Opinion
A151985
09-16-2019
SURAJ KACHGAL, Plaintiff and Appellant, v. JOHANNA KLEPPE, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15790386)
Suraj Kachgal sued his former significant other Janine Smith, Smith's attorney Johanna Kleppe, and Kleppe's law firm the Law Offices of Kelly Y. Reiter for invasion of privacy, defamation, negligence, and intentional infliction of emotional distress. Among his allegations, Kachgal claims Smith secretly recorded her interactions with him, and that Smith and Kleppe then used edited excerpts of those recordings to fraudulently misrepresent his actions and wrongfully charge him with various crimes, including domestic battery, sexual battery, criminal threats, and child abuse. Kleppe and the Law Offices of Kelly Y. Reiter moved to strike all causes of action against them under Code of Civil Procedure section 425.16 (an anti-SLAPP motion). The trial court granted the motion and dismissed Kachgal's entire complaint against Kleppe and the Law Offices of Kelly Y. Reiter.
Statutory references are to the Code of Civil Procedure, unless otherwise indicated. --------
Kachgal appeals, challenging the trial court's order granting the anti-SLAPP motion. We reject Kachgal's claims and affirm.
I. BACKGROUND
Kachgal and Smith were involved in an intimate relationship for approximately five and one-half years before separating in November 2014. Prior to their separation, Kachgal and Smith resided together in a Berkeley apartment with their infant daughter. During their time together, Smith became aware of Kachgal's abusive behavior. Unbeknownst to Kachgal, Smith began to record her interactions and conversations with him over a span of three days. Soon after, Smith reached out to the West Contra Costa Family Justice Center as a domestic violence victim and went to the Berkeley Police Department to report Kachgal's acts of abuse towards her and their daughter. As a result, Kachgal was arrested and Smith was moved to a confidential location.
Some time after Kachgal's arrest, Smith and her attorney Kleppe from the Law Offices of Kelly Y. Reiter attended a meeting with Detective John Lenny from the Berkeley Police Department's Domestic Violence Unit. In her meeting with Detective Lenny, Smith revealed details of Kachgal's abusive behavior and also revealed that she made a total of seven recordings on her cellphone documenting her interactions with him. Smith had given these recordings to Kleppe, who shortened the original files by editing them down into excerpt audio files.
After the meeting, Kleppe communicated with Detective Lenny that she had audio files detailing some of the abusive incidents Smith had described, and that those audio files were excerpts of larger files. Kleppe did not destroy or erase the original unedited audio files and she informed the detective she had these additional audio files available, but Detective Lenny assured her the additional audio files were not necessary. Kleppe then delivered a CD with four audio file excerpts to the Berkeley Police Department for Detective Lenny.
Kachgal was subsequently charged with misdemeanor counts of domestic battery, sexual battery, criminal threats, and child abuse. After taking a negotiated plea agreement, Kachgal pled to two counts of domestic battery and one count of criminal threats. Smith was granted sole legal and physical custody of their daughter in a family law case against Kachgal; the recordings were not admitted into evidence for the custody proceedings.
Kachgal then brought the current civil suit against Smith, adding Kleppe and the Law Offices of Kelly Y. Reiter as defendants in his First Amended Complaint. Kachgal alleges four causes of action against all defendants which include invasion of privacy, defamation, negligence, and intentional infliction of emotional distress.
Kleppe and the Law Offices of Kelly Y. Reiter filed a special motion to strike Kachgal's First Amended Complaint under section 425.16 (an anti-SLAPP motion). The trial court granted the anti-SLAPP motion and dismissed the entire action against Kleppe and the Law Offices of Kelly Y. Reiter. Kachgal now appeals.
II. DISCUSSION
Kachgal argues on appeal that the trial court's order granting the anti-SLAPP motion and dismissing his suit against Kleppe and the Law Offices of Kelly Y. Reiter (collectively "Respondents") was improper and should be reversed. Kachgal contends that Respondents' acts are not protected under the anti-SLAPP statute because Respondents illegally falsified evidence. Additionally, Kachgal asserts the trial court erred in finding he did not meet his burden of demonstrating a probability of prevailing on any of his claims. We disagree and affirm the granting of the anti-SLAPP motion.
1. General Principles Regarding the Anti-SLAPP Statute
Section 425.16, commonly known as California's anti-SLAPP statute, was enacted to prevent and deter meritless " ' "lawsuits . . . brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." ' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).) The statute articulates that a cause of action against a person arising from any act of that person taken in furtherance of that person's constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike, unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) A cause of action is stricken under the anti-SLAPP statute when 1) "the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity" and 2) the plaintiff's claim "lacks even minimal merit." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).)
