Judge: Stephen I. Goorvitch, Case: 22STCV13705, Date: 2022-10-25 Tentative Ruling
Case Number: 22STCV13705 Hearing Date: October 25, 2022 Dept: 39
Kapish
Haldia v. Cody Mattingly
Case
No. 22STCV13705
Special
Motion to Strike
Motion
for Attorney’s Fees
INTRODUCTION
Plaintiff
Kapish Haldia (“Plaintiff”) filed this action against Cody Mattingly
(“Defendant”) asserting the following causes of action:
1. Defamation per se
2. False light
3. Negligence
4. Civil harassment
5. Intentional infliction of emotional distress
6. Negligent infliction of emotional
distress
7. Declaratory and injunctive relief
Now, Defendant moves to strike
the complaint under Code of Civil Procedure section 425.16, commonly known as
the Anti-SLAPP statute. Defendant moves
for dismissal of the first, second, third, fifth, and sixth causes of action
and seeks attorney’s fees. Plaintiff
opposes the motion, which is granted.
Defendant also moves for attorney’s fees.
PLAINTIFF’S ALLEGATIONS
Plaintiff
signed up for an online dating website that required all members to be over the
age of 18 years old. (Complaint, ¶
12.) On or about February 26, 2022,
Plaintiff started communicating with an individual on the online dating
website. (Complaint, ¶ 13.) Plaintiff confirmed a date with the
individual. (Complaint, ¶ 18.) Later that same date, “an individual showed
up on the Plaintiff’s property and started flashing a light in his face and
recording him without consent. Plaintiff
had never met that individual and did not know him.” (Complaint, ¶ 19.) The video of the encounter was posted on four
websites: (1) The Instagram account: @peoplevpreds; (2) The YouTube account:
People v. Preds; and (3) The Instagram account: @netpredators; and (4) The
website: www.netpredators.com. (Complaint,
¶ 20.) Defendant posted Plaintiff’s
photograph on a Twitter account and stated: “Venice, California; Kapish, a vice
president at Highview Capitol, invited a 15 year old boy over.” (Complaint, ¶ 24.) Defendant also falsely referred to Plaintiff
as a “pedophile.” (Complaint, ¶
25.) Plaintiff’s personal information
was listed on the website, including his telephone number, email, and address,
and he started receiving threats.
(Complaint, ¶¶ 21-23, 29.)
Plaintiff’s relatives’ telephone numbers and personal information also
were published. (Complaint, ¶ 23.) They, too, received messages stating that
“their son is a pedophile.” (Complaint,
¶ 30.) Plaintiff’s employer received
multiple telephone calls advocating for the termination of his employment. (Complaint, ¶ 31.) Defendant also filed multiple false police
reports concerning this incident.
(Complaint, ¶ 32.)
PROCEDURAL HISTORY
Plaintiff
filed this action on April 25, 2022.
Defendant filed a special motion to strike under Code of Civil Procedure
section 425.16 on June 28, 2022. The
Court held a hearing on the motion on September 27, 2022. Defendant’s counsel referenced a series of
electronic chats in the motion, but had not produced the underlying discovery
to Plaintiff’s counsel. Nor did
Defendant’s counsel provide a copy of the electronic chats with the
motion. Therefore, the Court ordered
Defendant’s counsel to produce the discovery to Plaintiff’s counsel and to file
(redacted) versions. The Court
authorized Plaintiff to file a supplemental opposition, and Defendant to file a
supplemental reply brief in response to this evidence. The Court continued the hearing to October
25, 2022.
LEGAL STANDARD
In ruling on a
defendant’s special motion to strike, or anti-SLAPP motion to strike, the trial
court uses a two-step process. First,
the defendant must show 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 Constitutions in connection with a public
issue. (Code Civ. Proc., § 425.16, subd.
(b)(1).) The defendant has the burden of
making a prima facie showing that a cause of action arises from an act in
furtherance of his or her constitutional rights of petition or free speech in
connection with a public issue. (Equilon
Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant carries that burden, the
burden shifts to the plaintiff to demonstrate a probability of prevailing on
the claim. (Code Civ. Proc., § 425.16,
subd. (b)(3).)
