Filed 12/28/21 Taylor v. David CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ELIZABETH TAYLOR,

Plaintiff and Respondent,

v.

ALKIVIADES DAVID et al.,

Defendants and Appellants.

 B307954

 (Los Angeles County

 Super. Ct. No.BC649025)

APPEAL from an order of the Superior Court of Los Angeles County, 

Rafael A. Ongkeko, Judge. Affirmed.

Cole & Loeterman, Dana M. Cole for Defendants and Appellants.

The Bloom Firm, Lisa Bloom, Alan Goldstein and Arick Fudali for 

Plaintiff and Respondent.
2

Appellants Hologram USA and Alkiviades David appeal from the order 

denying their anti-SLAPP motion to strike the allegations of the 

supplemental complaint filed by plaintiff Elizabeth Taylor in her action for, 

among others, intentional infliction of emotional distress and retaliatory 

conduct under the Fair Employment and Housing Act. We affirm the order 

because: (1) appellants have waived most of their appellate contentions both 

below and on appeal; and (2) as to the rest, the trial court correctly found that 

the misconduct alleged was either not protected activity under the antiSLAPP law or that Taylor had shown a probability of prevailing on the 

merits.

THE ANTI-SLAPP STATUTE

The anti-SLAPP statute “is intended to resolve quickly and relatively 

inexpensively meritless lawsuits that threaten free speech on matters of 

public interest.” (Newport Harbor Ventures, LLC v. Morris Cerullo World 

Evangelism (2018) 4 Cal.5th 637, 639.) Code of Civil Procedure section 

425.16, subdivision (b)(1),1 states, “A cause 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 Constitution or the California 

Constitution in connection with a public issue shall be subject to a special 

motion to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will prevail on the 

claim..

Subdivision (e) of section 425.16 describes four categories of acts “in 

furtherance of a person’s right of petition or free speech”: “(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, (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, or (4) any other conduct in furtherance of the 

1 Hereafter “section 425.16.”
3

exercise of the constitutional right of petition or the constitutional right of 

free speech in connection with a public issue or an issue of public interest.” (§ 

425.16, subd. (e).)

“Anti-SLAPP motions are evaluated through a two-step process. 

Initially, the moving defendant bears the burden of establishing that the 

challenged allegations or claims ‘aris[e] from’ protected activity in which the 

defendant has engaged.” (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the defendant carries its 

burden, the plaintiff must then demonstrate its claims have at least ‘minimal 

merit.’” (Ibid.)

The second step is akin to a summary judgment motion where the court 

does not weigh evidence or resolve conflicting factual claims. The court’s

inquiry is limited to whether the plaintiff has stated a legally sufficient claim 

and made a prima facie factual showing sufficient to sustain a favorable 

judgment. It accepts the plaintiff’s evidence as true, and evaluates the 

defendant’s showing only to determine if it defeats the plaintiff’s claim as a 

matter of law. Claims with the requisite minimal merit may proceed. (Baral 

v. Schnitt (2016) 1 Cal.5th 376, 384-385 (Baral).)

FACTS AND PROCEDURAL HISTORY2

1. The Supplemental Complaint

Elizabeth Taylor sued Alkiviades David, Hologram USA, and others in 

2017, alleging that David subjected her to sexual battery, intentional 

infliction of emotional distress, and wrongful termination and retaliatory 

conduct in violation of the Fair Employment and Housing Act (Gov. Code,

§ 12900, et seq. (FEHA).)3 A jury trial ended in a mistrial in 2019. Soon 

after, Taylor filed a supplemental complaint geared toward her causes of 

action for intentional infliction of emotional distress and FEHA retaliation.

2 The record on appeal does not include the original complaint or any 

other matters related to the first trial. As a result, our statement of facts is 

derived from the trial court’s register of actions, as well as from the parties’ 

complementary descriptions of what transpired below.

3 Taylor also sued additional defendants, but they were dismissed from 

the action on other grounds and are not parties to this appeal. 
4

Taylor’s supplemental complaint alleged that David “persisted in [his] 

retaliatory and abusive conduct” toward Taylor “even after [she] filed her 

original complaint in this action on February 2, 2017.” Taylor alleged that 

“Mr. David’s sadistic and retaliatory attacks against Ms. Taylor took the form 

of physical threats, online cyberbullying, profane outbursts and meritless 

cross-claims.” She alleged that David engaged in the following actions:

ShockYa article: Taylor alleged that on September 19, 2017, after the 

court had stricken David’s cross-complaint for extortion, David posted an 

article on his website, ShockYa.com, titled, “Extortion Ring Foiled by 

Hologram media mogul Alki David.” The article stated that Taylor was 

“known for having attempted to extort money from her previous employer[.]”

