Opinion
B307098 B309264
03-22-2023
ANTONIO V., Plaintiff, Cross-defendant and Respondent, v. STEVEN J. HORN et al., Defendants, Cross-complainants and Appellants. ANTONIO V., Plaintiff and Appellant, v. STEVEN J. HORN et al., Defendants and Respondents.
Gordon & Rees Scully Mansukhani, David L. Jones and Steven R. Inouye for Defendants, Cross-complainants, Appellants, and Respondents Steven J. Horn and Law Offices of Steven J. Horn. Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit and Kathryn J. Besch for Defendants, Cross-complainants, Appellants, and Respondents Valerie F. Horn & Associates and Valerie F. Horn. Law Office of Sohaila Sagheb and Sohaila Sagheb for Plaintiff, Cross-defendant, Respondent, and Appellant Antonio V.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 20STCV05210 Richard L. Fruin, Jr., Judge. Appeal No. B307098 affirmed in part and reversed in part. Appeal No. B309264 dismissed.
Gordon & Rees Scully Mansukhani, David L. Jones and Steven R. Inouye for Defendants, Cross-complainants, Appellants, and Respondents Steven J. Horn and Law Offices of Steven J. Horn.
Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit and Kathryn J. Besch for Defendants, Cross-complainants, Appellants, and Respondents Valerie F. Horn & Associates and Valerie F. Horn.
Law Office of Sohaila Sagheb and Sohaila Sagheb for Plaintiff, Cross-defendant, Respondent, and Appellant Antonio V.
WEINGART, J.
A dispute between condominium neighbors over a charcoal barbeque degenerated into accusations, among other things, of inappropriate conduct towards young female children, elder abuse, and terroristic antisemitism. Both sides of the dispute threatened litigation and eventually brought it; in total, this incident and its aftermath have lamentably spawned three lawsuits involving over 10 parties, four appeals, and three writ petitions. How these events have metastasized is not before us, and we therefore confine ourselves to the legal issues presented in these two consolidated appeals.
Plaintiff, cross-defendant, respondent and appellant Antonio V. sued defendants, cross-complainants, appellants and respondents Steven J. Horn, Valerie F. Horn, and their respective firms Law Offices of Steven J. Horn and Valerie F. Horn & Associates, a Professional Law Corporation (collectively, Defendants) for defamation, libel per se, slander per se, intentional infliction of emotional distress (IIED), negligence, attempted extortion, civil harassment, and for preliminary and permanent injunctions. These claims are based on Defendants' alleged statements suggesting Antonio V.-a board member of the condominium's homeowners' association (HOA) who raised concerns about use of the barbeque within Defendants' mother's patio-had prurient interests in young female children. Defendants cross-complained on a variety of claims related to alleged wrongs against them and their mother by the HOA, Antonio, and other individuals, and also filed anti-SLAPPmotions to strike Antonio's complaint.
Antonio brought his lawsuit using only his initials, saying it was necessary to preserve his reputation against the alleged false and defamatory statements made against him. The parties' briefing on appeal, as well as the trial court proceedings, refer to Antonio by his initials; we will use his first name and last initial. (See Cal. Rules of Court, rule 8.90(b)(10).)
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) For clarity, we also refer to a "SLAPP" or "anti-SLAPP" motion as "a special motion to strike"-the language used in the statute (Code Civ. Proc., § 425.16, subd. (b)(1)).
The trial court denied the anti-SLAPP motions, and Defendants now appeal (case no. B307098). While we find Defendants' statements concerned a matter of public interest, Antonio has demonstrated a probability of prevailing on his claims except for his cause of action for attempted extortion. Accordingly, we reverse the trial court's order in part and strike the attempted extortion claim; we otherwise affirm the denial of Defendants' special motions to strike.
Antonio separately appeals the trial court's denial of his Code of Civil Procedure section 425.16, subdivision (c) motion for attorney fees against Defendants (case no. B309264), which Antonio filed after the trial court denied the special motions to strike. Defendants argue we should dismiss that appeal because it arises from an interlocutory and non-appealable order. As explained below, we agree and dismiss Antonio's appeal.
All unspecified statutory references are to the Code of Civil Procedure.
BACKGROUND
A. Factual Summary
1. The September 8, 2019 Barbeque Incident
Dolores Horn is a long-time resident and member of the Lindbrook Homeowners Association (also known as the HOA), comprised of the owners of 81 condominium units located in Encino, California. On September 8, 2019, then 87-year-old Dolores and her two adult children, attorneys Valerie and Steven (collectively, the Horns), were barbequing on Dolores's patio. While Valerie was at the barbeque, a neighboring female resident yelled from her balcony that the barbeque violated the HOA's covenants, conditions, and restrictions (CC&Rs), which the resident claimed allowed only gas barbeques.
Because Dolores, Steven, and Valerie all share the last surname, for the sake of clarity we refer to them by their first names only. No disrespect is intended.
According to Antonio, he was outside retrieving his mail when he noticed "heavy smoke," heard yelling, and became concerned there might be a fire. He walked towards the smoke and realized it was coming from a barbeque on Dolores's patio.
In their declarations, both Antonio and the Horns describe the other as behaving aggressively during the exchange that followed. We set forth only what is necessary from each of their versions of what occurred to provide sufficient context for the issues presented in this appeal.
According to the Horns, Antonio expressed the CC&Rs did not allow residents to use charcoal barbeques due to fire safety laws and because the smoke could be a nuisance to other homeowners. Valerie advised Antonio that she was an attorney and demanded that he identify which specific rule the Horns were purportedly violating. Antonio could not do so and urged the Horns to contact "Monica [Cooper]" in the property manager's office. Antonio stated if the Horns did not stop barbequing, he would report the violation and Dolores would be fined. Antonio did not want to give his name, but stated he was an HOA board member. Valerie reiterated that she was an attorney and informed Antonio that Steven was also an attorney. During the exchange, neighbors Neil and Reut Elan were standing in the common area near Dolores's patio. According to the Horns, Mrs. Elan asked Antonio for his name. Then, Mr. Elan asked Antonio, "Why have you taken pictures of my young daughter on your cell phone?" Mrs. Elan stated their nanny told them that she had seen Antonio do so. Antonio did not immediately respond but continued his conversation with the Elans out of the Horns' hearing.
Antonio, who was the HOA board secretary, recalls this incident differently. According to Antonio, he identified himself and told the Horns that fire safety laws permitted only gas barbeques. He never stated using the charcoal barbeque violated the CC&Rs or told the Horns to stop barbequing. He advised the Horns to "contact Monica" for more information. When he arrived at his home that evening, Antonio sent an email to Monica Cooper, a community manager at the property manager's office, Ross Morgan & Company (Ross Morgan). Antonio's email stated he had informed the Horns that only gas barbeques are allowed due to fire safety, and requested, "Please send letter to attend hearing for unauthorized use of charcoal smoker in patio."
All directors of the HOA are unpaid volunteers.
According to a declaration from cross-defendant and HOA board president Israel "Sam" Zaslavsky, the board decided the prior month (in August 2019) to amend the standing rules to prohibit the use of open flame charcoal barbeques given wildfire risk. Zaslavsky stated this was done, in part, to avoid violating the Los Angeles County Fire Code. Thus, on or about September 1, 2019, the board retained cross-defendant Lev Berkovich, an attorney and at the time, an HOA member, to draft the rule change. Zaslavsky stated that he came out of his home on September 8, 2019, due to the smell of smoke and observed Antonio communicating with Mr. Elan. Zaslavsky did not notice anything out of the ordinary. He also averred that he never noticed Antonio behave inappropriately towards children, including Zaslavsky's grandchildren.
2. Events of September 10, 2019 to February 5, 2020
On September 10, 2019, Ross Morgan sent a "Call to Hearing" letter to Dolores. The letter stated that a September 26, 2019 "hearing will be held by the [b]oard of [d]irectors to consider the following rules or CC&R provisions you are alleged to have violated." The letter cited a standing rule that prohibited the use of charcoal barbeques at the townhomes located at an adjacent address, but not at the property at which Dolores resided. The parties agree the "Call to Hearing" letter was later retracted.
