Ocean's Eleven Casino v. Anders CA4/1

• Court: California Court of Appeal
• Decided: May 9, 2014
• Docket: D063269
• Status: Unpublished

Opinion

Filed 5/9/14 Ocean’s Eleven Casino v. Anders CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

OCEAN'S ELEVEN CASINO, D063269

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2012-00055763- CU-DF-NC) TIM ANDERS,

Defendant and Appellant.

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

Stern, Judge. Reversed and remanded with directions.

The McMillan Law Firm and Scott A. McMillan for Defendant and Appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Spencer C. Skeen, Tim L. Johnson

and Noam Glick for Plaintiff and Respondent.

Ocean's Eleven Casino (Ocean's Eleven) brought a complaint alleging trade

defamation, among other causes of action, against several defendants, including Tim

Anders. The superior court denied Anders's motion to strike the complaint under Code of Civil Procedure1 section 425.16, the anti-SLAPP (strategic lawsuit against public

participation) statute. Anders appeals.

We determine that the court erred in denying Anders's motion to strike. Anders

showed that Ocean's Eleven's suit arose out of his exercise of free speech, namely the

posting of negative comments about Ocean's Eleven on a website. Anders's comments

were made in a public forum and concerned an issue of public interest. In addition, we

conclude that Ocean's Eleven did not satisfy its burden of showing a probability of

prevailing on its claims. We therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Ocean's Eleven filed a complaint for (1) trade disparagement, (2) intentional

interference with economic relationships, (3) trademark infringement, (4) violation of the

Anticybersquatting Consumer Protection Act (15 U.S.C. § 1125(d); ACPA),

(5) conversion, (6) misappropriation of trade secrets, (7) trespass, and (8) preliminary and

permanent injunction against Anders, Alpine Publishing (a fictitious business name of

Anders), Todd Chaney, and Chaney Electric (a fictitious business name of Chaney).

The complaint alleged as follows:

Located in Oceanside, California, Ocean's Eleven is one of Southern California's

most well-known and respected cardrooms and casinos. In operation since 1997, Ocean's

Eleven is a major contributor to San Diego County's economy and employs hundreds of

1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2 local residents. Ocean's Eleven is a partnership between Oceans 11 Casino, Inc. and

North County Gaming, Inc.

Chaney is the owner of Chaney Electric. He is a friend of Robert Moyer, the

former general manager of Ocean's Eleven. Chaney performed various contracting jobs

at Ocean's Eleven over the past several years. In 2010, Ocean's Eleven hired a new

managing partner and Ocean's Eleven ceased using Chaney's services.

A couple years later, Chaney entered a restricted area in Ocean's Eleven's casino

and took confidential company memoranda. Chaney then proceeded to make certain

allegations against Ocean's Eleven and its managing partner, Robert Carter, including that

Carter was having an inappropriate sexual relationship with one of Ocean's Eleven's

employees, Carter was receiving illegal kickbacks from Ocean's Eleven's suppliers, and

Carter was misusing Ocean's Eleven's funds. Ocean's Eleven investigated Chaney's

claims, but did not find they were valid.

Anders is a professional poker player, friend of Chaney and Moyer, and former

patron of Ocean's Eleven. On the same day Chaney stole confidential company

memoranda, Anders sent a letter to Walter Lack, an owner of Ocean's 11 Casino, Inc.

The letter allegedly defamed Ocean's Eleven and its managing partner. The complaint

does not detail the specific defamatory statements of the letter, but avers that it falsely

accuses Ocean's Eleven of wrongfully terminating elderly employees.

As part of Ocean's Eleven's investigation into Chaney's claims, Anders was

interviewed. During the interview, Anders admitted to receiving confidential company

memoranda and having other confidential information about Ocean's Eleven and its

3 employees. Anders refused to disclose how he obtained the confidential information.

Because Anders would not divulge this information, Ocean's Eleven barred Anders from

the casino.

Anders, on behalf of himself and Alpine Publishing, created a webpage with the

domain name www.oceans11.info. On both this webpage and Anders's personal

Facebook page, Anders posted false and defamatory statements about Ocean's Eleven,

"including but not limited to statements that Ocean's Eleven and its management have

committed unlawful and illegal business practices." In addition, Anders posted his letter

to Lack as well as posting comments that Ocean's Eleven has engaged in age

discrimination, wrongfully terminated employees, and that Anders was banned from

Ocean's Eleven's casino for writing his letter to Lack. Anders's website also includes a

message board that encourages other people to post defamatory comments about Ocean's

Eleven and its management.

In addition, Anders's website uses Ocean's Eleven's "trademarks, symbols, logos,

and URL" without permission. Ocean's Eleven sent Anders a cease and desist letter,

demanding that he immediately remove Ocean's Eleven's trademarks and logos from his

website and forego publishing and distributing "false information, lies, and rumors about

Ocean's Eleven and its management." Anders refused to take corrective action, and thus,

Ocean's Eleven filed suit.

Ocean's Eleven's causes of action for trade disparagement, intentional interference

with economic relationships, trademark infringement, and violation of ACPA are based

on Anders's use of the website as described above.

4 Ocean's Eleven's claim for conversion involves an allegation made on information

and belief that Anders conspired with Chaney to steal Ocean's Eleven's confidential

company information and private employee information and refused to return it. Ocean's

Eleven alleged that the stolen confidential information comprised trade secrets; thus, it

sued all defendants for misappropriation of trade secrets as well.

Ocean's Eleven bases its trespass claim on the allegation that Anders sent his

agents into Ocean's Eleven's casino to distribute flyers regarding Anders's website. Its

claim for preliminary and permanent injunction sought to enjoin Anders from engaging in

the alleged conduct and to cease using Ocean's Eleven's trademark and logos.

In addition to answering the complaint, Anders moved to strike the complaint

under the anti-SLAPP statute, arguing the complaint arose from acts protected under free

speech and petition rights guaranteed by the federal and state Constitutions, and Ocean's

Eleven was not likely to prevail on the merits. In support of his motion, Anders filed:

(1) his letter to Lack; (2) Lack's response to Anders's letter; (3) several screen shots from

Anders's website with the domain name www.oceans11.info, including posted comments;

(4) a declaration from Anders; (5) a minute order dismissing a restraining order request of

Mark Kelegian against Anders; (6) a declaration from Sherry Trudell; (7) a declaration

from Randall Vanderiet; (8) an Ocean's Eleven's memorandum dated June 18, 2012; and

(9) an Ocean's Eleven's memorandum dated June 20, 2012.

In his declaration, Anders provides some background information that expanded

on or refuted some of the allegations in the complaint. He explained that he is a

children's book author, musician, and professional poker player. He has been a customer

5 of Ocean's Eleven since it opened and remains good friends with some of the owners of

Ocean's Eleven as well as several of its employees.

After an adjustment in management that resulted in Mark Kelegian becoming the

casino manager, Anders noticed some changes at Ocean's Eleven. Several employees

approached Anders and conveyed they were upset by how poorly Kelegian was treating

them. Anders also noted that long time employees were terminated and replaced by

younger employees. When four elderly receptionists were fired, Anders "felt [he] needed

to act." As such, he wrote a letter to Lack. In the letter, Anders tells Lack that Ocean's

Eleven's casino was his "all time favorite." However, Anders explains, based on a "long

list of poor choices . . . by Mark [Kelegian]" that included terminating the employment of

certain receptionists and creating a "grumpy environment that no one wants to be

around[,]" his enjoyment of Ocean's Eleven's casino has greatly diminished. Anders

implores Lack to rehire the recently laid off receptionists and replace Kelegian with

someone else (he suggests three individuals).

Lack wrote Anders back, thanking him for the "thoughtful" letter and

acknowledging that Anders made "some very good points that will be shared with other

owners."

