Judge Randolph M. Hammock, Case Number: 22STCV19204, Date: 2024-04-18 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV19204, Date: 2024-04-18 Tentative Ruling

Plaintiff Gregory Yacoubian, an attorney with the Los Angeles Police Protective League, brings this action against Defendants Robert Rico and Lawrence Hanna, both of whom are attorneys with managerial roles for the Police Protective League. Plaintiff alleges that Defendants published defamatory statements accusing Plaintiff of ethical and professional wrongdoings in relation to Plaintiff’s representation of a Los Angeles police officer. Plaintiff brings claims against each defendant for libel per se and interference with economic relationship.

On January 1, 2024, Defendants Rico and Hanna cross-complained against Yacoubian. The Cross-Complainants allege that Yacoubian accused Rico and Hanna of unethical and illegal conduct in a call to Michael Rimkunas, the Deputy Chief of the Los Angeles Police Department who serves as the head of the Professional Standards Bureau. Cross-Complainants assert a single cause of action against Yacoubian for defamation.

CCP 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. “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. 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, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The 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. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

The allegations in the Complaint underlying each cause of action are as follows. Plaintiff Gregory Yacoubian is a licensed attorney who serves as a panel attorney for the Los Angeles Police Protective League. (Compl. ¶ 1.) In 2021, the Police Protective League assigned Plaintiff to represent one of six officers criminally charged with falsifying Field Interview cards. (Id. ¶ 7.)

As part of that defense, Plaintiff attended the preliminary hearing of three other defendants on November 16, 2021, who were represented by attorney Caleb Mason. (Id. ¶ 7.) At the hearing, the Deputy District Attorney called LAPD Officer Bradley Nielsen to the stand, who had not been charged in the matter. (Id. ¶ 8.) During direct examination of Officer Nielsen, the Deputy District Attorney attempted to impeach Officer Nielsen with quotes from the officer’s compelled statement. (Id. ¶ 9.) Following objections from Attorney Mason based on Fifth Amendment concerns and the witness’s lack of an attorney, the court called a recess. (Id. ¶ 9.)

As Officer Nielsen came off the witness stand, Plaintiff Yacoubian remained in the courtroom. (Id. ¶ 10.) “Mr. Mason then spoke briefly with Officer Nielsen” and “point[ed] to Mr. Yacoubian in the back of the Courtroom and not[ed] that he was a ‘League attorney’.” (Id. ¶ 10.) Officer Nielsen then approached Yacoubian and asked him for representation. (Id.) After obtaining the Police Protective League’s consent, Yacoubian represented Officer Nielsen in the hearing. (Id. ¶¶ 10, 11.)

Ten days after the hearing, Plaintiff alleges that Defendant Lawrence Hanna, who serves in a “managerial role” with the Protective League, published a letter to the Protective League’s legal department containing “several false and defamatory statements accusing Mr. Yacoubian of serious violations of professional ethics and standards for LAPPL panel attorneys.” (Id. ¶¶ 5, 14.)

Then, months later, Plaintiff alleges Defendant Robert Rico, also a managerial attorney at the Protective League, sent a message to the legal group again accusing Yacoubian of wrongdoing in his representation of Officer Nielsen and other League members. (Id. ¶ 24.) Plaintiff now brings causes of against Defendants Rico and Hanna for (1) & (2) libel for se and (3) interference with economic relationship.

On January 11, 2024, Defendants Rico and Hanna filed a Cross-Complaint against Yacoubian. Rico and Hanna allege that “[o]n or about March 2, 2023, Yacoubian called Michael Rimkunas, Deputy Chief of the Los Angeles Police Department who serves as the head of the Professional Standards Bureau for the Los Angeles Police Department.” (Id. ¶ 6.) “According to Deputy Chief Rimkunas, Yacoubian called to inform him that Robert Rico and Larry Hanna were conspiring with LAPD advocate, Susie Padilla, to gather information about Mr. Yacoubian. Specifically, Mr. Yacoubian said that Mr. Rico and Mr. Hanna asked Padilla to gather strictly confidential information about Yacoubian. Mr. Yacoubian accused Mr. Rico and Mr. Hanna of acting unethically and illegally in doing so.” (Id. ¶ 7.)

In support of their single cause of action for defamation, Rico and Hanna allege Yacoubian’s statement to Rimkunas was “false and/or made in reckless disregard for the truth,” and was “defamatory per se because it is reasonably understood to mean that Rico and Hanna had committed a crime or attempted to do so.” (Id. ¶ 13.)

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].) Section 425.16 expressly “defines the types of claims that are subject to the anti-SLAPP procedures…as these terms are defined in subdivision (e)(1)-(4) of the statute.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75–76.)