Taylor alleged that this statement “was false and designed to frighten and 

intimidate Ms. Taylor into dropping her claims.” 

Deposition statements: Taylor alleged that as she “sat quietly across 

from him at his deposition” in November 2018, David directly addressed her 

with insults, such as, “I don’t like this fat woman. I don’t want this horrible, 

disgusting, pimply asshole – you know, you are,” “So fuck you for what you 

did to me,” and, “You fatty, pimply, fatty, disgusting, fucking crazy person. 

You make me so fucking sick.” Taylor alleged that these comments were 

“non-responsive to any deposition questions” and were “designed to frighten 

and intimidate Ms. Taylor into dropping her claims.” 

Instagram posts: Taylor alleged that on August 12, 2019, the first day 

of trial, David “posted a video to his 120,000 Instagram followers declaring 

that he had wanted to get rid of Ms. Taylor the moment he met her because 

she was ‘mental.’ In this same video, Mr. David called Ms. Taylor’s attorney a 

‘formidable cunt.’ These comments were designed to frighten and intimidate 

Ms. Taylor into dropping her claims.” The same day, David “filmed Ms. 

Taylor in the courtroom hallway, in violation of court rules and without her 

consent, and uploaded the video to his Instagram account in order to harass 

and mock her.” Later that day, David “posted another video to Instagram 

calling Ms. Taylor a ‘whale.’” Taylor alleged these “comments were designed 

to frighten and intimidate Ms. Taylor into dropping her claims.” On August 

20, the evening before Taylor’s second day of cross-examination, “Mr. David 

posted an Instagram photograph of Ms. Taylor and her counsel with blood 
5

and ‘X’s on their faces with a bloody knife next to them with the phrase 

‘#SLAYTHEDRAGON’ underneath.” 

Courtroom comment: Taylor alleged that on or about August 22, 2019, 

“Mr. David walked over to Ms. Taylor in the gallery and told her, menacingly, 

‘I will bury you.’ Ms. Taylor feared for her physical safety, remembering the 

photograph of her with the bloody knife Mr. David had posted on Instagram 

shortly before.”4

Direct messages: Taylor alleged that beginning on September 16, 2019, 

two weeks after trial, she began receiving messages from David on Instagram 

under an account called “iamsebastianthebeast.” The messages stated, 

“you’ll see me but not in court, trust me. Therell be noone to help you [sic],” 

“you’re simply a retarded gold digging ho,” “I’m glad you have my IP address, 

so you can come by and suck me off,” “go suck some more dick bitch,” and 

“nobody would wanna have a baby with ya ugly ass.” On November 26, 2019, 

“Mr. David sent Ms. Taylor a photograph of an erect male penis and said 

‘next time I see ya ass imma fuck you up badly.” 

Alternate Instagram accounts: In November 2019, David created fake 

Instagram accounts purporting to be either Taylor or “fan pages” for Taylor. 

On one account purporting to be Taylor, the username description stated, “I 

was sexually harassed and didn’t report it until I was fired for never showing 

up to work! #MeToo.” On a fan page account David posted, “What do you get 

when you treat people like shit, judge everyone you meet even though you’re 

a dirty filthy whore, and make false accusations for financial gain? Elizabeth 

Taylor!” On the other fan page account he posted, “I’ll be back, [Taylor’s 

Instagram user name].” Taylor alleged that she was frightened by these 

posts. 

2. The Anti-SLAPP Motion

Hologram, joined by David as a self- represented litigant, filed a motion 

to strike the entire supplemental complaint under section 425.16 on the 

ground that the new pleading qualified as a SLAPP (Strategic Litigation 

4 In a declaration Taylor later filed, she stated that the comment was, 

“I’m going to bury you.” The slight variation in wording is not relevant to the 

issues on appeal. 
6

Against Public Participation) because David’s alleged misconduct was 

protected First Amendment or litigation-related activity.

Initially, appellants’ anti-SLAPP motion argued that David’s alleged 

misconduct was protected pursuant to subdivisions (e)(2), (3) and (4) of 

section 425.16. However, when describing the applicable subdivisions, their 

motion in fact paraphrased subdivisions: (e)(1) (statements before a judicial 

proceeding or other proceeding authorized by law); (e)(3) (public forum 

statements in connection with an issue of public interest); and (e)(4) (any 

other free speech-related conduct in connection with an issue of public 

interest).

