Judge Holly J. Fujie, Case 22STCV34347 2023-01-26 Tentative Ruling

RESPONDING PARTY: Plaintiffs Ely Dromy and Rabbi Aharon Shaltiel (“Shaltiel”) (collectively, “Plaintiffs”)[1]

Plaintiffs’ complaint (the “Complaint”) alleges: (1) defamation per se; and (2) defamation per se.

In relevant part, the Complaint alleges: Ely is the sole trustee and chairman of Kehillat Teman Nadlan Corporation (“Teman”), a religious nonprofit that owns real property located in Los Angeles that is used as a synagogue (“the Synagogue”). (Complaint ¶¶ 8-9.) Shaltiel is the rabbi of the Synagogue. (Complaint ¶ 9.) Beginning on around August 1, 2022, Moving Defendants repeatedly stated that Ely was using Teman to illegally launder money, was stealing money from Teman, was falsely holding himself out as a board member of Teman, and had illegally taken title to the Synagogue. (See Complaint ¶ 11.) On around August 1, 2022, Defendants also began making statements that Shaltiel has no role at Teman and is not a rabbi. (Complaint ¶ 18.)

Moving Defendants filed a special motion to strike pursuant to California Code of Civil Procedure (“CCP”) section 426.16 (the “Motion”) on the ground that the allegations in the Complaint arise out of conduct protected by the anti-SLAPP statute.

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. (CCP § 425.16, subd. (b)(1).)

The court must engage in a two-step analysis under when evaluating anti-SLAPP motions. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 714.) First, the court must decide whether the moving party has met the initial burden of making a prima facie showing that the plaintiff’s cause of action arises from the moving party’s constitutional right of petition or free speech in connection with a public issue. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 622.) Under CCP section 425.16, subdivision (e), acts in furtherance of a defendant’s furtherance 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 in 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; and

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. (CCP § 425.15, subd. (e)(1)-(4).)

Once it has been determined that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the action. (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843.) If the plaintiff does so, the motion to strike under the anti-SLAPP statute must be denied. (Id.) Anti-SLAPP motions must be supported (and opposed) by declarations stating facts upon which the liability or defense is based. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

Moving Defendants argue that their alleged speech falls under CCP section 425.16, subdivision (e)(1), (e)(2), and (e)(3).

Moving Defendants contend that their comments about Dromy were made in the context of a longstanding dispute regarding the control and management of the Synagogue that were also raised in a 2003 lawsuit entitled Meir Cohen, et al., v. Tifaret-Teman Corporation, et al., LASC Case No. BS085565 (the “2003 Action”). (See Declaration of Menachem Ozeri (“Ozeri Decl.”) ¶ 7; RJN, Exhibit 4.) The 2003 Action was dismissed in 2006. (Ozeri Decl. ¶ 8.)

The Court is not persuaded by Moving Defendants’ argument that their speech is protected under CCP section 425.16, subdivision (e)(2). Their alleged comments began in 2022, long after the dismissal of the 2003 Action.[2] Therefore, their comments were not made in connection with an issue under ongoing or imminently pending consideration or review of a judicial proceeding. (See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 627.)

CCP section 425.16, subdivision(e)(3) embraces statements made in a place open to the public or a public forum in connection with an issue of public interest. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130.) A public forum is a place open to the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions. (Id.) The fourth category of conduct within section 425.16 is 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. (Id. at 1131.)

Both the third and fourth categories of conduct that fall within section 425.16 are subject to the limitation that the conduct must be in connection with an issue of public interest. (Id.) The statute does not provide a definition for an issue of public interest; however, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest. (Id.) Public interest does not equate with mere curiosity. (Id.) Second, a matter of public interest should be something of concern to a substantial number of people. (Id.) A matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. (Id.) Third, there should be some degree of closeness between the challenged statements and the asserted public interest, and the assertion of a broad and amorphous public interest is not sufficient. (Id.) Fourth, 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. (Id. at 1132-33.) In the context of conduct affecting a “community,” i.e., a limited but definable portion of the public, the constitutionally protected activity must, at a minimum, be connected to a discussion, debate or controversy. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 482.)

To analyze if challenged conduct concerns a public issue or issue of public interest, courts first ask what public issue or issue of public interest is implicated by the challenged activity. (See Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1249.) Second, courts look to the “functional relationship” between that challenged activity and the “public conversation” about that issue and as whether the activity contributes to public discussion of the issue. (Id)

Moving Defendants present evidence that there are over 10,000 Jewish Yemenite people in California. (Ozeri Decl. ¶ 2.) The Synagogue was founded to be open to anyone wanting to participate (including participants who are not Yemeni Jews), and the Synagogue hosts lectures in addition to religious services. (See Ozeri Decl. ¶¶ 10-11.) Moving Defendants’ alleged conduct relates to an ongoing dispute over the governance and ownership of the Synagogue. (See Ozeri Decl. ¶¶ 11-12.)

Moving Defendants frame the speech alleged in the Complaint as being of interest to the Yemenite Jewish population and individuals who have participated in and contributed to the Synagogue. Situated in the context of the supporting evidence, the alleged speech concerns an internal dispute over the management and control of Teman and the Synagogue that has been a subject of dispute within the community for years. The Court therefore finds that Moving Defendants’ alleged speech concerns a matter of public interest.

In the second prong of the anti-SLAPP analysis, the court employs a summary-judgment-like procedure, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) In other words, the court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) The court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Id.) The plaintiff is required to present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (CCP § 425.16, subd. (b); Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-51.)

Slander is defined by California Civil Code section 46 as a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) imputes in him the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; (4) imputes to him impotence or a want of chastity; or (5) which, by natural consequence, causes actual damage. (Civ. Code § 46.)

Per se slander is slander which falls within the first four subdivisions of Civil Code section 46. (Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) When an oral statement amounts to slander per se, it requires no proof of actual damages. (Id.)

Plaintiffs present evidence of the chain of title of the Synagogue preceding and leading up to Teman acquiring title and of the propriety of Teman’s financial records. (See Declaration of Ely Dromy (“Ely Decl.”) ¶¶ 4-9, Exhibits 1-3; Declaration of David Dromy (“David Decl.”) ¶3.) Plaintiffs also present evidence of Shaltiel’s qualifications as a rabbi. (Declaration of Aharon Shaltiel (“Shaltiel Decl.”) ¶¶ 2-3, Exhibit 8.)

The Court finds that Plaintiffs have established that their claims have minimum merit to satisfy the second prong of the anti-SLAPP analysis. Moving Defendants’ alleged statements charge Ely with illegal conduct and concern subject matter that generally undermines Plaintiffs’ professional qualifications. Further, Moving Defendants’ arguments that these statements constitute opinions are not persuasive, because Plaintiffs’ evidence, if credited in a trial, prove their claims. (See Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-51.)

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court uses first names to distinguish persons with the same last name and intends no disrespect in so doing.

[2] The Court additionally observes that none of the parties to this action were parties to the 2003 Action.