No Value: Lisa Keith vs Celeste White et al

On October 25, 2022 a No Value was filed involving a dispute between Keith, Lisa, and Does 1-50, Inclusive, The Valley Rock Foundation, Valley Rock Foundation, White, Celeste, White, Robert, for Breach of Contract/Warranty Unlimited (06) in the District Court of Napa County.

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1 John S. Rueppel (SBN: 267467)
Evan D. Winet (SBN: 289643)
2 JOHNSTON, KINNEY & ZULAICA LLP
101 Montgomery Street, Suite 1600
3 San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
evan@jkzllp.com
6

7
Attorneys for Plaintiff,
8 Lisa Keith

9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN THE COUNTY OF NAPA
11
LISA KEITH, CASE NO: 22CV001269
12

13 Plaintiff, PLAINTIFF LISA KEITH’S OPPOSITION
TO DEFENDANTS, CELESTE WHITE,
14 v. ROBERT WHITE, AND THE VALLEY
ROCK FOUNDATION’S NOTICE OF
15 CELESTE WHITE, an individual, ROBERT MOTION AND SPECIAL ANTI-SLAPP
WHITE, an individual, the VALLEY ROCK MOTION TO STRIKE PLAINTIFF’S
16 FOUNDATION, aka THE BAR 49 COMPLAINT
17 FOUNDATION, a charitable organization, and
DOES 1-50, INCLUSIVE, Date: 02/01/2023
18 Time: 8:30 a.m.
Defendants. Dept.: B
19 Judge: Hon. Scott R.L. Young
20 Complaint Filed: 10/25/2022
21 Trial Date: Not Set

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND SPECIAL ANTI-SLAPP MOTION TO
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1
Table of Contents
2
I. INTRODUCTION AND SUMMARY OF OPPOSITION ................................................................... 1
3
II. FACTUAL BACKGROUND .............................................................................................................. 1
4

5 III. LEGAL STANDARD ......................................................................................................................... 2

6 A. Anti-SLAPP Motions Were Not Meant to Stifle Suits Such as Plaintiff’s ................................ 2
7 B. The Court’s Two-Pronged Analysis of an Anti-SLAPP Motion ............................................... 3
8
1. Does The Challenged Cause of Action “Arise From” Protected Activity? ............................... 3
9
2. If So, Can Resisting Party Show “Probability of Prevailing” On Claims? ................................ 6
10

11 IV. LEGAL ARGUMENT........................................................................................................................ 6

12 A. The Press Releases Do Not Arise From Protected Activity. ...................................................... 6
13
1. The Defendants Have Waived Their Right To the Anti-Slapp Statute’s Protection .................. 6
14
2. The Subject of the Releases Was Not A “Matter of Public Interest” ......................................... 8
15
3. The Releases Were Not Based on Representations Made In Connection with an Issue Under
16
Consideration By a Judicial Body..................................................................................................... 9
17

18 B. Plaintiff Has Shown A Probability of Prevailing on Her Claims ............................................. 10

19 V. CONCLUSION .................................................................................................................................. 12
20

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1 Table of Authorities
2
Page(s)
3

4 Cases

5 Bonni v. St. Joseph Health System,
(2021) 11 Cal. 5th 995 .......................................................................................................................... 5
6 City of Cotati v. Cashman,
(2002) 29 Cal.4th 69 ..................................................................................................................... 3, 4, 6
7 Cross v. Facebook,
(2017) 14 Cal.App.5th 190 ................................................................................................................. 10
8
DaimlerChrysler Motors Co. v. Lew Williams, Inc.,
9 (2006) 142 Cal.App.4th 344 ................................................................................................................. 7
FilmOn.com Inc. v. DoubleVerify Inc.,
10 (2019) 7 Cal.5th 133 ......................................................................................................................... 8, 9
Greco v. Greco,
11 (2016) 2 Cal.App.5th 810 ................................................................................................................. 4, 5
Musero v. Creative Artists Agency, LLC,
12
(2021) 72 Cal.App.5th 802 ................................................................................................................... 8
13 Navellier v. Sletten,
(2002) 29 Cal.App.4th 82 ............................................................................................................. 3, 6, 9
14 Olson v. Doe,
(2022) 12 Cal.5th 669 ..................................................................................................................... 6, 10
15 Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP,
16 (2017) 18 Cal.App.5th 95 ................................................................................................................. 5, 7
Overstock.com, Inc. v. Gradient Analytics, Inc.,
17 (2007) 151 Cal.App.4th 688 ........................................................................................................... 6, 10
Park v. Board of Trustees of California State University,
18 (2017) 2 Cal. 5th 1057 .......................................................................................................................... 4
Rand Resources v. City of Carson,
19 (2016) 247 Cal.App.4th 1080 ............................................................................................................... 8
20 Rand Resources, LLC v. City of Carson,
(2019) 6 Cal.5th 610 ............................................................................................................................. 8
21 Rivero v. Amer. Federation of State, County, and Municipal Employees, AFL-CIO,
(2003) 105 Cal.App.4th 913 ................................................................................................................. 8
22 Urick v. Urick,
(2017) 15 Cal.App.5th 1182 ................................................................................................................. 4
23 Wilbanks v. Wolk,
24 (2004) 121 Cal.App.4th 883 ................................................................................................................. 4
Wong v. Wong,
25 (2019) 43 Cal.App.5th 358 ............................................................................................................... 4, 5