5

When it came to discussing and analyzing the issues, however, the only 

portions of Taylor’s supplemental complaint addressed by appellants were: 

(1) the article posted on David’s ShockYa website accusing Taylor of 

extortion; (2) the three posts to David’s Instagram account (consisting of the 

mid-trial videos where David filmed Taylor in the courthouse, said he had 

wanted to fire her right away because she was mental, and where he called 

her a whale); and (3) his mid-deposition barrage of insults and his courtroom 

statement that he would bury Taylor. As a result, appellants did not address 

the several direct messages allegedly sent by David on phony Instagram 

accounts that included a variety of threats and crude and insulting comments 

or the post on his Instagram account captioned #SLAYTHEDRAGON 

underneath photos of Taylor and her lawyer, with the letter X and blood on 

their faces.

In connection with the first prong under section 425.16, appellants 

argued that David’s courtroom and deposition statements constituted 

protected activity because they were shielded by the litigation privilege. (Civ. 

Code, § 47, subd. (b).)6 They contended that the ShockYa article and three 

social media video posts were free speech activity in connection with issues of 

public interest because the case was widely covered in the press, including 

media appearances and social media posts by Taylor’s “celebrity” lawyer. 

5 As set forth below, we conclude this mistake ultimately resulted in a 

waiver of some of the issues raised on appeal.

6 We discuss this in detail in section 2. of our Discussion.
7

Citing Wilson v. Cable News Network (2019) 7 Cal.5th 871, 892, appellants 

also argued that Taylor’s supplemental FEHA retaliation allegations were 

not immune from anti-SLAPP motions even if she alleged that David’s 

actions were undertaken with an improper motive. Notably, appellants did 

not contend that the supplemental FEHA retaliation allegations failed 

because the alleged conduct occurred long after Taylor’s employment ended 

and therefore did not amount to an adverse employment action.

As for the second prong, appellants contended that Taylor could not 

show a probability of prevailing on the merits because: (1) David’s conduct 

was protected by the litigation privilege; and (2) her supplemental 

allegations were effectively defamation claims and could not succeed because 

the statements were either opinion that was not provably false or, in the 

alternative were in fact true, based on Taylor’s assertion that she had gained 

weight and suffered stress-related scarring from David’s actions.

Taylor’s trial court opposition argued that David’s alleged statements 

and actions were not protected under section 425.16 because his insulting 

deposition comments, threat to bury her, and ShockYa extortion allegation 

were either not matters of public interest or were not related to substantive 

issues in the lawsuit. Taylor also pointed out that David’s direct message 

threats and crude comments were sent to her only and therefore were not 

statements on issues of public interest.

As to the second prong of the anti-SLAPP analysis, Taylor first pointed 

out that appellants’ litigation privilege argument had been incorrectly raised 

in connection with the first prong issue because that argument was instead 

properly considered as part of only the second prong. Taylor then argued 

that her supplemental allegations had the requisite level of merit to survive 

an anti-SLAPP challenge because: (1) the litigation privilege did not apply 

because none of David’s alleged misconduct was geared at achieving the 

objects of his litigation and had no logical connection or relation to the action; 

(2) defamation was not the basis of her claims, which rested instead on a 

course of harassing conduct that included threats and vile insults; and (3) for 

purposes of her FEHA retaliation cause of action, the alleged misconduct was 

part of a continuing course of conduct that amounted to an adverse 
8

employment action that could dissuade others from filing FEHA claims 

against appellants.

3. The Trial Court’s Order

Even though appellants’ motion addressed less than half of Taylor’s 

supplemental complaint, the trial court’s lengthy minute order analyzed all of 

David’s alleged conduct and statements set forth in that complaint. It found 

that the following statements and social media posts attributed to David 

were not protected speech under section 425.16 because they constituted true 

threats under D.C. v. R.R. (2010) 182 Cal.App.4th 1190 (D.C.): the social 

media post of Taylor’s and her lawyer’s photographs with blood and an X on 

their faces, alongside a bloody knife, combined with the phrase 

“#slaythedragon”; David’s private in-court statement to Taylor that he would 

bury her; his direct messages stating that she would see him out of court 

with no one there to help her; and the photo of an erect phallus accompanied 

by text stating he would “fuck [her] up badly” the next time he saw her.