Anders stated that he is not friends with Chaney, but had met him at a dinner party

for Moyer. Chaney contacted Anders to discuss Ocean's Eleven. During the course of

their conversation, Anders told Chaney about his letter to Lack. Chaney asked for a copy

of the letter so he could show it to Bob Carter, another owner of Ocean's Eleven. Anders

provided Chaney with a copy of his letter.

6 Anders's website, as it appears through screenshots in the record, begins with the

words "SPEAK UP!" that is followed by an introduction to Anders: "Dr. Hope, J.A.P.D.

(Just A Pretend Doctor) Author, Musician, Poker Player, and All Around Silly Guy,

whose real name is Tim Anders." The website then provides the following introduction:

"[Anders] was banned from Ocean's Eleven Casino on July 10, 2012. [¶] The reason: Caring too much about the employees. [¶] So what happened? [¶] Ever since Bob Moyer (the former managing partner) retired and Mark Kelegian (an attorney) took control of Ocean's Eleven Casino, there has been discontent amongst the employees. They don't like the way that they are being treated by the new management and this discontent can be felt by the customers as well. If the poker dealers talk about how they feel to a customer, Mark has said that they will be fired. [¶] When the management (Mark Kelegian) decided to fire the sweet elderly receptionists and replace them with younger males, Tim 'Dr. Hope' Anders felt this was just wrong. Rather than just watch as injustice after injustice was being done he chose to write a letter to the partner who held the majority interest in the club and talk about their termination. He took action in the hope that he might save their jobs and improve the conditions for the other workers. A short time after Mark saw a copy of that letter, Mark had Tim banned from Ocean's Eleven."

The website has a link to the letter to Lack and then asks readers to post their

opinions. Before reaching the comments section, the website includes a couple

inspirational sayings about speaking out and standing up for others. In addition, the

website provides: "If this is too serious for you and you just want a laugh, check out Dr.

Hope's Crazy Poker Hip Hop video" with a link to the video.

The comments section of the website contains over 100 anonymous comments

except for a few comments that specifically state they are from Anders. The majority of

the comments discuss the changes at Ocean's Eleven and the commenter's opinion of

7 those changes. A good number of the comments discuss opinions regarding the negative

impact of the changes at Ocean's Eleven:

"If you were getting it from behind like most of us employees, you would have a different perspective. The ones that are at the top dont [sic] care because it doesnt [sic] effect [sic] them. I am going to get out ASAP.

"Place is still so down. So many of [us] used to be everyday players are [sic] still gonna go and play everyday somewhere else until something really changes.

"It is sad Ocean's Eleven has changed so much from the fun place it used to be.

"It'll never be what it was not that long ago. It's more than sad, it's very similar to watching something you love die . . . Slowly.

"I've been in this business for over 30 years and had never seen such a turn in employee moral [sic] and customer decline, I can't believe that the owners are not aware of the bottom line, ofcourse [sic] Mark [Kelegian] saved them lots of money at the employees [sic] expense, those of us that continue our loyalty to the company have no hope of ever recovering what we work so hard for and was taken from us as long as Mark [Kelegian] is in control.

"The environment has changed so much that it's no longer the fun hangout."

Several comments also criticize Kelegian. These comments range from

disapproval of Kelegian's management style (inexperienced, managing by fear, cheap,

unfriendly, "Holier Than Thou," "vicious," and "cruel") to name calling ("the destroyer,"

"control freak," "hot-headed," "chauvinist," "jerk"). Some of the comments are colorful:

"[Kelegian] has the people skills of an ant."; "[Kelegian] the destroyer is here and he

should just go back to his lawyer practice, taking advantage of people."; "It is lucky for

[Kelegian] that he has a 'Rich Daddy' who could look after him."; "[Kelegian] is totally

8 incompetent and inhuman [sic] to ever run a poker room. If you do not care about your

investment in Oceans 11 keep doing nothing. The problem is Black Cloud Mark and

until he is gone Oceans 11 is dying a slow death."

The website also includes positive comments. For example:

". . . there has [sic] been some positive changes made to Ocean's 11 for employee's [sic] and for player's [sic] and in [Kelegian's] behavior toward's [sic] all.

"Let's all take a positive attitude and move forward, life is too short not to enjoy your job. We need to start smiling again and put our pride in doing a good job above all this. A positive attitude can be infectious, just like this negative one.

"I'm happy with many changes but not the way some where [sic] handle [sic].

"There is always another side of the story. The problems with Oceans eleven 4-5 years ago which is all connected to old management who has people skills but no clue about managing casino. . . . Thanks to old management which cause [sic] so much unfair treatments [sic], favoritisms [sic] . . . and broken laws that when [Kelegian] start [sic] to fix these problems it was too late. . . . [Kelegian] did stop a lot of bad problems about to come against Ocean's Eleven Casino. . . . If [Kelegian] had a professional, experienced and trusty [sic] supporting team that fixing the problems we would not be here to argue his management skills. I am asking current employees to be patient and to be professional. . . . Lets [sic] all be positive and start trusting each other again so we can have better future."

The comments also include posts supporting Anders's efforts against Ocean's Eleven,

discussing specific employees and/or work issues, and talking about ownership of

Ocean's Eleven.

Ocean's Eleven opposed Anders's anti-SLAPP motion, arguing the focus of its

complaint is Anders's theft of its confidential information, the complaint presents no

9 public issue, and there is a probability it will prevail on the merits of its claims. In

support of its opposition, Ocean's Eleven filed the declaration of Steve Gallagher, the

declaration of Kelegian with six exhibits attached,2 and the declaration of Spencer Skeen

with two exhibits attached.3

The Gallagher declaration lists three defamatory statements he attributes to

Anders:

"If poker dealers talk about how they feel to a customer, [Kelegian] has said they will be fired.

"A short time after [Kelegian] saw a copy of that letter [to Lack], [Kelegian] had [Anders] banned from Ocean's Eleven.

"As you know [Kelegian] had me banned from Ocean's Eleven, my crime? Being concerned about the treatment of employees."

The Kelegian declaration repeats these statements, but not does offer any additional

defamatory statements.

Ocean's Eleven also objected to portions of the declarations of Anders, Trudell,

and Vanderiet.

2 These exhibits are: (1) a reporter's transcript of an August 10, 2012 hearing; (2) a certificate of renewal of a service mark for Ocean's Eleven; (3) a screenshot of a website apparently soliciting donations to support Anders's litigation defense; (4) photocopies of two cards featuring Anders, one directing people to his "Crazy Poker Hip Hop" video and the other referencing the video and containing a link explaining how Anders "love of free speech" got him "in trouble"; (5) an internet article entitled "Award-winning Children's Book Author Gets Banned from Casino"; and (6) an alleged flyer.

3 These exhibits are: (1) a September 11, 2012 letter from Ocean's Eleven's counsel to Anders's counsel; and (2) a September 25, 2012 letter from Ocean's Eleven's counsel to Anders's counsel. 10 Anders filed a reply to Ocean's Eleven's opposition and objected to Gallagher's

declaration, Kelegian's declaration and exhibits number 3 through 6 attached to it, and

Skeen's declaration and the exhibits attached to that declaration.

After considering the evidence in support of and in opposition to the anti-SLAPP

motion and hearing oral argument, the court issued a minute order denying the motion.

The court found that Anders did not carry his burden of showing that Ocean's Eleven's

lawsuit " 'arises from' [Anders's] exercise of free speech or petition rights as defined in

CCP Section 425.16(e)." Because the court did not find that Anders satisfied his initial

burden, it did not consider whether there is a probability that Ocean's Eleven will prevail

on the merits. In addition, the court did not rule on the parties' respective objections to

evidence.

