Judge: Joseph Lipner, Case: 22STLC05300, Date: 2023-11-30 Tentative Ruling
Case Number: 22STLC05300 Hearing Date: December 21, 2023 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
TIMOTHY D. RAND-LEWIS, Plaintiff, v. CRESTWOOD HILLS ASSOCIATION, Defendant. |
Case No:
22STLC05300 Hearing Date: December 21, 2023 Calendar Number: 11 |
Defendant Crestwood Hills Association (“Defendant”) moves to
strike the Complaint filed by Plaintiff Timothy Rand-Lewis (“Plaintiff”)
pursuant to Code of Civil Procedure, section 425.16.
The Court invites argument as to whether the letter alleged
to be defamatory constituted pre-litigation activity, whether the letter
alleged to be defamatory is subject to the litigation privilege, and whether
Defendant waived the issue by raising these issues in its reply brief. Subject to hearing argument, and possibly
requesting supplemental briefing, the Court issues the following tentative
ruling.
The Court DENIES Defendant’s motion.
Defendant is a homeowner’s association of the residents of
Los Angeles’ Crestwood Hills neighborhood. Plaintiff is a homeowner who lives
in one of the properties covered by Defendant’s association.
Defendant’s Board of Directors (the “Board”) owes a
fiduciary to Defendant to prudently manage Defendant’s assets, which include
three vacant lots it owns, labeled Lots 1-3. The Board is marketing those three
lots for sale. Lot 1, which abuts Plaintiff’s property, has received two
separate, unsolicited offers.
On July 29, 2022, Plaintiff emailed Kate Blackman, the
Board’s president, complaining that a group of potential buyers who were
inspecting Lot 1 had trespassed on his property. (Blackman Decl. ¶ 6, Exh. 1.) That
evening, Crestwood’s real estate agent forwarded to the Board members a
voicemail from one of the potential buyers in question. The buyer stated that
they felt deterred from buying Lot 1 because Plaintiff had yelled at them and
said he would call the police and that the buyers were not allowed to look at
the property. (Blackman Decl., Exh. 8 (the “Voicemail”).) Shortly thereafter,
the real estate agent reported to Defendant that Plaintiff and his wife had
rushed at the potential buyers and their infant child, shouting profanities,
and accusing them of trespassing. (Blackman Decl. ¶ 14.)
The parties dispute the exact events which occurred. Plaintiff
denies having rushed at the potential buyers or having shouted profanities at
them and asserts that any interactions the potential buyers had were with his
wife, Suzanne Rand-Lewis (“Suzanne”). (Timothy Rand-Lewis (“Timothy”) Decl. ¶¶ 13-19;
Suzanne Rand-Lewis (“Suzanne”) Decl. ¶¶ 13-19.) Defendant contends that the
topography of the properties make it extremely unlikely that the potential
buyers trespassed on Plaintiff’s property while carrying an infant child
because there is a tree line separating the properties which would be
precarious to cross. (Blackman Decl., Exh. 7.)
On August 9, counsel for Defendant, Glen L. Kulik, sent a
letter to Plaintiff via email (the “Letter”), directed at Plaintiff’s personal
email address affiliated with his former school (the “School Email”) and his
professional email address affiliated with his law firm (the “Business Email”).
(Blackman Decl., Exh. 2.) The Letter stated that Lot 1 had received two
unsolicited offers, one from the potential buyers with whom Plaintiff had
interacted. (Blackman Decl., Exh. 3.) The Letter stated that “[i]immediately
following [the potential buyers’] visit to the property, they informed the
Association that [Plaintiff] confronted them in such an aggressive manner that
they were stunned and alarmed. They reported that they felt almost as if they
were being assaulted by [Plaintiff]. As a result, it appears unlikely they will
go ahead with further negotiations.” (Blackman Decl., Exh. 3.) The Letter
stated that Kulik was “informed that [Plaintiff’s] bullying, threatening and
harassing people in the community happens all too often” and asked that
Plaintiff “please treat potential buyers, visitors and other Crestwood Hills
residents with appropriate civility in the future.” (Blackman Decl., Exh. 3.)
Plaintiff alleges that these statements in the letter were defamatory. (Complaint
at ¶ 7.)
Plaintiff’s
Business Email at his law firm is a joint address with his wife, Suzanne.
