Filed 7/20/21 Marien v. Holland CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBIN MARIEN et al.,

Plaintiffs and Respondents,

v.

MARJORIE M. HOLLAND,

Defendant and Appellant.

 D077586

 (Super. Ct. No. 37-2015- 

00015685-CU-DF-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Affirmed. 

Marjorie Mae Holland, in pro. per., for Defendant and Appellant. 

Shewry & Saldaña and Christopher C. Saldaña for Plaintiffs and 

Respondents. 

Robin Marien, Gabriel Jebb, and Air California Adventure, Inc. (ACA) 

(together, Plaintiffs) filed a first amended complaint (FAC) alleging 

defamation and other causes of action against defendant Robert Michael 

Kuczewski and unnamed Doe defendants arising out of, inter alia, alleged 

false statements regarding Plaintiffs’ operation of the Torrey Pines 
2

Gliderport (TPG). In Marien v. Kuczewski (D069836, Sept. 28, 2017) 

[nonpub. opn.] (Marien I), we affirmed the trial court’s order denying 

Kuczewski’s motion to strike the FAC under Code of Civil Procedure1 section 

425.16, the anti-SLAPP (strategic lawsuit against public participation) 

statute. (Marien I, at pp. 21, 29.) 

On remand, Plaintiffs filed a second amended complaint (SAC), which 

added Holland as a named defendant in place of a Doe defendant, but did not 

allege any new false statements regarding Plaintiffs. Holland then filed a 

section 425.16 motion to strike the SAC. Applying our reasoning in Marien I, 

the trial court denied Holland’s motion to strike, concluding, inter alia, that 

none of the false statements alleged in the SAC were made in connection with 

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

425.16, subdivision (e)(3) or (4). Holland appeals the order denying her

motion. 

Based on our reasoning post, we conclude the court correctly denied 

Holland’s anti-SLAPP motion. 

FACTUAL AND PROCEDURAL BACKGROUND2

In July 2015, Plaintiffs filed the FAC, which alleged 33 causes of action 

against Kuczewski, including 27 causes of action for defamation.3 The FAC 

1 All statutory references are to the Code of Civil Procedure unless 

otherwise specified. 

2 The factual background is based on our opinion in Marien I, supra, at 

pages 2 to 7, and the allegations set forth in the SAC. We begin by restating

our factual and procedural background discussion set forth in Marien I and 

then supplement that discussion to reflect matters occurring after remand of 

that case. 

3 The FAC also alleged two causes of action for intentional interference 

with prospective economic advantage, one cause of action for intentional 
3

alleged that the TPG is located within the City of San Diego’s Torrey Pines 

City Park and is used as a launching and landing space for hang gliding and 

paragliding. Marien first became acquainted with Kuczewski over seven 

years earlier when David Jebb, Gabriel Jebb’s father, was the principal 

shareholder of ACA, which held the lease and concession for the TPG. The 

TPG concessionaire is responsible for, inter alia, acting as the flight director 

for hang gliding and paragliding activities on the premises. While David 

Jebb was ACA’s principal shareholder, Kuczewski, for unknown reasons, 

routinely screamed at, and/or otherwise harassed, David Jebb, his family, 

ACA employees, and ACA students in the restricted area of the TPG where 

pilots and tandem passengers were actively engaged in hang gliding or 

paragliding. As a result, David Jebb banned him from the TPG. 

In or about 2008, Marien became the principal shareholder of ACA and 

lifted Kuczewski’s ban from the TPG. Gabriel Jebb (Jebb) is an employee of 

ACA and works at the TPG as a tandem instructor. Kuczewski resumed and 

elevated his vitriolic conduct by confronting and harassing ACA employees 

and customers and making video recordings of Marien, Jebb, and other ACA 

employees while they performed their job duties. He posted those video 

recordings, which purportedly show ordinance or rule violations, on various 

websites, including one (i.e., www.ushawks.org) that he apparently 

originated and controls. He also posted on various websites video recordings 

of his statements made before the City of San Diego City Council meetings 

infliction of emotional distress, one cause of action for negligent infliction of 

emotional distress, one cause of action for declaratory relief, and one cause of 

action for injunctive relief.
4

criticizing Plaintiffs and their management of the TPG.4 The FAC alleged 

that Kuczewski sought to convince the City Council to reinstate an advisory 

board to provide oversight of Plaintiffs and the TPG, which board he 

presumably would control, and thereby he would control the TPG’s flight 

operations and ACA’s business. It also alleged Kuczewski solicited financing 

to take over the TPG concession when the City of San Diego issues another 

request for proposal to bid for that concession, thereby showing his true 

motivation is to take the TPG concession away from ACA. The FAC alleged 

the ultimate goal of Kuczewski’s defamatory statements and other actions 

was to damage Plaintiffs, cause the City of San Diego to remove ACA as the 

TPG’s concessionaire, and obtain the TPG concession for himself and/or his 

hang gliding club (i.e., U.S. Hawks). 