Anders timely appealed.

DISCUSSION

I

BURDEN OF PROOF AND STANDARD OF REVIEW

A special motion to strike under section 425.16 allows a defendant to gain early

dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (a).) A two-step

analysis is required when the superior court is requested to rule on a special motion to

strike under the anti-SLAPP statutory framework. (Equilon Enterprises, LLC v.

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) The court is first to

determine if the lawsuit falls within the scope of the statute, as arising from protected

activity (generally, petitioning or free speech). (Ibid.; § 425.16, subd. (b)(1).) The

11 defendant bears the burden of demonstrating that a cause of action in the lawsuit is one

"arising from" protected activity. (Ibid.)

The second prong of the statute deals with whether the plaintiff has "demonstrated

a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88

(Navellier).) Under section 425.16, subdivision (b)(2), the superior court in making these

determinations considers "the pleadings, and supporting and opposing affidavits stating

the facts upon which the liability or defense is based." (Ibid.) For purposes of an anti-

SLAPP motion, "[t]he court considers the pleadings and evidence submitted by both

sides, but does not weigh credibility or compare the weight of the evidence. Rather, the

court's responsibility is to accept as true the evidence favorable to the plaintiff . . . ."

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) A plaintiff

"need only establish that his or her claim has 'minimal merit' [citation] to avoid being

stricken as a SLAPP." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,

291.)

We review de novo the trial court's rulings on an anti-SLAPP motion. (Thomas v.

Quintero (2005) 126 Cal.App.4th 635, 645.)

II

WHETHER THE LAWSUIT FALLS WITHIN THE SCOPE OF THE STATUTE

Ocean's Eleven argues its suit does not fall within the scope of the anti-SLAPP

statute because the case is about theft. According to Ocean's Eleven, Anders stole

Ocean's Eleven's confidential information and posted it on the Internet. In addition,

Ocean's Eleven contends Anders used its trade name and trademarks without permission.

12 Ocean's Eleven insists "the very nature of the conversion, misappropriation, and trespass

claims confirm that they are all about theft and not speech." We are not persuaded. Both

the complaint and the record in this matter underscore that the focus of Ocean's Eleven's

action against Anders is his website activity. The allegations of theft aimed at Anders are

based on the actions of Chaney and a supposed conspiracy between Anders and Chaney.

"We look for 'the principal thrust or gravamen of the plaintiff's cause of action.'

[Citation.] We 'do not evaluate the first prong on an anti-SLAPP test solely through the

lens of a plaintiff's cause of action.' [Citation.] The 'critical consideration' is what the

cause of action is 'based on.' [Citation.]" (Hecimovich v. Encinal School Parent Teacher

Organization (2012) 203 Cal.App.4th 450, 465 (Hecimovich); italics omitted.) Ocean's

Eleven frames its causes of action as centering on Anders's theft and argues that Anders

cannot turn this case into one about free speech simply by posting the ill gotten gains of

his thievery on his website. He has not. Instead, it is clear from Ocean's Eleven's own

allegations in its complaint that every cause of action involves, in some way, Anders's

website and what he and others posted there. Although there are allegations that Anders

conspired with Chaney in some way to steal Ocean's Eleven's confidential information,

the focus of the allegations against Anders involve statements he made on his website.

And all causes of action are aimed at shutting down Anders's website and his efforts to

encourage others to post on it. The first two causes of action (trade disparagement and

intentional interference with economic relationships) are clearly based on Anders's

statements on his website. The claims for trademark infringement and violation of ACPA

involve the use of Ocean's Eleven's trademarks and logos on Anders's website. Ocean's

13 Eleven's causes of action for conversion and misappropriation of trade secrets ostensibly

involve the theft of confidential information, but, based on our review of the record and

the respondent's brief, these claims appear to arise out of Anders allegedly posting this

information on his website: "Anders . . . took stolen confidential information from

[Ocean's Eleven] and posted it on the Internet." The claim of trespass involves

allegations that Anders's agents distributed flyers at Ocean's Eleven's casino encouraging

people to post comments on Anders's website. The preliminary and permanent injunctive

remedy is aimed at Anders's posting on his website. All these causes of action share a

common thread: they arise from Anders's website activity or seek to curtail Anders's

website activity. Further, it is apparent that Ocean's Eleven only filed suit when Anders

refused to stop posting on his website. In regard to Anders, this case is not about theft. It

is about Anders's website and what he and others have posted on it.

Having determined that this case is not primarily about theft, we next turn to

Anders's contention that Ocean's Eleven's claims fall under section 425.16, subdivision

(e)(3). That subdivision defines " 'an 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' " as "any written or oral statement or writing made in a place open to the public or

a public forum in connection win an issue of public interest[.]" (Ibid.) Anders maintains

that his posts were made in a public forum about an issue of public interest. Ocean's

Eleven's disagrees, arguing Anders's posts do not concern an issue of public interest.

As a threshold matter, Ocean's Eleven does not contest that Anders's posts

occurred in a public forum. Nor could it convincingly do so. "In a sense, the Web, as a

14 whole, can be analogized to a public bulletin board. . . . It is public because it posts

statements that can be read by anyone who is interested, and because others who choose

to do so, can post a message through the same medium that interested persons can read."

(Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 (Wilbanks).) As this court recently

stated: "[W]e view the Internet as an electronic bulletin board open to literally billions of

people all over the world. [Citation.] The Internet is a classic public forum which

permits an exchange of views in public about everything from the great issues of war,

peace, and economic development to the relative quality of the chicken pot pies served at

competing family restaurants in a single small neighborhood." (Chaker v. Mateo (2012)

209 Cal.App.4th 1138, 1146 (Chaker).) Here, it is clear that Anders's website was a

public forum. He could post his comments on it, any interested person could read his

comments, and others were able to post their comments.

Next, we must determine whether Anders's posts were made "in connection with

an issue of public interest[.]" (§ 425.16, subd. (e)(3).) "Section 425.16 does not define

'public interest' " but courts have construed the phrase " 'broadly' to safeguard 'the valid

exercise of the constitutional rights of freedom of speech and petition for the redress of

grievances.' [Citation.]" (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 693, 695

(Summit Bank) [noting the "exceedingly 'expansive interpretation of the phrase "issue of

public interest" ' "].) In this vein, several courts have defined an "issue of public interest"

as " ' "any issue in which the public is interested." ' " (Hecimovich, supra, 203

Cal.App.4th at p. 465, quoting Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th

709, 716.)

15 In addition, courts considering this issue "have emphasized that the public interest

may extend to statements about conduct between private individuals." (Chaker, supra,

209 Cal.App.4th at p. 1145.) Although not every website post " 'involves a public issue'

[citation] consumer information that goes beyond a particular interaction between the

parties and implicates matters of public concern that can affect many people is generally

deemed to involve an issue of public interest for purposes of the anti-SLAPP statute."

(Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366 (Wong).) Other courts have applied

the following test to determine whether an issue is of public interest: " '[a] public issue is

implicated if the subject of the statement or activity underlying the claim (1) was a person

or entity in the public eye; (2) could affect large numbers of people beyond the direct

participants; or (3) involved a topic of widespread, public interest.' " (D.C. v. R.R. (2010)

182 Cal.App.4th 1190, 1215, quoting Jewett v. Capital One Bank (2003) 113 Cal.App.4th

805, 814.)

Applying these principles, several cases have concluded consumer information

posted on a website concerns an issue of public interest. (Gilbert v. Sykes (2007) 147

Cal.App.4th 13, 23 [patient's statements about a plastic surgeon were of public interest

under section 425.16 because they provided information that would be material to

potential consumers "contemplating plastic surgery"]; Wilbanks, supra, 121 Cal.App.4th

at p. 898 ["[c]onsumer information" posted on the Internet "at least when it affects a large

number of persons, also generally is viewed as information concerning a matter of public

interest"]; Wong, supra, 189 Cal.App.4th at pp. 1366-1367 [review on Yelp criticizing

dental services and discussing use of silver amalgam raised issues of public interest].)

