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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHRIS NELSON,

Plaintiff and Appellant,

v.

N OEL 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 defam ation

. The dispute arose when r espondent Noel Wells sent an e

- mail to

a music group about her experience while work ing 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 complain t as a Strategic Lawsuit Against Public Participation (SLAPP). The anti

- SLAPP
law allow s courts to strike c laims arising from a defendant’s First
Amendment acti vity “in connection with a public issue ” unless
the court determines that the re is a probability that the plaintiff
will p revail on the claim

. (Code Civ. Proc., § 425.16, subd. (b)(1).) 1 The trial court granted Wells’s motion. On de novo review, we conc lude that Nelson ’s lawsuit doe s 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 i s it “artistic speech .” Because Wells did not establish a prima facie case,
Nelson did not have to show a reasonable probability of prevail ing 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, ethnic ity, gender, or sexual orientation.”

1 Un designat ed 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 inter fere 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 prospec tive economic relations; and seeks injunctive relief.

Wells’s Anti

- SLAPP Motion Wells moved to strike Nelson’s complaint as a SLAPP

, assert ing that she was sued for exercising her right to free speech

. Wells declared that she kn e w Nelson for seven years. In 2018, he offered h is studio to record her first album, free of charge, and donate d his services as producer ; s he only had to pay for a studio engineer. After they began, Nelson suggested
record ing more songs for a longer album on the same terms

— free

s tudio time and free producer services. While Wells was recording, Nelson allowed other artists to
interfere with her studio time. When s he objecte d, h e proposed chang ing their agreement , seeking 50 percent of the song

- writing credit and 50 percent of the royalties. Wells was shock ed. 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. D isbeliev ing, she stopped recording with him. He ceased communication and refused to return the songs she recorded in his studio , which delayed the4

release of her album

. Nelson return ed the recordings to Wells
after s he 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

, show ing the m in Nelson’s studio. Big Thief asked people to recomme nd 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 wro te 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 i nforms 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 p ull 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 inc redibly 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 hop e that “there are some good safe spaces for you to
b e able to use while you visit Los Angeles.”5 Wells declare d that she shared her experience to protect Big Thief

. An artist’s decision on who to work with and where to
record has a n “impact in the music world” and “on the quality of the music that is produc ed.” Wells believed that working with Nelson would affect Big Thief’s creative process.
Wells argued that her e

- mail further ed “artistic speech”
because it could affect a band’s decision who to hire to create
music. It involv ed “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, disp ute, or discussion; or it affected a community similar to that of a governmental entity. Wells asserted that Nelson cannot prevail on the merits

. H er statements are not defamatory

– they are personal opinions

— and are privilege d ; she did not portray Nelson i n 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 s upport 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. I n any event , Wells acted with ac tual 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 [hi s ] reputation.” Nelson argued that he is likely to prevail on his claims. Wells’s statements are defamatory per se: They allege that he6

committed crimes and took advantage of female musicians or impugn his character by accusing him o f unethical and predatory practices, without supporting evidence. Wells’s Reply Wells replied that she engaged in protected acts furthering artistic speech and concern ing an ongoing, public discussion on social media about Nelson, a person in the public eye. Hi s 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 w as 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 , t he 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 t o 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. H e declar ed

, “ I never pulled a predatory move on defendant Wells

, ” who thanked him for h is
work on her album. He offer ed 200 pages of new evidence, most ly 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 r eview is de novo. ( Geiser v. Kuhns (2022) 13 Cal.5th 1238, 125 0 .)
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, t he second step shifts the burden to the plaintiff to show a probability of8

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

p p

. 384

– 385
, 396 ; Olson v. Doe (20 22 ) 12 Cal. 5 th 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 a pplied 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 que stion 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 th e 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 t he 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 p p

. 145

– 146 .)
Neither the complaint nor the evidence show s 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.” T hough Nelson’s clientele may be in the public eye, Wells did no t show that he sought or obtained public attention. N o 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. ) H e r e

- mail was private, sent directly to Big Th ief to disparage Nelson’s business practices. 4
T he 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 p p . 145

– 146, italics added

. ) Wells
declares that she respond ed to Big Thief ’s post ; however, her
evidence belies th e claim. Wells s ent her e

- mail on July 16, 2020; Big Thief posted its request for input on creative work places 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

man ager 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

w as unsol icited, sent before Big Thief s ought recommendations. Her dispute with Nelson was not ongoing, having end ed 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 W eb site a defamatory statement saying he was
removed “ ‘ for financial mismanagement. ’ ” ( Id. at pp. 110, 113.)
The trial court rule d th at section 425.16 did not apply

. T he post

was not ma de in connection with a n 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

. I t 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 resident s questioned the performance and competence of the ir association’s general

manager , part of a n ongoing cont roversy aimed at chan ging the
association’s governance

. ( Du Charme, supra, 110 Cal.App.4th at

p p . 115

– 116 , 118
, describ ing Damon v. Ocean Hills Journalism
Club (2000) 85 Cal.App.4th 468 , 479

– 480 .)
Du Charme states that use of a W eb site “should not turn otherwise private information .

. . into a matter of public
interest.” S tatements must concern “a topic, person or entity of widespread public interest.” ( Du Charme

, supra, 110 Cal.App.4th at p. 11 7.) 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 fait11

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 garden

variety 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 pu blic 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. Howe ver, t he court mistakenly viewed artistic speech as an alternative to the
element of “public interest

. ” This was legal error. Application of

s ection 425.16, s ubdivision (e)(4) is expressly limited to issues of public interest. ( Briggs v. Eden Council fo r Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.)
Wells relies on “ artistic speech” cases involv ing “casting
decisions” in an artistic endeavor. For example, a television
station acted “ in further ance 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 news12

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 t o 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 ;

s ee also Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 14 4 [ public interest in writing, casting

, and airing a popular show ].) In Wilson, supra, 7 Cal.5th at p ages 897

– 8 9 8
, 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 defendant s 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 endeavor s , nor was she employed by Big Thief to help them c reate 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 to13

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 p age 14 9 ; however, the e

- mail did
not contribute to a ny public d ebate 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 speec h 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, 90 6 ; 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 ag reement with Nelson and her feelings of personal betrayal a re 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 to14

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.