Correav.Alevizos

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREEDec 2, 2019
G057085 (Cal. Ct. App. Dec. 2, 2019)

G057085

12-02-2019

JOSE ALFREDO CORREA, Plaintiff and Respondent, v. CHRISTOPHER ALEVIZOS, Defendant and Appellant.

Grant, Genovese & Baratta, Lance D. Orloff, Jennifer A. Pearl and Tyler M. Ross for Defendant and Appellant. Pick & Boydston and Brian D. Boydston for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2018-00993351) OPINION Appeal from an order of the Superior Court of Orange County, Frederick P. Horn, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Grant, Genovese & Baratta, Lance D. Orloff, Jennifer A. Pearl and Tyler M. Ross for Defendant and Appellant. Pick & Boydston and Brian D. Boydston for Plaintiff and Respondent.

INTRODUCTION

Jose Correa sued appellant Christopher Alevizos for defamation after Alevizos wrote a letter to a church prelate that included accusations of abuse and assault of a young boy in church. Correa identified himself as the person the letter accused of abuse and assault. Alevizos moved to dismiss the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The court denied the motion on the grounds that Correa had produced enough evidence to support a probability of prevailing on the central issue: actual malice.

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

We affirm. At this stage of the proceedings, a plaintiff need produce only enough evidence for a prima facie showing of facts to sustain a favorable judgment. Correa presented evidence that Alevizos knew when he sent the letter that he should not have done so. By his own admission, he listened to bad advice against his better judgment. The trial court properly denied the motion.

FACTS

Correa and Alevizos belong to the congregation of Saint Basil's Greek Orthodox Church in Orange County. Alevizos wrote a six-page letter, dated March 5, 2018, to the Greek Orthodox Metropolitan in San Francisco describing serious problems at St. Basil's, centering on the head priest, Father Bill Tragus, and the head of the parish council. In the letter, Alevizos accused Father Tragus of financial improprieties as well as what he termed "breaches of trust."

In the Greek Orthodox Church, a metropolitan holds a position similar to that of a bishop in the Roman Catholic Church. (Webster's 3d New Internat. Dict. (1981) p. 1425.)

One of the accusations Alevizos leveled at Father Tragus was that his liturgical assistant, identified as "Joseph," had abused and physically assaulted a young boy on the St. Basil's altar. Although Father Tragus was told of the incident and urged to remove the assistant, according to Alevizos, nothing was done. Instead, Father Tragus "dismissed it and swept it under the rug so as to avoid any parental or parishioner issues."

Shortly afterward, Alevizos sent a letter dated March 19 and addressed to Father Tragus, the head of the parish council, and the parish council itself, apologizing profusely for his March 5 letter and begging their forgiveness. He stated, "I knew better than that and yet I followed bad council [sic] and advise [sic]. I sent off that letter when in the back of my head this was NOT the right way to handle my concerns. I am very, very sorry for that. I have also come to find out that I was miss led [sic] with some of the information in it." On March 24, Alvevizos sent a letter to the San Francisco Metropolitan, asking for forgiveness for sending the March 5 letter. He stated, "I regret having sent that letter with all my heart and regret having listen [sic] to some serious influence and very bad legal advise [sic]. I can never excuse myself but I do pray that your forgiveness and understanding brings me back to the kind of christian [sic] I really am." He also asked the Metropolitan not to blame his family for his "wrong doings."

Correa sued Alevizos for defamation on May 17, 2018, alleging that he was the "Joseph" referred to in the March 5 letter as the liturgical assistant who had abused and assaulted a young boy on the St. Basil's altar, a charge Correa denied. Correa alleged that Alevizos had made the same defamatory statement to another member of the congregation as well.

Alevizos moved to dismiss the complaint under section 425.16, the anti-SLAPP statute. The trial court denied the motion, finding that the letter was protected conduct, but that Correa had carried his burden to show probability of prevailing. Specifically, the court found that Correa had presented evidence that, if credited, would defeat the conditional privilege of Civil Code section 47, subdivision (c).

DISCUSSION

A SLAPP suit "seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Section 425.16, the anti-SLAPP statute, provides a means of determining at the outset whether an action is a SLAPP suit before a defendant seeking to exercise its constitutional rights is overwhelmed by attorney fees. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547.)