The FAC described a November 9, 2014, incident during which 

Kuczewski yelled at Jebb for not wearing a helmet to “kite” while instructing 

students.5 Kuczewski refused Jebb’s request that he move out of the TPG’s 

restricted area to ensure the safety of the hang gliders and paragliders then 

using that area. Plaintiffs then called the police to have Kuczewski arrested 

for trespassing and removed from the premises. Also, on or about November 

9, 2014, ACA and Marien revoked Kuczewski’s privileges to fly at, and 

otherwise use the facilities of, the TPG for a period of one year. 

4 The FAC stated that Plaintiffs do not seek to impose liability on 

Kuczewski for defamation or other torts based on his statements at City 

Council meetings, but instead on his subsequent posting on websites of video 

recordings of those statements, along with other video recordings and 

statements that did not originate at City Council meetings. 

5 According to the FAC, “kiting” is a maneuver during which a paraglider 

is inflated with air but does not leave the ground.
5

The predominant theme of the FAC’s allegations was that Kuczewski 

made defamatory statements asserting that Plaintiffs bullied people at the 

TPG, although the exact nature or circumstances of such alleged bullying was 

oftentimes unclear in the FAC.6 Kuczewski’s other alleged defamatory 

statements included assertions that Plaintiffs are thugs and corrupt, and 

may be responsible, in part, for the suicide of a woman who had been bullied 

at the TPG. 

Kuczewski filed a motion to strike the FAC pursuant to section 425.16, 

arguing that each of the FAC’s causes of action arose from his exercise of his 

right to free speech, his statements concerned public issues, and Plaintiffs 

could not show a probability they would prevail on the merits of the case. 

Plaintiffs opposed the motion, arguing Kuczewski had not shown their causes 

of action arose out of his exercise of his right to free speech in connection with 

a public issue (i.e., § 425.16 protected conduct) and, in any event, they 

showed there was a probability they would prevail on the merits of each of 

the FAC’s causes of action. 

On January 8, 2016, the trial court issued a minute order denying 

Kuczewski’s section 425.16 motion to strike the FAC, stating:

“Assuming that the allegations fall within protected 

activity under . . . [section] 425.16[, subd.] (e) as 

[Kuczewski] avers, the Court finds that [P]laintiffs have . . . 

established [a] probability of prevailing on the claims. 

[Citation.] The allegations in this case are not based upon 

publications made while [Kuczewski] appeal[ed] [to] the 

City Council[.] Instead, the allegations are based upon 

internet and other publications of factual assertions 

6 For example, on one video recording that Kuczewski posted on a 

website, he spoke to the City Council regarding one incident at the TPG 

during which he “thought about all the times that David Jebb and Gabe Jebb 

and Robin Marien had bullied people and threatened them with arrest.” 
6

involving [Kuczewski]. . . . The evidence shows that 

[Kuczewski] made allegations of fact that [P]laintiffs assert 

are false. [Citation.] . . . .” 

Kuczewski appealed the order denying his section 425.16 motion. 

In Marien I, we affirmed the order denying Kuczewski’s section 425.16 

motion to strike, concluding, inter alia, that none of the 33 causes of action 

alleged in the FAC arose out of any statements or other conduct in connection 

with any public issue or issue of public interest within the meaning of section 

425.16, subdivision (e)(3) or (4).7 (Marien I, supra, at pp. 15-21, 29.) 

On remand after Marien I, Plaintiffs filed the SAC, which added 

Holland as a defendant in place of a Doe defendant on 32 of its 33 causes of 

action, which remained substantially the same as in the FAC. The factual 

allegations specifically made regarding Holland are primarily set forth in 

paragraph 7 of the SAC, which alleges: 

“7. HOLLAND has at the direction and special insistence 

of [Kuczewski], or with his permission or acquiescence, or 

both, caused to be posted to the Internet, as more fully set 

forth below, several videos of [Kuczewski] making 

statements about the [Plaintiffs], and each of them, that he 

and HOLLAND knew, or had reason to know, were false 

and injurious to [Plaintiffs’] reputations and business. 