(Timothy Decl. ¶ 24.) Plaintiff’s business email is set up such that all email
sent to that address is sent to the law firm’s main email address (the “Firm
Email”), which is reviewed by all attorneys and staff in the office. (Timothy Decl.
¶ 26.) Plaintiff’s Business Email also automatically forwards emails from
Kulik’s firm to Plaintiff’s son because of a case that Plaintiff’s son is
involved in. (Timothy Decl. ¶ 27.) Thus, when the Letter was sent to
Plaintiff’s Business Email, it was also sent to the entirety of Plaintiff’s
firm and Plaintiff’s son via the forwarding chain that Plaintiff’s firm had
created. (Timothy Decl. ¶ 26-30.) Plaintiff contends that Kulik was aware of
this system as a result of past litigation between the two law firms. (Timothy
Decl. ¶ 29.)
Plaintiff showed the Letter to IT personnel who he retained
to change the email settings and alert settings so that office staff would not
be able to access the letter. (Timothy Decl. ¶ 33.) Plaintiff also disclosed
the contents of the letter to his now-daughter-in-law “because [Plaintiff] was
her state bar reference when she submitted her application for bar membership,
and she had affiliation with lawyers at the defense law firm that transmitted
Defendant's defamatory letter.” (Timothy Decl. ¶ 34.)
This case has an unusually complex procedural history which
the Court summarizes as follows.
On August 10, 2022, Plaintiff filed this action against
Defendant Crestwood Hills Association (“Defendant”) in civil limited
jurisdiction (“Limited Civil”). Plaintiff alleged causes of action for (1)
defamation; (2) negligence; (3) violation of Business & Professions Code
section 17200; (4) violation of the Unruh Act; and (5) declaratory and
injunctive relief.
Limited Civil courts do not have authority to grant
declaratory relief or permanent injunctive relief. Nor can the total claim
exceed $25,000. The Complaint stated with respect to the Unruh Act Claim that
Plaintiff sought “all the relief and remedies afforded by the Civil Code,
including section 51, et seq., declaratory relief, injunctive relief, general
damages, a civil penalty of $25,000, attorney’s fees and other equitable relief
against Defendants. (Complaint ¶ 43.) The Fifth Cause of Action sought only injunctive
relief. (Complaint ¶¶44-45.)
In its prayer for relief, the Complaint as filed explicitly
sought “equitable relief, declaration and injunction. (Complaint at 9:17.) In terms of monetary relief, the Complaint sought
“all damages in totality not to exceed $24,999.99. (Complaint at 9:10.) The
Complaint listed damages not to exceed $24,999.99 and in addition attorney’s fees not to exceed
$24,999.99 and costs of litigation not to exceed $24,999.99. (Complaint at
9:11-20.)
On September 8, 2022, Defendant filed the anti-SLAPP motion
at bar.
On September 12, 2022, Plaintiff filed an ex parte
application to strike the anti-SLAPP motion on the grounds that anti-SLAPP
could not be heard in Limited Civil. On
the same day, September 12, 2022, Defendant filed a motion to reclassify the
case to civil unlimited jurisdiction (“Unlimited Civil”). That motion remained
pending until March 28, 2023.
On September 13, 2022, the Court (Judge Katherine Chilton) denied
Plaintiff’s ex parte application to strike the anti-SLAPP motion and ordered
the case to be reclassified as an Unlimited Civil case. The Court stated: “the relief sought by
Plaintiff in his initial complaint, in the form of declaratory and [presumably]
permanent injunctive relief, is not the type of relief that can be granted by a
limited civil court. (9/13/22 Minute Order at p. 2.)
On September 15, 2022, Plaintiff filed a Notice of Errata
and Correction of Complaint To Strike Any Reference To Declaratory Relief Or
Permanent Injunction. The notice of errata substituted or deleted various
words, including adding to page 8, line 4 so that the final paragraph of the
Unruh Act claim now would read “Plaintiff does not seek relief in excess of
$24,9999.99, limited to the issuance of a temporary restraining order or
preliminary injunction.” It also struck
the Fifth Cause of Action for injunctive relief and similar language in the
prayer for relief.
On September 21, 2022, Defendant filed a motion to strike
Plaintiff’s Notice of Errata.
