This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A15
- 1091 Willie J. Bridgeforth, III, Appellant, Susan J. Swanson, Plaintiff,

vs. Smith Strum Investment Co. d/b/a Winnetka Village Apartments, Respondent.
Filed February 29 , 2016 Affirmed Reyes , Judge Hennepin County District Court File No. 27CV152724 Willie J. Bridgeforth, III, Crystal, Minnesota (pro se appellant) Jeffrey A. Magnus, Law Offices of Jeffrey A. Magnus, Bloomington, Minneso ta (for respondent) Considered and decided by Reyes , Presiding Judge; Peterson , Judge; and
Halbrooks , Judge

. U N P U B L I S H E D O P I N I O N REYES , Judge Appellant challenges the district court ’s grant of summary judgment dismissing appellant’s claims of defamation under Minnesota’s defamation law and th e anti

- SLAPP

statute. We affirm.2 FACTS Appellant Willie J. Bridgeforth , III lived in an apartment building owned by respondent Smith Strum Investment Co. d/ b/a Winnetka Village Apartments . O n or about October 2014 , respondent’s employees, the p roperty m anager , and a ssistant
p roperty m anager (property managers) , were contacted by a former tenant who claimed that appellant “committed an act of automobile vandalism ” due to his use of cocaine

. A few days later, the property managers were contacted by a then

- current tenant who expressed concerns about appellant . T hey met with the tenant regarding text messages that appellant allegedly sent to the tenant’s girlfriend about possession and use of cocaine, drug sales, and sex . Th e tenant also alleged that appel lant showed him a stack of $100 bills , imply ing that the money came from the sale of illegal drugs. Based on this information, a property manage r spoke with an officer from the Crystal Police Department re garding their concerns that appellant may be using , possessing, and selling illegal drugs within the apartment complex

. Consequently, the Crystal Police Department conducted a dog sniff, obtained a search warrant, and search ed appellant’s apartment. During the search, the officers obtained a white powdery substance that field

- tested positive for cocaine. Appellant was
arrested. It was later determined that the white powdery substance did not contain a controlled substance and the charges against app ellant were dismissed. Appellant filed a complaint alleging that respondent’s employees made false and defamatory statements regarding appellant to the Crystal Police. The p arties filed cross motions for summary judg ment. At the hearing, respondent subm itted affidavits from the officer and both3

property managers. The district court granted respo ndent’s motion and denied appellant’s motion

. This appeal follows. D E C I S I O N
I. Defamation and the qualified privilege
We construe appellant’s argumen t in his informal brief to be that the district court
erred in d enying his motion for summary judgment on his defamation claim. In addition, appellant argues that the district court erred by granting summary judgment in favor of respondent because respond ent made defamatory statements about appellant , and even if respondent is entitled to invoke the qualified privilege for making defamatory statements,
it abused that privilege by acting with actual malice to injur e appellant. We disagree.
“We review a district court’s grant [ or denial] of summary judgment de novo to determine whether any genuine issue of material fact exists and whether the district court erred in applying the law.” Minn. R. Civ. P. 56.03; Larson v. Nw. Mut. Life Ins. Co. , 855 N.W.2d 293, 299 (Minn. 2014). At the summary

- judgment stage, this court views the evidence in the light most favorable to the nonmoving party and resolves all doubts and
factual inferen ces against the moving party. Rochester City Lines, Co. v. City of
R ochester , 868 N.W.2d 655, 661 (Minn. 2015). “The district court’s function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist.” DLH, Inc. v. Russ , 566 N.W.2d 60, 70 (Minn. 1997). Under Minnesota law, a statement is actionable in defamation if it is false, is communicated to a third party, and tend s to harm the plaintiff’s reputation or to lower4

that person in the estimation of the community. Stuempges v. Parke, Davis & Co. , 297 N.W.2d 252, 255 (Minn. 1980). But a “person who makes a defamatory statement is not liable if a qualified privilege applies and the privilege is not abused.” Kuelbs v. Williams , 609 N.W.2d 10, 16 (Minn. App. 2000) , review denied (Minn. June 27, 2000 )

. The qualified privilege protects a defamatory statement when it is “made in good faith, on a proper occasion, from a proper motive, and based on reasonable or probable cause.” Id

. In other words, the qualified privilege applies if the statement is not ma de with malice.
Id

. It is appellant’s burden to prove that the qualified privilege “was abused because the statements were made with malice,” defined as “actual ill

- will or a design causelessly and wantonly to injure [appellant].” Id . Malice is not imp lied from the statement alone or
based on the fact that the statement was in fact false. Id . “Although malice is generally a question of fact, summary judgment is appropriate if the plaintiff fails to raise a genuine issue of material fact regarding mali ce.” Id

. Turning first to th e denial of appellant’s summary

- judgment motion, a ppellant
argues that the district court erred in determining that respondent was entitled to the qualified privilege. 1 Specifically , appellant argues that respondent abused th e privilege by making false statements to the police in bad faith and with actual malice. We are not persuaded.