The trial court next found that David’s deposition remarks concerning 

Taylor’s physical appearance; his private, direct Instagram messages; and the 

social media video posts where he called Taylor “mental” and a “whale” were 

not protected under section 425.16. The deposition remarks were made 

during a private deposition, were not posted on a public forum, and had no 

bearing on any issue that could affect large numbers of people beyond the 

direct participants. The threatening and insulting direct messages from 

manufactured Instagram accounts were not communicated to the public, 

were not related to the ongoing litigation, and could not affect large numbers 

of other people. The social media video posts were not protected by the 

litigation privilege and there was no public interest in David’s assertions 

concerning Taylor’s size or mental status.

The trial court concluded this portion of its order by stating: “Because 

the court finds that these comments do not invoke the litigation privilege and 

that David did not make these comments in connection with a judicial 

proceeding and/or in connection with an issue of public interest, David has 

failed to meet his burden to establish the first prong for these 

statements/comments.”
9

The trial court found that the ShockYa website article accusing Taylor 

of extortion was protected, but determined that Taylor had shown a 

probability of prevailing on the merits of that claim because the article was a 

mud-slinging effort to try the case in the press and was not in furtherance of 

any litigation objectives, thereby taking it outside the scope of the litigation 

privilege.

Finally, the trial court rejected appellants’ contention that Taylor’s 

supplemental complaint failed as to her FEHA retaliation claim because she 

could not state a cause of action for defamation. The court found that the 

retaliation claim was not based on the alleged falsity of any of David’s 

statements, that his course of conduct allegedly showed a pattern of 

retaliatory activity against a former employee who had brought a FEHA 

claim, and that the ShockYa article was merely collateral to this course of 

conduct.7

STANDARD OF REVIEW

“We review de novo the grant or denial of an anti-SLAPP motion.” 

(Park, supra, 2 Cal.5th at p. 1067.) The appellate court therefore “‘engag[es] 

in the same two-step process to determine, as a matter of law, whether the 

defendant met its initial burden of showing the action is a SLAPP, and if so, 

whether the plaintiff met its evidentiary burden on the second step.’” (Sheley 

v. Harrop (2017) 9 Cal.App.5th 1147, 1162.) “If the trial court’s decision is 

correct on any theory applicable to the case, we affirm the order regardless of 

the correctness of the grounds on which the lower court reached its 

conclusion.” (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573 (Robles).) 

As in any appeal, the court’s order is “presumed to be correct and the burden 

is on an appellant to demonstrate, on the basis of the record presented to the 

appellate court, that the trial court committed an error that justifies reversal 

of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)

7 The trial court limited its analysis of this issue to the FEHA claim 

even though appellants raised it as to the emotional distress cause of action 

as well.
10

DISCUSSION

1. Waiver Of Issues Not Raised On Appeal

As noted in section 2. of our Facts And Procedural History, appellants’ 

anti-SLAPP motion challenged only some of the allegations of Taylor’s 

supplemental complaint: (1) the article posted on David’s ShockYa website 

accusing Taylor of extortion; (2) the three posts to David’s Instagram account 

(consisting of the mid-trial videos where David filmed Taylor in the 

courthouse, said he had wanted to fire her right away because she was 

mental, and where he called her a whale); and (3) his mid-deposition barrage 

of insults and his courtroom statement that he would bury Taylor.

On appeal they have once more limited the issues to these allegations. 

This leaves unchallenged several other alleged statements and conduct by 

David that the trial court did reach: the several direct messages allegedly 

sent by David on phony Instagram accounts that included a variety of threats 

and crude and insulting comments, and the post on his Instagram account 

captioned #SLAYTHE DRAGON underneath photos of Taylor and her 

lawyer, with the letter X and blood on their faces. As a result, these issues 

are waived, and to the extent the trial court’s order was based on those 

allegations, it is affirmed. (Orange County Water Dist. v. Sabic Innovative 

Plastics US, LLC (2017) 14 Cal.App.5th 343, 383 (Orange County Water 

District) [issues waived by failing to raise them on appeal]; LA Taxi 

Cooperative, Inc. v. The Independent Taxi Owners Association of Los Angeles

(2015) 239 Cal.App.4th 918, 926, fn. 7 [on appellate review of order denying 

anti-SLAPP motion, issues first raised in appellate reply brief were waived].)

2. Trial Court’s Reliance On The Litigation Privilege

The litigation privilege provides an absolute privilege for, among 

others, statements or publications made in a judicial proceeding or other 

proceedings authorized by law. (Civ. Code, § 47, subd. (b).) The litigation 

privilege and section 425.16 serve similar policy interests and the former may 

serve as an aid when construing the latter. (Neville v. Chudacoff (2008) 160 

Cal.App.4th 1255, 1262-1263 (Neville).) Despite this partial overlap, 

however, matters protected by the litigation privilege do not always amount 

to protected activity under section 425.16, and a true litigation privilege 

analysis should be confined to the second step of an anti-SLAPP motion: 
11

determining whether a plaintiff suing based on protected activity under 

section 425.16 can show a probability of prevailing on the merits. (Robles, 

supra, 181 Cal.App.4th at pp. 581-582; Neville, supra, at 1262-1263; Birkner 

v. Lam (2007) 156 Cal.App.4th 275, 284.)