HOLLAND has, acting in concert with [Kuczewski], caused 

to be published these defamatory statements with the 

intent of interfering with the business of [Plaintiffs], and 

each of them, or in reckless disregard of the knowledge that 

publication of such statements would interfere with 

[Plaintiffs’] businesses and cause them economic harm and 

emotional distress. HOLLAND often identifies herself on 

the Internet as ‘Majiemae.’ ” 

7 We also concluded that Kuczewski had not alternatively shown his 

alleged false statements were protected activity under section 425.16, 

subdivision (e)(1) or (2). (Marien I, supra, at pp. 19-20.) 
7

Holland filed a section 425.16 motion to strike the SAC, arguing that 

each of the 32 causes of action alleged against her arose from the exercise of 

her right to free speech, her statements concerned public issues, and 

Plaintiffs could not show a probability they would prevail on the merits of the 

case. Plaintiffs opposed her anti-SLAPP motion, arguing that none of the 

false statements alleged in the SAC were protected activity under section 

425.16, subdivision (e). 

On February 21, 2020, the court issued a minute order denying 

Holland’s anti-SLAPP motion, stating in part: “The Court of Appeal, in Case 

No. D069836, in the context of Kuczewski’s claimed protection under the 

Anti-SLAPP law, ruled that the activity alleged [in the FAC] was not 

protected activity [under section 425.16, subdivision (e)].” Although the court 

rejected Plaintiffs’ argument that the doctrine of collateral estoppel applied to 

bar Holland from relitigating our decision in Marien I, it nevertheless found 

our reasoning in Marien I persuasive and concluded that none of the false 

statements alleged in the SAC were protected activity under section 425.16, 

subdivision (e). 

Holland timely filed a notice of appeal challenging the order. 

DISCUSSION

I

Anti-SLAPP Motions Generally

A SLAPP “is a civil lawsuit that is aimed at preventing citizens from 

exercising their political rights or punishing those who have done so. ‘ “While 

SLAPP suits masquerade as ordinary lawsuits such as defamation and 

interference with prospective economic advantage, they are generally 

meritless suits brought primarily to chill the exercise of free speech or 

petition rights by the threat of severe economic sanctions against the 
8

defendant, and not to vindicate a legally cognizable right.” ’ ” (Simpson 

Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) Section 425.16, the 

anti-SLAPP statute, “was enacted in 1992 for the purpose of providing an 

efficient procedural mechanism to obtain an early and inexpensive dismissal 

of nonmeritorious claims ‘arising from any act’ of the defendant ‘in 

furtherance of the person’s right of petition or free speech under the United 

States or California Constitution in connection with a public issue . . . .’ 

(§ 425.16, subd. (b)(1).)” (Martinez v. Metabolife Internat., Inc. (2003) 113 

Cal.App.4th 181, 186.) 

Section 425.16, subdivision (b)(1) provides:

“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.” (Italics added.) 

A two-step process applies in deciding an anti-SLAPP motion. “First, the 

court decides whether the defendant has made a threshold showing that the 

challenged cause of action is one arising from protected activity. The moving 

defendant’s burden is to demonstrate that the act or acts of which the 

plaintiff complains were taken ‘in furtherance of the [defendant’s] right of 

petition or free speech under the United States or California Constitution in 

connection with a public issue,’ as defined in the statute. (§ 425.16, subd. 

(b)(1).) If the court finds such a showing has been made, it then determines 

whether the plaintiff has demonstrated a probability of prevailing on the 

claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 

(Equilon).) “Only a cause of action that satisfies both prongs of the anti-
9

SLAPP statute—i.e., that arises from protected speech or petitioning and

lacks even minimal merit—is a SLAPP, subject to being stricken under the 

statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) 

Under the first step, the defendant has the initial burden to show that 

the claims arose from his or her protected activity. (Equilon, supra, 29 

Cal.4th at p. 67.) In deciding whether the defendant has met that burden, a 

court considers “whether the plaintiff’s cause of action itself was based on an 

act in furtherance of the defendant’s right of petition or free speech.” (City of 

Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics added.) The court’s focus 

is not the form of the cause of action or claim, “but, rather, the defendant’s 

activity that gives rise to his or her asserted liability—and whether that 

activity constitutes protected speech or petitioning.” (Navellier, supra, 29 

Cal.4th at p. 92.) “The Legislature spelled out the kinds of activity it meant 

to protect in section 425.16, subdivision (e): ‘As used in this section, “act in 

furtherance of a person’s right of petition or free speech under the United 

States or California Constitution in connection with a public issue” includes: 

(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 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.’ ” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 

422 (City of Montebello).) 
10

“Because of these specifications, courts determining whether a cause of 

action arises from protected activity are not required to wrestle with difficult 

questions of constitutional law, including distinctions between federal and 

state protection of free expression. ‘The only means specified in section 

425.16 by which a moving defendant can satisfy the requirement is to 

demonstrate that the defendant’s conduct . . . falls within one of the four 

categories described in subdivision (e), defining subdivision (b)’s phrase, “act 

in furtherance of a person’s right of petition or free speech under the United 

States or California Constitution in connection with a public issue.” ’ ” (City 

of Montebello, supra, 1 Cal.5th at p. 422.) Thus, “courts determining whether 

conduct is protected under the anti-SLAPP statute look not to First 

Amendment law, but to the statutory definitions in section 425.16, 

subdivision (e).” (Ibid.) 