EVIDENTIARY ISSUES
The
Court rules as follows on Plaintiff’s objections:
Objection
#1 – Overruled.
Objection
#2 – Sustained as to Defendant’s use of the term “pedophile.” Overruled in all other respects.
Objection
#3 – The Court need not rule on this objection, as Defendant filed the electronic
chats and redacted photographs on October 3, 2022. Plaintiff’s supplemental declaration of
October 12, 2022, and Joseph Cipollini’s supplemental declaration of October
12, 2022, confirm that they received the electronic chats and photographs from
Defendant’s counsel.
Objection
#4 – Overruled.
Objection
#5 – Overruled.
DISCUSSION
A. Special Motion to Strike
Plaintiff’s
claims are based on videos that Defendant posted on various websites. (Complaint, ¶ 20.) Claims based on “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” are subject to a special motion to
strike. (Code Civ. Proc., § 425.16,
subd. (e)(3).) “The Internet is a
classic public forum . . . .” (Chaker
v. Mateo (2012) 209 Cal.App.4th 1138, 1146.) Defendant’s statements relate to an issue of
public interest. “[P]reventing child
sexual abuse and protecting children from sexual predators are issues of
widespread public interest.” (Cross v.
Cooper (2011) 197 Cal.App.4th 357, 375; see also Mendoza v. ADP Screening
& Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1653.) The instant case is distinguishable from Abuemeria
v. Stephens, in which the District Court of Appeal for the Second District
held that “video recording of an unseemly private [confrontation], no matter
how wide its distribution, is far removed from a citizen's constitutional right
of petition or free speech involving a public issue.” (Abuemeria v. Stephens (2016) 246
Cal.App.4th 1291, 1294.) That case
involved “an unseemly private brawl” without “any evidence to establish . . .
that this dispute was anything other than a private controversy.” (Id., p. 1298.) The instant case involved identifying a
potential sexual predator and warning the public, which is a matter of public
interest. The Court need not reach
Defendant’s argument that, in the alternative, the videos were posted “in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law” (Code Civ. Proc., § 425.16, subds.
(e)(1)-(2).)
Defendant
has shifted the burden to Plaintiff to establish a probability of success on
the merits. Plaintiff fails to do
so. Plaintiff does not dispute that he
communicated with Defendant. (See
Declaration of Kapish Haldia, ¶¶ 8-10.)
To the contrary, Plaintiff admits as follows: (1) On or about February
26, 2022, he had an internet conversation with Defendant on an internet dating
site; (2) Defendant’s profile stated that he was over the age of 18 years old;
(3) Plaintiff communicated with him; and (4) Plaintiff arranged a meeting with
him that same date. (Id., ¶¶ 8-10,
16.) However, Plaintiff does not dispute
the contents of the chat, which is detailed in Defendant’s motion and
authenticated by Defendant’s declaration.
(See Memorandum of Points & Authorities, pp. 6-16; Declaration of
Cody Mattingly, ¶ 8.) Specifically,
Plaintiff does not deny or explain the following parts of the chat, which
started on the website and then continued via text message:
Defendant at 4:34
a.m. “Do you mind if I’m not 18 tho”
Plaintiff at 4:34
a.m. “ha are you gonna get me in
trouble”
Defendant at 4:34
a.m. “LOL I don’t want no trouble”
Plaintiff at 4:35
a.m. “ha well, come hang if ya
want”
Defendant at
4:35 a.m. “hahah wat we gona do”
Plaintiff at
4:36 a.m. “hang out, have a drink,
maybe have some fun if you’re down ha”
Defendant at 4:36
a.m. “I mean yeah I’m down to try new
things I’m down for whatever lol”
Plaintiff at 4:37
a.m. “Kap here btw”
Defendant at
4:37 a.m. “I’m trey”
Plaintiff at
4:37 a.m. “Come hang Trey”
. . .
Defendant at
4:39 a.m. “What kind of fun”
Plaintiff at
4:39 a.m. “haha come find out Why ruin the surprise”
Defendant at 4:40
a.m. “Yeah I don’t like
surprises Being 15 sux lol”
Plaintiff at
4:40 a.m. “haha we should make an agenda”
Defendant at
4:40 a.m. “Im nalmost 16 tho Yeah it would make me more comfortable”
Plaintiff at
4:41 a.m. “ha well how about we do
what you want pick your adventure”
Defendant at 4:42 a.m. “Are
you a bottom Can you send me a pix”
Plaintiff at
4:44 a.m. [Plaintiff sent photos,
two of which showed his genitals]
. . .