It is the defendant's burden to meet the first prong of the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at p. 88.) To show that the challenged cause of action arises from protected activity, the defendant must demonstrate that the act underlying the plaintiff's cause of action fits into one of the following categories: "(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); Navellier, supra, 29 Cal.4th at p. 88.) The defendant does not have to demonstrate that the cause of action actually had a chilling effect on the exercise of constitutional rights, nor does the defendant have to prove the plaintiff's subjective intent. (Navellier, supra, 29 Cal.4th at p. 88.)
Once the defendant's burden has been met, the burden shifts to the plaintiff to disprove the second prong of the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at p. 88.) To disprove that the claim lacks even minimal merit, the plaintiff must demonstrate a probability of prevailing on his or her claim. (Id. at pp. 88-89.) The plaintiff responding to the anti-SLAPP motion must demonstrate that the complaint is " ' "both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.)
2. Standard of Review
This court reviews an order granting an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We are to consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2); Flatley, at p. 326.) We do not weigh credibility or compare the weight of evidence. (Flatley, at p. 326.) Rather, we must accept evidence favorable to the plaintiff as true and assess the defendant's evidence only to establish as a matter of law if the defendant's evidence defeats the plaintiff's evidence. (Ibid.)
3. Respondents Met Their Burden of Showing the Challenged Causes of Action Arose from Protected Activity
Respondents' acts underlying the challenged causes of action were made before or in connection with issues under review by a judicial proceeding and other legally authorized official proceedings. Acts of reporting and providing evidence of domestic and child abuse to police in connection with law enforcement investigations are generally protected under the anti-SLAPP statute. (See Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.)
Kachgal argues Respondents did not meet their burden of demonstrating the challenged causes of action arose from protected activity because Respondents illegally falsified evidence. Kachgal's illegality argument stems from his belief that Respondents edited the audio recordings to cut out important contextual evidence so that three of the audio excerpts offered to Detective Lenny (which presumably formed part of the basis of the criminal charges against Kachgal), as edited, misrepresented his interactions with Smith.
"[I]f a defendant's assertedly protected constitutional activity is alleged to have been illegal and, therefore, outside the ambit of the anti-SLAPP statute, the illegality must be established as a matter of law either through the defendant's concession or because the illegality is conclusively established by the evidence presented in connection with the motion to strike." (Soukup, supra, 39 Cal.4th at p. 285.) Respondents do not concede they illegally falsified evidence. Thus, Kachgal's argument stands only if the presented evidence in this case conclusively establishes the illegality of Respondents' targeted activity. We conclude that Kachgal fails to show that Respondents' acts fall under the illegality exception because Respondents' acts are not conclusively illegal.
When attorney conduct is "neither inherently criminal nor otherwise outside the scope of normal, routine legal services," it is protected under the anti-SLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 481.) The illegality exception is extremely narrow, as exemplified in Flatley, supra, 39 Cal.4th 299. In Flatley, the defendant sent a letter and made phone calls demanding a seven-figure payment to settle rape allegations against the plaintiff; these communications fell under the illegality exception because they "constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition." (Id. at p. 305.)
The circumstances before us in this case do not fall within the narrow confines of the illegality exception as enunciated in Flatley. It is not conclusively illegal to report domestic abuse to the police without providing all the "context" the alleged abuser believes should be given. (See Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966 [holding that even making allegedly false police reports is protected petitioning activity under the anti-SLAPP statute when falsity is not conceded].) To hold otherwise would tend to reduce victims' incentives to report.
Even if we were to address Kachgal's specific allegations of Respondents falsifying evidence, Kachgal still fails to establish Respondents illegally misrepresented evidence. To support his claims, Kachgal cites People v. Bamberg (2009) 175 Cal.App.4th 618. In Bamberg, the appellate court affirmed the defendant's conviction of falsifying evidence because the defendant had offered photographs of a traffic intersection to support his claim when some of those photographs depicted a different intersection than the one he was actually trying to represent. (Id. at p. 621.) The Bamberg court held "falsity is not an absolute quality" but "can turn upon what the evidence is offered to prove." (Id. at p. 627.) "Whether evidence is 'false' . . . depends upon what it is intended to depict or represent as 'genuine or true.' " (Ibid.)
Kachgal argues that according to Bamberg, Respondents committed the following offenses: offering false evidence in violation of Penal Code section 132, preparing false evidence in violation of Penal Code section 134, wrongfully tampering with evidence to charge a person with a crime in violation of Penal Code section 141, subdivision (a), falsely reporting a felony or a misdemeanor to a peace officer in violation of Penal Code section 148.5, subdivision (a), and performing or consenting to deceit or collusion in Respondents' capacities as attorneys with intent to deceive the court or any party in violation of Business and Professions Code section 6128, subdivision (a). We are not convinced that Kachgal has conclusively established that Respondents have violated any of these penal statutes.