The California Supreme Court recently clarified the applicability of the 

anti-SLAPP statute to mixed causes of action. (Baral v. Schnitt (2016) 1 

Cal.5th 376, 392-396 (Baral).) Baral stated: “[A]n anti-SLAPP motion, like a 

conventional motion to strike, may be used to attack parts of a count as 

pleaded.” (Id. at p. 393.) Accordingly, “courts may rule on plaintiffs’ specific 

claims of protected activity, rather than reward artful pleading by ignoring 

such claims if they are mixed with assertions of unprotected activity.” (Ibid.) 

Construing the anti-SLAPP statute’s use of the term “cause of action” to 

mean a claim arising from protected activity, Baral stated: 

“When the Legislature declared that a ‘cause of action’

arising from activity furthering the rights of petition or free 

speech may be stricken unless the plaintiff establishes a 

probability of prevailing, it had in mind allegations of 

protected activity that are asserted as grounds for relief. 

The targeted claim must amount to a ‘cause of action’ in the 

sense that it is alleged to justify a remedy. By referring to 

a ‘cause of action against a person arising from any act of 
11

that person in furtherance of’ the protected rights of 

petition and speech, the Legislature indicated that 

particular alleged acts giving rise to a claim for relief may 

be the object of an anti-SLAPP motion. (§ 425.16, subd. 

(b)(1) . . . .) Thus, in cases involving allegations of both 

protected and unprotected activity, the plaintiff is required 

to establish a probability of prevailing on any claim for 

relief based on allegations of protected activity. Unless the 

plaintiff can do so, the claim and its corresponding 

allegations must be stricken.” (Baral, supra, 1 Cal.5th at 

p. 395.) 

“To avoid confusion,” Baral referred to “the proper subject of a special motion 

to strike as a ‘claim,’ a term that also appears in section 425.16[, subd.]

(b)(1).” (Baral, supra, 1 Cal.5th at p. 382.) 

Baral also clarified, however, that “[a]ssertions [involving protected 

conduct] that are ‘merely incidental’ or ‘collateral’ are not subject to section 

425.16.” (Baral, supra, 1 Cal.5th at p. 394.) In discussing protected acts that 

are incidental to the plaintiff’s claims for relief, Baral cited Wallace v. 

McCubbin (2011) 196 Cal.App.4th 1169, in which the court stated at page 

1183: “For purposes of anti-SLAPP analysis, . . . an alleged act is incidental 

to a claim, and incidental to any unprotected activity on which the claim is 

based, only if the act is not alleged to be the basis for liability.” (Baral, at 

p. 394.) Wallace, in turn, cited Scott v. Metabolife Internat., Inc. (2004) 115 

Cal.App.4th 404, at pages 414 to 417, in which the court concluded that the 

defendant’s advertising conduct was merely incidental to its manufacturing 

and sales conduct that was the basis for plaintiff’s claims for relief. (Wallace, 

at p. 1183; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & 

Hampton LLP (2005) 133 Cal.App.4th 658, 672 [protected conduct that is 

merely incidental to unprotected conduct is not subject to anti-SLAPP 

statute]; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 
12

Cal.App.4th 1388, 1399 [anti-SLAPP statute does not apply when defendant’s 

alleged protected conduct is merely evidence supporting plaintiff’s claims for 

relief and does not constitute the alleged wrongful conduct itself].) Baral

further noted that “[a]llegations of protected activity that merely provide 

context, without supporting a claim for recovery, cannot be stricken under 

the anti-SLAPP statute.” (Baral, at p. 394.) Thus, at the first step of the 

anti-SLAPP analysis, a court determines whether a complaint’s allegations of 

protected conduct are the basis for a claim for relief or, instead, are incidental 

or collateral to, or merely provide context for, a claim for relief based on 

unprotected conduct. 

On appeal from an order denying an anti-SLAPP motion, “[w]e 

independently review the record to determine whether the asserted causes of 

action arise from the defendant’s free speech or petitioning activity, and, if so, 

whether the plaintiff has shown a probability of prevailing.” (City of 

Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1306.) 