16 Our recent opinion in Chaker, supra, 209 Cal.App.4th 1138 is instructive. There,

the defendant posted derogatory comments about the plaintiff and his forensics business

on the website "Ripoff Report." (Id. at p. 1146.) The defendant's statements included

" 'You should be scared. This guy is a criminal and a deadbeat dad. . . .' 'I would be very

careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn't let

him into my house if I wanted to keep my possessions or my sanity.' " (Id. at p. 1142.)

The defendant also accused the plaintiff of picking up streetwalkers and homeless drug

addicts. (Ibid.) We had "little difficulty finding the statements were of public interest.

The statements posted to the Ripoff Report [website] about Chaker's character and

business practices plainly fall within the rubric of consumer information about Chaker's

'Counterforensics' business and were intended to serve as a warning to consumers about

his trustworthiness." (Id. at p. 1146.)

The same is true here. Anders created his website to discuss Ocean's Eleven,

specifically his ban from the casino, Kelegian's management of the casino, the decline of

Ocean's Eleven, and Ocean's Eleven's treatment of its employees. As Anders states in his

declaration, he "decided to give a voice to the employees and customers of Ocean's

Eleven" so he "built a website where employees and customers could post their

comments anonymously." In other words, Anders created a website allowing people to

post consumer information about Ocean's Eleven.

Ocean's Eleven insists Anders's website is only a vehicle to "air his personal

grievances after he was banned from Ocean's Eleven for his own misconduct." We

disagree. Moreover, Ocean's Eleven's argument ignores the allegations in its complaint

17 wherein it alleged Anders made "false statements regarding Ocean's Eleven, including

but not limited to statements that Ocean' s Eleven, and its management have committed

unlawful and illegal business practices." Thus, Ocean's Eleven's own allegations buttress

the claim that Anders's allegedly disparaging statements go beyond his perceived

personal ill treatment and address Ocean's Eleven's general business practices, especially

its management of the casino. Based on our review of the record, we find support for

these allegations.

Although Anders has discussed his view of what happened to him as well as the

status of his litigation with Ocean's Eleven, others have commented about Ocean's

Eleven's recent changes and how they have impacted their enjoyment of the

establishment. Indeed, Anders has encouraged individuals to post their opinions about

Ocean's Eleven. Based on the numerous comments on Anders's website, it is apparent

they have. These comments include colorful attacks of Kelegian's management style,

disappointment regarding the decline of Ocean's Eleven, and other possible places to

frequent. There exist positive comments in support of Kelegian and the changes at

Ocean's Eleven. There are even comments about chicken wings served at Ocean's Eleven

and the removal of downstairs bathrooms. Simply put, Anders's website is not only a

medium to allow him to post his individual grievances about Ocean's Eleven; it provides

a public forum to allow patrons and employees of Ocean's Eleven as well as the public at

large to post their opinions about Ocean's Eleven. As set forth in its complaint, Ocean's

Eleven takes issue with these comments because it claims they defame "its trade and

allege criminal contact on its part." As such, Ocean's Eleven's own allegations make

18 clear that the type of comments it found objectionable and attempted to stymie through its

complaint are analogous to those we found to be concerning a public interest in Chaker,

supra, 209 Cal.App.4th at pages 1142 and 1146.

Ocean's Eleven also argues that Anders has not shown that the information on

Anders's website affects a large number of people; thus, it should not be considered

information concerning a public interest. (See Wilbanks, supra, 121 Cal.App.4th at

p. 898.) To this end, Ocean's Eleven points out that it is a privately held partnership that

owns a single casino in Oceanside, California. In addition, Ocean's Eleven emphasizes

that it does not have the potential to affect the fortune of thousands of shareholders or the

market as a whole. There is no requirement, however, that a company be a certain size to

satisfy the public interest requirement under the anti-SLAPP statute. In fact, we recently

noted that case law has "emphasized that the public interest may extend to statements

about conduct between private individuals." (Chaker, supra, 209 Cal.App.4th at

p. 1145.)

Further, the allegations in Ocean's Eleven's complaint again belie its argument.

Ocean's Eleven alleged it "is one of Southern California's most well-known and respected

cardrooms and casinos. In operation since 1997, Ocean's Eleven is a major contributor to

San Diego County's economy by employing hundreds of local residents." Certainly a

casino with this reputation that is a "major contributor to San Diego County's economy"

would affect a sufficient number of people to qualify as an issue of public interest.

Ocean's Eleven also maintains that this case is analogous to both World Financial

Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561 (World

19 Financial Group) and Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90

(Mann). We disagree.

In World Financial Group, the plaintiff sued a business competitor and its agents

for misappropriating trade secrets and utilizing confidential information to solicit the

plaintiff's associates and customers. (World Financial Group, supra, 172 Cal.App.4th at

pp. 1564-1566.) The defendants moved to dismiss the complaint under the anti-SLAPP

statute, and the trial court found the claims were not subject to the statute. (Id. at

pp. 1566-1567.) In affirming, the appellate court rejected the defendants' argument that

the issue concerned one of public interest because the allegedly wrongful

communications pertained to " 'the pursuit of lawful employment' " and to " 'workforce

mobility and free competition.' " (Id. at p. 1569.) The court explained that in evaluating

the first prong of the anti-SLAPP statute, a court must focus on the " 'specific nature of

the speech rather than the generalities that might be abstracted from it.' " (Id. at p. 1570,

italics omitted.) Applying this principle, the court found defendants' communications

were not " 'about' these broad [social] topics, nor were they designed to inform the public

of an issue of public interest." (Id. at p. 1572.) Instead, the court found they "were

merely solicitations of a competitor's employees and customers undertaken for the sole

purpose of furthering a business interest." (Ibid.) The court emphasized that the

challenged statements did not concern an issue of public interest because they were

merely "part of a competitor's pitch to [the plaintiff's] associates" and were "motivated

solely by the competitor's desire to increase its sales ranks." (Id. at p. 1573.)

20 Here, there is no analogous conduct on behalf of Anders. He is not soliciting

Ocean's Eleven's employees and customers to further his own business interest. Instead,

he provided a forum for those people to discuss Ocean's Eleven. Although there are

allegations that Anders solicited donations to fund his legal defense, such a request is

very different from a former employee attempting to solicit his former employer's

employees and customers for the benefit of a competing business. Moreover, Anders's

solicitation of donations for his legal defense only became necessary after Ocean's Eleven

sued him because of his website. World Financial Group, supra, 172 Cal.App.4th 1561,

is not instructive here.

Similarly, Mann, supra, 120 Cal.App.4th 90 is of no help to Ocean's Eleven. That

case concerns comments the defendants made to plaintiff's customers as well as the

defendants reporting the plaintiff to the National Response Center and the National

Terrorist Hotline. (Id. at pp. 100-101.) Like World Financial Group, supra, 172

Cal.App.4th 1561, Mann concerns statements and actions made by a competing business

seeking a competitive advantage. No such analogous facts exist here.

In summary, despite Ocean's Eleven's attempt to frame their case against Anders

as one revolving around theft of confidential information, the instant matter focuses on

Anders's website activity. Anders's website provides a forum for the public to discuss

Ocean's Eleven, a "well known and respected" casino in Southern California that is a

"major contributor to San Diego County's economy." In this respect, Ocean's Eleven's

complaint is a classic SLAPP suit, filed by an entity to suppress public debate.