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Statutes
1

2 Code Civ. Proc. § 425.16(a)...................................................................................................................... 2
Code Civ. Proc. § 425.16(b)(1) ................................................................................................................. 3
3 Code Civ. Proc. § 425.16(b)(2) ................................................................................................................. 6
Code Civ. Proc. § 425.16(e)...................................................................................................................... 4
4 Code of Civil Procedure Section 425.16............................................................................................... 3, 5
5

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1

2 Plaintiff, Lisa Keith, (“Plaintiff” or “Lisa”), hereby presents her Opposition to the Notice of
3 Motion and Special Anti-SLAPP Motion to Strike Plaintiff’s Complaint by Defendants Celeste White,
4 Robert White, and The Valley Rock Foundation (“Motion”), and alleges as follows:
5 I. INTRODUCTION AND SUMMARY OF OPPOSITION
6 1. This Motion is yet another example of the harassing and antagonistic stance that
7 Defendants, Celeste White (“Celeste”), Robert White (“Robert”) and The Valley Rock Foundation (“The
8 Valley Rock”, collectively “Defendants”) have taken towards Plaintiff. This Motion is frivolous and
9 further evidence of Defendant’s hostility. The motion employs a method blithely innocent of the nuances
10 of human communication. Having looked up the words “negative,” “critical” and “derogatory” in a
11 dictionary—and come up with some dubious partial definitions at that—Defendants then pluck phrases
12 from their offending press releases, proclaim that their own partial definitions of words don’t aptly
13 describe these selected passages taken in isolation, and then, on the basis of this comfortably self-
14 contained exercise, conclude that the press releases in their entirety are “objectively” innocuous “as a
15 matter of law.” On its face, this argument is bizarre and unmoored from how language and meaning
16 actually work. It dubiously presumes that words and phrases in ordinary speech have absolute meanings
17 and implications regardless of the contexts in which they are used. Such a presumption is fundamentally
18 wrong as is the entire foundation on which the motion rests.
19 2. It is furthermore an extreme and outrageous application of the anti-SLAPP doctrine. Anti-
20 SLAPP is a powerful legal tool designed to relieve weaker defendants from meritless lawsuits filed by
21 the powerful. Epitomizing Defendants’ stance, their decision to file a special motion to strike is
22 specifically designed to drive up Plaintiff’s costs of litigation, while being, if not frivolous, absolutely
23 certain to be denied.
24 3. Accordingly, this Motion should be denied.
25 II. FACTUAL BACKGROUND
26 4. In the prior action, Plaintiff brought a suit against Defendant Celeste White, and others
27 regarding breaches of trust and seeking an accounting, regarding their father’s trust, the Edward A. Keith
28 Declaration of Trust. The dispute was settled after mediation pursuant to a written Settlement Agreement
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1 (“Agreement”). The Agreement was approved by the Court in its August 20, 2020 Order. Because
2 Plaintiff was very concerned that her sister would attempt to smear her name later in some way, she
3 required a robust Non-Disparagement Clause be included in the Agreement. That clause barred not only
4 defamatory language, but also “any remark, comment, message, information, declaration,
5 communication or other statement of any kind that might reasonably be construed to be derogatory or
6 critical of, or negative toward any other Party.” The penalty for breach of the provision was set at $10,000
7 for each communication. Defendants agreed to this extraordinarily broad non-disparagement provision
8 in return for the release of claims against them and agreed to pay Plaintiff almost $1,300,000 in damages.
9 5. A few months later, as Plaintiff had feared, Defendants began to disseminate false
10 statements about the litigation, itsresult, and the judge’s ruling, which implied Plaintiff’s claims had
11 been frivolous, casting her in a negative light and clearly breaching the Agreement. The statements (the
12 “Press Releases”) were not about any issue of public policy, in support of any cause or belief, and
13 involved no issues of public interest; they were pure puffery, a mix of fact and falsehood designed only
14 to glorify Defendants and disparage Plaintiff. Given the nature of the non-disparagement clause, it was
15 an act of sheer arrogance to issue press releases that in any way impugned Plaintiff and her case against
16 Defendants.
17 6. Plaintiff filed the instant action on or about October 21, 2022.
18 III. LEGAL STANDARD
19 A. Anti-SLAPP Motions Were Not Meant to Stifle Suits Such as Plaintiff’s
20 7. The Anti-SLAPP statute was enacted in 1992 for the purposes of curbing SLAPPs
21 (“strategic lawsuits against public participation”). The legislature states its purposes within the statute
22 itself:
23 “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition
24 for the redress of grievances. The Legislature finds and declares that it is in the public interest to
encourage continued participation in matters of public significance, and that this participation
25 should not be chilled through abuse of the judicial process. To this end, this section shall be
construed broadly.”
26