II

Denial of Holland’s Section 425.16 Motion to Strike the SAC

Holland contends the trial court erred by denying her section 425.16 

motion to strike the SAC. She asserts she met her burden under the first 

step of the anti-SLAPP analysis to show the SAC’s causes of action arose out 

of conduct protected by section 425.16 and Plaintiffs did not meet their 

burden under the second step to show there was a probability they would 

prevail on the merits of those causes of action. In particular, she asserts the

alleged defamatory statements and other alleged actions were made in 
13

connection with a public issue or an issue of public interest within the 

meaning of section 425.16, subdivision (e)(3) or (4).8 

A. Collateral Estoppel Does Not Apply

In their respondents’ brief, Plaintiffs argue that we should apply the 

doctrine of collateral estoppel and conclude she is bound by our decision in 

Marien I because she is in privity with Kuczewski. The doctrine of collateral 

estoppel “precludes relitigation of issues argued and decided in prior 

proceedings.” (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 

601, 604.) In Lucido v. Superior Court (1990) 51 Cal.3d 335, the court set 

forth five requirements for application of the doctrine of collateral estoppel, 

stating: “First, the issue sought to be precluded from relitigation must be 

identical to that decided in a former proceeding. Second, this issue must 

have been actually litigated in the former proceeding. Third, it must have 

been necessarily decided in the former proceeding. Fourth, the decision in 

8 On December 30, 2020, Holland filed a motion to augment the record 

with copies of four “screenshots” from websites that Kuczewski, acting in pro 

per, offered on her behalf in the trial court, but were not filed or lodged with 

the court. On January 19, 2021, we issued an order stating that we would 

consider Holland’s motion to augment concurrently with this appeal. 

Because those documents were not filed or lodged with the trial court, they 

were not made part of the trial court record and we therefore deny her motion 

to augment the record. (Cal. Rules of Court, rule 8.155(a)(1)(A).) 

On February 19, 2021, Plaintiffs filed a motion requesting that we take 

judicial notice of two exhibits, namely Exhibits A and B. Exhibit A is a 

highlighted copy of Holland’s opening brief and Exhibit B is a copy of 

Kuczewski’s opening brief that was submitted in Marien I. On March 11, 

2021, we issued an order stating that we would consider Plaintiffs’ request 

for judicial notice concurrently with this appeal. We now exercise our 

discretion and deny Plaintiffs’ request for judicial notice of the two exhibits 

and therefore disregard any references to them in their respondents’ brief. 

(Cf. Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
14

the former proceeding must be final and on the merits. Finally, the party 

against whom preclusion is sought must be the same as, or in privity with, 

the party to the former proceeding. [Citations.]” (Id. at p. 341.) 

Assuming arguendo that Lucido’s first four requirements for 

application of the doctrine of collateral estoppel have been satisfied, we 

nevertheless conclude, as did the trial court post, that Plaintiffs have not 

carried their burden to show that Holland is in privity with Kuczewski. “The 

concept of privity for the purposes of res judicata or collateral estoppel refers 

‘to a mutual or successive relationship to the same rights of property, or to 

such an identification in interest of one person with another as to represent 

the same legal rights [citations] and, more recently, to a relationship between 

the party to be estopped and the unsuccessful party in the prior litigation 

which is “sufficiently close” so as to justify application of the doctrine of 

collateral estoppel. [Citations.]’ ” (Citizens for Open Access etc. Tide, Inc. v. 

Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070 (Citizens for Open 

Access).) “A party is adequately represented for purposes of the privity rule 

‘if his or her interests are so similar to a party’s interest that the latter was 

the former’s virtual representative in the earlier action.’ ” (Id. at p. 1070) 

“We measure the adequacy of ‘representation by inference, examining 

whether the . . . party in the suit which is asserted to have a preclusive effect 

had the same interest as the party to be precluded, and whether that . . . 

party had a strong motive to assert that interest.’ ” (Id. at p. 1071.) 