Defendant at 4:47 a.m. “Yeah
I mean I just want to be safe and kind of talk a little bit about it 1st But like I said I’m down to do whatever I think I want to top I’m 15 and curious haha”
Plaintiff at 4:48 a.m. “well
we don’t have to do anything besides just hang, and we can have whatever
adventure we want”
Defendant at 4:48 a.m. “What
do you like though”
Plaintiff at 4:48 a.m. “have
you topped before? Sounds fun ha”
Defendant at 4:48 a.m. “Um
I got scared the last time But if you’re
down like I said I’ll do anything”
Plaintiff at 4:49 a.m. “ha
you can decide in the moment but I’m pretty down to have you do that What else are you into”
Defendant at 4:50 a.m. “I
asked you what do you like Omg lol”
Plaintiff at 4:51 a.m. “ha”
Defendant at 4:51 a.m. “? I just want to be safe do you have condoms”
Plaintiff at 4:51 a.m. “lmk
if you make up your mind yup”
. . .
Defendant at
4:54 a.m. “Okay are you gonna suck me
or what
Plaintiff at
4:54 a.m. “do you want me? Ha I’m
v down”
(See Memorandum
of Points & Authorities, pp. 7-12; Declaration of Cody Mattingly, ¶ 8; see
also Supplemental Discovery filed on October 3, 2022.)
The
Court finds that these chats may be considered in ruling on this motion. Defendant proffered a declaration stating
that “[t]he communications discussed in this special motion to strike are
accurate and correct, and are a whole and accurate representation of the
communications between myself and Kapish Haldia.” (Declaration of Cody Mattingly, ¶ 8.) The relevant parts of the chats are included
in the memorandum of points and authorities.
(See Memorandum of Points & Authorities in Support of Special Motion
to Strike, pp. 6-16.) Defendant then
filed copies of the chats on October 3, 2022, which match those referenced in
the memorandum of points and authorities.
(See Response to Court Order to Submit Supplemental Discovery, filed on
October 3, 2022.) The Court afforded
Plaintiff a further opportunity to respond.
(See Court’s Minute Order, dated September 27, 2022.) Plaintiff did not file any objection to
Defendant’s filing with copies of the chats.
Therefore, the Court may consider these chats in ruling on this
motion.
In
sum, Defendant’s evidence establishes that Plaintiff arranged a sexual
encounter with someone who repeatedly said that he was under the age of 18
years old. Plaintiff attempts to
demonstrate a probability of success on the merits by relying on several
declarations. First, Plaintiff relies on
his own supplemental declaration, dated October 12, 2022, stating that
Defendant’s “images and screenshots are an inaccurate and incomplete record of
[his] communication with defendant.” (Supplemental
Declaration of Kapish Haldia, dated October 12, 2022, ¶ 7.) However, Plaintiff provides no explanation
why these screenshots are “inaccurate.” Nor
does Plaintiff provide his own copies of the chats to demonstrate that those
proffered by Defendant are inaccurate. It
does not appear that Plaintiff has copies of the chats because his expert could
not find any on Plaintiff’s devices.
(Declaration of Joseph Cipollini, ¶¶ 14, 20.) Even if the chats are “incomplete,” the Court
cannot envision what parts of the allegedly missing chats would exonerate
Plaintiff, given the parts of the chats making clear that he arranged a sexual
encounter with someone claiming to be 15 years old. Plaintiff’s declaration is not credible or
persuasive in light of these deficiencies.
Plaintiff
relies on the initial declaration of Joseph Cipollini, who states that he found
no evidence of the alleged chat between Plaintiff and Defendant. (Declaration of Joseph Cipollini, dated
August 24, 2022, ¶¶ 14, 20.) This
evidence might be dispositive if Plaintiff was alleging a case of mistaken
identity, i.e., he was not the one who chatted with Defendant that night. But Plaintiff admits that there was an
electronic chat between him and Defendant.
