the defendant’s 

statement must contribute to public discussion about an issue of 

public interest].)

Wells’s e-mail about her recording agreement with Nelson 

and her feelings of personal betrayal are not “a subject of 

widespread public interest.” Nor did the e-mail contribute to any 

ongoing public debate about recording contracts in general or 

Nelson in particular. Its only purpose was to privately disparage 

Nelson to a few people about an old, unhappy business deal.

Nelson Need Not Show a Probability of Prevailing

We have concluded that Wells’s e-mail did not satisfy the 

criteria in section 425.16, subdivision (e)(4). It is unnecessary to 
14

determine the likelihood that Nelson would prevail on the merits. 

(Du Charme, supra, 110 Cal.App.4th at p. 119.)5

DISPOSITION

The order granting the special motion to strike is reversed. 

Appellant is awarded costs on appeal.

NOT TO BE PUBLISHED.

KWAN, J.*

We concur:

CHAVEZ, Acting P. J.

HOFFSTADT, J.

5 Though we need not address the merits in this pretrial 

anti-SLAPP motion, Wells may still challenge the substance of 

Nelson’s claims on demurrer or in a motion for summary 

judgment or summary adjudication.

* Judge of the Superior Court of Los Angeles County,

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.