Appellants contend the trial court erred by relying on the litigation 

privilege as part of its first prong analysis in connection with David’s 

courtroom and deposition remarks, quoting the following portion of the trial 

court’s minute order as follows: “[b]ecause the court finds that these 

comments do not invoke the litigation privilege . . ., David has failed to meet 

his burden to establish the first prong for these statements/comments.” 

Appellants have selectively quoted from the order, omitting the trial court’s 

companion statement “that David did not make these comments in 

connection with a judicial proceeding and/or in connection with an issue of 

public interest, . . . .”

The language that appellants chose to omit is significant. It is a 

fundamental rule of appellate practice that trial court orders are presumed to 

be correct, that the burden is on the appellant to demonstrate error, and that 

all presumptions and intendments will be indulged, and all ambiguities 

resolved, in favor of the order. (Winograd v. American Broadcasting Co.

(1998) 68 Cal.App.4th 624, 631.) In addition to mentioning the litigation 

privilege, the trial court found that the actions it was evaluating did not take 

place in connection with a judicial proceeding or concern issues of public 

interest. Those findings are part of a section 425.16 first prong analysis. 

When the disputed portion of the court’s order is read with this missing 

language in place, we see at most an ambiguity concerning the court’s 

reliance on the litigation privilege as part of its first prong analysis that we 

resolve in favor of affirming the order in that regard.

Further, we believe this ambiguity was caused by appellants, who 

argued below that the litigation privilege in fact required a finding in their 

favor under the first prong. We asked for and received supplemental briefing 

from the parties as to whether this supposed error was invited by appellants 

and as to whether appellants thereby forfeited their reliance on subdivision 

(e)(1) as it relates to David’s courtroom and deposition statements.
12

Appellants contend they did not intend to mislead the court and that 

their reliance on the litigation privilege was proper because that called into 

play the same considerations involved under subdivision (e)(1) when 

determining whether statements were made during a judicial proceeding. 

Citing to People v. Nelson (2016) 1 Cal.5th 513, 534, appellants contend that 

there was no invited error because the facts at issue and the standards 

employed do not differ.

We reject this contention. First, the Nelson case concerned the 

application of constitutional issues to an evidentiary ruling and is wholly 

inapplicable. Second, the argument is completely contrary to the issue raised 

by appellants in their opening appellate brief: that the litigation privilege 

and the first prong analysis of section 425.16 are different and that the trial 

court erred by applying the former.

For the same reason, we hold that appellants have waived the 

contention that David’s courtroom and deposition remarks were made in 

connection with judicial proceedings as that phrase applies to section 425.16, 

subdivision (e)(1). Because their entire trial court argument in that regard 

was limited to the litigation privilege, they forfeited the issue below and may 

not raise it for the first time on appeal. (Bikkina v. Mahadevan (2015) 241 

Cal.App.4th 70, 92.)

3. Alternatively, Issues Concerning David’s Courtroom Remarks Are 

Waived on Appeal

Even if appellants had preserved for appeal their contentions that 

David’s courtroom remark that he would bury Taylor was protected activity 

under section 425.16, subdivision (e)(1), we alternatively hold that they have 

waived that issue on appeal by failing to make adequate appellate 

arguments.

Appellants contend with minimal discussion that David’s remark 

qualifies as a statement made before a judicial proceeding under subdivision 

(e)(1), stating that “[d]eposition and trial testimony are both protected 

activities that fall under subdivision (e)(1).” In doing so, they have 

overlooked the operative provision of that section: that the statement must 

be made before a judicial proceeding. (See Greka Integrated, Inc. v. Lowrey

(2005) 133 Cal.App.4th 1572, 1580 [defendant’s comments were protected 
13

under section 425.16, subdivision (e)(1) because they occurred while testifying 

at trial].) Taylor’s supplemental complaint alleges that David made the 

remark after approaching Taylor while she was seated in the courtroom 

gallery. We infer from her allegation that the remark was not made while 

David was testifying and was, in fact, a private aside directed solely at 

Taylor.