Also on September 10, 2019, Steven sent a letter to Ross Morgan on his law firm's letterhead with a carbon copy to Valerie. He stated Dolores had retained his and Valerie's law firms to represent her. He asserted that on September 8, 2019, a woman "screamed" at them to stop using the barbeque pursuant to the CC&Rs and that Valerie asked the woman to specify which rule. He further stated that "a man appeared out of nowhere and started to walk toward us in an aggressive and hostile manner. It was clear that this man was approaching us with the intent to bully our 87[-]year[-]old mother . . . [and] parroted the same demands previously shouted [by] the screaming woman[, including] . . . that we must immediately stop because we are 'in violation of the [r]ules.'" Steven described the exchange of additional unpleasantries in his letter, and then stated, "The next question posed to [Antonio] by [Mr. Elan] was absolutely incredulous. [Mr. Elan] asked: 'Why have you taken pictures of my young daughter on your cell phone?' "
Steven's letter then quoted the April 3, 2009, revision to the standing rules as evidence that Dolores's barbeque did not violate them, and observed "[Antonio's] ignorance of the rules was almost as egregious as his bullying tactics. Moreover, we have serious concerns about [Antonio]'s photographing of the female toddler . . . potentially constituting an invasion of privacy." He stated, Antonio's "conduct, as a member of the board, has now caused serious legal issues to erupt." Steven made several demands, including that the board issue a written apology to Dolores; cease surveillance of individual homeowners; and state in writing whether Antonio "was acting under color of the board's authority," and, if not, that the board "expressly repudiate his conduct" and remove him from the board or the Horns would seek a restraining order.
In connection with the demand to cease surveillance, Steven wrote "Has the board in any way approved . . . such conduct such as the photographing by [Antonio] of the young female child residing in [the Elans' unit]? [¶] If [Antonio] has taken photographs of the young girl residing in [the Elans' unit] . . . then demand is made for the board to obtain those photographs and to preserve them. [Antonio]'s conduct could have serious legal ramifications." Steven also stated, "legal action might be necessary in order to prevent individual board members, or the board[,] from authorizing[ ] conduct which is in violation of the CC&Rs and [r]ules and [r]egulations, by engaging in self-help conduct, and for failure to follow the proper procedures to notify a homeowner of a purported violation of any rule."
According to Zaslavsky, upon receiving Steven's letter, the HOA board "conferred and determined it was appropriate to investigate [Steven]'s charge that Antonio had taken photographs of the Elan[s'] child" because "[t]he information pertaining to the photographing of toddlers was interpreted as an accusation of pedophilia or child molestation." The board asked Berkovich to investigate the matter. In late September 2019, Berkovich was elected vice president of the board. In late September or October 2019, Berkovich spoke with Mr. Elan, who denied making the statements that Steven described in his letter. Antonio also denied taking pictures of the Elans' daughter and declared, "Neil Elan has never asked me why, or whether, I have taken pictures of his daughter."
On September 15, 2019, Valerie sent a letter to Ross Morgan on her firm's letterhead, with a carbon copy to Steven. She reiterated that she and Steven represented Dolores, that she had asked for, but had not received, the HOA's attorney's contact information, that Ross Morgan should not contact her mother directly, and that "[i]f you continue to harass [Dolores], we will seek a restraining order against you under the Elder Abuse Statute." Valerie stated that the rules did not prohibit the Horns' barbequing, argued the barbequing did not constitute a nuisance, asked why the board was "harassing" Dolores, and further contended Ross Morgan behaved in ways "designed to harass and vex" Dolores. Valerie stated, "At this juncture, we fully intend to pursue litigation against [Antonio], Monica Cooper, Ross Morgan . . . and all other appropriate board members, individuals and entities, for [e]lder [a]buse, to enforce the CC&R and [r]ules enuring to [Dolores's] benefit, for injunctive relief to prohibit the [b]oard and [Ross Morgan]'s continued harassment of [Dolores], as well as all other appropriate claims."
Valerie proposed the parties engage in mediation, but warned that if the board did not respond in 30 days "we will file the lawsuit, and proceed vigorously to assert [Dolores's] property rights[,] . . . without waiver to immediately seek a [t]emporary [r]estraining [o]rder . . . should there be another incident of you or the members of the [b]oard's harassment of [Dolores]." The letter did not refer to Antonio's alleged photographing of Mr. Elan's daughter or describe any potential causes of action arising therefrom.
On September 17, 2019, Valerie provided notice to Antonio, the board of directors, and Ross Morgan that she intended to apply, ex parte, for a temporary restraining order against them, the HOA, and Monica "under the [e]lder abuse statute and anti[-]harassment statute to enjoin you from unlawfully interfering with [Dolores's] property rights and the rights expressly granted to her under the HOA rules and regulations and CC&Rs." Valerie agreed not to proceeded with the ex parte application in response to the HOA's attorney's request for more time to investigate the matter.
By this point in time, Antonio had retained counsel. In a letter to Steven dated October 3, 2019, Antonio's attorney demanded that Steven retract his September 10, 2019 statements that Antonio photographed the Elans' female toddler or face litigation. Antonio's counsel stated, "We have spoken to [Mr. Elan] and he has adamantly denied making such assertions against [Antonio]."
In a letter dated October 4, 2019, Valerie stated she and her firm "are [a]ttorneys for Steven." She stated Steven "[would] not retract anything" as his statements were truthful and protected under the anti-SLAPP statute and the litigation privilege. Valerie advised Antonio's lawsuit would "be met by a cross-complaint against" Antonio, the board of directors, and the HOA for "elder abuse, fraud, harassment, and all other appropriate causes of action."
On or about November 19, 2019, December 11, 2019, and December 16, 2019, the board circulated revised rules to the HOA members. The final cover letter invited written comments by January 15, 2020, and provided that the new rules would be voted on at the next meeting. The new rules prohibited the use of any "open flame barbeque" "closer than 10 feet from any combustible construction."
On December 4, 2019, Valerie sent an email to a property manager at Ross Morgan, with a carbon copy to Steven. She stated the new, revised rules were "unlawful" and "illegal" (in part due to an insufficient notice period), and that "we intend to set that rule aside through litigation for elder abuse against my mother since the board is attempting to deprive her of a property right." Further, she demanded the names and addresses of the board members and to inspect and copy the HOA membership list.
Also on December 4, 2019, Valerie provided email notice to several individual board members, including Antonio, that on December 9, 2019, she would apply, ex parte, for a temporary restraining order. She stated the change to the barbeque rule would "deprive the elderly member of her property rights, at which point we will also be filing our elder abuse complaint against the HOA.... We originally offered mediation . . . but the board ignored that request and instead, made unlawful changes to the rules .... Thus, we are instituting litigation immediately." On December 5, 2019, Valerie sent an email to Melody Correa (a property manager for Ross Morgan) asking for the contact information for the HOA's legal counsel. She stated, "I am filing lawsuit [sic] and I would like to discuss this matter with the HOA's counsel further before filing the lawsuit today." The record does not include any documents indicating that Valerie filed an ex parte application or a lawsuit on December 5, 2019, or in the weeks or months that followed.
On December 20, 2019, Valerie forwarded her December 4, 2019 email to Correa to the HOA's attorney, Leonard Siegel. Valerie directed Siegel to her "demand for the member[s'] names and addresses." On January 8, 2020, she again emailed Siegel, noting the board had "ignored" her request and stating she would file a lawsuit if she did not receive the requested information by the end of the week.
Also on January 8, 2020, Valerie filed an online complaint against the HOA with the California Attorney General for the board's failure to provide her with HOA members' contact information. Valerie also sent a letter to Ross Morgan on her firm's letterhead, copying Steven and stating that Steven and his firm were co-counsel for Dolores and Dolores's living trust. In this letter, Valerie disputed the proposed rule change and recounted the events of September 8, 2019. She claimed Mr. Elan had asked Antonio why he had photographed his daughter, referred to Antonio's photography as "predatory," and asked what had been done with the photographs. She added, "We do not know [Antonio]'s religious beliefs, but we suspect that he is a Muslim, with a Muslim terrorist mentality: to get rid of the Jews." She claimed Antonio was "humiliated" and "defeated in his attempt to harass and bully [Dolores] with his terrorist mentality," and therefore had hired an attorney "to continue his campaign" to do so. She further explained why in her view Antonio and the board were wrong that Dolores's barbequing violated the prior or proposed rules.