On September 26, 2022, Plaintiff sought and received default
against Defendant. Although Defendant had been active in the case and had filed
an anti-SLAPP motion, Plaintiff sought and received a default without notice to
Defendant’s counsel.
On September 29, 2022, Plaintiff filed a “Stipulation and
Order Reclassifying Case From Civil Unlimited to Civil Limited. While the term
“stipulation” implies that it is signed by both parties, this one was signed by
Plaintiff only. It requested an order reclassifying the case from Unlimited Civil
to Limited Civil and stated that Defendant’s default was taken and for that
reason Defendant was not a party to the stipulation.
On October 18, 2022, Plaintiff filed an ex parte application
seeking to reclassify the case to Limited Civil. It stated that there was no
need to give notice to Defendant because Defendant was in default. The ex parte
did not mention the previously filed anti-SLAPP motion.
On October 19, 2022, the Court (Judge Jon Takasugi) signed
Plaintiff’s “Stipulation and Order Reclassifying Case from Civil Unlimited to
Civil Limited.” The Court issued a minute order reclassifying the action
pursuant to Code of Civil Procedure section 403.010 through 403.090.
On November 8, 2022, Defendant filed an ex parte seeking
relief from default and a request to strike the order reclassifying the matter
to Civil Limited. The Court granted the ex parte application for relief from
default. The Court denied the ex parte
about reclassification, stating that the motion must be made on regular notice.
In the course of ruling on the Defendant’s request for
relief from default, the Court (Judge Takasugi) wrote the following:
The Court takes a
dim view of Plaintiff’s counsel’s handling of this action. Plaintiff requested
relief that is not permitted in limited jurisdiction cases, then after the case
was reclassified, sought to avoid having Defendant’s Special Motion to Strike
heard by filing a Notice of Errata instead of an amended complaint. Plaintiff
then filed a “stipulation” that is not a stipulation. More egregiously,
however, Plaintiff’s counsel breached his ethical and statutory obligations by
failing to notify opposing counsel of the intent to seek entry of a default . .
. .Plaintiff’s counsel was well aware of the identity of Defendant’s counsel as
well as the fact that Defendant had filed two responsive motions that had not
been heard. The Court admonishes Plaintiff’s counsel for doing so.
(11/29/22 Minute Order at p. 2.)
On
November 30, 2022, the Court set a hearing on Defendant’s motion to strike the
errata for January 5, 2023 and set a hearing for the motion to reclassify for
January 12, 2023.
On
January 5, 2023, the Court (Judge Katherine Chilton) denied Defendant’s motion
to strike the notice of errata but struck Plaintiff’s notice of errata on its
own motion.
On the same day, January 5, 2023, Plaintiff filed a Verified
Amendment to and Correction of Complaint.
This document made the same changes previously made in the September 15,
2022 notice of errata.
On January 25, 2023 Defendant filed a motion to strike the
amendments.
On March 28, 2023, the Court (Judge Katherine Chilton) held
a hearing to resolve Defendant’s September 12, 2022 motion to reclassify and
Defendant’s January 25, 2023 motion to strike the amendments to the Complaint. There,
Plaintiff argued that the amendments to the Complaint removed the reasons for
which Defendant moved to reclassify the case to Unlimited Civil. Defendant
argued that the pendency of the anti-SLAPP motion prevented amendment. The
Court denied Defendant’s motion to strike and provided reasoning that, as a
result, the motion to reclassify was moot because the amendments removed the basis
to reclassify the complaint to Unlimited Civil. However, in the conclusion of the order, the
Court issued a contrary order stating as follows:
The Motion to
Reclassify Limited Civil Case to Unlimited Civil Case filed by [Defendant] on
09/12/2022 is Granted. Moreover, Plaintiff’s request for sanction is Denied.
(3/28/2023 Minute Order at p. 2.)
On
July 11, 2023, Defendant filed a motion to reclassify on the grounds that the
complaint “continues to seek injunctive relief unavailable in a limited civil
case and seeks in excess of $25,000 in damages when viewing the complaint as a
whole. On August 31, 2023 Plaintiff
filed an opposition to this motion. On September 7, 2023, Defendant filed a
response.
On September 12, 2023, the Court (Judge Griego) issued a
nunc pro tunc order striking the March 28, 2023 order in its entirety and
replacing it with a new order (the “Order”). The Order gave reasoning
supporting the original order’s concluding sentence stating that the motion to
reclassify was “Granted” and the request for sanctions “Denied.”