The assumption behind appellants’ argument is that David’s statement 

must be protected solely because it occurred in a courtroom while a trial was 

underway. In doing so, they have failed to address the timing and 

circumstances of the alleged statement. They have also failed to address the 

alleged remark in its full context, in light of the intentional infliction of 

emotional distress allegations of both the supplemental and original 

complaints. (See Lincoln Property Co., N.C., Inc v. Travelers Indemnity Co.

(2006) 137 Cal.App.4th 905, 916 [supplemental complaint must be in 

furtherance of and consistent with original complaint; the new allegations do 

not state a new cause of action but are dependent on and arise out of the 

original complaint’s causes of action].) 

Appellants also assert, in a single sentence without further discussion, 

that David’s courtroom statement was made “in connection with an issue 

under consideration or review by a . . . judicial body” under section 425.16, 

subdivision (e)(2). They once more rely on ipso facto reasoning without 

analysis – because he said something about the case, it must automatically 

qualify under subdivision (e)(2). The two cases they cite in this section 

address “true threats,” not whether David’s comment was in connection with 

a judicial proceeding. As a result, the issue is waived. (Meridian Financial 

Service, Inc. v. Phan (2021) 67 Cal.App.5th 657, 701, fn. 15 [failure to 

adequately develop meaningful argument]; (Orange County Water District, 

supra, 14 Cal.App.5th at p. 383 [appellate court will not develop appellants’ 

arguments for them, and issues not supported by citation to authority and 

cogent argument are deemed waived].)

4. David’s August 12 Instagram Posts

David contends that his three social media posts on August 12, 2019, 

are protected under subdivision (e)(3) as statements in a public forum in 

connection with an issue of public interest. Publicly accessible websites such 
14

as Instagram are public forums under section 425.16. (Barrett v. Rosenthal

(2006) 40 Cal.4th 33, 41, fn. 4.) Appellants contend that David’s post 

concerned matters of public interest because of the intense media scrutiny 

generated by the trial of Taylor’s case in light of the #metoo movement, 

combined with the “celebrity” status of her lawyer, who made frequent media 

appearances and social media posts about the case.

However, David’s Instagram videos were not about the substance of the 

trial or the #metoo movement. Instead, the supplemental complaint alleges 

that David’s August 12 Instagram posts consisted of David calling Taylor 

“mental” and saying he wanted to get rid of Taylor the moment he met her; a 

video of Taylor in the courtroom hallway that David filmed without her 

consent; and a video calling Taylor a “whale.” Nothing in the supplemental 

complaint or the anti-SLAPP motion suggests the posts contained any 

substantive information about the trial itself or the #metoo movement in 

general. To the contrary, the posts appear to consist solely of David’s negative 

views of Taylor personally. 

As our colleagues in Division Eight recently cautioned, “Agile thinkers 

always can create some kind of link between a statement and an issue of 

public concern. All you need is a fondness for abstraction and a knowledge of 

popular culture.” (Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 

624, 632 (Woodhill Ventures).) “This pervasive potential means there must 

be ‘some degree of closeness between the challenged statements and the 

asserted public interest.’” (Ibid., quoting Weinberg v. Feisel (2003) 110 

Cal.App.4th 1122, 1132.) Statements are not protected under section 425.16 

as connected to issues of public interest if they are “too tenuously tethered to 

the issues of public interest they implicate, and too remotely connected to the 

public conversation about those issues.” (FilmOn.com Inc. v. DoubleVerify 

Inc. (2019) 7 Cal.5th 133, 140.)

The court in Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 

610 cautioned against interpreting the phrase “in connection with an issue of 

public interest” too broadly. In determining whether certain communications 

about the construction of a football stadium concerned matters of public 

interest, the court noted that “the conversations underlying plaintiffs’ action 

relate only to who should be responsible for the ordinary functions associated 
15

with representing the City in the negotiations with the NFL—plaintiffs or 

the other entities named as the City’s codefendants.” (Rand Resources, supra, 

6 Cal.5th at p. 616.) These conversations “had nothing to do with the merits 

of whether, how, and in what form the stadium should be built” (id. at p. 

625), and the court found they were not protected under section 425.16, 

subdivision (e)(4).

The court stated, “At a sufficiently high level of generalization, any 

conduct can appear rationally related to a broader issue of public importance. 

What a court scrutinizing the nature of speech in the anti-SLAPP context 

must focus on is the speech at hand, rather than the prospects that such 

speech may conceivably have indirect consequences for an issue of public 

concern.” (Rand Resources, supra, 6 Cal.5th at p. 625.) The court “reject[ed] 

the proposition that any connection at all—however fleeting or tangential—

between the challenged conduct and an issue of public interest would suffice 

to satisfy the requirements of section 425.16, subdivision (e)(4).” (Ibid.) The 

court acknowledged that “who precisely represents a city in sports franchise 

negotiations could indeed conceivably prove a matter of public interest.” 