Dolores sent a letter dated January 21, 2020, to the Public Inquiry Unit of the California Department of Justice. She thanked them for responding to her complaint and requested that the Attorney General "intervene on my behalf" to obtain the HOA members' contact information.
On or about January 30, 2020, Valerie sent a letter on her firm's letterhead to the Lindbrook residents, with a carbon copy to Steven. She stated, "The purpose of this letter is to ask that you join [Dolores] in opposing [the barbeque] rule change." The letter reiterated the events of September 8, 2019, stating, "The background on this proposed rule change is essential to understanding the [b]oard's abuse of power and harassment directed towards [Dolores], promulgating the [b]oard's proverbial 'axe to grind' motivating the proposed rule change." Valerie then repeated the Horns' claim that Mr. Elan asked Antonio why he had "taken pictures of my young daughter on your cell phone," that they were "troubled about [Antonio]'s photographing of the female toddler . . . potentially constituting an invasion of privacy and raising serious concerns of the use of these predatory tactics," and that they wanted to know why Antonio was photographing a young child. Thereafter, she described that the board acknowledged Dolores had not violated any of the current barbeque rules and that "Antonio in his continuing campaign to harass [Dolores], with his tail between his legs, humiliated by being called out on his false accusation of [Dolores's] violation of the [s]tanding [r]ules, and defeated in his attempt to harass and bully [Dolores], retained [an] attorney . . . [to] continue his campaign to harass and bully."
By email, Valerie advised Ross Morgan that she had been made a co-trustee of Dolores's trust and that a grant deed relating to Dolores's condominium "will be recorded" reflecting this change in ownership. Valerie further stated that she, Dolores, and "our attorney Steven J. Horn, Esq." would attend the February 6, 2020 HOA meeting.
Lindbrook resident Christopher Hennessy received Valerie's January 30, 2020 letter. On February 3, 2020, he responded to that letter by email. He stated Antonio twice photographed his three-year-old daughter in her bathing suit at the pool. In response to Hennessy's email Valerie wrote, "I . . . truly believe we have a predator on our hands." She urged Hennessy to contact the authorities as he had stated he was contemplating, including the Los Angeles Police Department, and stated, "G_D knows what he is doing with those photographs."
On February 4, 2020, Valerie sent an email to Siegel and Correa, copying Steven, and blind carbon copying Hennessy. Valerie repeated Hennessy's statement that Antonio had photographed his daughter. Thus, Valerie "call[ed] for [Antonio]'s immediate removal . . . [or she would] institute legal proceedings to remove [Antonio]. He is dangerous and exposes the board and the HOA to uncovered losses[,] which would not be insured." Valerie referred to Antonio's behavior as predatory three times, noted Hennessy was "considering reporting the incidents to . . . the Los Angeles Police Department," that it was her "opinion that we are dealing with a predator in [Antonio]," and repeating "G-D knows what he is doing with those photographs." Hennessy responded to the email, asking that his family not be involved and observing, "[w]e cannot validate with absolute certainty that the person who photographed us on [two] occasions [was] in fact [Antonio]."
On May 28, 2020, the parties deposed Hennessy. Due to the procedural posture of this matter, we focus on the portions of Hennessy's testimony favorable to Antonio. Hennessy clarified that his wife was not present during the first photography incident when he and his daughter had been at the pool, and he was not present during the second incident when his wife and daughter had been photographed. Both Hennessy and his wife testified that they did not know whether it was the same person who photographed them both times. Hennessy also testified he did not believe he could pick Antonio out of a "line up," although he could pick out the stranger who purportedly photographed his daughter.
Both Hennessy and his wife testified that the reason they believed Antonio was the individual taking pictures of them was because of the representations made in Valerie's letter. Hennessy also testified that one to two weeks after the second incident, he and his wife received a letter and photograph in the mail from Ross Morgan or the HOA. The letter stated that someone witnessed Mrs. Hennessy at the pool with a beverage, and the photograph was of a beer bottle in a garbage can. Hennessy also testified that when he read Valerie's January 30, 2020 letter to the HOA members, he believed that Antonio had taken photographs of the Elans' young daughter and "absolutely" understood Valerie's letter to implicate conduct related to child molestation. In his declaration, Antonio denied taking photographs of the Hennessy's toddler or any other toddler at the pool or at any other location of the property.
On February 4, 2020, Mr. Elan, who is also an attorney, executed a declaration in which he averred, "I have never seen [Antonio] take any photos of my child nor made any statements about him taking photos of my child on [September 8, 2019] or any time before or after that date, directly to [Antonio] or anyone else." During her deposition taken on June 2, 2020, Mrs. Elan also stated she did not discuss with Antonio that he took pictures of her daughter, did not mention to Antonio anything about him taking photographs of her child, and did not tell anyone, including her husband, that Antonio had taken pictures of her daughter.
3. The February 6, 2020 HOA Meeting
According to Zaslavsky, in part because of Valerie's threats of litigation as well as her allegations of criminal conduct against the board's secretary Antonio, the board recorded the meeting to ensure an accurate record. Defendants contend this recording was illegal and argue the recording is corrupted or incomplete. We need not decide the legality of the recording or its admissibility because the declarations in the appellate record provide adequate information concerning the events at the meeting for purposes of this appeal.
Dolores and Valerie attended the February 6, 2020 HOA meeting. According to Zaslavsky, at the meeting Valerie was "loud, rude, aggressive, screaming, hostile, and agitated." She repeated her accusation that Antonio had photographed the Elans' and Hennessys' children. According to Berkovich, during the meeting, "I tried to tell [Valerie] that her accusations were out of place. Other attendees tried to tell [Valerie] that the subject of the meeting was the [barbeque] rule change. I told [Valerie] that her claims were false and there was no evidence of Antonio's photographing of female toddlers. I tried to show [Valerie] Mr. Elan's executed declaration. Relative to Chris[topher] Hennessy's claim, I reminded [Valerie] that she was in receipt of Mr. Hennessey's retraction email which was sent to her two days before the meeting stating that the Hennesseys could not state that the person who photographed them was Antonio. [¶] . . . [Valerie] responded by calling me a 'liar' and telling me to 'shut up.' "
On February 18, 2020, Ross Morgan advised the residents that the board adopted a new barbeque rule, which prohibited open flame grills at the property within which Dolores's condominium was located. The board clarified that all patios at that property "are of [such a] size that" they "do not allow a grill to be placed outside of a 10 feet limit from a flammable structure." Further, residents could not place their grills on common property outside the patio boundaries.
4. The February 8, 2020 Draft Complaint
On February 8, 2020, Valerie prepared and emailed a draft complaint, signed by Steven, to Siegel. She repeated her demand that they engage in mediation. She warned that if she did not receive a response by February 10, 2020, she would file the complaint on February 11, 2020, "and fully intend[ed] to prosecute it to the fullest extent of the law." The draft complaint included claims by Dolores and Valerie as co-trustees of Dolores's living trust against the HOA, Correa, Ross Morgan, and board members Antonio, Berkovich, James Rishel, Marlene Harrison, and Zaslavsky for: (1) violation of Penal Code section 632, relating to an alleged unauthorized video recording of a February 6, 2020 HOA meeting; (2) breach of the CC&Rs, again based on the alleged videotaping of the HOA meeting; (3) violation of Corporations Code sections relating to the board's failure to allow Valerie and Steven access to the videotape recording of the meeting; (4) breach of fiduciary duty based on the board's recording of the meeting, "permitting" Antonio to "directly approach" them on September 8, 2019, and falsely accuse them of violating the HOA's rules, circulating a "[n]otice of [v]iolation" falsely accusing them of violating the rules, and hiring Berkovich as an attorney for the HOA and thereby creating a conflict of interest; and (5) elder abuse of Dolores. The complaint did not refer directly or indirectly to Antonio's alleged photography of any children or allege any claims or damages arising therefrom. Valerie also sent a letter to Antonio, Berkovich, Rishel, Harrison, and Zaslavsky (and copying Steven), advising them of her intention to file the lawsuit and requesting that they preserve documents. Steven, on his firm's letterhead, sent a similar letter to Siegal.