The Order found that Plaintiff had improperly filed the case
in Limited Civil because the Complaint sought relief not available there. The
Court found that because the case’s filing in Limited Civil was improper, Defendant’s
anti-SLAPP motion’s filing was proper. The Court found that, as a result, the
anti-SLAPP motion prevented amendment to the complaint. The Court therefore
struck Plaintiff’s amendments and granted the motion for reclassification,
reclassifying the case to Unlimited Civil, where it is now.
On September 21, 2023, the Court Clerk served Notice of
Reclassification and Notice of Reassignment of case to Judge Escalante. On
October 4, 2023, Plaintiff filed his Peremptory Challenge pursuant to Code of
Civil Procedure § 170.6 to Judge Escalante. On October 4, 2023, the preemptory
challenge was accepted, and the case assigned to Department 72 of the Court
(Judge Lipner). The clerk mailed the
minute order assigning the case to Plaintiff’s counsel on the same day. On October 10, 2023, Plaintiff mailed notice
of the new assignment to Defendant.
On November 1, 2023, Plaintiff filed a motion seeking an
order setting aside the Court’s September 12, 2023 Order. The Court denied the
motion on December 1, 2023.
After over a year, the anti-SLAPP motion filed on September
8, 2022 has finally reached hearing. Plaintiff filed an opposition and
Defendant filed a reply.
Plaintiff requests that the Court take judicial notice of a
number of records of the Los Angeles Superior Court. The Court grants
Plaintiff’s request.
The Court overrules Plaintiff’s objections.
The Court overrules Plaintiff’s objections.
The Court overrules Plaintiff’s objections.
The Court overrules Defendant’s general objections. However,
the Court is not obligated to accept as true the primarily self-serving
declaration at issue. (King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433 [holding that uncorroborated and self-serving declarations
provided by the plaintiff did not create triable issues of fact on summary
judgment].) Defendant has noted issues
such as Rand’s breach of ethical obligations to obtain a default against
Defendant when this case was in Civil Limited and Rand’s false sworn statement
made in support of Plaintiff’s reclassification motion that Defendant had not
paid the reclassification fee. (12/14/2023 Objections Of Defendant to
Plaintiff’s Objections to Defendant’s Evidence; see Plaintiff’s September 21,
2022 Request for Entry of Default; Plaintiff’s November 1, 2023 Motion to Set
Aside Reclassification Order, Decl. Rand ¶¶ 28-29.)
The Court overrules Plaintiff’s objections. However, as
discussed above, the Court is not obligated to accept primarily self-serving
declarations as true. (King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433 [holding that uncorroborated and self-serving declarations
provided by the plaintiff did not create triable issues of fact on summary
judgment].) Defendant has cited Suzanne Rand-Lewis’s previous discipline from
the State Bar of California for submission of a declaration that purported to
be signed by her client, when in fact her client had not signed the
declaration. (Defendant’s Objections to Plaintiff’s Evidence. Exh. D at p.7, ¶¶
5-10.)
Code of Civil Procedure section 425.16 permits the court to
strike causes of action arising from an act in furtherance of the defendant’s
right of free speech or petition unless the plaintiff establishes that there is
a probability that the plaintiff will prevail on the claim.
In assessing a defendant’s Code of Civil Procedure section
425.16 special motion to strike, the court must engage in a two-step process. (Shekhter
v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court
must decide whether the defendant has met the threshold burden of showing that
the plaintiff’s cause of action arises from the defendant’s constitutional
rights of free speech or petition for redress of grievances. (Ibid.)
This burden may be met by showing the act which forms the basis for the
plaintiff’s cause of action was an act that falls within one of the four
categories of conduct set forth in Code of Civil Procedure section 425.16,
subdivision (e):
(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.
(Code Civ. Proc., §425.16, subd. (e).)
Once a defendant has met its initial burden and established
that the anti-SLAPP statute applies, the burden shifts to the plaintiff to
demonstrate a “probability” of success on the merits. (Code Civ. Proc., §
425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) “[T]he 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal quotations
omitted.) At this “second stage of an anti-SLAPP hearing, the court may
consider affidavits, declarations, and their equivalents if it is reasonably
possible the proffered evidence set out in those statements will be admissible
at trial. Conversely, if the evidence relied upon cannot be admitted at
trial, because it is categorically barred or undisputed factual circumstances
show inadmissibility, the court may not consider it in the face of an
objection. If an evidentiary objection is made, the plaintiff may attempt to
cure the asserted defect or demonstrate the defect is curable.” (Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.)