A trial court ruling on a motion under section 425.16 engages in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) The court first considers "whether the challenged claims arise from acts in furtherance of the defendants' right of free speech or right of petition under one of the categories set forth in section 425.16, subdivision (e). [Citation.]" (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 209.) The defendant/moving party bears the burden of demonstrating that the claim arises from protected conduct. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If a claim arises from protected conduct as statutorily defined, the analysis moves to the plaintiff's probability of prevailing. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We review an order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

The trial court found that the letter qualified as protected conduct: a communication in connection with an issue of public interest. (§ 425.16, subd. (e)(4)). The parties do not dispute this conclusion.

That being the case, the focus shifts to Correa's probability of prevailing. "To establish the requisite probability of prevailing, the plaintiff need only have '"'stated and substantiated a legally sufficient claim.'"' [Citation.] "'Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'"' [Citation.] The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. [Citation.] Nevertheless, a plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence. [Citation.]" (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480.)

Correa has presented evidence (his declaration) that the accusations of abuse and assault are false. There is no question that these accusations would expose Correa to hatred or obloquy (see Civ. Code, § 45), charge him with a crime, or could cause actual damages. (See Civ. Code, § 46.) He also presented evidence that he is the "Joseph" referred to in the letter of March 5.

Correa declared that he and his wife felt they had to leave the St. Basil's congregation because of the accusations. --------

The court and the parties agreed that the conditional privilege of Civil Code section 47, subdivision (c), applied to the March 5 letter. The question before the trial court, and before us now, is whether Correa made a sufficient showing of actual malice to defeat the conditional privilege.

Civil Code section 47 provides, in pertinent part, "A privileged publication . . . is one made [¶] . . . [¶] (c) In a communication, 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." (Italics added.) Civil Code section 48a, subdivision (d)(4), defines actual malice as "that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice." (See Taus v. Loftus (2007) 40 Cal.4th 683, 721 ["'"The malice necessary to defeat a qualified privilege is 'actual malice' which 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 grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights (citations)."'" (Quoting Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413, quoting Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 936.)]

Correa stated legally sufficient claims for both slander and libel. He supported his claims with a prima facie showing of facts that, if credited, would negate the conditional privilege and sustain a judgment. The two apology letters make this showing. They would support a conclusion that Alevizos lacked reasonable grounds for belief in the truth of the publication.

Alevizos argues that the apology letters show no such thing. They show only that he changed his mind later about the accusations; at the time he made them, he had a good faith belief in their accuracy.

That is not what the letters say. The March 19 letter states, "I knew better than that [i.e., sending the March 5 letter] and yet I followed bad council [sic] and advise [sic]. I sent off that letter when in the back of my mind this was NOT the right way to handle my concerns." In the March 24 letter, he again admitted to listening to "some serious influence and very bad legal advise [sic]" when, according to his earlier letter, he knew he was wrong do to so. This is sufficient evidence to sustain a finding of malice - the reckless disregard kind - at this preliminary stage of the proceedings.

The statements in these letters also negate an advice of counsel defense, on which Alevisos briefly relies. The March 19 letter alone nullifies the defense. Alevisos clearly stated that the advice and counsel he received were bad and he knew they were bad at the time. His opposition declaration stated only that he relied on counsel to tell him "if the contents of the letter could subject [him] to adverse legal consequences." This has nothing to do with his state of mind at the time he sent the letter.

Alevizos also argues that the apology letters do not support a possible finding of actual malice with respect to Correa and the accusation against him. The letters never mention apologizing about Correa or about the accusations of abuse.

It is true that the apology letters do not specifically mention Correa. Instead, they represent a wholesale repudiation of the entire March 5 letter and therefore, by inference, everything in it. The entire publication was "wrong doings." Alevizos knew he should not have sent any of it and also knew this was not the right way to handle his concerns. He cannot now pick the letter apart and maintain that while some parts of it may have been malicious, other parts were not. He apologized for the whole thing, twice, admitting that "[he] knew better than that."

DISPOSITION

The order denying appellant's anti-SLAPP motion is affirmed. Respondent is to recover his costs on appeal.

BEDSWORTH, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.