Kachgal erroneously likens Bamberg to the present case; the photographs in Bamberg were " 'false' " not because they were altered, but "because they were offered as 'genuine and true' depictions of something other than what they actually represent." (Bamberg, supra, 175 Cal.App.4th at p. 628.) In the present case, there is no evidence that Kleppe affirmatively represented the audio excerpts she provided to Detective Lenny were anything other than excerpts. She did offer an interpretation of what would be heard on the recordings, but whether she was right or wrong about that was something for Detective Lenny to decide.
4. Kachgal Failed to Meet His Burden of Demonstrating a Probability of Prevailing on His Claims
Kachgal argues the trial court erred in finding he did not meet his burden of demonstrating a probability of prevailing on his claims because Respondents' acts are not protected under the litigation privilege.
The litigation privilege is outlined in Civil Code section 47, which states "[a] privileged publication or broadcast is one made . . . [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 . . . ." (Civ. Code, §47, subd. (b).) This privilege is applicable to " 'any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution.' " (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) Furthermore, "[it] is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards." (Ibid.) Litigant communications made in judicial or quasi-judicial proceedings that are logically related to the action are protected. (Ibid.) The litigation privilege serves to protect attorneys in the representation of their clients, such that attorneys who make false statements are still protected under the privilege but are sanctioned through other disciplinary channels in all but an infinitesimal number of cases. (Smith v. Hatch (1969) 271 Cal.App.2d 39, 50; Friedman v. Knecht (1967) 248 Cal.App.2d 455, 462.)
It is well established that communications made to the police about potential criminal activity are protected under the litigation privilege. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364.) Kachgal cites a narrow exception to the litigation privilege in Civil Code section 47, subdivision (b)(2). The exception states "any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence" is not privileged regardless of whether "the content of the communication is the subject of a subsequent publication or broadcast which is privileged." (Civ. Code, §47, subd. (b)(2).) Kachgal argues that Respondents' acts fall under this exception because Respondents altered the audio files with the intent of depriving parties of their use.
Kachgal contends circumstantial evidence shows Respondents' malicious intent, and asserts Kleppe lied about informing Detective Lenny the audio files were excerpts of larger files. Kachgal also asserts that he was not informed the audio files were excerpts of larger files before the civil suit and thus he was deprived of using those original recordings during his criminal and family law cases. Notably, Kachgal does not cite any case law in support of his argument that Respondents' acts fall under the cited litigation privilege exception.
We reject these arguments. On this record, Kachgal failed to establish a prima facie case that Respondents altered the audio files with the intent of depriving parties of their full use. Kleppe stated in her supplemental declaration that after her meeting with Detective Lenny, she informed him the audio files she had were excerpts of larger files and that additional audio files were available. Kleppe also specified that Detective Lenny thought those additional files were unnecessary. This exchange between Kleppe and Detective Lenny would not have been reflected in Smith's interview transcript with Detective Lenny because it occurred afterwards.
Kachgal's claim that Kleppe is lying is pure conjecture. We see no contradictions in the evidence which would suggest Kleppe was lying; merely asserting that it does not make sense for Detective Lenny to reject the larger files is not persuasive. Smith, in her interview with Detective Lenny, admitted she made a total of seven recordings. Detective Lenny was forwarded a CD containing four shorter audio excerpts. Logically, Detective Lenny should have been aware he was not receiving all of the recorded material.
Kachgal also failed to establish a prima facie case that Respondents "altered" the audio files with the intent to deprive Kachgal of the use of the full-length files in his criminal and family law cases (rather than simply excerpting the files for the purpose of providing the police with a report of the specific incidents about which Smith was complaining). The original audio recordings were not destroyed or erased, and copies of them were produced to Kachgal during discovery of this case. Moreover, although it may not be directly relevant to the question of intent, it is far from clear that Kachgal would have been able to make productive use of the full-length files in the family law and criminal cases. In the family law case, the court did not permit the Respondents' audio excerpts to be admitted as evidence, and it is not clear that either party would have been able to use the longer audio recordings.
With regard to the criminal case, we have examined the excerpts in relation to the original files and it is not clear they would have aided Kachgal in defending against the allegations of sexual battery, criminal threats, and child endangerment against him even if he had known about the existence of the original files. The excerpts highlight certain examples of abuse and they do not misrepresent the content of the original files. Much of what is left out lends further support in establishing Kachgal's abusive conduct. The original files are far from potentially exonerating.
III. DISPOSITION
The order granting Respondents' anti-SLAPP motion is affirmed.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
TUCHER, J.