The trial court properly considers the evidentiary
submissions of both the plaintiff and the defendant, but it may not weigh the credibility
or comparative strength of the evidence and must instead simply determine
whether the plaintiff’s evidence would, if believed by the trier of fact, be
sufficient to result in a judgment for plaintiff. (McGarry v. Univ. of San
Diego (2007) 154 Cal.App.4th 97, 108-109.) The court “accepts as true the
evidence favorable to the plaintiff and evaluates the defendant’s evidence only
to determine if it has defeated that submitted by the plaintiff as a matter of
law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 (Flatley).)
Further, whether or not the evidence is in conflict in the context of a motion
to strike under the anti-SLAPP statute, if the plaintiff has presented a
sufficient pleading and has presented evidence showing that a prima facie case
will be established at trial, the plaintiff is entitled to proceed. (Moore
v. Shaw (2004) 116 Cal.App.4th 182, 193.) Only a minimal showing of merit
is required. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416,
1421.) However, a court need not accept uncorroborated, self-serving
declarations in order to create a triable issue of fact. (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [holding that
uncorroborated and self-serving declarations provided by the plaintiff did not
create triable issues of fact on summary judgment].)
Defendant contends that its statements at issue fall within
Code of Civil Procedure section 425.16, subd. (e)(4), “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” (Ibid.)
Here, the Letter implicates the issue of Defendant’s
marketing for the sale of its vacant lots. The Board voted to support the sale
of the lots at its annual meeting, and several status updates were provided at
subsequent meetings. (Blackman Decl. ¶¶ 8-11 Exhs. 3, 4, 8, 11.)
“[I]n cases where the issue is not of interest to the public
at large, but rather to a limited, but definable portion of the public (a
private group, organization, or community), 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.” (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes
(2017) 9 Cal.App.5th 119, 131 [internal quotations and citations omitted].) “In
articulating what constitutes a matter of public interest, courts look to
certain specific considerations, such as whether the subject of the speech or
activity was a person or entity in the public eye or could affect large numbers
of people beyond the direct participants. (FilmOn.com Inc. v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 145 [internal quotations and citations
omitted].) “[I]t is not enough that the statement refer to a subject of
widespread public interest; the statement must in some manner itself contribute
to the public debate.” (Id. at p. 150 [internal quotations and citations
omitted].) Courts therefore also “examine whether a defendant—through public or
private speech or conduct—participated in, or furthered, the discourse that
makes an issue one of public interest.” (Id. at p. 151.)
Plaintiff provides apparently uncontested evidence that
fewer than five individuals who were not Board members had attended Board
meetings in the years leading up to the events at issue and that none had ever
expressed interest in or asked about the sale of Lots 1-3. (Timothy Decl. ¶
12.) However, it nevertheless appears that Defendant, which governs a
significant amount of real estate, is in the public eye and that its actions
toward the creation of new housing implicate the issue of housing access, which
courts have treated as a major issue in California for anti-SLAPP purposes. (Geiser
v. Kuhns (2022) 13 Cal.5th 1238, 1251.) Furthermore, Defendants has shown
that members of Defendant’s community have repeatedly reported to Defendant
allegedly uncivil conduct by Plaintiff, suggesting that there is an ongoing
discussion and controversy regarding Plaintiff’s behavior. (Blackman
Decl. ¶¶ 13-15, 17; Exhs. 8-9, 11.)
It is less clear that the Letter contributed to the public
debate regarding the above issues. The Letter was sent only to Plaintiff and,
incidentally, Plaintiff’s law firm – it was not sent to the general membership
of Defendant’s homeowner’s association or to the general public. Thus, while
the Letter may have related to the issues in question, it did not contribute to
a public debate. (See FilmOn.Com Inc., supra, 7 Cal.5th at p. 153
[organization that issued reports privately to a group of paying clients rather
than to the wider public did not contribute to public debate].) Here, because
the relevant scope is smaller, a release to Defendant’s membership might be
adequate to trigger coverage, but the Letter was set to a very small set of
individuals.