27 (Code Civ. Proc. § 425.16(a).) The problem the legislature perceived was of Goliath plaintiffs filing
28 meritless lawsuits against David defendants who had engaged in criticism or adversarial actions against
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1 the Goliaths. Such SLAPPs were “strategically” intended to drive up costs, thus undermining the very
2 ability of the David defendants to speak truth to power. A typical SLAPP, for example, might involve a
3 large corporation filing lawsuits to silence criticism from a small newspaper. Since 1992, many have
4 observed that anti-SLAPP lawsuits themselves have increased litigation and have been pursued in
5 circumstances that involve neither the power imbalance, the public participation nor even the protected
6 conduct envisioned by the legislature.
7 B. The Court’s Two-Pronged Analysis of an Anti-SLAPP Motion
8 8. Code of Civil Procedure Section 425.16 describes the requirements for a moving party to
9 prevail on a special motion to strike against an alleged SLAPP:
10 “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
11 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
12 will prevail on the claim.”
13 (Code Civ. Proc. § 425.16(b)(1).) Although the legislature admonished Courts that this standard shall be
14 “construed broadly,” there has been extensive litigation over the past 30 years to ensure that the key
15 terms are defined in a reasonable manner congruent with the legislature’s intent.
16 1. Does The Challenged Cause of Action “Arise From” Protected Activity?
17 9. As a threshold question, before it may proceed any further in reviewing an anti-SLAPP
18 motion, the Court must first decide whether the statute actually pertains to the cause(s) of action in
19 question. The Court must decide whether the movant has made a “threshold showing” that the challenged
20 cause(s) of action “arise from” protected activity as construed by section 425.16. (Navellier v. Sletten
21 (2002) 29 Cal.4th 82, 92.)
22 10. The term “arise from” is itself a term of art and does not simply mean “in response to” or
23 “related to” or “coincident with.” A cause of action does not “arise from” protected activity simply
24 because it is filed after protected activity took place. (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
25 76-77.) The alleged harmful act or conduct on which the cause of action is based “must itself have been
26 an act in furtherance of the right of petition or free speech.” (Id. at 78.) The mere fact that the movant
27 filed petitions or exercised free speech in relation to the harmful act or conduct does not automatically
28 render the harmful act or conduct “protected.” If this were the case, ANY conduct could be rendered
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1 protected activity merely by talking about it. (Id).
2 11. Protected activity includes: (1) any written or oral statement or writing made before a
3 legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any
4 written or oral statement or writing made in connection with an issue under consideration or review by
5 a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any
6 written or oral statement or writing made in a place open to the public or a public forum in connection
7 with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the
8 constitutional right of petition or the constitutional right of free speech in connection with a public issue
9 or an issue of public interest.” (Code Civ. Proc. § 425.16(e); Urick v. Urick (2017) 15 Cal.App.5th 1182,
10 1191.)
11 12. The determination of whether the alleged wrongful action constitutes “statements made
12 in connection with a public issue” is made by reviewing: (1) the subject of the statement or activity
13 precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating
14 the claim involved conduct that could affect large numbers of people beyond the direct participants; and
15 (3) whether the statement or activity precipitating the claim involved a topic of widespread public
16 interest. (Greco, supra, at 824, citing Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.)