21 III

PROBABILITY OF SUCCESS ON THE MERITS

Because we determine Anders has shown the complaint arises out of protected

activity, the burden shifts to Ocean's Eleven to demonstrate a probability that it would

prevail on claims against Anders. (§ 425.16, subd. (b)(2); Navellier, supra, 29 Cal.4th at

p. 89; Equilon, supra, 29 Cal.4th at p. 58.) " '[T]he plaintiff "must demonstrate that the

complaint is 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." ' [Citations.]" (Navellier, supra, at pp. 88-89.) Here, because the superior

court found, however erroneously, that Ocean's Eleven's lawsuit was not within the anti-

SLAPP statute, it did not reach this step. Nevertheless, we can decide the issue. (Roberts

v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.) Further, the

parties extensively briefed this topic; therefore, we will analyze whether Ocean's Eleven

has satisfied its burden.

To satisfy the second prong of the anti-SLAPP analysis, " ' "the plaintiff 'must

demonstrate that the complaint is 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.' [Citations.]" [Citation.]' [Citation.] 'Thus, plaintiffs' burden as

to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for

summary judgment.' [Citation.] If the plaintiff fails to carry that burden, the cause of

action is 'subject to being stricken under the statute.' [Citation.]" (Feldman v. 1100 Park

22 Lane Associates (2008) 160 Cal.App.4th 1467, 1477-1478; accord, Delois v. Barrett

Block Partners (2009) 177 Cal.App.4th 940, 946-947.)

In determining whether plaintiffs will probably prevail on the merits, we consider

the pleadings and evidentiary submissions on both sides, but we do not weigh credibility

or comparative strength of the evidence. (Kashian v. Harriman (2002) 98 Cal.App.4th

892, 906.) Yet, a plaintiff can only sustain its burden with admissible evidence. (See

McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108; Paiva v. Nichols

(2008) 168 Cal.App.4th 1007, 1017 ["The plaintiff may not rely solely on its complaint,

even if verified; instead, its proof must be made upon competent admissible

evidence."].)4

A. Trade Disparagement and Intentional Interference with Economic Relationships

Although Ocean's Eleven names its first cause of action trade disparagement, it

couches this claim as one for trade libel in its brief. To establish liability for trade libel, a

plaintiff must prove the following elements: (1) the defendant published a statement;

(2) the statement tended to disparage the plaintiff's product or property; (3) the statement

was provably false; (4) the defendant acted with knowledge that the statement was false

or with reckless disregard for its falsity; and (5) the statement caused specific pecuniary

damage to the plaintiff. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,

§ 645, pp. 951-952; Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1360-1361.)

4 The superior court did not rule on either party's objections to evidence. To the extent necessary, we shall address a party's objection to evidence we consider in this opinion. 23 Ocean's Eleven's trade libel claim relies on three comments:

"If poker dealers talk about how they feel to a customer, [Kelegian] has said they will be fired.

"A short time after [Kelegian] saw a copy of that letter [to Lack], [Kelegian] had [Anders] banned from Ocean's Eleven.

"As you know [Kelegian] had me banned from Ocean's Eleven, my crime? Being concerned about the treatment of employees."

Here, the preliminary question we face is whether Anders's statements may be

considered statements of fact or opinion. In doing so, we recognize "[t]he critical

determination of whether the allegedly defamatory statement constitutes fact or opinion is

a question of law." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)

In determining whether an opinion is actionable, we must look at the totality of the

circumstances that gave rise to the statements and in particular the context in which the

statements were made. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375,

389 (Franklin ).) " 'This contextual analysis demands that the courts look at the nature

and full content of the communication and to the knowledge and understanding of the

audience to whom the publication was directed.' " (Ibid.)

In determining statements are nonactionable opinions, a number of recent cases

have relied heavily on the fact that statements were made in Internet forums. (See e.g.,

Summit Bank, supra, 206 Cal.App.4th at pp. 696-701; Krinsky v. Doe 6 (2008) 159

Cal.App.4th 1154, 1162 (Krinsky). With respect to statements posted in a section of the

Craigslist website entitled "Rants and Raves," the court in Summit Bank determined that a

reader "should be predisposed to view them with a certain amount of skepticism, and

24 with an understanding that they will likely present one-sided viewpoints rather than

assertions of provable facts. '[A]ny reader familiar with the culture of . . . most electronic

bulletin boards . . . would know that board culture encourages discussion participants to

play fast and loose with facts. . . . Indeed, the very fact that most of the posters remain

anonymous, or pseudonymous, is a cue to discount their statements accordingly.'

[Citations.]" (Summit Bank, supra, 206 Cal.App.4th at pp. 696-697, fn. omitted.)

In Summit Bank, the defendant posted a series of derogatory statements about the

plaintiff bank: "(1) The Bank didn't pay dividends in 2009; (2) the 'bitch CEO' who runs

the Bank 'thinks that the Bank is her personel [sic ] Bank to do with as she pleases';

(3) the CEO should not be allowed to provide an executive position to her 'worthless,

lazy fat ass son'; (4) depositors should move their accounts immediately, 'before its [sic]

too late'; (5) the Bank is 'screwed up,' 'piss poor,' and a 'problem Bank'; (6) the Federal

Deposit Insurance Corporation (FDIC) and the California Department of Financial

Institutions have 'look[ed] at Summit Bank' three times in less than one year and that is

'not a good thing'; (7) service was poor at the Bank's Hayward branch and the Bank

closed it; (8) after the Hayward branch was closed, the customers 'were left high and dry';

and (9) the Bank's depositors should leave 'before they close.' " (Summit Bank, supra,

206 Cal.App.4th at p. 697.)

The plaintiff bank in Summit Bank alleged the statements taken together, and in

particular the statement the CEO used the bank as her personal bank and the plaintiff was

a "problem bank," suggested the CEO was misappropriating money and the bank was on

the verge of insolvency. In finding the defendant's statements were nonactionable

25 opinions, the court relied in part on the fact they were posted on the "Rants and Raves"

website and lacked " 'the formality and polish typically found in documents in which a

reader would expect to find facts.' " (Summit Bank, supra, 206 Cal.App.4th at p. 699.)

In Krinsky, the court found the following statements, made on an Internet blog,

were hyperbolic opinions: " '[F]unny and rather sad that the losers who post here are

supporting a management consisting of boobs, losers and crooks. (Krinsky, Natan and

Seifer) while criticizing a charitable and successful hedge fund manager, who, unlike his

critics and the longs here, has done his homework. [¶] How many of the idiot longs here

did their work and said to themselves, "I know Natan had been CFO of at least 3

bankrupt companies and I know Seifer filed for personal bankruptcy and roughed up

some patients, shares a rolls royce and a bently [sic ] with the President and a $15mm

[sic] mansion, but what the hey, the numbers look good and it has been a long time." [¶]

No, Loeb earned his $$$ and those of you who are whimpering on eachother's [sic ]

shoulders crying to be saved by Spizer, the SEC etc are a bunch of pathetic losers. . . .

But we already knew that, you were long SFCC. [¶] Ole!' " (Krinsky, supra, 159

Cal.App.4th at p. 1176.) Like the court in Summit Bank, the court in Krinsky relied in

large part on the fact the statements were made on an Internet message board where

heated discussions about the plaintiff were taking place. (Krinsky, supra, at pp. 1175,

1177-1178.)

We recently followed both Summit Bank, supra, 206 Cal.App.4th 669 and Krinsky,

supra, 159 Cal.App.4th 1154 in determining certain comments on the Internet were

opinions:

26 "As we have noted, the statements about Chaker were made in the context of the paternity and child support litigation going on between Chaker and [the defendant's] daughter and all were made on Internet [websites] which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable opinion.