(Ibid.) However, the defendants “failed to suggest anything more than the 

most attenuated connection between the identity of the City's agent and a 

matter of public importance,” and “[t]he failure to introduce such evidence is 

a material deficiency since defendants bear the burden at the first stage of 

the anti-SLAPP analysis.” (Ibid.)

The court in Woodhill Ventures, supra, 68 Cal.App.5th 624 also 

discussed this standard. There, “[s]elf-proclaimed celebrity jeweler Ben ‘the 

Baller’ Yang [(Yang)] threw a birthday party for his seven-year-old son. His 

wife, Nicolette Yang, ordered a themed cake from Big Sugar Bakeshop.” (Id. 

at p. 626.) When the birthday cake arrived, the Yangs were dismayed to find 

that the cake did not resemble the playful “mad scientist” cake with jelly 

bean decorations they had envisioned; instead, the cake was decorated with 

realistic-looking prescription pills made of fondant. (Ibid.) Yang posted 

multiple messages about the cake on Instagram and talked about it on his 

podcast, accusing Big Sugar of putting “drugs” on a child’s birthday cake and 

threatening to “cancel” the bakery. (Id. at p. 628.) Big Sugar sued, and Yang 

filed an anti-SLAPP motion on the grounds that he made his statements 
16

about the bakery in a public forum in connection with an issue of public 

interest. The trial court denied the motion. (Id. at p. 630.) 

The Court of Appeal affirmed. It rejected Yang’s argument that “his 

statements involve an issue of public interest because they were about the 

dangers of ‘candy confusion,’ or children mistakenly eating pills they believe 

are candy.” (Woodhill Ventures, supra, 68 Cal.App.5th at p. 632.) The court 

stated, “This form of argument is common in special motions to strike: Yang 

claims that, because his statements bear some connection to an issue of 

public significance, his statements deserve protection.” (Ibid.) The court 

stated that Yang’s comments were not about a topic of public interest: 

“Yang’s statements did not discuss the danger of children confusing 

medications for candy. That was not Yang’s point. Yang’s statements did not 

seek public discussion of anything. They aimed to whip up a crowd for 

vengeful retribution.” (Id. at pp. 632-633.) 

Appellants’ arguments here suffer the same shortcomings. Even 

assuming the trial itself and the larger #metoo movement constituted issues 

of public interest, the record does not suggest that David’s Instagram posts 

discussed either of these issues. To the contrary, the posts appear to reflect 

no more than David’s dislike of Taylor. David’s opinion about Taylor does not 

constitute an issue of public interest, and his expressions of that opinion on

Instagram were not statements made “in connection with an issue of public 

interest.” Moreover, it makes no difference that David shared his opinion 

with his Instagram followers. “‘[A] matter of concern to the speaker and a 

relatively small, specific audience is not a matter of public interest,’” because 

“‘[a] person cannot turn otherwise private information into a matter of public 

interest simply by communicating it to a large number of people.’” (Rand 

Resources, supra, 6 Cal.5th at p. 621; see also Woodhill Ventures, supra, 68 

Cal.App.5th at p. 633; Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 24 

(Bernstein).)

Appellants also argue that that the case involved a public figure, 

Taylor’s attorney, Lisa Bloom. They assert, “Regardless of whether [Taylor] 

was a ‘person in the public eye’ for purposes of the ‘public issue’ analysis, 

David presented ample evidence that her attorney, Lisa Bloom, was ‘in the 

public eye’” due to her “strong media presence.” Taylor correctly points out 
17

that David’s comments about Bloom do not serve as the basis for her 

supplemental claims against appellants. 

“[A] claim may be struck [under section 425.16] only if the speech or 

petitioning activity itself is the wrong complained of, and not just evidence of 

liability or a step leading to some different act for which liability is asserted.” 

(Park, supra, 2 Cal.5th at p. 1060.) Here, Taylor’s supplemental complaint 

aided her causes of action for retaliation against her in violation of FEHA 

and intentional infliction of emotional distress; comments about Bloom were 

not the basis of Taylor’s claims. Moreover, courts have rejected the “broad 

proposition that anything said or written about a public figure or limited 

public figure in a public forum involves a public issue.” (D.C., supra, 182 

Cal.App.4th at p. 1226; see also Bernstein, supra, 43 Cal.App.5th at p. 23; 

Yeager v. Holt (2018) 23 Cal.App.5th 450, 458.)

