Filed 2/2/15 Contiki U.S. Holdings v. DiLanzo CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


CONTIKI U.S. HOLDINGS, INC.,                                         B247620

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SC118342)
         v.

ANGELA DILANZO,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of California, County of Los
Angeles. Bobbi Tillmon, Judge. Affirmed.
         Alireza Alivandivafa and Kavita Tekchandani for Defendant and Appellant.
         Lewitt, Hackman, Shapiro, Marshall & Harlan, Sue M. Bendavid and Nicholas
Kanter for Plaintiff and Respondent.
                                ___________________________________
       When Contiki U.S. Holdings, Inc., a tour company, sued Angela DiLanzo, a
former tour guide, for defamation, DiLanzo filed a special motion to strike pursuant to
                                                                    1
Code of Civil Procedure section 425.16 (the anti-SLAPP statute). The trial court denied
the motion.
       We conclude that even if DiLanzo made the required showing on the first prong of
the test for a special motion to strike: that portions of this action arise from protected
activity within the meaning of the anti-SLAPP statute, the trial court correctly concluded
that Contiki demonstrated its lawsuit has at least the minimal merit required to possess a
probability of prevailing. Accordingly, we affirm.
                                     BACKGROUND
       1.     DiLanzo’s Employment with Contiki
       Contiki offers pre-packaged tours that include travel, flights, meals and lodging
and are led by tour managers. DiLanzo worked for Contiki as a tour manager in 2007
and 2008. On August 28, 2007, DiLanzo joined a “Wild West” tour led by Jordan A.,
another Contiki tour manager. On August 31, September 1 and September 17, 2007, the
two engaged in sex.
       A year later, on October 25, 2008, DiLanzo told Contiki in an email that “co-
workers” had pinned her “to the wall and tr[ied[] to pull [her] clothes off.”
       The next day, on October 26, 2008, DiLanzo resigned her employment by way of
an email to Contiki in which she stated managing tours for the company had been “an
incredible experience.” She stated she “appreciate[d] the innumerable opportunities . . .
to meet some really wonderful people both in co-workers and clients” and “strongly
believe[d] in the brand.” She “truly love[d] Contiki” and was “happy about how [her]
life has evolved and what has been accomplished.”



       1
        “SLAPP is an acronym for ‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) Further statutory
references will be to the Code of Civil Procedure unless otherwise noted.


                                              2
       However, on December 7, 2008, DiLanzo sent an email to Jacqui Chaffins, a
Contiki Human Resources Manager, stating a “male Tour Manager” had pinned her
against a wall in a hotel and tried to pull her clothes off. When Chaffins called to
investigate, DiLanzo reported that on two successive mornings Jordan A. had tried to pull
her into the shower with him, but she refused to go. Chaffins advised DiLanzo that
Contiki would investigate, but if she wanted to pursue a criminal action against Jordan A.
she would have to contact the appropriate authorities to file an assault claim and/or seek a
restraining order. DiLanzo said that would not be necessary, as she lived in Pennsylvania
and had not seen or spoken to Jordan A. in a year.
       On December 16, 2008, DiLanzo sent an email to Contiki’s Human Resources
Department describing the events of August and September 2007. In it, she said she
became intoxicated on the evening of August 31 and invited Jordan A. to come onto a
bed she was on. He did, and after approximately 90 seconds of petting he pulled off her
shorts and they “had sex wasted.” They had sex again the next morning and then spent
the day shopping and eating. Two weeks later, on September 17, she told a coworker she
intended “to stalk [Jordan A.] and make him have sex” with her again, this time “on [her]
terms,” i.e., when she was sober. She repeatedly invited Jordan A. to come to her hotel
room, and once he did so they, in her words, “started ‘soberly’ hooking up.”
       Chaffins and other Contiki human resources personnel interviewed Jordan A. He
stated he and DiLanzo had consensual sex in August and September 2007. He expressed
embarrassment about it and promised it would not happen again. Contiki also attempted
to contact the tour bus driver from that tour, but she did not return phone calls. On
February 20, 2009, Chaffins advised DiLanzo she had completed her investigation but
concluded DiLanzo’s claims could not be substantiated. She encouraged DiLanzo to
contact the authorities and stated Contiki would cooperate with any investigation.
       Neither Contiki nor Jordan A. were ever informed of any criminal investigation
into the matter.