5. The Litigation Begins
On February 10, 2020, Antonio filed a complaint against Defendants for defamation, libel per se, slander per se, IIED, negligence, attempted extortion, civil harassment, and injunctive relief. Each cause of action arose from Defendants' statements concerning Antonio's alleged predatory photography of female toddlers, which Antonio claimed, suggested he engaged in lewd or lascivious acts in violation of Penal Code section 288 and was a child molester. The complaint attached Mr. Elan's February 4, 2020 declaration as an exhibit.
On February 24, 2020, Berkovich filed a complaint against Defendants. A copy of Berkovich's complaint is not included in the appellate record. However, the trial court's ruling on the special motions to strike identified the causes of action in Berkovich's complaint as defamation, libel per se, slander per se, IIED, negligence, attempted extortion, civil harassment, and injunctive relief.
On March 28, 2020, Valerie emailed Siegel to memorialize a telephone conversation in which she advised him that she and Dolores would be filing a derivative lawsuit against the board for breach of fiduciary duty and fraud for, among other things, "Antonio's photographing members of the HOA . . . and their children without their consent and Antonio's false and fraudulent denial that he did not take such photographs (vigilantism)." She claimed the suit would also seek a restraining order enjoining Antonio from taking photographs of residents and their children and include a cause of action against Berkovich for failing to conduct an adequate investigation of the allegations that Antonio "was photographing female minors in the complex."
On June 4, 2020, counsel retained to represent Steven and his firm filed a special motion to strike all causes of action in Antonio's complaint.
On June 5, 2020, Valerie and her firm, as attorneys for Steven individually, filed a cross-complaint against Antonio, Mr. Elan, Zaslavsky, Harrison, Rishel, board member Mohammed Naraghi, Berkovich, the HOA, and Ross Morgan, alleging causes of action for slander, libel, equitable indemnity (the only claim against Mr. Elan), and negligent and intentional infliction of emotional distress. Except for equitable indemnity claim against Mr. Elan, none of Steven's causes of action expressly related to Antonio's alleged photography of the Elans' child. Instead, Steven alleged cross-defendants Antonio, the HOA, and Ross Morgan negligently and intentionally inflicted emotional distress upon him because Steven "has been anxious and concerned for [Dolores's] continued health and safety . . . due to the pattern of abusive conduct others in the Lindbrook community have voiced about the predatory conduct of [Antonio] who dare to challenge him or who fail or refuse to submit to his direct but wrongful attacks on such persons in order to bully such persons."
That same day, Steven and his firm, as attorneys for Valerie and Dolores, individually and as co-trustees of Dolores's trust, filed a cross-complaint against Antonio, Mr. Elan, Zaslavsky, Harrison, Rishel, Naraghi, Berkovich, the HOA, and Ross Morgan for: (1) breach of governing documents; (2) violation of Civil Code section 4950; (3) violation of Corporations Code section 8333; (4) negligence; (5) violation of the CC&Rs; (6) private nuisance; (7) public nuisance; (8) slander; (9) libel; (10) breach of fiduciary duty: (11) negligent infliction of emotional distress; (12) IIED; (13) elder abuse; and (14) equitable indemnity (the only claim against Mr. Elan). Only the public nuisance and equitable indemnity causes of action expressly related to Antonio's alleged photography of the Elans' child. Like Steven's cross-complaint, the causes of action for negligent and intentional infliction of emotional distress alleged Valerie "has been anxious and concerned for [Dolores's] continued health and safety . . . due to the pattern of abusive conduct others in the Lindbrook community have voiced about the predatory conduct of [Antonio] who dare to challenge him or who fail or refuse to submit to his direct but wrongful attacks on such persons in order to bully such persons." Valerie and Dolores sought $10 million in compensatory damages, and punitive damages in the amount of $10 million from each board member, the HOA, and Ross Morgan.
On June 12, 2020, additional counsel retained to represent Valerie and her firm filed a special motion to strike Antonio's complaint in its entirety, or in the alternative, paragraphs 13 through 110 relating to his allegations of the Horns' statements and all eight causes of action. Valerie also filed a notice of joinder in Steven and his law firm's special motion to strike.
On June 16, 2020, Steven filed a first amended cross-complaint, which dropped his libel cause of action. On June 30, 2020, the trial court granted Steven's request to voluntarily dismiss his slander cause of action without prejudice. The trial court also granted Valerie and Dolores's request to dismiss their causes of action for libel and slander from their cross-complaint without prejudice. On July 31, 2020, the trial court also granted Valerie and Dolores's request to dismiss their causes of action for negligence and negligent infliction of emotional distress as to each of the individual board members.
B. The Special Motions to Strike
In support of their special motions to strike, Defendants submitted declarations from Steven, Valerie, and Dolores. On July 15, 2020, Antonio filed his opposition to both motions to strike. In support of his opposition, Antonio submitted his declaration as well as declarations from Zaslavsky, Berkovich, Honey Shaw (Antonio's wife), Correa, Mr. Elan, and Kenneth Yaeger (Antonio's attorney who wrote the October 3, 2019 letter demanding Steven retract his September 10, 2019 statements).
Defendants contended Antonio's complaint arose from speech that was protected in three ways: (1) under the anti-SLAPP statute, pursuant to section 425.16, subdivision (e)(2), (3), and (4); (2) under the litigation privilege as described in Civil Code section 47, subdivision (b); and (3) under the common interest privilege as described in Civil Code section 47, subdivision (c). Before we discuss the parties' arguments at the hearing and the trial court's ruling, we provide an overview of the relevant law.
1. Applicable Legal Principles
The Legislature enacted section 425.16 to "combat lawsuits designed to chill the exercise of free speech and petition rights." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.) To that end, the anti-SLAPP statute provides that "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).) Acts in furtherance of the right of free speech include: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law[;] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law[;] (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest[;] or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(1)-(4).)
When considering whether to strike a claim, courts undertake a two-prong analysis. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) A "plaintiff's second-step burden is a limited one. The plaintiff need not prove her case to the court [citation]; the bar sits lower, at a demonstration of 'minimal merit' [citation]. At this stage,' "[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.'"' [Citations.]" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.)
"The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged. This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' [Citation.] 'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' [Citation.]" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.)
Under Civil Code section 47, subdivision (c), the common interest privilege protects communications made "without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." (Ibid.)
2. The Parties' Arguments and the Trial Court's Ruling
On July 28, 2020, the trial court issued a tentative ruling denying Defendants' special motions to strike before hearing oral argument. The trial court's tentative ruling concluded homeowner association meetings fell outside the scope of "official proceedings," as that phrase is used in section 425.16, subdivision (e)(1) and (2). It found Defendants' statements about Antonio "purportedly photographing . . . children and re his character were unrelated to the issue being considered by the HOA," namely, the rule change concerning barbeques. Thus, the trial court concluded the statements did not concern a public issue, and Defendants did not carry their burden to demonstrate the first prong under the anti-SLAPP test.
The trial court also determined that even if the first prong was met, Antonio carried his burden to demonstrate a probability of prevailing on his claims. Even if Defendants did not specifically accuse Antonio of being a pedophile or child molester, Defendants' statements considered in context suggested such a meaning. Further, Antonio submitted sufficient evidence to make a prima facie case for IIED, negligence, and civil harassment. The trial court concluded, however, that Antonio's cause of action for extortion "would likely be stricken."
The tentative ruling indicated that neither the common interest privilege nor the litigation privilege was an applicable affirmative defense. The common interest concerned whether the HOA should modify the barbeque rules, but "the statements accusing [Antonio] of misconduct and bad character were clearly made to diminish [Antonio]'s reputation in the community," and Antonio was "persuasive in demonstrating a prima facie case of malicious intent." As for the litigation privilege, the trial court found "[a]t best, the evidence is equivocal as to whether Defendants were actually contemplating litigation, or whether they were using the threat of litigation to harass" Antonio and the board.