17 13. The courts have described “acts in furtherance of the right to petition” as “protected
18 activity.” A claim is not subject to a motion to strike simply because it contests an action or decision that
19 was arrived at following speech or petitioning activity. (Park v. Board of Trustees of California State
20 University (2017) 2 Cal. 5th 1057, 1060.) A claim may only be struck if the speech or petitioning activity
21 itself is the wrong complained of. (Ibid.) In other words, a claim may not be struck if the petitioning
22 activity is merely evidence of liability or a step leading to some different act for which liability is
23 asserted. (Ibid.) To put it another way, the Anti-SLAPP statute’s focus is not on the form of the cause of
24 action pled, but rather on the respondent’s activity that gives rise to the asserted liability (Greco v. Greco
25 (2016) 2 Cal.App.5th 810, 819) and whether that activity constitutes protected speech. (Ibid.) It is not
26 enough if the cause of action was in response to or triggered by the protected activity. (Id. at 820.) A
27 cause of action arises from protected conduct only if the wrongful acts alleged by the petitioner constitute
28 protected conduct.” (Ibid.) The Court in Wong v. Wong (2019) 43 Cal.App.5th 358 concludes similarly:
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1
Although the Tang Estate agrees that the three causes of action against it are based on the
2 alleged breach of its contractual indemnification obligation, it argues “that the activity
triggering the indemnity duty and the breach was [its] instigation and funding of the Asian
3 Square [l]itigation against the Wong Estate.” We are not persuaded. It is insufficient for
protected activity to be “a step leading to some different act for which liability is asserted”;
4 it must “itself [be] the wrong complained of.”
5 (Id. at 365, int. cit. omitted.)
6 14. As a pertinent example, in Greco, the Plaintiff, Cara Lyn, filed a claim for financial elder
7 abuse against the defendant, Clyde Jr., alleging that he had wrongfully appropriated money from the
8 elder and or the elder’s trust. Clyde Jr. filed a special motion to strike, arguing that the funds were
9 appropriated to help fund litigation regarding the trust, and the funding of litigation was a protected
10 activity in furtherance of the right to petition. The Court of Appeal held that the activity complained of
11 was not a protected activity, because it was the wrongful appropriation that was complained of, not Clyde
12 Jr.’s alleged pursing of litigation. (Greco, supra, at 824.) Furthermore, the trustee’s actions were not
13 “statements made in connection with a public issue.” (Ibid.) The Court’s analysis is worth quoting: “The
14 context of the underlying litigation does not fall within any of these three categories. As a private matter
15 among a small group of people involving a family trust and estates, it did not involve a public issue or
16 an issue of public interest.” (Ibid.)
17 15. One very recent California Supreme Court decision is especially clear on the premise that
18 the inquiry into whether a claim is based on protected activity should be handled gently:
19
To be clear, we do not suggest that every court that has continued to label its approach a
20 gravamen test even after Baral has erred. Some courts have invoked the term not in the
way Bonni suggests—to determine the essence or gist of a so-called mixed cause of
21 action—but instead to determine whether particular acts alleged within the cause of action
supply the elements of a claim… or instead are incidental background (see Optional
22 Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 111…
[“The ‘gravamen is defined by the acts on which liability is based, not some philosophical
23
thrust or legal essence of the cause of action’”]…This approach is consistent with Baral,
24 which reaffirmed that “[a]ssertions that are ‘merely incidental’ or ‘collateral’ are not
subject to section 425.16. [Citations.] Allegations of protected activity that merely
25 provide context, without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.”
26