                                             3
        Nearly three years later, on November 1, 2011, DiLanzo posted on an online
forum called www.thingsboganslike.com that Contiki “had issues with their tour guides
raping and assaulting people, and have just attempted to covering [sic] it up.”
        On March 23, 2012, DiLanzo stated in an email to the author of a blog that
“Contiki knowledgably [sic] employs violent rapists. While on Contiki, I was violently
sexually assaulted and raped by a Tour Manager. . . . Contiki did not interview a single
witness.”
        On May 1, 2012, DiLanzo posted on the Web site lonelyplanet.com that “Whilst
other tour operators do background checks (financial, criminal, etc.) on their hires,
Contiki does not. They have had issues with their tour guides raping and assaulting
people, and have just attempted to covering [sic] it up”; “Do not expect Contiki to care
whether or not it’s [sic] violent employees cause harm or not.”
        Around July 2012, DiLanzo posted on an online forum on www.thenation.com, in
response to a blog article entitled, “How to Out a Rapist,” that “Contiki knows that they
are harboring a rapist. Reports were made to HR, which were not investigated. . . .
People who were witnesses even had emails forwarded to HR, but instead they chose not
to investigate. . . .”
        On July 28, 2012, DiLanzo stated in an email to the Operations Resource Manager
of Contiki Holidays, United Kingdom that Contiki personnel “in management and HR . . .
break so many petty laws, and instead of making the company safe, cover everything up
so you wouldn’t have a lawsuit”; “Contiki USA is OK WITH RAPE”; “Contiki left me
with permanent brain damage. . . . You have management that ignores basic laws.”
        On September 6, 2012, DiLanzo stated in an email to a Contiki partner company
that “No one is background checked and they don’t fire anyone, no matter how egregious
their behavior. I was one of at least four female co-workers who were violently and/or
plied with alcohol. . . . Contiki actually threatened the victims, myself included, and
chose to do nothing and cover this up.”
        On September 11, 2012, Contiki sued DiLanzo, asserting six causes of action for
libel per se. Contiki alleged that on six occasions (one for each cause of action), DiLanzo

                                             4
published statements to the effect that she suffered an acquaintance rape at the hands of
another Contiki tour guide and that Contiki knows some of its guides are rapists but fails
to perform background checks, investigate rape allegations, or take any other action to
mitigate the danger to employees and clients.
       DiLanzo answered the complaint and moved to have it stricken under section
425.16 as a SLAPP suit, arguing the lawsuit arose from protected activity within the
meaning of the anti-SLAPP statute and Contiki could not demonstrate a probability of
prevailing. Contiki opposed the motion, arguing its allegations did not arise from
protected activity, as DiLanzo’s communications were made privately to private third
parties about nonpublic matters. Contiki further argued its evidence established DiLanzo
had published unprivileged defamatory statements about it to third parties who would
understand their referents, and the statements were false, as Contiki conducted
background checks on its employees, did not employ rapists, and investigated DiLanzo’s
allegations, finding them to be unsubstantiated.
       Following a hearing, the trial court denied DiLanzo’s special motion to strike. In a
well reasoned order, the court found the three statements made by DiLanzo by email and
the one posted on lonelyplanet.com were not made in public forums, as email is a private
forum and lonelyplanet.com was a restricted Web site. But the two communications
posted on thenation.com and thingsboganslike.com were made in public forums because
those Web sites are freely available to the public. The court found those latter two
statements concerned a matter of public interest, but Contiki established a probability of
prevailing on the merits by demonstrating it investigated DiLanzo’s allegations. DiLanzo
timely appealed.
                                      DISCUSSION
       Standard of Review
       We review an order granting or denying a motion to strike under section 425.16 de
novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3
(Soukup).) “We consider ‘the pleadings, and supporting and opposing affidavits . . . upon
which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither

                                             5
‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true
the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence
only to determine if it has defeated that submitted by the plaintiff as a matter of law.’”
(Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
       Under section 425.16, a party may move to dismiss “certain unmeritorious claims
that are brought to thwart constitutionally protected speech or petitioning activity.”
(Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421.) Section 425.16
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.” (§
425.16, subd. (b)(1).)
       In evaluating an anti-SLAPP motion, we conduct a two-step analysis. We first
decide whether the defendant “has made a threshold showing that the challenged cause of
action arises from protected activity.” (Taheri Law Group v. Evans (2008) 160
Cal.App.4th 482, 488.) If the defendant makes this showing, we decide whether the
plaintiff “has demonstrated a probability of prevailing on the claim.” (Id. at p. 488.)
       DiLanzo’s Statements Arguably Concerned a Matter of Public Interest
       Section 425.16, subdivision (e), sets forth four categories of conduct to which the
anti-SLAPP statute applies. To make a sufficient threshold showing that the alleged
activity is protected by the anti-SLAPP statute a defendant must demonstrate the conduct
by which the plaintiff claims to have been injured falls within one of the four categories.
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) The first two
categories include statements made before, or in connection with an issue under
consideration by, a legislative, executive, or judicial proceeding.
       None of the subject publications was made in connection with any legislative,
executive, or judicial proceeding. DiLanzo asserts several of them were made in
response to Contiki sending her a “cease and desist” letter, and argues such a letter is a

                                                6
communication connected with an official proceeding, which means her response would
also be such a communication. The argument is without merit. A communication made
in anticipation of litigation is entitled to the benefits of section 425.16. (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) But DiLanzo does not
argue, and no evidence suggests, that she made the statements about Contiki in
anticipation of any litigation.
       The third and fourth categories embrace statements made either “in a place open to
the public or a public forum” or “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech,” so long as the
statements or conduct concern an issue of public interest. (§ 425.16, subd. (e).)
       Much of the trial court’s order and the parties’ briefing focus on which of
DiLanzo’s six statements were made in a public forum. A public forum is a place open to
general public “‘for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.’” (International Soc’y for Krishna Consciousness v. Lee
(1992) 505 U.S. 672, 679, quoting Hague v. Committee for Industrial Organization
(1939) 307 U.S. 496, 515.) For example, a Web site that is free and accessible to the
public is a public forum for purposes of the anti-SLAPP statute. (Barrett v. Rosenthal
(2006) 40 Cal.4th 33, 41, fn. 4.) A Web site where access is selective, on the other hand,
is not a public forum. (See Arkansas Educ. TV Comm’n v. Forbes (1998) 523 U.S. 666,
678-680 [media outlets providing only selective access are not public forums].)
       The trial court found that the three statements made by email—to a Contiki partner
company, to the Operations Resource Manager of Contiki Holidays, United Kingdom,
and to the author of a blog—were not made in a public forum because those emails were
not public. Another statement, that Contiki did not conduct background checks and
covered up employee rape, was made on the Web site “lonelyplanet.com.” The court
found nothing in the record established the Web site is sufficiently open to general public




                                               7
access as to be considered a public forum.2 As to the remaining two statements, the court
found the first, that Contiki knowingly harbored a rapist and refused to investigate
DiLanzo’s report, was posted as a comment on a blog posting entitled, “How to Out a
Rapist” on the Web site “thenation.com.” The second statement, that Contiki covered up
rape committed by its tour guides, was posted on a blog at “thingsboganslike.com.” The
trial court determined these statements, which are the subjects of Contiki’s second and
                                                      3
sixth causes of action, were made in public forums.
       We need not resolve whether DiLanzo’s email and Internet postings were made in
public forums because even private statements fall within the protection of section
425.16, so long as they concern a public issue. (Ruiz v. Harbor View Community Assn.
(2005) 134 Cal.App.4th 1456, 1467.) The real issue is whether the statements were made
in connection with an issue of public interest.
       Section 425.16 does not define “issue of public interest.” “[I]t 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

       2
         On our own motion we will take judicial notice that lonelyplanet.com is not
freely accessible, as it requires that one “join” the Web site and sign in before viewing
what is posted there. (http://www.lonelyplanet.com [as of Jan. 9, 2015].)
       3
          On our own motion we will take judicial notice that these Web sites are freely
open to the public. (http://www.thenation.com [as of Jan. 9, 2015];
http://thingsboganslike.com/2009/10/23/8-contiki-tours [as of Jan. 9, 2015].)