Contrary to Plaintiffs’ implicit assertion, the fact that Holland’s 

opening brief, filed in propria persona, repeated (or, in Plaintiffs’ terminology, 

“appropriated”) many of the arguments previously made by Kuczewski’s 

appellate counsel in his opening brief in Marien I does not show they had a 

mutual, or sufficiently close, relationship such that Kuczewski represented 
15

Holland’s legal rights or interests in Marien I. (Citizens for Open Access, 

supra, 60 Cal.App.4th at pp. 1069-1070.) Furthermore, contrary to Plaintiffs’

assertion, any representation by Holland’s trial counsel that Kuczewski and 

Holland were engaged in a joint defense does not show that Kuczewski 

represented Holland’s interests in Marien I. In particular, assuming

arguendo that Kuczewski and Holland are jointly defending the SAC, 

Holland was not added as a defendant until after remand of Marien I and, in 

any event, the fact that codefendants may collaborate in their defense of an 

action does not show they have a sufficiently close relationship for purposes 

of applying the doctrine of collateral estoppel. Plaintiffs do not cite, and we 

are unaware of, any apposite case supporting their argument. Because 

Plaintiffs have not carried their burden to show that Holland is in privity 

with Kuczewski, we conclude the doctrine of collateral estoppel does not 

apply to bar Holland from purportedly “relitigating” issues that we decided in 

Marien I. 

B. Issue of Public Interest Generally 

Section 425.16, subdivision (e)(3) and (4) define acts made “in 

connection with a public issue” that are protected by the anti-SLAPP statute 

as including statements made in connection with “an issue of public interest.” 

“The definition of ‘public interest’ within the meaning of the anti-SLAPP 

statute has been broadly construed to include not only governmental matters, 

but also private conduct that impacts a broad segment of society and/or that 

affects a community in a manner similar to that of a governmental entity.” 

(Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) 

“Although matters of public interest include legislative and governmental 

activities, they may also include activities that involve private persons and 

entities, especially when a large, powerful organization may impact the lives 
16

of many individuals.” (Church of Scientology v. Wollersheim (1996) 42 

Cal.App.4th 628, 650.) 

Section 425.16 “does not provide a definition for ‘an issue of public 

interest,’ and it is doubtful an all-encompassing definition could be provided. 

However, the statute requires that there be some attributes of the issue 

which make it one of public, rather than merely private, interest. A few 

guiding principles may be derived from decisional authorities. First, ‘public 

interest’ does not equate with mere curiosity. [Citations.] Second, a matter 

of public interest should be something of concern to a substantial number of 

people. [Citation.] Thus, a matter of concern to the speaker and a relatively 

small, specific audience is not a matter of public interest. [Citations.] Third, 

there should be some degree of closeness between the challenged statements 

and the asserted public interest [citation]; the assertion of a broad and 

amorphous public interest is not sufficient [citation]. Fourth, the focus of the 

speaker’s conduct should be the public interest rather than a mere effort 

‘to gather ammunition for another round of [private] controversy . . . .’ 

[Citation.] Finally, ‘those charged with defamation cannot, by their own 

conduct, create their own defense by making the claimant a public figure.’ 

[Citation.] A person cannot turn otherwise private information into a matter 

of public interest simply by communicating it to a large number of people.” 

(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.) 

Cases that have addressed the question of whether alleged wrongful 

statements were made in connection with a public issue or an issue of public 

interest have focused on whether those statements “either concerned a person 

or entity in the public eye [citations], conduct that could directly affect a large 

number of people beyond the direct participants [citations] or a topic of 

widespread, public interest [citation].” (Rivero v. American Federation of 
17

State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 

913, 924 (Rivero).) On the latter factor, “it is not enough that the statement 

refer to a subject of widespread public interest; the statement must in some 

manner itself contribute to the public debate.” (Wilbanks v. Wolk (2004) 121 

Cal.App.4th 883, 898.) For example, comments on the business practices of a 

plaintiff that is not in the public eye and do not affect a large number of 

people are not a topic of widespread public interest. (Ibid.) However, 

consumer information that affects a large number of persons is generally 

viewed as information concerning a matter of public interest. (Ibid.) 

Furthermore, “in order to satisfy the public issue/issue of public 

interest requirement of section 425.16, subdivision (e)(3) and (4) of the antiSLAPP statute, in cases where the issue is not of interest to the public at 

large, but rather to a limited, but definable portion of the public (a private 

group, organization, or community), the constitutionally protected activity 

must, at a minimum, occur in the context of an ongoing controversy, dispute 

or discussion, such that it warrants protection by a statute that embodies the 

public policy of encouraging participation in matters of public significance.” 

(Du Charme v. International Brotherhood of Electrical Workers (2003) 110 

Cal.App.4th 107, 119, fn. omitted.) 