27
(Bonni v. St. Joseph Health System (2021) 11 Cal. 5th 995, 1012, int. cit. omitted, emphasis added.)
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1 2. If So, Can Resisting Party Show “Probability of Prevailing” On Claims?
2 16. If, and only if,the moving party succeeds in making their threshold showing that the
3 gravamen of the challenged claims themselves constitute protected activity, may the Court proceed to
4 the second prong of the analysis. The Court must take care before hastening to this second prong, because
5 that second prong is highly prejudicial to a plaintiff, placing burdens on the plaintiff justified only by the
6 logic of the narrow protections for which the anti-SLAPP doctrine was intended.
7 17. Under the second prong, the burden shifts to the plaintiff to show a “probability of
8 prevailing” on her claims. (Navellier, supra, at 88.) In determining whether this second prong is satisfied,
9 the court will consider “the pleadings, and supporting and opposing affidavits stating the facts upon
10 which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2).)
11 18. Under this second prong, the Court does not weigh credibility of witnesses or “evaluate
12 the weight of the evidence.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th
13 688, 699-700.) Instead, the Court must accept as true all evidence favorable to the resisting party and
14 assess the moving party’s evidence only to determine if it defeats the resisting party’s evidence as a
15 matter of law. (Ibid.) “Claims with the requisite minimal merit may proceed.” (Olson v. Doe (2022) 12
16 Cal.5th 669, 679).
17 IV. LEGAL ARGUMENT
18 A. The Press Releases Do Not Arise From Protected Activity.
19 1. The Defendants Have Waived Their Right To the Anti-Slapp Statute’s
20 Protection
21 19. A defendant who has in fact validly contracted not to speak or petition has in effect
22 “waived the right to the anti-SLAPP statute’s protection in the event he or she later breaches the
23 contract.” (Navellier v. Sletten (2002) 29 Cal.App.4th 82, 95).
24 20. Plaintiff’s complaint demonstrates that there was a contract between Plaintiff and
25 Defendants, and in that contract, Defendant’s promised as follows:
26 ///
27 ///
28 ///
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND SPECIAL ANTI-SLAPP MOTION TO
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7. Non-Disparagement
1
Each Party agrees that they will not communicate through any medium or by any means,
2 including but not limited to email and social media, any remark, comment, message,
information, declaration, communication or other statement of any kind that might
3 reasonably be construed to be derogatory or critical of, or negative toward, any other Party
with respect to any issue that concerns, regards, or relates in any way to the Napa
4 Proceeding, the Sonoma Proceeding, the Trust, any trust of which the Beneficiaries are
beneficiaries funded with assets distributed from the Trust, the Foundation, or Sundown
5 Ranch, LLC.
6 …
7 The Parties agree that damages resulting from a breach of this Section 7 likely will be
difficult or incapable of being ascertained or valued, and therefore, the Parties agree that,
8 should it be proven in a court of law or other competent forum that a Party has violated this
Provision, that Party shall pay the greater of the actual damages proven or liquidated
9 damages in the amount of Ten Thousand Dollars ($10,000) for each such communication,
plus reasonable attorneys' fees incurred by the protected Party or Parties in proving such
10 violation.
11