1 The district court did not determine whether respondent defam ed appellant. Rather , the district court focused on whether the qualified privilege applied and whether the privilege was abused because the statements were made with malice.5

Appellant apparently asserts that respondent did not act in good faith by failing to verify and prov e the existence of the tenants or produce direct evidence of their complaints and that this amounted to abuse of the privilege. More specifically he asserts:

Who is and where is the former tenant that thought it was [appellant] that committed the act due to ‘coke’. . . . Where is the documentation of this meeting . . . to validate . . . that in fact the meeting did take place ? . . . Where are the copies of the alleged multiple text messages in order for the [district court] to view the context of the messages and determine for itself that they had indeed been sent by [appellant]? But mere assertions that respondent’s affidavits are unsupported are not sufficien t to defeat a summary

-

judgment motion. See Ill. Farmers Ins. Co. v. Marvin , 707 N.W.2d 747, 750 (Minn. App. 2006). Next we turn to appellant’s challenge to the district court granting respondent’s
summary - judgment motion. H e asserts that respondent’s statements were false and misleading because the evidence obtained did not lead to illegal drugs

. T herefore , appellant appears to argue , the basis of the statem ents , i.e. , the information provided by the property managers, must have been false. But just because drugs were not found does not support the proposition that the information provided was false

. See State v. Holiday , 749 N.W.2d 833, 840

- 843 (Minn. App. 2008) (holding that the informant’s tip regarding drug activity was sufficiently reliabl e despite an unsuccessful controlled

- drug buy)

. Furthermore, we review the available facts at the time of the search, not after the fact.
State v. Crook , 485 N.W.2d 726, 729 (Minn. App. 1992) , review denied ( Minn. Aug

. 4 , 1992 )

. Even viewing the evidenc e in the light most favorable to appellant, he has f ailed6

to show that an issue of material fact exists regarding lack of good faith and that the district court erred in granting respondent summary judgment

. Last, appellant argues that the district court erred by making credibility determinations. But, a careful review of the district court order does not support appellant’s argument that credibility determinations were made

. II. Minn esota anti
- SLAPP Stat utes, Mi nn. Stat. § § 554 .01
- .06 (2014) Appellant next argues that , because respondent’s statements made to the officer
were false and could not be substantiated , they did not meet the requirements of Minn.
Stat. § 554 .02 , .03

. Whether the anti

- SLAPP statut e applies is a legal question of statutory interpretation that we review de novo . Middle

- Snake

- Tamarac Rivers Watershed Dist. v. Stengrim , 784 N.W.2d 834, 840 (Minn. 2010). A strategic lawsuit against public participation, or SLAPP suit , is a lawsuit introduced either to prevent “ citizens from exercising their political rights or to punish them for having done so. ” Id . at 838 (quotation omitted) (interpreting the anti

- SLAPP statute). The anti

- SLAPP statute is intended to shield “ citizens and organiza tions from civil lawsuits for exercising their rights of public participation in government .” Id. at 839 (quotation omitted).

“ [T]he first step in evaluating an anti

- SLAPP motion is to determine whether the party seeking dismissal under the anti

- SLAPP st atutes has made a threshold showing that the underlying claim materially relates to an act of the moving party that involves public participa tion.” Leiendecker v. Asian Women United of Minn

. , 848 N.W.2d 224, 229 (Minn. 2014) ( quotation omitted ) , as modifi ed by 855 N.W.2d 233 (Minn. 2014).7

“[P] ublic participation,” is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.” Minn. Stat. § 554.01,
subd. 6. Appellant’s claim is based on res pondent’s “‘tip’ to the Crystal Police Department
that [ appellant ] was selling drugs

. . . . based on false , secondhand information.” 2 The
statements made to the officer were aimed at procur ing favorable government action , i.e., “prevent [ ing ] conduct by tenants deemed to be disorderly in violation of certain statutes or ordinances, which include the possession of controlled substances and possessi on or use of drug paraphernalia ” and was therefore an act involving public participation. Appella nt’s claim materially relate s to the statements made to the officer , so respondent
has made the required threshold showing. 3 Applying the statute to the facts in our case, the second step requires that we determine whether appellant :

has produced clear a nd convincing evidence that

. . . [respondent] is not entit led to immunity. Minn. Stat. § 554.02, subd. 2(3). [Appellant] . . . ca n so do by

2 Appellant further asserts that respondent “committed acts of actual malice from ill will and impro per motives

. . . . by filing an eviction action against [appellant]” and also committed retaliatory acts against appellant. But t hese incidents occurred after the alleged defamatory statements. And t he housing court issue is a separate matter and was no t before the district court. As such, it is also not before this court. 3 The Crystal City Code states, “It is the responsibility of the owner or licensee to prevent conduct by tenants or their guests on the licensed premises which is hereby deemed to be disorderly in violation of any of the following statutes or ordinances....(d) Section 930 of this code (drug abuse and control) or laws relating to the possession of controlled substances, unlawful sale or possession of small amounts of marijuana, and pos session or use of drug paraphernalia as defined in M.S. §§ 152.01 et seq. ” City of Crystal, Minn., City Code § 425.21, subd. 1 (d) (2012).8 establishing that

. . . [1] [respondent’s] conduct or speech was not aimed in whole or in part at procuring favora ble government action, [2] that the conduct or speech constituted a tort, or [3] that the conduct or speech violated a nother’s constitutional rights. Minn. Stat. § 554.03; s ee Leiendecker , 848 N.W.2d at 229. Appellant argues that his

“ fourth amendment constitutional right to be free from unreasonable government intrusion” was violated by the Crystal Police

. 4 (Emphasis added.) However, he makes no legal argument that respondent’s conduct or speech violated his constitutional right s
. Th erefore, his argument is misguided. In addition, appellant failed to raise his constitutional challenge before the district court. We do not consider issues not raised to
the district court. Thiele , 425 N.W.2d at 582 (Minn. 1988). Thus, appellant has w aived this argument. Even if we were to consider appellant’s arguments, we agree with the district court that appellant failed to establish that respondent’s report to police constituted a tort or violated appellant’s constitutional rights.
Affirmed.

4 Appellant makes additional arguments that the dog sniff, the search warrant itself, the execution of the search warrant, and anything recovered from the search were also illegal and ultimately attributable to respondent. These claims were also not raised at the district court and have been similarly waived. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). The record reflects that a ppellant has a separate lawsuit involving Crystal police

. We note that many of appellant’s argumen ts on this i ssue cite U .S. and federal case law heavily and not Minnesota case law.