C. No Public Issue or Issue of Public Interest in This Case 

Contrary to Holland’s assertion, we conclude none of the 32 causes of 

action alleged against her in the SAC arise out of any statements or other 

conduct in connection with any public issue or issue of public interest within 

the meaning of section 425.16, subdivision (e)(3) or (4). Without specifically 

addressing the allegations in each of the 32 causes of action alleged against 

Holland in the 110-page SAC, we conclude that, to the extent the SAC’s 

causes of action are based on Kuczewski’s and/or Holland’s statements about 
18

Plaintiffs (e.g., defamation causes of action), those statements involved, at 

most, a private controversy or dispute between Plaintiffs and Kuczewski

and/or Holland and not any public issue or issue of public interest.9 First, 

none of the Plaintiffs were in the public eye. (Rivero, supra, 105 Cal.App.4th 

at p. 924.) Neither the fact that ACA was the TPG’s concessionaire nor the 

fact that Marien acted as its flight director made Plaintiffs public figures or 

otherwise placed them in the public eye and Kuczewski’s and Holland’s 

website postings alone could not place them in the public eye for anti-SLAPP 

purposes. (Weinberg, supra, 110 Cal.App.4th at p. 1133 [defendants cannot, 

by their own conduct, create their own defense to defamation causes of action 

by making plaintiff a public figure].) 

Second, the SAC’s allegations do not support Holland’s apparent 

assertion that her alleged wrongful statements directly affected a large 

number of people beyond the direct participants. (Rivero, supra, 105

Cal.App.4th at p. 924.) Rather, because her statements related primarily to, 

or arose out of, incidents involving Plaintiffs and Kuczewski and/or a few of 

his hang gliding acquaintances, they did not directly affect a large number of 

people. Although Holland’s website postings of Kuczewski’s statements 

presumably made them potentially accessible by a large number of people, 

that potential accessibility does not, by itself, show those statements directly 

affected a large number of people. (Weinberg, supra, 110 Cal.App.4th at 

9 We note that the SAC’s declaratory relief and injunctive relief causes of 

action do not involve any speech or other purported protected conduct by 

Kuczewski or Holland, thereby clearly precluding her satisfaction of the first 

step of the anti-SLAPP analysis without our need to address whether they 

involved an issue of public interest. 
19

p. 1133 [defendants cannot turn otherwise private information into a matter 

of public interest simply by communicating it to a large number of people].) 

The SAC does not allege that Holland’s website statements were viewed by 

thousands of persons or that such statements directly affected those viewers. 

“[A] matter of concern to the speaker and a relatively small, specific audience 

is not a matter of public interest.” (Id. at p. 1132.) In this case, there is 

nothing alleged in the SAC showing Kuczewski’s and/or Holland’s dispute 

with Plaintiffs regarding their operation of the TPG was a matter of concern 

to persons other than Kuczewski, Holland, and the presumably small number 

of hang gliders in the U.S. Hawks hang gliding organization and/or those 

persons directly interested in Kuczewski’s and Holland’s website postings 

regarding Plaintiffs. (Cf. Weinberg, at pp. 1135-1136 [defendant’s publication 

of defamatory statements accusing plaintiff of criminal conduct to relatively 

small group of about 700 fellow token collectors was a private matter 

furthering defendant’s campaign to discredit plaintiff and did not involve a 

matter of public interest].) 

Third, contrary to Holland’s assertion, her alleged wrongful statements 

did not involve a topic of widespread, public interest, but instead involved a 

private controversy or dispute between Plaintiffs and Kuczewski. Although, 

as she argues, the alleged statements and incidents underlying them relate to 

Plaintiffs’ operation of the TPG, which is part of a public park, and ACA’s 

rent-free lease of the TPG premises from the City of San Diego, those 

circumstances do not necessarily show those statements involved a topic of 

widespread, public interest. The alleged statements show Kuczewski and/or 

Holland are highly critical of the manner in which Plaintiffs operate the TPG. 

However, there is nothing in the SAC’s allegations showing that criticism has 

become a topic of widespread, public interest. In particular, although 
20

Kuczewski regularly spoke at City Council meetings regarding incidents that 

occurred at the TPG and Plaintiffs’ purported mismanagement of its 

operations and he and/or Holland subsequently posted video recordings of 

those statements, none of his statements at those meetings apparently were 

made during the City Council’s agenda items, but instead were made during 

the period for comments by the general public on nonagenda issues. Neither 

Kuczewski’s statements at City Council meetings regarding the operations of 

the TPG nor his, nor Holland’s, subsequent posting of video recordings of 

those statements made his statements topics of widespread, public interest. 

(Rivero, supra, 105 Cal.App.4th at p. 924; Donovan v. Dan Murphy 

Foundation (2012) 204 Cal.App.4th 1500, 1508-1509 [removal of member of 

foundation’s board of directors did not involve an issue of public interest even 

though foundation was one of largest charitable organizations in Southern 

California and its donations to persons and entities affected millions of 

persons].) Furthermore, there is an insufficient degree of closeness between 

Kuczewski’s and/or Holland’s alleged defamatory statements and any 

purported public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132.) 