At the hearing, Defendants' attorneys argued they did not contend section 425.16, subdivision (e)(1) was applicable "[a]nd under [subdivision] (e)(2) . . . did not argue that an HOA meeting was an official proceeding." Rather, section 425.16, subdivision (e)(2) applied because the communications were prelitigation communications. Counsel also argued the litigation and common interest privileges applied because the dispute between the parties was not limited to the barbeque issue but had grown to encompass Antonio's unfitness to serve on the HOA board, a matter that was of concern to the homeowners. Further, they argued Mr. Elan's declaration and Hennessy's retraction could not be a basis for finding malice because they arose after Defendants' statements were made. Steven's attorney also argued that Valerie's statements could not be attributed to Steven.
Valerie's attorney argued first, and Steven's attorney "join[ed in] all of [Valerie and Dolores's attorney's] comments, because they all equally apply to Steven Horn and his law firm."
Defendants objected to Mr. Elan's declaration on the basis that they did not have an opportunity to depose him. The trial court did not sustain this objection, and we find no abuse of discretion in that ruling because Defendants did not pursue Mr. Elan's deposition diligently and in good faith. Mr. Elan did not appear for his deposition after it was initially noticed by Defendants' counsel, but it was Antonio's counsel who then contacted Mr. Elan to determine why Mr. Elan did not appear. In response, Mr. Elan wrote to Valerie's counsel, surprised to learn he had had a deposition scheduled that day: "While I cannot speak to your motives (and have absolutely zero interest in the outcome of this case), in looking back at everything that has happened, I doubt that this was an innocent scheduling mistake." Thereafter, Valerie's counsel rescheduled Mr. Elan's deposition for May 29, 2020. However, Valerie's counsel canceled the deposition, claiming no court reporter was available. Antonio's counsel offered a court reporter and videographer, and Mr. Elan confirmed he remained available to be deposed that day. Defendants still refused to proceed. On June 8, 2020, Antonio filed an ex parte application requesting limited discovery, including taking Mr. Elan's deposition. Steven opposed the request. On June 9, 2020, in response to Antonio's request and over Steven's objection, the trial court granted one-hour depositions of Mr. and Mrs. Elan. According to Antonio's counsel, "After Mr. Elan was served as a [c]ross [d]efendant[,] he refused to proceed with his deposition without counsel and was waiting to hear from coverage counsel when [Antonio]'s opposition [to the special motion to strike] came due."
Antonio's counsel argued there was nothing in Defendants' communications that wedded the alleged defamatory statements to the public issue of the barbeque rule change. Further, the dispute grew to include other issues only because Defendants made the defamatory statements about Antonio. Counsel additionally argued the litigation privilege does not protect defamatory statements made when there is a "bare possibility" of litigation. Nor does it protect attorneys from making defamatory statements "that are entirely irrelevant to the issue for which [they have] been retained."
After the parties concluded their arguments, the trial court adopted its tentative as its ruling.
On August 6, 2020, Defendants filed notices of appeal relating to the trial court's ruling on their special motions to strike.
On August 18, 2020, Antonio filed a motion for attorney fees under section 425.16, subdivision (c). The trial court denied the motion on October 21, 2020. On November 18, 2020, Antonio filed a notice of appeal from the court's attorney fees ruling.
DISCUSSION
A. Standard of Review
We review de novo the trial court's grant or denial of a special motion to strike under the anti-SLAPP statute. (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1067.)
B. Defendants' Alleged Statements Are Conduct in Furtherance of Their First Amendment Rights Under Section 425.16, Subdivision (e)(4)
Defendants described Mr. Elan asking Antonio why he had taken pictures of his daughter and/or repeated Hennessy's statements that Antonio photographed his daughter at the pool on at least five occasions: in Steven's September 10, 2019 letter to Ross Morgan; in Valerie's January 8, 2020 letter to Ross Morgan; in Valerie's January 30, 2020 letter to all the HOA residents; in a February 4, 2020 email to Seigel and Correa; and during Valerie's oral presentation at the February 6, 2020 HOA meeting.Defendants argue these statements are "protected activity" within the meaning of section 425.16, subdivision (e)(2), (3) and (4). We conclude Defendants statements are "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest," under section 425.16, subdivision (e)(4). Therefore, we need not consider whether Defendants' statements also come within subdivision (e)(2) or (3).
Antonio's complaint does not refer to Valerie's statements (on which Steven was copied) that Antonio has a "Muslim terrorist mentality: to get rid of the Jews." Accordingly, we do not determine whether these statements are protected under the anti-SLAPP statute, although the statements (and the lack of evidence in the record supporting such statements) may be relevant to Defendants' motives and the question of whether Defendants acted with actual malice.
Section 425.16 does not define "an issue of public interest." (See generally § 425.16.) However, we derive some relevant guiding principles from decisional authority. First, courts should consider the content and context of the speech when assessing whether an issue is one of public interest. (FilmOn.com v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150.) Second, "a matter of public interest should be something of concern to a substantial number of people." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132, citing Dun & Bradstreet v. Greenmoss Builders (1985) 472 U.S. 749, 762 [105 S.Ct. 2939, 86 L.Ed.2d 593].) Third, "there should be some degree of closeness between the challenged statements and the asserted public interest." (Weinberg v. Feisel, supra, at p. 1132, citing Connick v. Myers (1983) 461 U.S. 138, 148-149 [103 S.Ct. 1684, 75 L.Ed.2d 708].) "The fact that 'a broad and amorphous public interest' can be connected to a specific dispute is not sufficient to meet the statutory requirements [of the anti-SLAPP statute]." (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280.) "At a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern." (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 625.) Fourth, to warrant protection under the statute, "the focus of the speaker's conduct should be the public interest rather than a mere effort 'to gather ammunition for another round of [private] controversy ....' [Citation.]" (Weinberg v. Feisel, supra, at pp. 1132-1133.) Yet, we must also be mindful that our Supreme Court has counseled that attempting to discern a single topic of speech is" 'less than satisfying' because 'speech is rarely "about" any single issue.' [Citation.]" (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1249.)
Defendants contend their statements concern issues of public interest like those described in Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456 (Ruiz) and Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon). In Damon, a homeowners association's board stopped using a professional management company and hired an individual named Damon as the association's general manager. (Damon, supra, at p. 471.) Months later, homeowners began to criticize Damon's competency and urged other residents to replace him with a professional management company. (Id. at p. 472.) Damon sued for defamation, and the defendants filed a special motion to strike. (Id. at p. 473.) The trial court granted the motion, and the Court of Appeal affirmed. The appellate court explained, "The definition of 'public interest' within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." (Id. at p. 479.) "Given the size of the Ocean Hills community [3,000 individuals], the nature of the challenged statements as involving fundamental choices regarding future management and leadership of the [a]ssociation, and our Legislature's mandate that homeowner association boards be treated similar to governmental entities, the alleged defamatory comments involved 'public issues' within the meaning of the anti-SLAPP statute." (Id. at pp. 479-480.)
In Ruiz, homeowners Christopher Ruiz and his wife sought to raze and rebuild their house situated within a 523-lot development governed by the Harbor View Community Association (HVCA). (Ruiz, supra, 134 Cal.App.4th at p. 1461.) Ruiz submitted conceptual plans to the HVCA architectural committee, which denied those plans. (Id. at p. 1462.) When Ruiz sought to discuss the committee's denial during a meeting, the board asked him if he was an attorney. (Id. at p. 1463.) Ruiz did not directly answer the question, and the board asked him to submit his questions in writing. (Ibid.) In a letter, Ruiz asserted the board's decision was" 'arbitrary and capricious'" and based upon" 'subjective sensibilities.'" (Ibid.) HVCA's attorney thereafter sent a letter to Ruiz noting Ruiz's failure to inform the board that he was an attorney when asked was" 'reprehensible' " and" 'unconscionable'" and that he violated his duty as an attorney to deal honestly and fairly with others. (Id. at pp. 14631464.) Months later, HVCA's attorney sent another letter, accusing Ruiz of, among other things," 'virtually stalking'" the directors. (Id. at p. 1465.)