                                              8
than a mere effort ‘to gather ammunition for another round of [private]
controversy . . . .’” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.)
       Public interest has been found where statements were made concerning a lawsuit
against a large and wealthy church that had been the subject of extensive media coverage
(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 651, disapproved on
another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p.
68), concerning the placement of a battered women’s shelter that had been the subject of
considerable public controversy (Averill v. Superior Court (1996) 42 Cal.App.4th 1170,
1175), concerning allegations of domestic violence against a nationally known political
consultant who successfully had used the domestic violence issue in a number of political
campaigns (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 238-239),
concerning political statements regarding self-government of 3,000 persons who lived in
a gated community (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468,
479), and concerning a participant in the television broadcast Who Wants to Marry a
Multimillionaire that had generated considerable public debate. (Seelig v. Infinity
Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808.)
       In contrast, no issue of public interest was involved where an employee union
published allegations of misconduct by a supervisor toward eight employees. (Rivero v.
American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105
Cal.App.4th 913, 924.)
       Nothing in the record suggests Contiki is so large, wealthy or well known, or
generates so much public controversy or debate as to make its affairs a matter of public
concern. But the activity alleged by DiLanzo—the harboring of an alleged sexual
predator among a group of semi-captive potential victims—is arguably a matter of public
concern. Contiki sends tour managers along with its clients on tours for which it arranges
the travel, lodging and meals. Participants are almost by definition dependent upon and
to an extent controlled by the tour managers, who may in large part determine where the
tourists stay, where they eat, and how they travel, and will often stay with them while
they do so. Because DiLanzo’s statements focused on the concern about possible sexual

                                             9
abuse by such a tour manager, we will grant for the purpose of argument that her
publications concerned a matter of public interest.
          Contiki Demonstrated a Probability of Prevailing on its Claims
          But even if Contiki’s allegations arose from protected activity, Contiki
demonstrated a probability of prevailing on its claims. Contiki’s burden was to
demonstrate that its complaint was “‘both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.’” (Soukup, supra, 39 Cal.4th at p. 291.) The trial court must
deny an anti-SLAPP motion if “‘“the plaintiff presents evidence establishing a prima
facie case which, if believed by the trier of fact, will result in a judgment for the
plaintiff.”’” (Robinzine v. Vicory, supra, 143 Cal.App.4th at p. 1421.) At this stage of
the proceedings, the plaintiff “need only establish that his or her claim has ‘minimal
merit’ [citation] . . . .” (Soukup, supra, 39 Cal.4th at p. 291.) Although “‘the court does
not weigh the credibility or comparative probative strength of competing evidence, it
should grant the motion if, as a matter of law, the defendant’s evidence supporting the
motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’”
(Ibid.)
          “Libel is a false and unprivileged publication by writing, printing, picture, effigy,
or other fixed representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a
tendency to injure him in his occupation.” (Civ. Code, § 45.) To establish a cause of
action for libel per se, a plaintiff must demonstrate the defendant made a statement about
the defendant that was defamatory without the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact. (Civ. Code, § 45a.) “‘Defamation is an
invasion of the interest in reputation. The tort involves the intentional publication of a
statement of fact that is false, unprivileged, and has a natural tendency to injure or which
causes special damage. . . . Publication means communication to some third person who
understands the defamatory meaning of the statement and its application to the person to
whom reference is made. Publication need not be to the “public” at large;