"In this context it is difficult to conclude [the defendant's] alleged embellishments, to the effect Chaker picks up street walkers and homeless drug addicts and is a deadbeat dad, would be interpreted by the average Internet reader as anything more than the insulting name calling-in the vein of 'she hires worthless relatives,' 'he roughed up patients' or 'he's a crook'-which one would expect from someone who had an unpleasant personal or business experience with Chaker and was angry with him rather than as any provable statement of fact. In this regard, we note the insults are generalized in that they lack any specificity as to the time or place of Chaker's supposed behavior; the absence of such specificity is yet a further signal to the reader there is no factual basis for the accusations. Thus, we are unable to distinguish these insults from the nonactionable ones posted in Summit Bank and Krinsky, and like the courts in those cases, we conclude these statements are nonactionable opinions." (Chaker, supra, 209 Cal.App.4th at pp. 1149-1150.)

Here, we find Chaker, supra, 209 Cal.App.4th 1138, Summit Bank, supra, 206

Cal.App.4th 669, and Krinsky, supra, 159 Cal.App.4th 1154 analogous to the instant

matter. Anders created his website and made his comments on it after being banned from

Ocean's Eleven. His comments aim at the change in management of Ocean's Eleven and

what he believes are Kelegian's poor management skills. As such, he is telling the public

of the ills he perceives plague Ocean's Eleven and encouraging others to share their

opinions as well. The overall focus of Anders's comments is that Ocean's Eleven is a bad

place to frequent.

27 Further, the nature of the website causes the reader to question the veracity of the

comments. On the website, Anders identifies himself as "just a pretend doctor" and "all

around silly guy." He includes the message "SPEAK UP!" He encourages others to post

their "opinions" with such inspirational sayings as Harvey Fierstein's "Never be bullied

into silence. Never allow yourself to be made a victim. Accept no one's definition of

yourself; define yourself." And the website even includes another inspirational

statement: "Strong people stand up for themselves stronger people stand up for others"

next to a picture of a cat holding up another cat as it climbs a fence.

Further, the comments on the website are full of typographical errors and colorful

language. One commenter even thanked Anders for providing a place to "vent."

Considering this context, we struggle to see how any reader would believe that Anders or

any of the commenters were making factual statements. Anders's website is an avenue

for the public to post their experiences with and opinions of Ocean's Eleven. In this way,

it is similar to the websites at issue in Chaker, Summit Bank, supra, 206 Cal.App.4th 669

and Krinsky, supra, 159 Cal.App.4th 1154. Simply put, we find no difference in Anders's

comments and the comments we found nonactionable opinion in Chaker, supra, 209

Cal.App.4th at pages 1149 and 1150.

In addition, even if we were to determine that Anders's comments were factual

statements that were capable of being proven false, Ocean's Eleven has failed to satisfy

its burden for the additional reason that it did not show any of Anders's statements caused

it specific pecuniary damage. The only evidence Ocean's Eleven offers to show it

suffered pecuniary damage are two comments from Anders's website:

28 "Oceans 11 needs colorful characters like Tim. It's an outrage he's banned simply for writing a letter expressing his view. Time to start playing at the Indian card rooms.

"Wow, since hearing rumor of this unjust banning of a VIP Parton I have not been back to that casino. We need to do something about this manager who feels he can just ban such a well liked person as Tim Anders. So I well [sic] do my part and avoid going back into the Oceans 11 until this patron is allowed back in the casino."

Ocean's Eleven contends these comments prove it actually lost business.

However, Ocean's Eleven overlooks the requirement that it must prove a probability of

success on the merits with "competent admissible evidence." (Paiva v. Nichols, supra,

168 Cal.App.4th at p. 1017.) Ocean's Eleven is offering the two comments from Anders's

website for the truth of the matters they assert, namely the commenters no longer are

going to Ocean's Eleven. The identity of the commenters is unknown. These comments

are out-of-court statements. They are hornbook examples of hearsay and thus not

admissible.5 (Evid. Code, §1200.) As Ocean's Eleven does not offer any admissible

evidence showing it suffered any pecuniary damage from Anders's statements, its trade

disparagement claim fails for this reason as well.

5 Even if we were to admit the two comments and accept the statements as true, they do not establish that Ocean's Eleven suffered any pecuniary damage. Ocean's Eleven does not show that it lost any money because the two commenters ceased patronizing Ocean's Eleven.

29 Ocean's Eleven contends it will prevail on its claim for intentional interference

with economic relationships6 based on the same evidence that establishes its trade

disparagement claim. The elements of this cause of action are: " ' " '(1) an economic

relationship between the plaintiff and some third party, with the probability of future

economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship;

(3) intentional [or negligent] acts on the part of the defendant designed to disrupt the

relationship; (4) actual disruption of the relationship; and (5) economic harm to the

plaintiff proximately caused by the acts of the defendant.' [Citations.]" [Citation.]'

[Citation.]" (Winchester Mystery House, LLC v. Global Asylum, Inc. (2012) 210

Cal.App.4th 579, 596.) Here, the acts on which it bases this claim are Anders's website

activities. Thus, for the same reasons Ocean's Eleven's trade disparagement claim fails,

so too does its claim for intentional interference with economic relationships.

B. Trademark Infringement

Ocean's Eleven's third cause of action against Anders is trademark infringement.

To prove a claim of trademark infringement, a plaintiff must show: (1) it has valid

trademark rights; and (2) the defendant's use of a similar mark is likely to cause

confusion. (Applied Info. Science Corp. v. eBay, Inc. (9th Cir. 2007) 511 F.3d 966, 969.)

"Infringement claims are subject to a commercial use requirement." (Bosely Medical

Institute, Inc. v. Kremer (9th Cir. 2005) 403 F.3d 672, 676 (Bosely).) Therefore, in

6 Although Ocean's Eleven names its second cause of action intentional interference with economic relationships, it is more commonly called intentional interference with prospective economic advantage. 30 addition to the first two elements, to prove a claim for trademark infringement, a plaintiff

must show the use of the actual mark or a similar mark was " 'in connection with a sale of

goods or services.' " (Id. at p. 677.)

Here, Ocean's Eleven has shown that it owned the mark "Ocean's Eleven Casino."

Anders does not dispute this. Ocean's Eleven then contends that Anders is liable for

trademark infringement because (1) he used Ocean's Eleven's trademark on his website

and (2) www.oceans11.info as a domain name is too similar to Ocean's Eleven's

trademark.

Initially, we note that Ocean's Eleven's attempts to show it will prevail on its

trademark infringement claim are fairly superficial. Ocean's Eleven does not sufficiently

address the elements of this cause of action nor does it clearly show where each element

is proved by citation to the record. Indeed, one of the cases Ocean's Eleven cites in its

respondent's brief (Bosely, supra, 403 F.3d 672)7 is directly on point in favor of Anders,

but Ocean's Eleven does not attempt to distinguish it.

7 Ocean's Eleven cites Bosely, supra, 403 F.3d 672 for the proposition that an anti- SLAPP motion cannot apply to a trademark infringement claim. The holding in Bosely, however, is not so broad. The court found: "An infringement lawsuit by a trademark owner over a defendant's unauthorized use of the mark as his domain name does not necessarily impair the defendant's free speech rights." (Id. at p. 682; italics in original.) There, when the defendant brought his anti-SLAPP motion, it was aimed only at the trademark infringement and violation of ACPA claims. (Id. at pp. 675, 680.) The libel claim had been settled. In contrast, Ocean's Eleven's first two causes of action for trade disparagement and intentional interference with economic relationships are directed at Anders's website postings and we find that all of Ocean's Eleven's claims against Anders arise out of Anders's use of his website to criticize Ocean's Eleven.