Ruiz sued HVCA for libel based upon statements in HVCA's attorney's two letters. (Ruiz, supra, 134 Cal.App.4th at p. 1465.) HVCA moved to strike Ruiz's complaint under section 425.16, and the trial court denied the motion. (Ibid.) The appellate court reversed. It recognized that to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) in cases where the issue is of interest to a limited portion of the public, "the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.'" (Ruiz, supra, at p. 1468, quoting Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.) It concluded the attorney's letters were written as part of an ongoing dispute over approval of Ruiz's conceptual plans, the application of the HVCA's architectural guidelines, and Ruiz's demands for information and documents. Further, "Those disputes were of interest to a definable [and sufficiently large] portion of the public, namely, the members of HVCA, because they would be affected by the outcome of those disputes and would have a stake in HVCA governance." (Ruiz, supra, at p. 1468.)
Defendants argue their photography statements are a matter of "public interest" to the HOA community because they reflect their "ongoing concerns" and "ongoing pre-litigation statements" about Antonio's "abuse of power" or "unfitness to serve on the HOA [b]oard," and thus, like Damon and Ruiz, relate to HOA management and governance.
We agree that matters concerning homeowner association governance can be of public interest, but the instant case is distinguishable in some respects from Damon and Ruiz. In Damon and, to a lesser extent, Ruiz, the challenged statements more closely related to the targets' competency to manage association matters or failure to even-handedly and objectively apply community rules-directly implicating the governance of the communities. The connection between Defendants' photography accusations (as Defendants characterize them) and Antonio's fitness to serve on the board is more tenuous. Defendants repeatedly emphasize they never said Antonio was a pedophile or child molester, and attempt to distance their statements from any suggestion that Antonio had a deviant sexual interest in children. That begs the question of how a board member's alleged photography of toddlers while in an open public space for no prurient or voyeuristic purpose is relevant to his competency to govern, meaning the link between the alleged activity and the fitness to govern is less direct than it was in Damon and Ruiz. Further, when viewed in context, Defendants' speech suggests the focus of their statements was not the public interest but rather" 'to gather ammunition for another round of [a private] controversy'" involving their mother's barbeque usage. (Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132-1133.)
Keeping in mind the Legislature's express directive to broadly construe the anti-SLAPP statute to encourage continued participation in matters of public significance (§ 425.16, subd. (a)), we need not decide if these differences place the instant matter outside the scope of Damon and Ruiz. That is because, as confirmed by Hennessy's and Zaslavsky's sworn statements, one can reasonably interpret Defendants' statements as accusations of an inappropriate sexual interest in young, female children. (See Geiser v. Kuhns, supra, 13 Cal.5th at p. 1249 [" 'speech is rarely "about" any single issue' "].) As such, the statements concern matters of public interest. In Terry v Davis Community Church (2005) 131 Cal.App.4th 1534, the court observed, "The issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest. The public interest is society's interest in protecting minors from predators ...." (Id. at p. 1547; see Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th at p. 119 [identifying certain matters as being of widespread public interest, including child molestation in youth sports as described in M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623].) Here, the accusations of inappropriate conduct relating to minors did not arise in the context of a church youth group or in youth sports. They nevertheless concern the safety of children within the particular community in which they reside, and include statements identifying Antonio as a "predator" and demanding that action be taken to protect children from Antonio's predatory behavior. As the better public policy is not to chill speech relating to the protection of society's children from sexual predators, we have little difficulty concluding Defendants' statements fall within the scope of an issue of public interest under section 425.16, subdivision (e)(4). Whether the statements have merit is another matter, which we turn to next.
C. Antonio Satisfied His Burden of Showing a Probability of Prevailing on His Causes of Action
In determining whether Antonio has met his burden to show a probability of prevailing on his claims, we do not weigh evidence or resolve conflicting factual claims. Rather, we ask whether Antonio has made a showing of minimal merit, i.e., has he stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. We accept his evidence as true and evaluate Defendants' showing only to determine if it defeats Antonio's claims as a matter of law. (See Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 891.)
1. Agency
We first address Steven's and Valerie's arguments that their statements cannot be attributed to one another, and the trial court therefore should have struck any claims against one based on an alleged statement by the other. As we describe below, Antonio adduced evidence to show that Steven and Valerie acted as agents for one another and ratified the other's statements, and therefore demonstrated the minimal merit required to attribute all of the alleged defamatory statements to both Steven and Valerie.
" 'Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. [Citations.] [¶] A purported agent's act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is "inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it."' [Citation.] '[T]he effect of a ratification is that the authority which is given to the purported agent relates back to the time when he performed the act.' [Citations.] A principal's failure to discharge an agent after learning of his wrongful acts may be evidence of ratification. [Citations.]" (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1158.) Thus, in Dickinson, the court concluded an attorney's allegedly defamatory statements to the press could be attributed to his client based upon the client's continued retention of the attorney "and refusal to issue retractions[, which were] inconsistent with disapproval of the allegedly defamatory statements." (Id. at p. 1159, fn. omitted.)
In his September 10, 2019 letter, Steven made allegedly defamatory statements in his representation of Dolores. Thereafter, with full knowledge of the statements he made in his letter, by the February 6, 2020 HOA meeting, Valerie not only hired Steven to represent her but also repeated the same defamatory statements he made in his September 10, 2019 letter.
Antonio also provided evidence showing minimal merit to his claim that one can attribute Valerie's statements to Steven. The record demonstrates that by October 4, 2019, Steven hired Valerie to represent him against Antonio. After holding herself out (with Steven's knowledge) as his attorney, Valerie then made the alleged defamatory statements-in many instances copying him when those statements were made in writing. There is no indication Steven disapproved those statements or ended his retention of Valerie after she made the alleged defamatory statements. To the contrary, both Valerie and Steven continued their retention of one another and, on June 5, 2020, Steven and Valerie, each acting as an attorney for the other, filed cross-complaints. Although Valerie and Steven dispute this evidence of ratification, they have not contradicted it as a matter of law.
There is also evidence that Steven and Valerie acted in a coordinated fashion as co-counsel for Dolores and for one another. For example, they copied one another on prelitigation communication, worked together in preparing the February 8, 2020 draft complaint, issued letters requiring that the soon-to-be cross-defendants preserve documents for litigation, filed their cross-complaints including overlapping claims on the same date, and each dismissed their claims for slander and libel from their complaints.
2. Defamation, Libel Per Se, and Slander Per Se
"Defamation' "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."' [Citation.] Libel is a type of defamation based on written or depicted communication. [Citations.]" (Balla v. Hall (2021) 59 Cal.App.5th 652, 675; see Civ. Code, §§ 44, 45.) "Libel per se is when the communication is defamatory without the need for explanatory matter. (Civ. Code, § 45a.)" (Edward v. Ellis (2021) 72 Cal.App.5th 780, 790.) "Slander is a false and unprivileged publication, orally uttered ...." (Civ. Code, § 46.) Slander per se includes slanderous statements that charge any person with a crime. (See id., subd. 1; Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367 ["A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require no proof of actual damages"].)
a. False Statement of Fact
Valerie contends Antonio cannot demonstrate that she made any false statements of fact because she only repeated what others said and her use of the term "predatory" was a statement of opinion. She also urges that" 'Defamation actions cannot be based on snippets taken out of context.' [Citations.]" (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1338.)
"In determining whether the disputed statement communicates or implies a provably false assertion of fact, we look at the totality of the circumstances, looking first to the language of the statement and whether it was understood in a defamatory sense, and then considering the context in which the statement was made. [Citation.] We focus not on the literal truth or falsity of each word in a statement, but rather on '" 'whether the "gist or sting" of the statement is true or false, benign or defamatory, in substance.'"' [Citations.] We also consider 'whether the reasonable or "average" reader would so interpret the material. [Citations.] The "average reader" is a reasonable member of the audience to which the material was originally addressed.' [Citation.]" (Edward v. Ellis, supra, 72 Cal.App.5th at pp. 790-791.) Additionally,"' "[a]lthough statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation.]" [Citation.] That does not mean that statements of opinion enjoy blanket protection. [Citation.] On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.]' [Citation.]" (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 624.)