“[A]lthough litigation may not have commenced, if a
statement [1] concern[s] the subject of the dispute and [2] is made in
anticipation of litigation contemplated in good faith and under serious
consideration, then the statement may be petitioning activity protected by
section 425.16.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268
[emphasis added] [internal quotations and citations omitted].)
Where there is not pending litigation, the question is
whether the statements were made in anticipation of litigation. (Neville v.
Chudacoff, supra, 160 Cal.App.4th at p. 1268.) The anticipated
litigation must be “contemplated in good faith and under serious consideration”
in order for the connected statements to qualify for protection. (Ibid.)
Defendant argues that the Letter constituted a
cease-and-desist letter in anticipation of litigation. The Letter stated that
“Should you persist with such conduct
towards potential buyers, the
Association will have no choice but to take appropriate action.” (Blackman
Decl., Exh. 3.) While the cease-and-desist characterization therefore appears
plausible, Plaintiff correctly points out that Defendant raises this issue for
the first time in its reply brief. For this reason, the Court will hear
argument on the issue, and may request additional briefing. The Court treats
similarly Defendant’s argument that, if the Letter was pre-litigation activity,
it was protected by the litigation privilege, precluding success on the merits.
“The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage. The defamatory statement must
specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1
Cal.App.5th 1300, 1312 [quotation marks and citation omitted].)
Plaintiff contends that Defendant published the letter by
sending it to Plaintiff’s Business Email, which Kulik allegedly knew forwarded
to the Firm Email, published the Letter to Plaintiff’s law firm. Plaintiff
contends that he was forced to publish the Letter to IT personnel and, for
reasons that are still unclear to the Court, to his daughter-in-law.
“One of the oldest and most widely recognized defenses to
the publication of defamatory matter is the doctrine of consent, which has been
classified as a form of absolute privilege …. This principle applies a
fortiori, where a statement made privately to the plaintiff is published solely
through the actions and effort of the plaintiff himself.” (Royer v.
Steinberg (1979) 90 Cal.App.3d 490, 498.)
Here, whether or not Kulik knew that Plaintiff’s Business
Email forwarded to the Firm Email, this forwarding system was fundamentally a
decision of Plaintiff and Plaintiff’s law firm, which was fundamentally outside
of Defendant’s control. That Plaintiff’s system of forwarding all emails
received at his Business Email (including, the Court notes, sending all
emails from Kulik’s law firm to Plaintiff’s son) inadvertently resulted in
the unwanted distribution of information is a fault in Plaintiff’s firm’s system,
not in Defendant’s decisions. If anything, Plaintiff’s is fortunate that the
only result of such a system was the circulation of a series of socially
awkward statements about Plaintiff, rather than something worse.
The lack of publication is one reason the Court concludes on
this record that Plaintiff has no chance of success on the merits.
“In all cases of alleged defamation, whether libel or
slander, the truth of the offensive statements or communication is a complete
defense against civil liability, regardless of bad faith or malicious purpose.”
(Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646.)
The record discloses that the contents of the Letter were
substantially true. As an initial matter, the Defendant’s Letter presented Plaintiff
with an accurate description of complaints by third parties that were actually
lodged with the Defendant. There is no question that, even if Plaintiff had a
different perspective on the encounter, Defendant was faithfully reporting
complaints that had been communicated to Defendant and had real business
consequences for Defendant.
In addition, Defendants have submitted evidence from the
potential buyers of Plaintiff’s behavior. The potential buyers stated in the
voicemail that Plaintiff shouted at them and threatened to call the police, and
later reported that they felt stunned and alarmed and almost felt as if they
were being assaulted. Defendant has also introduced evidence of previous
harassing behavior by Plaintiff directed toward Defendant’s president and the
director of Crestwood Hills Preschool. (Blackman Decl. ¶¶ 15, 17, Exhs. 9, 11.)
Although Plaintiff and Suzanne contradict this evidence with
their own declarations, the Court is not required to take as true the contents
of such self-serving declarations to resist dismissal. (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [holding that
uncorroborated and self-serving declarations provided by the plaintiff did not
create triable issues of fact on summary judgment].)
The
Court concludes that, for this independent reason too, Plaintiff has no chance
of success on the merits.