31 Anders admitted he used Ocean's Eleven's mark on his website without

permission. He also stated that he removed the mark after receiving a letter from Ocean's

Eleven's counsel demanding that he do so. There is no evidence in the record showing

how long Anders used Ocean's Eleven's mark. In addition, Ocean's Eleven offers no

evidence that Anders used the trademark in connection with the sale of goods or services.

(See Bosely, supra, 403 F.3d at p. 677.) Instead, it appears from the record that Anders

used the Ocean's Eleven trademark on his website to help identify Ocean's Eleven as the

subject of his website. As such, Anders admitted use of Ocean's Eleven's trademark does

not constitute trademark infringement.

With scant explanation, Ocean's Eleven next asserts Anders use of

www.oceans11.info is "confusingly similar to Ocean's Eleven's mark."8 Ocean's Eleven,

however, does not address Bosely, supra, 403 F.3d 672, which involves the same issue.

There, the defendant was dissatisfied with the hair restoration services provided him by

Bosely Medical Institute, Inc. (Bosely Medical). The defendant started a website at

8 Ocean's Eleven's argument that the domain name www.oceans11.info is confusingly similar to its mark is especially glib. "The core element of trademark infringement is the likelihood of confusion, i.e., whether the similarity of the marks is likely to confuse customers about the source of the products." (E. & J. Gallo Winery v. Gallo Cattle Co. (9th Cir. 1992) 967 F.2d 1280, 1290.) Courts look to the following nonexclusive factors, known as the Sleekcraft test, for guidance in determining the likelihood of confusion: (1) strength of the plaintiff's mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant's intent in selecting the mark; and the (8) likelihood of expansion of the product lines. (Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc. (9th Cir. 1997) 109 F.3d 1394, 1404, citing AMF, Inc. v. Sleekcraft Boats (9th Cir. 1979) 599 F.2d 341, 348- 349.) Ocean's Eleven fails to mention the Sleekcraft test, but merely concludes the domain is confusingly similar with little analysis. 32 www.BosleyMedical.com, which was "uncomplimentary of" Bosley Medical. (Id. at

p. 674.) Bosely Medical sued the defendant for, among other things, trademark

infringement. The Ninth Circuit determined the trademark infringement claim lacked

merit because the defendant's use of the website was noncommercial. (Id. at pp. 677-

680.) The court noted that the defendant's "use of the Bosley Medical mark simply

cannot mislead a consumer into buying a competing product-no customer will mistakenly

purchase a hair replacement service from [the defendant] under the belief that the service

is being offered by Bosley [Medical]." (Id. at pp. 679-680.)

Here, Anders's use of the www.oceans11.info domain name for his website is the

same as the defendant's use of www. BoselyMedical.com in Bosely, supra, 403 F.3d 672.

Both use the respective websites to criticize a company of which they take issue with its

product or service. Anders is not capitalizing on the good will Ocean's Eleven has

created in its mark. He is not using the mark to sell a competing product. Any harm that

Ocean's Eleven may have experienced arises not from a competitor's sale of a similar

product under Ocean's Eleven's mark, but from Anders's criticism of Ocean's Eleven.

(See Bosely, supra, 403 F.3d at p. 680; see also Utah Lighthouse Ministry v. Foundation

for Apologetic Information and Research (10th Cir. 2008) 527 F.3d 1045, 1052-1054

(Utah Lighthouse).)

Nevertheless, Ocean's Eleven contends it is "undisputed that Anders used the mark

for a commercial purpose." To this end, Ocean's Eleven argues Anders used the mark to

solicit monetary contributions to pay for his litigation with Ocean's Eleven and as a

"marketing tool" for his children's book business, apparently with links to another

33 website where children's books could be ordered. Ocean's Eleven, however, does not cite

to any evidence in the record to support its argument. Our review of the record has

uncovered no admissible evidence on point either. For this reason alone, Ocean's Eleven

has failed to carry its burden.

In addition, even if Ocean's Eleven had admissible evidence to support its position,

we would still determine its trademark infringement claim fails. The court in Bosley,

supra, 403 F.3d 672 addressed a similar argument by Bosely Medical and found it

unavailing. We agree with the Ninth Circuit in Bosley and its reasoning and apply it to

Ocean's Eleven's argument regarding any potential links on Anders's www.oceans11.info

website to other websites where his books could be purchased or people could donate to

Anders's litigation fund. Anders is not employing his website www.oceans11.info to

offer competing products using Ocean's Eleven's mark. The links to the other websites

where Anders is selling his books or his request for contributions to his litigation fund is

too tenuously related to the allegedly infringing domain name and the services and/or

products Ocean's Eleven offers its customers. Ocean's Eleven therefore has failed to

show a probability of prevailing on the merits for its trademark infringement claim. (See

Bosely, supra, at p. 680; Utah Lighthouse, supra, 527 F.3d at p. 1054.)

Lastly, Ocean's Eleven argues that the merit of its trademark claim already has

been decided in its favor because the superior court issued a preliminary injunction

preventing Anders from using "Oceans 11 or Oceans Eleven" in connection with any

website, including www.oceans11.info. This preliminary injunction order issued after the

superior court ruled on Anders's anti-SLAPP motion. It has no bearing on the question

34 before us. Further, the evidence and pleadings relied upon by the court to order the

injunction are not in the record. Also, absent additional evidence, we do not see how

Ocean's Eleven can distinguish this case from Bosely, supra, 403 F.3d 672 in regard to

the trademark infringement claim.

C. Violation of ACPA

Ocean's Eleven's fourth claim against Anders is for violation of ACPA. An

individual may be held liable under ACPA for cybersquatting if the person (1) registers,

traffics in, or uses a domain name identical or confusingly similar to a distinctive mark,

and (2) has a bad faith intent to profit from use of the mark as a domain name. (See 15

U.S.C. § 1125(d); Bosley, supra, 403 F.3d at p. 680; Utah Lighthouse, supra, 527 F.3d at

p. 1057.) Here, we focus on the second element (a bad faith intent to profit).

Ocean's Eleven insists that it has shown that Anders's used "Ocean's Eleven's mark

to make money for himself." Again, like its claim for trademark infringement, Ocean's

Eleven neglects to cite to the record to support its assertion. Further, Ocean's Eleven

does not address any of the various factors ACPA sets out to be considered when

evaluating the bad faith intent to profit of a domain name registrant.9 (See 15 U.S.C.

9 The factors include (1) the registrant's trademark rights in the domain; (2) legal name rights in the domain; (3) the registrant's prior use of the domain; (4) the registrant's bona fide noncommercial or fair use of the domain; (5) the registrant's improper intent to divert customers and tarnish or disparage the mark of another; (6) the registrant's offer to transfer, sell, or assign; (7) whether the registrant provided misleading contact information when applying for registration; (8) the registrant's acquisition of multiple domain names confusingly similar to the marks of others; and (9) the extent to which the trademark incorporated in the registrant's domain name is distinctive and famous. (15 U.S.C. § 1125(d)(1)(B)(i).) 35 § 1125(d)(1)(B)(ii); Utah Lighthouse, supra, 527 F.3d at p. 1058.) In fact, Ocean's

Eleven seems to ignore the bad faith intent requirement altogether.

For example, "[t]he quintessential example of a bad faith intent to profit is when a

defendant purchases a domain name very similar to the trademark and then offers to sell

the name to the trademark owner at an extortionate price. A defendant could also intend

to profit by diverting customers from the website of the trademark owner to the

defendant's own website, where those consumers would purchase the defendant's

products or services instead of the trademark owner's." (Utah Lighthouse, supra, 527

F.3d at p. 1058.) Neither of these purposes is evident here. Moreover, Ocean's Eleven

has not provided any admissible evidence or argument showing Anders's bad intent. This

lack of showing defeats Ocean's Eleven's claim for violation of ACPA. Accordingly,

Ocean's Eleven has not shown the probability that it will prevail on the merits of this

claim.