The anti-SLAPP statute is available only if the “defendant's conduct underlying the plaintiff's cause of action” was “itself” an “act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Id. [emphasis added].) “[A] claim may be struck [as a SLAPP] only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. [Citation].” (Wong v. Wong (2019) 43 Cal. App. 5th 358, 364.) “Thus, in evaluating anti-SLAPP motions, ‘courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” [Citation.] (Id.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78 [emphasis added].) It is the “[t]he ‘principal thrust or gravamen’ of the plaintiff's claim [which] determines whether section 425.16 applies. [Citations.]” (Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 394-395.)

Yacoubian contends the allegations in the Cross-Complaint challenge protected conduct under the anti-SLAPP statute, either as (1) statements “made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” or (2) statements “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.” (CCP § 425.16(e)(1)&(e)(2).)

Generally, statements to law enforcement invoke the right to petition the government, and thus have been deemed protected activity under the anti-SLAPP law. (See Chabak v. Monroy (2007) 154 Cal. App. 4th 1502, 1512; Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is “made in connection with an official proceeding authorized by law”]; Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941–42 [“The law is that communications to the police are within SLAPP”].)

Here, by their Cross-Complaint, Messrs. Rico and Hanna are challenging statements Yacoubian made in a call to Michael Rimkunas. Importantly, Rimkunas is “Deputy Chief of the Los Angeles Police Department” and “serves as the head of the Professional Standards Bureau for the Los Angeles Police Department.” (Cross-Compl. ¶ 6.)

According to the Cross-Complaint, Yacoubian “called [Deputy Chief Rimkunas] to inform him that Robert Rico and Larry Hanna were conspiring with LAPD advocate, Susie Padilla,” to gather “strictly confidential information about Yacoubian.” (Id. ¶ 7.) Yacoubian accused Rico and Hanna of “acting unethically and illegally in doing so.” (Id.) In support of their sole defamation cause of action, Rico and Hanna allege Yacoubian’s statements to Deputy Chief Rimkunas were “false and/or made in reckless disregard for their truth,” and were “defamatory per se because it is reasonably understood to mean that Rico and Hanna had committed a crime or attempted to do so.” (Id. ¶¶ 12, 13 [emphasis added].)

In other words—from the plain allegations—the Cross-Complaint “arises from” Yacoubian’s complaint to a law enforcement officer, claiming that Rico and Hanna had committed illegal or unethical acts in their attempts to gather confidential information about Yacoubian. This can be construed as nothing other than a complaint of criminal activity to law enforcement—a petitioning activity—that invokes anti-SLAPP protection.

A review of the evidence submitted also supports this conclusion. (See CCP § 425.16, subd. (b)(2) [the court, “in making its determination [whether the plaintiff's cause of action is subject to an anti-SLAPP motion], shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based”].)

Consistent with the allegations, Yacoubian attests in his declaration that he had “a relatively brief conversation” with Deputy Chief Rimkunas. (Id. ¶ 10.) Based on Rimkunas’ role as officer in charge of the LAPD Professional Standards Bureau, Yacoubian believed that his complaints “would lead LAPD to investigate and resolve any such violations.” (Id. ¶ 10.) Thus, Yacoubian attests these complaints “were made in order to prompt [Deputy Chief Rimkunas] to investigate and prevent or resolve any potential violations of the law within his scope of authority over the LAPD PSB.” (Id. ¶ 14.)

Attempting to argue that the conversation with Rimkunas is not protected, Cross-Complainants suggest that Yacoubian’s call to Rimkunas was “not a police report by any definition.” (Opp. 4: 19.) Instead, they argue, “Yacoubian was making a nebulous, ‘informal report’ to the Deputy Chief ‘of concerns…about suspicions’ relating to his client’s confidentiality.” (Opp. 4: 22-24.) This was not a legitimate complaint of criminal activity, but rather, “an attempt to smear his opponents in the law enforcement community.” (Opp. 4: 26-27.)

Cross-Complainants provide a declaration from Deputy Chief Michael Rimkunas. Rimkunas acknowledges the phone call from Yacoubian, but attests that Yacoubian “did not ask [him] to take any action, and [Yacoubian] did not refer to [Rimkunas’] role as overseer of the Professional Standards Bureau.” (Rimkunas Decl. ¶ 2.)

But in reply, Yacoubian also submits a declaration from Chief Deputy Rimkunas, in which Rimkunas seeks to “provide additional information regarding [his] recollection of” the discussion with Yacoubian. (Rimkunas Supp. Decl. ¶ 3.) [FN 1] In his second declaration, Yacoubian adds that after speaking with Yacoubian, he “took steps to have the reported concerns investigated and to ensure that officers at PSB were following the law.” (Id. ¶ 6.) “As part of that process,” Rimkunas adds, he “let [his] officers know about the concerns and made clear that ex parte ‘briefings’ with Board of Rights panel members were improper.” (Id.)