(See Declaration of Kapish Haldia, dated August 24, 2022, ¶¶ 8-10.) Therefore, Cipollini’s failure to locate
evidence of the chat on Plaintiff’s computer and iPhone is not
dispositive.
The Court
considered the supplemental declaration of Joseph Cipollini, dated October 12,
2022, who states that “it is impossible to authenticate the recently submitted
documents without conducting a proper forensic analysis on defendant’s
electronic devices.” (Supplemental
Declaration of Joseph Cipollini, dated October 12, 2022, ¶ 12.) Cipollini merely states that he cannot
authenticate the chats, but he does not state that they are inaccurate or
false. Plaintiff does not dispute that
he was the one chatting with Defendant. There
are multiple photos of Plaintiff (including some in which he is naked). Plaintiff does not dispute in his declaration
that these are his photographs.
(Supplemental Declaration of Kapish Haldia, dated October 12, 2022, ¶¶ 6-7.) Cipollini provides no credible explanation
how Defendant would have obtained these photographs except from Plaintiff. Nor does Cipollini provide any basis to
conclude that Defendant falsified the content of the messages themselves.
The Court considered
the declaration of Spencer Bashforth, who states that he was with Plaintiff
that evening, and “[t]here were no minors at our house and we weren’t expecting
any minors to be there.” (Declaration of
Spencer Bashforth, ¶ 7.) This evidence
does not contradict the contents of the chat, in which Plaintiff admits that
“[his] friends just called it a night” and “[he] can’t sleep.” (See Memorandum of Points & Authorities,
p. 7; Declaration of Cody Mattingly, ¶ 8.)
The Court has considered Plaintiff’s remaining evidence, but none establishes
a probability of success on the merits.
In sum,
Defendant’s evidence establishes that Plaintiff sent photographs of his genitals
to another user after that user identified himself as being 15 years old. The chat also establishes that Plaintiff
planned a sexual encounter with another user after that user identified himself
as being 15 years old. Therefore, Plaintiff
has not demonstrated any probability of success on the merits.
B. Motion for Attorney’s Fees
Defendant moves
for his attorney’s fees under the Anti-SLAPP statute, which states that “a
prevailing defendant on a special motion to strike shall be entitled to recover
[his or her] attorney’s fees and costs.”
(Code Civ. Proc. § 426.16(c)(1).)
The determination of reasonable amount of attorney fees is within the
sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22
Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car
Co. (2000) 79 Cal. App. 4th 1127,
1134.) The burden is on the party
seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County
of San Bernardino (2010) 188 Cal. App. 4th 603, 615.) The Court has broad discretion in determining
the amount of a reasonable attorney’s fee award which will not be overturned
absent a “manifest abuse of discretion, a prejudicial error of law, or
necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008)
167 Cal. App. 4th 1379, 1393-94.) The Court need not explain its calculation
of the amount of attorney’s fees awarded in detail; identifying the factors
considered in arriving at the amount will suffice. (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)
Defendant seeks
attorney’s fees in the amount of $22,822.20 based upon 49.08 hours at a billing
rate of $465 per hour. Most the hours
were directly related to the Anti-SLAPP motion.
Based upon his records, Defendant’s counsel spent 38.8 hours on the
instant motion and motion for attorney’s fees, which does not include another
1.2 hours (which the Court adds) for preparation and attendance at the hearing
on October 25, 2022. The Court finds
that the billing rate of $465 per hour is reasonable given the prevailing rates
in the community and Defendant’s counsel’s background and experience.
Based upon the
foregoing, the Court authorizes a total of 40 hours at a rate of $465 per
hour. Therefore, Plaintiff shall pay
Defendant, by and through counsel, a total of $18,600.
CONCLUSION AND ORDER
Based
upon the foregoing, the Court orders as follows:
1. The Court grants Defendant’s special
motion to dismiss under Code of Civil Procedure section 425.16. The first, second, third, fifth, and sixth
causes of action are dismissed with prejudice.
2. The Court grants Defendant’s motion for
attorney’s fees and orders Plaintiff to pay Defendant, by and through counsel,
a total of $18,600 within thirty (30) days.
3. Defendant’s counsel shall provide
notice and file proof of such with the Court.