D. Conversion

Ocean's Eleven's fifth cause of action is conversion. " 'Conversion is the wrongful

exercise of dominion over the property of another. The elements of a conversion claim

are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's

conversion by a wrongful act or disposition of property rights; and (3) damages.' " (Los

Angeles Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1387.)

Here, Ocean's Eleven's maintains that it is "beyond dispute that Anders received

stolen documents and information that belongs to Ocean's Eleven." It is not clear from

the respondent's brief on what admissible evidence Ocean's Eleven bases this argument.

36 In its complaint, Ocean's Eleven alleges Anders and Chaney conspired to steal

confidential company memoranda and other confidential company information.

However, Ocean's Eleven has provided no evidence to support this allegation. At best,

Ocean's Eleven has offered evidence that Anders admitted to having the same

memoranda that Chaney stole. Yet, Ocean's Eleven does not offer any evidence

regarding how Anders received this information. Anders, on the other hand, stated in his

declaration that he did not receive any memoranda from Chaney. The only explanation

in the record is that Anders received memoranda and information directly from Ocean's

Eleven employees. Simply put, Ocean's Eleven has no evidence that Chaney provided

Anders with the confidential memoranda or any other confidential information that is at

the heart of Ocean's Eleven's conversion claim.

In addition, Ocean's Eleven has offered no evidence that it has been damaged. It

merely asserts that Anders's possession of the confidential information deprives Ocean's

Eleven's use of it. Ocean's Eleven fails to explain why this is so. It does not appear that

Anders possesses the only copies of the memoranda. And Ocean's Eleven does not

clarify how Anders's possession of the memoranda prevents Ocean's Eleven's use of the

information contained in the memoranda.

In his declaration, Kelegian states that Anders posted a confidential memorandum

on a website called www.helpfreespeech.com. Anders objects to Kelegian's statement,

claiming it lacks foundation, is irrelevant, and comprises hearsay. This objection is well

taken. Kelegian fails to explain how he knows Anders posted the confidential

information. Moreover, there is no screenshot of www.helpfreespeech.com or a copy of

37 the confidential memorandum in the record. Kelegian's testimony about the contents of

www.helpfreespeech.com and the memorandum is hearsay (see Evid. Code, § 1200) and

runs afoul of the rule that "oral testimony is not admissible to prove the content of a

writing." (Evid. Code, § 1523, subd. (a).)

Not only is there no admissible evidence in the record that Anders posted any

confidential information on a website, the allegedly confidential memoranda are not

found anywhere in the record. Instead, in Kelegian's declaration, he describes the content

of some of these memoranda as comprising Ocean's Eleven's policies and procedures,

including "specific gaming and money handling procedures and counterfeit bills."10

Kelegian also claims that Anders can use the information to "cheat the casino." Again,

however, Ocean's Eleven fails to provide any evidence that Anders has used the

information in any way. Moreover, because Ocean's Eleven banned Anders from its

casino, it is unclear how Anders could use the confidential information to "cheat the

casino." And there is no evidence that Anders has shared the contents of the confidential

information with any third party.

Ocean's Eleven has failed to show a probability that it will prevail on its

conversion claim.

10 Anders objected to Kelegian's declaration describing the content of the confidential memoranda. We sustain this objection for the same reasons we disregard Kelegian's testimony regarding the confidential memorandum Anders allegedly posted on the website www.helpfreespeech.com. (See Evid. Code, §§ 1200, 1523, subd. (a).) 38 E. Misappropriation of Trade Secrets

Ocean's Eleven's sixth cause of action against Anders is for misappropriation of

trade secrets. A prima facie claim for misappropriation of trade secrets "requires the

plaintiff to demonstrate: (1) the plaintiff owned a trade secret, (2) the defendant acquired,

disclosed, or used the plaintiff's trade secret through improper means, and (3) the

defendant's actions damaged the plaintiff." (Sargent Fletcher, Inc. v. Able Corp. (2003)

110 Cal.App.4th 1658, 1665.) Here, Ocean's Eleven contends that it provided evidence

of this claim because Anders "misappropriated, used, and disclosed its trade secrets[,]"

namely the confidential memoranda. We disagree.

As we discuss in the context of Ocean's Eleven's conversion claim, Ocean's Eleven

does not offer any admissible evidence regarding the content of the alleged confidential

memorandum. Without admissible evidence of the content of the confidential

memoranda, Ocean's Eleven cannot establish the existence of any trade secret.11

In addition, Ocean's Eleven has not offered any admissible evidence that Anders

acquired, disclosed, or misappropriated any trade secret nor has it shown that it has been

damaged. Therefore, Ocean's Eleven has not shown the probability that it will prevail on

the merits of its misappropriation of trade secrets claim.

11 In its opposition to Anders's anti-SLAPP motion, Ocean's Eleven offered to provide the confidential memoranda to the superior court in camera. There is no indication in the record that it did so. Additionally, it did not attempt to augment the record with the memoranda here. Because Ocean's Eleven has the burden to prove the probability it will prevail on its misappropriation of trade secrets claim, it must show that an actual trade secret exists. (See Sargent Fletcher, Inc. v. Able Corp., supra, 110 Cal.App.4th at p. 1665.) It did not do so with admissible evidence. (See McGarry v. University of San Diego, supra, 154 Cal.App.4th at p. 108.) 39 F. Trespass

Ocean's Eleven's seventh cause of action against Anders is for trespass. Trespass

is an unlawful interference with possession of property. (Girard v. Ball (1981) 125

Cal.App.3d 772, 788.) Ocean's Eleven's theory of trespass against Anders is that Anders

sent three of his agents into Ocean's Eleven's casino, after he was banned, to distribute

flyers to the customers that encourage them to visit his website. However, Ocean's

Eleven does not point to any portion of the record where we can find evidence supporting

this theory. Instead, it merely offers Kelegian's declaration wherein he states that he

watched a videotape of three men distributing the subject flyers on Ocean's Eleven's

property, and he does not recognize any of them as employees or customers of Ocean's

Eleven. Relying on this observation, Kelegian states: "Based on these facts, I believe

these men were agents of Mr. Anders."

We agree with Anders that this portion of Kelegian's declaration is not admissible

evidence because it is based on information and belief of the declarant. (See Evans v.

Unkow (1995) 38 Cal.App.4th 1490, 1497 ["The problem with this averment is that

information and belief, within the context of a special motion to strike a SLAPP suit, is

inadequate to show 'a probability that the plaintiff will prevail on the claim.' "].) Ocean's

Eleven points to no other evidence to support its claim for trespass. As such, Ocean's

Eleven has not shown the probability that it will prevail on the merits of its cause of

action for trespass.

40 G. Preliminary and Permanent Injunction

Ocean's Eleven's final claim is for a preliminary and permanent injunction.

"Injunctive relief is a remedy, not a cause of action." (City of South Pasadena v.

Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Thus, absent an

underlying cause of action, a request for injunctive relief does not constitute a cause of

action itself and cannot be the basis for relief. Here, Ocean's Eleven has failed to show a

probability of success on the merits of any of its first seven causes of action. Therefore,

there remains no cause of action on which to grant injunctive relief, and Ocean's Eleven

has not shown a probability of success on the merits for its final cause of action.

DISPOSITION

The order is reversed and remanded to the superior court with directions to enter

an order granting Anders's special motion to strike and take further action consistent with

this opinion, including but not limited to, awarding Anders his reasonable attorney fees

under section 425.16, subdivision (c)(1). Anders is awarded his costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.