Based on our reading of the SAC’s allegations, the focus of Kuczewski’s

and/or Holland’s alleged statements was to further Kuczewski’s private 

dispute with Plaintiffs and possibly obtain the TPG concession for himself 

and/or members of his U.S. Hawks organization; it was not to further the 

public interest. (Id. at pp. 1132-1133.) Accordingly, we conclude Kuczewski’s 

alleged defamatory statements, as allegedly posted on websites by Holland,

were mere comments and/or criticism of Plaintiffs’ operation of the TPG and 

other business practices, which statements arose out of a private controversy 

or dispute or private interest and were not made in connection with any 

public issue or issue of public interest. (Cf. Wilbanks, supra, 121 Cal.App.4th 
21

at p. 898 [defendant’s comments on plaintiffs’ business practices did not 

affect a large number of people and was not a topic of widespread public 

interest].) 

To the extent Holland asserts that some of Kuczewski’s alleged 

statements, as allegedly posted on websites by Holland, were made in 

connection with issues of public interest because they constituted consumer 

information affecting a large number of people, we conclude the premise of 

that assertion is faulty. Although Kuczewski allegedly made statements, 

inter alia, referring to Plaintiffs’ bullying of people at the TPG and various 

accidents occurring there, any consumer information conveyed by those 

statements was insignificant and merely incidental to the underlying private 

purpose of those statements as alleged in the SAC (i.e., to further 

Kuczewski’s private dispute with Plaintiffs and/or to obtain the concession for 

the TPG for himself and/or members of his U.S. Hawks organization). To the 

extent the SAC alleged Kuczewski made any statements conveying consumer 

information that were later posted on websites by Holland, those purported 

protected statements were merely incidental or collateral to Plaintiffs’ claims 

for relief based on Kuczewski’s and Holland’s statements and other conduct 

that was not protected by section 425.16. (Cf. Baral, supra, 1 Cal.5th at 

p. 394 [assertions involving protected conduct that are merely incidental or 

collateral are not subject to § 425.16].) 

D. No Issue Under Consideration by a Legislative Body in This Case

We also reject Holland’s alternative assertion that Kuczewski’s alleged 

defamatory statements, which she allegedly later posted on websites, were 

made “before a legislative, executive, or judicial proceeding, or any other 

official proceeding authorized by law” within the meaning of section 425.16, 

subdivision (e)(1), or “in connection with an issue under consideration or 
22

review by a legislative, executive, or judicial body, or any other official 

proceeding authorized by law” within the meaning of section 425.16, 

subdivision (e)(2). Although many of Kuczewski’s alleged defamatory 

statements were made during the nonagenda public comment portion of city 

council meetings, the SAC clearly alleged that Plaintiffs do not base their 

claims for relief on his speech or other conduct during city council meetings, 

but rather on Kuczewski’s and Holland’s conduct thereafter (e.g., posting 

those statements on websites after city council meetings).10 Holland does 

not cite, and we are unaware of, any case that holds defamatory statements 

are forever protected by the anti-SLAPP statute if they are initially made 

before a legislative body (e.g., city council) and thereafter repeated, or 

“re-published,” by their declarants, or other persons, to people outside of a 

legislative or other official proceeding (e.g., on websites). Because we cannot 

conclude the Legislature intended section 425.16 to apply in that manner, we 

reject Holland’s apparent assertion to that section 425.16, subdivision (e)(1) 

or (2) applies to protect her alleged defamatory statements. 

Because Holland did not carry her burden under the first step of the 

anti-SLAPP analysis to show the SAC’s causes of action arose out of conduct 

protected by section 425.16, we need not, and do not, address the question of 

10 In paragraph 31 of the SAC, which by subsequent incorporation applied 

to all of the causes of action alleged therein, Plaintiffs alleged: “For purposes 

of clarity, Plaintiffs do not seek to impose liability for defamation or 

interference-related statements [Kuczewski] [made] while he [was] standing 

in front of the City Council; rather[,] Plaintiffs seek [to impose] liability 

against Defendants [i.e., Kuczewski and Holland] for the broadcast of those 

statements on television, on the Internet, and in person-to-person 

conversations because they are neither matters of genuine public concern and 

not subject to any privilege when broadcast in such a manner.” (Emphasis 

omitted.) 
23

whether Plaintiffs met their burden under the second step of the anti-SLAPP 

analysis (i.e., to show there is a probability they will prevail on the merits of 

their causes of action). Accordingly, the trial court correctly denied Holland’s 

section 425.16 motion to strike the SAC. 

DISPOSITION

The order is affirmed. Respondents shall recover their costs on appeal. 

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.