The California Court of Appeals recently held that a customer’s comments on social media about a birthday cake didn’t involve the public interest as defined by California’s anti-SLAPP statute, Code Civ. Proc., § 425.16. The disgruntled customer was complaining about a cake order… he didn’t like the cake or the baker’s service, and according to the court, those are not issues of public interest.
The Cake the Customer Received Looked Too Much Like Real Drugs
Self-proclaimed celebrity jeweler Ben “the Baller” Yang was having a birthday party for his seven-year-old son. The theme was “Modern Mad Science.” His wife Nicolette ordered a themed cake from Big Sugar Bakeshop, and she sent a picture showing what she wanted. Her picture showed a knocked-over beaker atop a cake. Spilling from the beaker are little balls or pill-like objects. On the cake’s side is a joke periodic table element labeled “slime.” But when the cake arrived, the Yangs, to their dismay, saw it had realistic-looking pills made of icing. The Yangs thought these cake decorations looked too much like real medications.
Big Sugar tried to resolve the issue and began baking a replacement cake because the party was still a few hours away. Big Sugar employees delivered the second cake to the Yangs. Dissatisfied with the bakery’s response, Mr. Yang aired his grievance to his 1.5 million social media followers. Plus, he discussed his experience on his podcast a few days later.
Yang posted about the cake on social media. His posts on Instagram included statements such as these:
- “WE GONNA MAKE @BIGSUGARBAKESHOP FEEL IT”;
- “Anyone in their even high mind would know that you should NEVER EVER PUT DRUGS ON A 7 year old kids [sic] bday cake!”
Shortly after Yang’s initial social media posts, Big Sugar began receiving calls from Yang’s followers, upset that Big Sugar had put prescription pills on a child’s cake. The bakery received death threats from Yang’s followers in calls and via Instagram and Twitter. Many people wrote they would not, or would no longer, patronize Big Sugar.
Big Sugar notified Yang via Twitter of the messages and threats it was receiving. He responded, “Man stop trying to play the victim. … Damage done. Bye.” Big Sugar, through counsel, served Yang with a demand to correct or retract what it alleged were false statements, but Yang didn’t correct or retract.
The Bakery Files a Lawsuit
Big Sugar filed suit, alleging causes of action for libel (Civ. Code, §§ 45 and 45a), slander (Civ. Code, § 46), and violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). Big Sugar challenged nine statements from Yang’s social media posts and his podcast.
In response, Yang filed a special motion to strike the complaint under Code of Civil Procedure § 425.16 as a strategic lawsuit against public participation (SLAPP). Yang argued he made each of the statements about Big Sugar in furtherance of his First Amendment rights.
He claimed the statements related to the public interest because they involve:
- candy confusion, a topic of public interest;
- a celebrity’s day-to-day life; and
- a nationally recognized bakery that had poor customer service and had designed a cake posing a risk to children.
Big Sugar opposed the motion, arguing the statements related only to a private dispute about a cake and Yang’s desire to “cancel” Big Sugar. After a hearing on the motion, the trial court denied the motion. Yang appealed.
Yang’s Statements Did Not Involve The “Public Interest”
The Court of Appeals, Judge John Wiley, explained that special motions to strike proceed in two steps. First, the court determines if the claims arose from protected activity. If so, it will test if the plaintiff has shown a probability of success on each claim. Here, the Court of Appeals rejected Yang’s motion on the first step. Yang claimed that his statements constitute protected activity under Code of Civil Procedure § 425.16(e)(3) because he made the statements in a public forum in connection with an issue of public interest. Evaluating what qualifies as an issue of “public interest” inherently requires consideration of the public/private distinction, “a notoriously malleable standard,” the Court acknowledged.
The Court Fully Acknowledges “the Plasticity of the Concept of the ‘Public Interest’”
Judge Wiley explained that the state legislature wrote the words “public interest” into this statute to solve a social problem. “Courts have been working on this definitional issue for years,” the judge wrote.
He went on to explain that the California Supreme Court laid out three categories of statements or conduct that qualify as “public interest”:
- Statements or conduct that concern a person or entity in the public eye;
- Statements or conduct that could directly affect a large number of persons beyond the direct participants; and
- Statements or conduct involving a topic of widespread interest.
Yang Argued He’s a Celebrity and that His Comments Involved an Issue of Public Interest
Yang made several arguments on the issue of “public interest.” He contended his statements involved an issue of public interest because they were about the dangers of “candy confusion,” or children mistakenly eating pills they believe are candy. Yang cited a study from the American Academy of Pediatrics and a warning from the Centers for Disease Control and Prevention about the dangers of children confusing medication for candy. But Judge Wiley said this form of argument is common in special motions to strike: Yang claimed that, because his statements bear some connection to an issue of public significance, his statements deserved protection.
Yang asserted both he and Big Sugar are in the public eye, but the Court didn’t explore whether Yang is a celebrity because the argument was “fundamentally unsound.” Yang incorrectly suggested that his celebrity status means everything he says is of public interest. Not so, said the judge. “Even people of great renown are capable of banalities, as are we all,” he said.
Further, Judge Wiley said that mere mentions in national publications didn’t make Big Sugar a business in the public eye.
“Despite its name, Big Sugar is a small business. It has two shops in Los Angeles. That is all.”
As such, Yang’s and Big Sugar’s supposed proximities to fame didn’t make this a case of public interest, the judge held.
Yang’s Statements Not Part of Larger Discussion
Finally, Yang argued that his statements involve the public interest because they provide consumer protection information. Judge Wiley said that courts have recognized the growth of consumerism in the U.S. and have acknowledged the importance of public access to consumer information. But the judge explained that decisions generally have extended protection only when the “consumer information” goes beyond recounting a one-time dispute between a buyer and a seller. Yang’s quest for revenge didn’t give consumers information beyond his complaints about his one cake order. Yang’s complaints about the decoration of a cake are not a public interest discussion, Judge Wiley found.
The Court found that the consumer protection cases Yang cited didn’t support his cause. The statements in these cases all included some discussions of topics in the public interest. Yang’s postings were not a discussion of anything—they were just a diatribe. But “an attempt to exact a personal revenge” by causing others to ostracize the target isn’t a protected public interest statement. Again, Yang’s statements related only to one transaction with Big Sugar. He published them on his social media accounts to air his dissatisfaction with a particular cake. His statements weren’t part of a larger discussion.
Again, the Court found that Yang was complaining about a cake order. He didn’t like the cake, and he didn’t like the service. Those aren’t issues of public interest. The judgment was affirmed. Woodhill Ventures, LLC v. Yang, 2021 Cal. App. LEXIS 734 *; 2021 WL 4025544 (Cal. App. September 3, 2021).
The statements on social media didn’t discuss the danger of children confusing medications for candy. The statements didn’t seek public discussion of anything. Instead, the comments were designed to rally a crowd against a business. They were an unprotected effort “to gather ammunition” in his dispute with the bakeshop that decorated the cake. Therefore, the customer was complaining about a cake order, which is not an issue of public interest.