Antonio has satisfied his burden to demonstrate that Defendants' statements, especially when considered in context, may be reasonably understood to be statements of fact accusing him of perverted behavior involving children. Steven's September 10, 2019 letter referred Mr. Elan's question as "absolutely incredulous," indicating something far out of the ordinary; emphasized the gender of the child in stating that Antonio took photos of a "young female," "female toddler," and "young girl"; noted "we have serious concerns" about the photography; and demanded the board obtain and preserve the photographs, noting "[Antonio]'s conduct could have serious legal ramifications." Given the alarmed tone of the letter, the repeated references to a young female, and the demand that the board obtain the photographs and preserve them, Steven's statements could reasonably be interpreted as referring to lewd activity involving young females. Indeed, Zaslavsky believed Steven's statements in his September 10, 2019 letter were accusations of pedophilia.
Later communications made by Valerie (on which Steven was usually copied) buttress this interpretation and continued to intimate Antonio had prurient sexual motives for his alleged photography. Hennessy testified that he believed Valerie's January 30, 2020 letter "absolutely" suggested pedophilia. Valerie's communications included similar language and tone as Steven's letter, repeatedly used the word "predator" or "predatory" when referring to Antonio or his actions, and suggested police involvement was appropriate because "G-D knows what he is doing with those photographs." A predator is commonly understood as "someone who follows people in order to harm them or commit a crime against them." (Cambridge Advanced Learner's Dict. & Thesaurus (2023) Cambridge University Press <www.dictionary.cambridge.org/us/dictionary/english/predator> [as of Mar. 20, 2023]; see, e.g., Terry v. Davis Community Church, supra, 131 Cal.App.4th at p. 1547 [describing "societal interest in protecting a substantial number of children from predators" in context of discussing allegations of inappropriate physical contact and sexual misconduct (italics added)].)
That Defendants attributed the statements to Mr. Elan and Hennessy does not absolve them as a matter of law. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180 [explaining that repeating a defamatory statement, "even though identifying the source or indicating it is merely a rumor . . . constitutes republication and has the same effect as the original publication of the [defamation]"].) The average person could reasonably interpret Steven's and Valerie's statements to be statements of fact. Neither Steven nor Valerie has presented evidence that contradicts this conclusion as a matter of law.
Moreover, Antonio has made a prima facie showing of falsity. Antonio states in his declaration that he never took photographs of children at the property. More importantly, Antonio avers that Mr. Elan never posed a question to him about taking pictures of the Elans' child. This is further supported by Mr. Elan declaration in which he states that he never made statements concerning Antonio taking photographs of his child at any time. Additionally, at her deposition, Mrs. Elan also denied discussing with anyone whether Antonio was taking pictures of her daughter. Valerie contends Mr. Elan's declaration does not go to the truthfulness of her statements because Mr. Elan asked a question on September 8, 2019, and his declaration only addresses whether he made a statement. Valerie's argument raises a factual dispute, but it does not defeat Antonio's showing as a matter of law. Accordingly, Antonio has demonstrated minimal merit to his claims that Steven and Valerie made false statements of fact about him.
Valerie also argues that Antonio is a limited public figure and therefore must demonstrate substantial falsity and actual malice. However, Antonio did not thrust himself into a public controversy or dispute concerning photographing young girls, pedophilia, or child molestation. Accordingly, he is not a limited public figure for purposes of his defamation claims. (See Grenier v. Taylor (2015) 234 Cal.App.4th 471, 485 [finding pastor who "thrust himself into the public eye as an expert on the Bible and its teachings . . . did not cause him to become a limited purpose public figure in the context of th[e] case.... [He] did not thrust himself into a public controversy or dispute regarding child abuse, child molestation, tax evasion or theft"].)
b. Litigation Privilege
Defendants argue Antonio cannot demonstrate a probability of prevailing on his claims because their statements were protected under the litigation privilege. As explained above, Civil Code section 47, subdivision (b) provides that a communication made "[i]n any . . . judicial proceeding" is privileged. This privilege is absolute and may extend to prelitigation communications. (Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 145.)
However, "[Civil Code] section 47[, subdivision] (b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals." (Nguyen v. Proton Technology Corp., supra, 69 Cal.App.4th at p. 150.) "To be protected by the litigation privilege, a communication must be 'in furtherance of the objects of the litigation.' [Citation.] This is 'part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.' [Citation.] A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration." (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251; see Silberg v. Anderson (1990) 50 Cal.3d 205, 220 ["A good example of an application of the principle is found in the cases holding that a statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action"].)
Here, Defendants' statements were not connected with or reasonably relevant to Dolores's, Valerie's or Steven's legal claims against Ross Morgan, Ross Morgan's employees, the HOA, or the individual board members, including Antonio. Taken as a whole, Defendants' communications suggest that at the time Defendants made the statements, they did not intend to bring any legal claims connected to Antonio's alleged "predatory" photography of young female children in the community. Most notably, Defendants' February 8, 2020 draft complaint (provided four months after the barbeque incident) made no mention of Antonio's purported photography, did not allege any theory under which any of the Horns could or did sustain damage as a result, and did not refer to any legal claims Defendants or Dolores intended to bring on behalf of the HOA.
Moreover, Steven's and Valerie's communications made prior to the February 8, 2020 draft complaint-on or about September 10, September 15, September 17, December 4, December 5, December 20, 2019, January 8 and January 30, 2020-further demonstrate for purposes of determining minimal merit that the alleged defamatory statements were not reasonably related to litigation that they or Dolores contemplated. Each communication focused on claims for elder abuse and harassment of Dolores and the possible deprivation of her property rights as a result of the perceived or proposed barbeque rules. None of the communications threatened litigation relating to Antonio's alleged photography of children or identified a ripe cause of action relating thereto for which any of the Horns had standing. Indeed, the majority of the communications (September 15, September 17, December 4, December 5, December 20, 2019) did not mention Antonio's alleged photography at all even though they threatened legal action. Further, although it is not dispositive, that Valerie and Dolores (represented by Steven) waited nine months before bringing a cause of action connected to Antonio's alleged photography also suggests Defendants' statements were not made in relation to litigation contemplated seriously and in good faith. Indeed, notwithstanding Defendants repeated statements that they would seek court intervention (and the relative ease of access to the court for Steven and Valerie as experienced attorneys), it was only after Antonio filed a complaint in which he alleged a cause of action for defamation that Valerie and Dolores filed a cross-complaint including causes of action for public nuisance and IIED that were based, in part, on Antonio's alleged photography of minors in the community. Given these facts indicating Defendants' prelitigation communication did not relate to litigation that was being contemplated in good faith and under serious consideration, the litigation privilege does not defeat Antonio's claims as a matter of law at this stage of the proceedings.
c. Common Interest Privilege
Defendants also argue their statements about Antonio are not admissible or actionable because they fall within the common interest privilege. As noted above, that privilege protects communications made "without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." (Civ. Code, § 47, subd. (c).)
Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. (Taus v. Loftus (2007) 40 Cal.4th 683, 721.) In an anti-SLAPP context, the plaintiff's burden is to establish "a prima facie case that these statements were made with' "[a]ctual malice."' [Citation.]" (Ibid.) Such malice is"' "established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights." '" (Ibid.) Malice is not inferred from the fact of the communication. (See Civ. Code, § 48.) However, "the tenor of the statement may be evidence of malice." (Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 799.) Moreover," 'there is no social advantage in the publication of a deliberate lie, the privilege is lost if the defendant does not believe what he says.'" (Russell v. Geis (1967) 251 Cal.App.2d 560, 566.)