Finally, it is worth noting that Yacoubian had also made complaints to Rimkunas in the past, which prompted Rimkunas to investigate those claims. (See Supp. Rimkunas Decl. ¶ 6.) This supports Yacoubian’s contention that he made the most recent complaints based on a good-faith belief that Rimkunas would investigate.

This evidence reveals that Yacoubian made a complaint of criminal wrongdoing to Rimkunas, as someone with authority to investigate the matter. Rimkunas, in turn, did just that. Thus, the allegations in the Cross-Complaint, together with the declarations, establish that Yacoubian’s complaint to Deputy Chief Rimkunas was a petitioning activity subject to anti-SLAPP protection under prong one. (See Chabak, supra, 154 Cal. App. 4th at 1512; Walker, supra, 93 Cal.App.4th at 1439; Comstock, supra, 212 Cal. App. 4th at 941–42.) This shifts the burden to Cross-Complainants under prong two.

“To establish a probability of prevailing, 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940.)

“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.’” (Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 964.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927 [plaintiff must overcome litigation privilege to demonstrate a probability of prevailing under anti-SLAPP prong two].)

As relevant here, the litigation privilege is not limited to litigation. Rather, among other things, it protects “reports made to the police about a possible crime.” (Chabak v. Monroy (2007) 154 Cal. App. 4th 1502, 1514 [holding “statements to the police were absolutely privileged pursuant to Civil Code section 47(b)”]; see also Kenne v. Stennis (2014) 230 Cal.App.4th 953, 971-972 [claim based on allegedly false police reports was protected by the litigation privilege].

“[T]he principal purpose of [Civil Code] section 47 [, subdivision (b) ] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.) “The breadth of the litigation privilege cannot be understated.” (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) “Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Id.)

While the litigation privilege and anti-SLAPP statute “are not necessarily coextensive,” the privilege is a “defense that may be considered at prong two.” (See RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal. App. 5th 413, 444-45 [“Because this tort claim was barred by the litigation privilege, RGC could not establish the minimal merit of its action at prong two of the anti-SLAPP inquiry”].) Indeed, countless California courts have considered the litigation privilege in the prong two analysis. (See, e.g., Feldman v. 1100 Park Lane Associates (2008) 160 Cal. App. 4th 1467, 1485 [stating litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927 [accord]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783–785 [accord]; Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 37 [accord].)

As discussed, the defamation cause of action is based solely on the allegation that Yacoubian defamed Rico and Hanna in a call he made to Deputy Chief Rimkunas, accusing Rico and Hanna of illegal or unethical conduct. (Cross-Compl. ¶¶ 10-15.) According to Yacoubian, he made this phone call “in order to prompt [Deputy Chief Rimkunas] to investigate and prevent or resolve any potential violations of the law within his scope of authority over the LAPD PSB.” (Yacoubian Decl. ¶ 14.) While Rimkunas attests that “Mr. Yacoubian did not ask [him] to take any action” or “refer to [his] role as overseer of the Professional Standards Bureau” (Rimkunas Decl. ¶ 2), Rimkunas did take “steps to have the reported concerns investigated and to ensure that officers at PSB were following the law.” (Rimkunas Supp. Decl. ¶ 6.)

Thus, what exists is a call to law enforcement reporting alleged criminal or ethical wrongdoing, and which did, ultimately, prompt an investigation. Therefore, this court concludes that Yacoubian’s statements are protected by the absolute litigation privilege. This conclusion is consistent with the purpose of the litigation privilege, which is to ‘ “assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” (Chabak, supra, 154 Cal. App. 4th at 1514.) Moroever, “[a]ny doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.)

Finally, this Court notes that given the additional allegations contained in the Cross-Complaint that these statements have been “repeated and republished to numerous third parties throughout the law enforcement community in the County of Los Angeles and elsewhere, causing damages to the reputations of Rico, Hanna, and the LAPP,” there could be the possibility that such alleged statements to third parties are not protected by the litigation privilege. (Id. ¶ 8.) For example, Yacoubian also made similar statements to third parties not involving the police, per se.

However, the cross-complainants did not produce any evidence whatsoever to support such an allegation. In fact, the only evidence presented by the opposition was the simple and brief statements made by Yacoubian at his deposition, and by Deputy Chief Rimkunas in his declaration filed in support of the opposition. [FN 2]

Judge of the Superior Court

FN 1 - As a general rule, courts will not consider new evidence raised with a reply. But “a trial court may properly consider new evidence submitted with a reply brief ‘so long as the party opposing…has notice and an opportunity to respond to the new material.’” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1183.) Cross-Complainants will be given the opportunity to address the “new evidence” at the hearing, as necessary. Importantly, even if the court were to ignore the evidence presented in Reply, the result of this Ruling (and conclusions therein) would remain the same.

FN 2 - Indeed, in ruling upon over fifty special motions to strike, this is the least amount of evidence this Court has ever seen filed by an opposition. While this Court does generally appreciate brevity, much more was need in this case.