Accordingly, we hold that David’s Instagram video posts were not 

protected under section 425.16.

5. Taylor Has Shown A Probability of Prevailing On The Merits As 

To The ShockYa Extortion Article

The trial court found that the ShockYa web article accusing Taylor of 

extortion was protected speech under section 425.16. Appellants contend 

Taylor cannot show a probability of prevailing on the merits of her claims 

because her allegations are a stand-in for a defamation claim, a cause of 

action that she cannot state.

Although appellants argued this point in more detail below, on appeal 

they cite only one case to support their contention: Flynn v. Higham (1983) 

149 Cal.App.3d 677 (Flynn). The plaintiffs in that case were the heirs of the 

late actor Errol Flynn. They sued the author of a Flynn biography for 

defamation and intentional infliction of emotional distress because the book 

accused Flynn of being gay and a Nazi spy. The Flynn court affirmed the 

trial court order granting defendant’s demurrer to the complaint, holding 

that the law did not recognize a defamation claim for surviving family 

members of the allegedly defamed person. (Id. at p. 680.) Because the 

defamation claim failed, the plaintiffs could not then state a cause of action 

for intentional infliction of emotional distress based on the same conduct. 

(Id. at p. 682.)
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We reject appellants’ reliance on Flynn. First, they do not discuss the 

elements of a defamation cause of action or how Taylor might have come up 

short in that regard. Second, they have failed to adequately discuss and 

analyze Flynn. The Flynn court distinguished its facts from Lagies v. Copley

(1980) 110 Cal.App.3d 958 (Lagies), where the plaintiff sued his former 

employer for defamation and intentional infliction of emotional distress. The 

plaintiff in Lagies suffered a long series of intentional harassing, demeaning, 

improper, and tortious acts. (Lagies, supra, at 970-971.) The Lagies court 

held that the plaintiff’s emotional distress claim charged more than just 

insulting language: instead, it alleged an abuse of the employer-employee 

relationship with the intent to damage the plaintiff. (Id. at p. 974.) The 

Flynn court held that the facts in Lagies “giving rise to the infliction of 

emotional distress allegation consisted of far more than defamatory words.” 

(Flynn, supra, 149 Cal.App.3d at p. 682.)

The allegations here are far more like Lagies than Flynn. Taylor 

alleged intentional infliction of emotional distress and FEHA retaliation 

based on an extended pattern of harassment aimed at her personally. Her 

supplemental complaint does not focus on the allegedly defamatory 

statements in the ShockYa article, and her alleged injuries are not based on 

any concerns about damage to her reputation. Appellants offer no further 

basis on appeal for their contention that Taylor’s claim should be construed 

as defamation. As a result, they have not met their burden to demonstrate 

that the trial court erred in holding that under the second step of the antiSLAPP analysis Taylor demonstrated a probability of success on her 

intentional infliction of emotional distress claim.

6. Taylor’s FEHA Retaliation Claim

Taylor’s FEHA retaliation claim is based on Government Code section 

12940, subdivision (h), which makes it unlawful to “discriminate against any 

person” because that person opposed any conduct proscribed by FEHA, filed a 

FEHA complaint, or testified or assisted in any FEHA proceeding.

Appellants contend that Taylor cannot prevail on the merits of that 

claim because the conduct alleged occurred long after she left their employ 

and therefore cannot be considered adverse employment actions. (See McCoy 

v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299 [FEHA plaintiff 
19

must show an adverse employment action occurred].) Taylor contends that 

FEHA can be broadly construed to cover David’s alleged post-termination 

conduct as part of a continuing course of harassment designed to intimidate 

her and others who might complain about David’s workplace behavior.

Appellants did not raise this issue in the trial court. Instead, it was 

Taylor who raised it in her trial court opposition brief. Appellants’ trial court 

reply addressed the issue only in passing, but in a far more limited fashion 

than they do on appeal. They instead merely contended that the allegations 

of the supplemental complaint were insufficient because Taylor testified that 

she had not become regularly employed after her termination because she 

was not ready to do so. That is far different from, and far short of their 

appellate contention that Taylor cannot prevail on her FEHA claim because 

the alleged conduct occurred after her termination. As a result, the issue is 

forfeited.

DISPOSITION

For the reasons set forth above the order denying appellants’ antiSLAPP motion is affirmed. Respondent shall recover her costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MICON, J.*

MANELLA, P. J.

WILLHITE, J.

*Judge of the Los Angeles County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.