12 (Exh. A, Agreement, ¶ 7.) A true and correct endorsed filed copy of the Complaint for Damages is
13 attached at Exhibit A.
14 21. It is worth noting that this non-disparagement clause is unusually robust, at Plaintiff’s
15 insistence. The provision is extremely broad; the liquidated damages figure is high. This was an
16 important provision of the contract, bargained for by the parties. By contracting not to “speak or
17 communicate in any way through any medium or any message”, Defendants have waived their right to
18 protection of 425.16. (Navellier, supra, at 95). If a claim for breach of a contractual provision against
19 certain speech shows minimal merit, then 425.16 does not apply. (DaimlerChrysler Motors Co. v. Lew
20 Williams, Inc. (2006) 142 Cal.App.4th 344, 351).
21 22. Furthermore, the Parties to the agreement explicitly agreed that any dispute over a breach
22 of this Agreement should be “proven in a court of law”. By so agreeing, Defendants accepted that any
23 breach, even one including speech or communication, would be subject to review by the Court.
24 Defendants cannot now argue that they have not waived their rights under 425.16, when they explicitly
25 agreed to submission of these claims to a Court for determination.
26 23. As is discussed below, Plaintiff’s claim does demonstrate “minimal merit”, and so
27 Defendant’s motion must be denied.
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1 2. The Subject of the Releases Was Not A “Matter of Public Interest”
2 24. Defendants argue that their speech occurred in a public forum on a matter of public
3 interest. While Plaintiff concedes their forum was “public”, the Press Releases did not involve matters
4 of public interest, and so the litigation did not arise from protected activity.
5 25. A matter of concern to the speaker and a relatively small, specific audience is not a
6 “matter of public interest”. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621). A person
7 cannot turn otherwise private information into a matter of public interest simply by communicating it to
8 a large number of people.” (Id, citing Rand Resources v. City of Carson (2016) 247 Cal.App.4th 1080,
9 1092.) In determining whether a statement involves a matter of public interest, the courts have identified
10 three possible factors, (1) whether the statement concerns a person or entity in the public eye; (2) when
11 it involves conduct that could affect a large number of people beyond the direct participants; (3) when it
12 involves a topic of widespread public interest. (Id, citing Rivero v. Amer. Federation of State, County,
13 and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924). The court should first determine
14 what public issue the speech in question implicates, and then ask what functional relationship exists
15 between the speech and the public conversation about the matter of interest. (Musero v. Creative Artists
16 Agency, LLC (2021) 72 Cal.App.5th 802, 820). (emphasis added)
17 26. Defendants’ reliance on Nygard is misplaced, as the breadth of the holding there has been
18 found to be in contravention of California Supreme Court opinions. In Musero, the Court specifically
19 took issue with the holding in Nygard that “an issue of public interest is any issue in which the public is
20 interested” (Musero at 822, fn. 8) It noted that Nygard’s pronouncement is particularly at odds with the
21 California Supreme Court’s holding in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145).
22 “Public interest does not equate with mere curiosity”. (Musero at 822, fn. 8). “No authority supports the
23 broad proposition that anything said or written about a public figure or limited public figure in a public
24 form involves a public issue”. (Id).
25 27. A mere tangential relationship to issues of public interest is not sufficient. (Id at 625).
26 The issues discussed in the press releases go no further than discussing Plaintiff, Defendants, and the
27 prior suit. The discussion is not aimed at any particular policy stance. The mere existence of a single
28 local news story does not make it an issue of public interest. What a court scrutinizing speech in the anti-
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1 SLAPP contest must focus on is the speech at hand, rather than the prospects that such speech may
2 conceivably have indirect consequences for an issue of public concern. (Id).
3 28. Defendants fail to identify any particular part of their speech that involves an issue of
4 public concern. Following Musero, after reviewing the releases to determine what public interest the
5 speech relates to, the answer is “none”. The press releases do not evidence any particular cause or opinion
6 that Defendants desire to support, except their own personal interests: “I have lived my entire life in
7 Napa County and know how much this region meant to my father;” “A Napa County judge has ruled
8 that Celeste K. White acted entirely properly handling the estate of her father.” The fact that Defendants
9 work in a charity does not indicate that the press releases are valuable to the discussion of charities in
10 general. (Id). The statements do not indicate a “point of view” they are for or against, or engage in a
11 public debate on any issue, or endorse any cause. Rather, they are mere puffery, designed to increase
12 their own personal ends, not public ends. It is doubtful that Defendants even rate as “limited public
13 figures”, except in their own estimation. The speech they engaged might be a topic of curiosity, not
14 public interest. In the main, it is just marketing.
15 29. Similarly, the Attorney General’s participation in the underlying suit does not make the
16 statements themselves concern any “public interest”.
17 3. The Releases Were Not Based on Representations Made In Connection with an Issue Under
18 Consideration By a Judicial Body
19 30. Defendants somehow argue that their press releases, made significantly after all litigation
20 on the prior case was completed, somehow involve an issue “under consideration” by a judicial body.
21 31. Defendants cite Navellier in support of their case, but Navellier actually supports