                                                10
communication to a single individual is sufficient.’” (Raghavan v. Boeing Co. (2005)
133 Cal.App.4th 1120, 1132.)
       DiLanzo stated, in effect, that Contiki failed to conduct background checks on
employees, refused to take action against employees it knew were rapists, condoned rape
and threatened rape victims. It is undisputed DiLanzo communicated these statements
under such circumstances that the recipients would understand their defamatory meaning
and application to Contiki. But Contiki easily demonstrated its causes of action for libel
were supported by sufficient facts to sustain a judgment in its favor.
       Andrea Mullens, Vice President of Human Resources for TravCorp, which
provides human resources services for Contiki, declared Contiki would not hire or retain
a known rapist and had never received a complaint, other than DiLanzo’s, accusing any
employee of rape. Contiki’s policies prohibit harassment of any kind and encourage
employees to report any incident of harassment. Mullens declared she personally
investigated DiLanzo’s allegations and concluded they could not be substantiated. Jacqui
Chaffins, TravCorp’s Human Resources Manager, declared Contiki does, in fact, conduct
background checks on its tour managers. And she, along with Claudia Brooks, Contiki’s
Operations Manager, investigated DiLanzo’s allegations but could not substantiate them.
She advised DiLanzo to seek appropriate criminal remedies.
       If credited by the jury, Contiki’s evidence demonstrates DiLanzo’s allegations are
false and would permit a jury to reach a verdict in Contiki’s favor.
       DiLanzo attempts to rebut this showing by characterizing Contiki’s evidence as
“unreliable” and criticizing the tour company’s response to her complaints. DiLanzo
adduces several actions Contiki should have taken but did not. For example, it failed to
interview two persons to whom DiLanzo also complained about Jordan A. and failed to
terminate Jordan A.’s employment. Contiki also took no satisfactory action when she
claimed another Contiki employee made gender based derogatory remarks to her. These
points are irrelevant. The reliability of Contiki’s evidence and the adequacy of its
response to DiLanzo’s allegations are matters for the jury. On a special motion to strike,



                                             11
Contiki need only make a prima facie case that DiLanzo’s assertions are false. It has
done so.
       DiLanzo argues Contiki cannot prevail absent a showing her defamatory
statements were made with actual malice. In a public discussion involving a public
figure, a speaker may not be held liable for making a false defamatory statement absent a
showing of actual malice, i.e., a reckless disregard for the truth. (New York Times Co. v.
Sullivan (1964) 376 U.S. 254.) DiLanzo argues Contiki is a public figure because it
enjoys “pervasive fame in the tour business,” widely circulates publications covering tour
safety, and has “access to the media.” We disagree.
       Public figures are those who “‘have assumed roles of especial prominence in the
affairs of society. Some occupy positions of such persuasive power and influence that
they are deemed public figures for all purposes.’ [Citation.] This category is designated
‘all purpose’ public figure. [Citation.] All-purpose public figurehead will not be lightly
assumed; in order for a plaintiff to be deemed an all-purpose public figure, there must be
‘clear evidence of general fame or notoriety in the community, and pervasive
involvement in the affairs of society . . . .’ [Citation.] [¶] ‘More commonly, those
classed as public figures have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved.’ [Citation.] This
‘limited purpose’ or ‘vortex’ public figure is an individual who ‘voluntarily injects
himself or is drawn into a particular public controversy and thereby becomes a public
figure for a limited range of issues.’ [Citation.] ‘Unlike the “all purpose” public figure,
the “limited purpose” public figure loses certain protection for his reputation only to the
extent that the allegedly defamatory communication relates to his role in a public
controversy.’” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 203.)
       Here, nothing in the record suggests Contiki has assumed a role of special
prominence in the affairs of society or has thrust itself into the forefront of any particular
public controversy, much less a controversy relating to DiLanzo’s statements. Therefore,
Contiki need not establish actual malice to prevail on its claims.



                                              12
      We note that Contiki adduces several actions by DiLanzo after the alleged rape by
Jordan A. to argue the rape never occurred. For example, DiLanzo engaged in
consensual sex with Jordan A. twice after the rape, then met him for lunch in
Philadelphia in December 2007, then stated in her 2008 resignation letter that working for
Contiki was a positive experience for her. DiLanzo denies that this evidence establishes
the rape never occurred. On the contrary, the actions were consistent with an
acquaintance-rape victim’s attempt to normalize a traumatic experience.
      We need not resolve this matter, as it suffices that Contiki made a prima facie
showing that DiLanzo’s statements regarding its behavior were false.
                                    DISPOSITION
      The order is affirmed. Contiki is to recover its costs on appeal.
      NOT TO BE PUBLISHED.




                                                       CHANEY, Acting P. J.


We concur:




      JOHNSON, J.



                   *
      BENDIX, J.




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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