Considering it in the light most favorable to Antonio, as we must at this stage of the proceedings, the evidence supports the conclusion that Defendants acted with malice. Both Mr. and Mrs. Elan provided sworn statements that could be reasonably interpreted as denials that they spoke with anyone, including Antonio, about Antonio taking photographs of their daughter. In other words, there is evidence that Defendants' statements that Mr. Elan asked Antonio about taking photographs of his daughter was a deliberate lie. The Horns' declarations to the contrary do not defeat this showing as a matter of law. Accordingly, the common interest privilege is inapplicable to both Steven's and Valerie's communications. (See Russell v. Geis, supra, 251 Cal.App.2d at p. 566.)
Further, given that a statement's tenor may be evidence of malice, a trier of fact may infer malice from Valerie's January 8, 2020 letter (on which Steven was copied) in which she described Antonio not only as "predatory" towards a young female toddler but also stated that although she did not know Antonio's religion, she suspected he was "a Muslim, with a Muslim terrorist mentality."
3. Negligence, IIED, Civil Harassment, Attempted Extortion
On appeal, Defendants argue Antonio cannot establish a probability of prevailing on his causes of action for negligence, IIED, civil harassment, attempted extortion, and injunctive relief because they derive from Antonio's defamation claim (which they argue has no merit) and the litigation and common interest privileges shield them from liability. Having concluded that Antonio has demonstrated his cause of action for defamation has minimal merit, and that the privileges do not defeat Antonio's claims as a matter of law, this argument does not persuade us. Neither Steven nor Valerie makes any further arguments relating to Antonio's causes of action for negligence, civil harassment, or injunctive relief. Accordingly, we find no error in the trial court's ruling not to strike these causes of action. We discuss below the additional arguments raised on the attempted extortion and IIED claims.
Valerie contends Antonio's claim for civil harassment "further fails." However, her arguments are the same as the ones she made with respect to Antonio's defamation claims. Harassment includes "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (§ 527.6, subd. (b)(3).) She argues Antonio cannot "demonstrate a course of conduct causing him substantial emotional distress because '[c]onstitutionally protected activity is not included within the meaning of "course of conduct."' [Citations.]" However, libelous/slanderous speech is not constitutionally protected. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1131 ["It is well established that defamation of an individual is not protected by the constitutional right of free speech"].)
a. Attempted Extortion
While the trial court indicated it was likely to strike the attempted extortion claim, its final order left that claim in place. Steven and Valerie argue Antonio's claim for attempted extortion fails because they never tried to obtain Antonio's money or property. Penal Code section 518 states: "Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (Id., subd. (a).)" '[C]onsideration' means anything of value." (Id., subd. (b).)
Antonio argues he "had an interest in maintaining his position on the [b]oard that [Defendants] sought to obtain from him." We are not persuaded that Antonio's position on the board constitutes property, and Antonio provides little authority to aid us. Antonio cites to Scheidler v. National Organization for Women, Inc. (2006) 547 U.S. 9 [126 S.Ct. 1264, 164 L.Ed.2d 10] in which the United States Supreme Court explained that it had stated in a prior appeal, Scheidler v. National Organization for Women, Inc. (2003) 537 U.S. 393 [123 S.Ct. 157, 154 L.Ed.2d 991], "that the Hobbs Act defines 'extortion' as necessarily including the improper' "obtaining of property from another."' [Citation.] We pointed out that the claimed 'property' consisted of 'a woman's right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear.' [Citation.]" (Scheidler v. National Organization for Women, Inc., supra, 547 U.S. at p. 15, italics added.) Antonio suggests this language characterizes his board position as "property" for purpose of state extortion law.
This ignores that the Supreme Court was describing a party's claim; it never concluded the so-called "claimed property" in fact constituted "property" for purposes of the federal extortion statute. Antonio's position on the board is a volunteer position, and Antonio derives no pecuniary value from it. Given these facts and the dearth of on point authority from Antonio, he has not demonstrated any merit to his attempted extortion claim. Accordingly, we conclude the trial court should have stricken Antonio's claim for attempted extortion.
While the elements of extortion under federal and California law are substantially the same (Levitt v. Yelp! Inc. (9th Cir. 2014) 765 F.3d 1123, 1133), there are differences between the two (e.g., Gomez v. Garcia (9th Cir. 1996) 81 F.3d 95, 96-97).
b. IIED
The elements to establish a cause of action for IIED are:" '" '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'"' [Citation.]" (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)
Valerie states in a conclusory fashion that Antonio's IIED claim fails because he cannot show outrageous conduct. We disagree. As described above, Valerie's statements may be reasonably interpreted to be accusations of sexual perversion involving children. Further, construed in the light most favorable to Antonio, the Elans' testimony suggest Valerie made such accusations from whole cloth. Manufacturing a falsehood to suggest to an individual's community that the individual engages in deviant sexual practices involving children can reasonably support a finding of IIED. (See, e.g., Grenier v. Taylor, supra, 234 Cal.App.4th at pp. 486-487 [holding pastor and his wife could establish a prima facie case of IIED as a result of statements that pastor engaged in child molestation].)
Valerie next argues Antonio's alleged distress is insufficient." 'Severe emotional distress means" 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.'" [Citations.]' [Citations.]" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376.) Here, Antonio submitted evidence that he "feel[s] humiliated, angry, grief stricken, and anxious." He has "no enjoyment of life," since Defendants' accusations, "cr[ies] unexpectedly," has "trouble sleeping," feels "helpless, [and] suffer[s] from headaches, anxiety, [and] depression." He further states that he has "felt extreme fear," and that he "noticed a shift in the community and the way [his] neighbors avoid [him]." We conclude this evidence is sufficient to establish minimal merit for his IIED claim, and that Antonio demonstrated a probability of prevailing on this cause of action for purposes of the anti-SLAPP statute.
D. We Lack Jurisdiction to Hear Antonio's Appeal from the Order Denying His Attorney Fees Request
After the trial court denied the special motions to strike, Antonio filed a motion for attorney fees pursuant to section 425.16, subdivision (c)(1) which the trial court denied. Defendants argue we should dismiss that appeal because it arises from an interlocutory and non-appealable order. We agree.
" 'Appellate courts have jurisdiction over a direct appeal . . . only where there is an appealable order or judgment.' (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1342 ....) Whether an order or judgment is appealable 'is wholly statutory.' (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 ....) Unless an order is expressly made appealable by a statute, this court has no jurisdiction to consider it. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226 ....)" (Levinson Arshonsky & Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896, 903.) "The general list of appealable civil judgments and orders is codified in section 904.1." (Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 1016, 1021, fn. omitted.) Section 904.1, subdivision (a)(13) permits an appeal "[f]rom an order granting or denying a special motion to strike under Section 425.16." Section 425.16, subdivision (i) similarly provides that "An order granting or denying a special motion to strike shall be appealable under Section 904.1."
When, as was the case here, the attorney fees issue is decided separately from the special motion to strike, we lack jurisdiction to hear an interlocutory appeal of that attorney fees order. (Doe v. Luster (2006) 145 Cal.App.4th 139, 150 ["If the motion for fees under [§] 425.16, [subd.] (c), is filed after the trial court rules on the special motion to strike . . . the order awarding or denying those fees is not an 'order granting or denying a special motion to strike'; and no plausible argument can be made that such an order is immediately appealable under [§] 425.16, [subd.] (i)"]; see also Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 632 ["even if a party files a separate notice of appeal from a court's order denying [§ 425.16, subd. (c)] attorney fees, the reviewing court would not have jurisdiction to consider the matter until and unless the party filed a notice of appeal from a final appealable judgment"]; Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 274 ["we agree with the holding in Doe that a separate [§ 425.16] attorney fee order should not be heard on interlocutory appeal"].) Instead, Antonio must await a final, appealable judgment to seek appellate review of the court's attorney fees ruling on the anti-SLAPP motions.
DISPOSITION
With regard to appeal No. B307098, the trial court's orders denying the special motions to strike are affirmed in part and reversed in part. On remand, the court shall enter new orders granting Defendants' motions to strike the cause of action for attempted extortion, paragraphs 82 to 90, from the complaint; the orders are otherwise affirmed. Each party is to bear its own costs on appeal.
Appeal No. B309264 is dismissed, and with regard to that matter only Defendants are awarded their costs on appeal.
We concur: ROTHSCHILD, P. J. BENDIX, J.