22 Plaintiff. As Defendants noted, “The defendant thereafter allegedly breached the release provision by
23 asserting claims that fell within the release’s terms.” The decision in Navellier was based on the fact that
24 the speech at issue there was the actual filing of a lawsuit. (Navellier, supra, at 90).
25 32. Plaintiff’s causes of action for fraudulent and negligent misrepresentation arise from
26 Defendants’ knowingly false promises within the Agreement itself. In this context, Defendants cite
27 Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, in which the appellate court indeed
28 affirms demurrer of fraud and negligent misrepresentation claims based on an insurer’s contractual
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1 promise to pay for repairs within a certain time frame. However, in that case, the Court simply declines
2 to find the defendant liable for having made an “honest mistake,” holding that “a promise with an honest
3 but unreasonable intent to perform is wholly different from making one with no intent to perform and,
4 therefore, does not constitute a false promise.” (Tarmann at 159.) Here, Defendants’ deliberate
5 subsequent actions bely the notion that they were “honest” in agreeing to the non-disparagement
6 provision in the first place. Having obtained their goals of ending litigation, Defendants engaged in a
7 calculated media campaign to disseminate false reports of their “victory” over Plaintiff at trial along with
8 insinuations that Plaintiff had been unreasonably litigious. This premeditated and targeted series of
9 publication is exactly the kind of conduct that the Tarmann court says may give rise to a permissible
10 action for “deceit based on a false promise” in which “the promisor did not intend to perform at the time
11 he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a
12 particular thing.” (Id.)
13 33. Here, Defendants’ actions were not the filing of a lawsuit, but the issuing of press releases.
14 Furthermore, they are not being sued because of “representations they made in the context of litigation”.
15 They representations they made were made were on the internet, not in a court.
16 B. Plaintiff Has Shown A Probability of Prevailing on Her Claims
17 34. Because the statements made by Defendants tend to show that Plaintiff’s claims in the
18 original suit were frivolous, they can be reasonably construed as derogatory, critical of, and negative
19 toward Plaintiff.
20 35. As noted above, under this second prong, the Court does not weigh credibility of
21 witnesses or “evaluate the weight of the evidence.” (Overstock.com, Inc. v. Gradient Analytics, Inc.
22 (2007) 151 Cal.App.4th 688, 699-700.) The required showing is not high. (Cross v. Facebook (2017) 14
23 Cal.App.5th 190, 205). Instead, the Court must accept as true all evidence favorable to the resisting party
24 and assess the moving party’s evidence only to determine if it defeats the resisting party’s evidence as a
25 matter of law. (Ibid.) “Claims with the requisite minimal merit may proceed.” (Olson v. Doe (2022) 12
26 Cal.5th 669, 679).
27 36. Plaintiff has supported her claims with “competent and admissible evidence.” (Id). The
28 exhibits, including the Agreement, court order, and press releases are all competent and admissible, and
10
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND SPECIAL ANTI-SLAPP MOTION TO
STRIKE PLAINTIFF’S COMPLAINT
1 demonstrate the exact statements at issue, statements that Defendant does not deny making. In fact, she
2 admits to making the statements.
3 37. Accepting all the evidence favorable to Plaintiff as true, the Complaint states a claim of
4 at least minimal merit. Leaving aside the arrogance of a sibling who issues a press release about
5 prevailing in a lawsuit against her own sister, the article is a clear attempt to paint Plaintiff in a negative
6 light, and Defendants in a positive one.
7 38. Furthermore, the non-disparagement language of the Settlement Agreement explicitly
8 does not limit itself to statements which are legally defamatory. The Agreement reads, “Each Party
9 agrees that they will not communicate through any medium or by any means, including but not limited
10 to email and social media, any remark, comment, message, information, declaration, communication or
11 other statement of any kind that might reasonably be construed to be derogatory or critical of, or negative
12 toward, any other Party with respect to any issue that concerns, regards, or relates in any way to the Napa
13 Proceeding.” (emphasis added) In other words, it is not limited to a minute dissection of each phrase of
14 the statements, but can also involve, within the context of the message, the overall meaning and
15 impression of the statement and itseffect on the reader. If a reasonable reader to construe the Press
16 Releases as a whole as negative in regard to Plaintiff, it breaches the Agreement.
17 39. In other words, Defendants are incorrect that an article which does not explicitly say that
18 Plaintiff’s claims were frivolous cannot be reasonably construed as indicating that exact message.
19 Assumi

Case Info

Judge

Cynthia Pillsbury Smith Track Judge’s New Case

Case No.

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Document Filed Date

January 19, 2023

Case Filing Date

October 25, 2022

County

Parties

DOES 1-50, INCLUSIVE Defendant
Keith, Lisa Plaintiff
Rueppel, John S Attorney for the Plaintiff
The Valley Rock Foundation Defendant
Tsai, Jeffrey Eewu Attorney for the Defendant
Valley Rock Foundation Defendant
White, Celeste Defendant
White, Robert Defendant
Kathleen Kizer Attorneys for Defendants
Emily Margolis Attorneys for Defendants
Angie Lam Attorneys for Plaintiffs
Ann Kavanagh Attorneys for Plaintiffs
John Stein Attorneys for Defendants
Roey Rahmil Attorneys for Defendants
Dominic Campisi Attorney
Nancy Levin Attorney
Charles Sundholm Attorney
Philip Wang Attorneys for Plaintiffs
George Chikovani Attorneys for Plaintiffs
Charles Fanning Attorneys for Plaintiffs
Evan Winet Attorneys for Plaintiffs

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No Value: Lisa Keith vs Celeste White et al

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