Judge: Stephen I. Goorvitch, Case: 22STCV13705, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV13705    Hearing Date: February 3, 2023    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, and moves for attorney’s fees under the statute.  Plaintiff opposes the motions.  The Court previously granted Plaintiff certain discovery that was necessary to oppose the anti-SLAPP motion and authorized supplemental briefing.  Now, the Court denies Defendant’s motions. 

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 parties stipulated that Defendant would make his mobile telephone and text message application available for a forensic examination.  (See Court’s Minute Order, dated November 22, 2022.)  The Court authorized Plaintiff to file a supplemental opposition, and Defendant to file a supplemental reply brief in response to this evidence. 

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).) 

DISCUSSION   

            A.        The Communications at Issue

Defendant’s anti-SLAPP motion is based on the following electronic conversion, which started on Grindr, an internet dating website:

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”

At 4:37 a.m., Defendant asked for Plaintiff’s telephone number, and Plaintiff provided the number.  At that point, the communications occurred via text message:

Defendant at 4:38 a.m.      “Ayyyy it’s trey”

Plaintiff at 4:39 a.m.         “my guy”

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 4:42 a.m.         “vers”

Defendant at 4:42 a.m.      [Sent Photograph of a Young Person]

Plaintiff at 4:44 a.m.         “you’re hilarious”

Defendant at 4:44 a.m.      “Huh?”

Plaintiff at 4:45 a.m.         “ha it’s funny how careful you are!  It’s smart”

Defendant at 4:45 a.m.      “Wyn”

Plaintiff at 4:45 a.m.         “ha you want me to tell you what we’re gonna do if we hang out!  But that depends on what you wanna do…”

Defendant at 4:47 a.m.      “Yeah I mean I just want to be safe and kind of talk a little bit about it 1^st  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”

            B.        Defendant’s Burden

            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).) 

            C.        Plaintiff’s Burden

            Defendant has shifted the burden to Plaintiff to establish a probability of success on the merits.  At this stage, the Court does not weigh evidence or resolve conflicting factual claims.  (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)  The Court’s inquiry is limited to “whether the plaintiff has stated a legally sufficient claim and made a prima facie showing sufficient to obtain a favorable judgment.”  (Ibid.)  The Court must “accept[] 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.”  (Ibid., citation omitted.)  Plaintiff must establish “minimal merit.”  (Ibid., citation omitted.)

            Plaintiff has satisfied his burden in this case.  The parties do not dispute that Plaintiff and Defendant communicated over Grindr and then texted each other via mobile phone.  The parties also do not dispute that they arranged to meet for a sexual encounter.  Rather, Plaintiff maintains that Defendant fabricated certain texts in which he purportedly told Plaintiff that he was a minor and falsely inserted them into the text message chain. 

Plaintiff relies on the declaration of Joseph Cipollini, who is a retired deputy sheriff and district attorney investigator and a computer forensic expert.  (Declaration of Joseph Cipollini, ¶¶ 3, 7.)  Cipollini has owned and operated Hadron Computer Forensics for 12 years.  (Id., ¶ 5.)  Cipollini has the following professional licenses and certificates: Guidance Software EnCase Certified Examiner, Cellebrite Certified Operator, and Cellebrite Certified Physical Analyst.  (Id., ¶ 4.)  Defendant’s counsel made Defendant’s mobile telephone and text message application available to Plaintiff’s expert, per the Court’s order of November 22, 2022.  Cipollini opines that “on or before October 11, 2022, spoliation of evidence occurred [and] evidence of selective editing, omissions, additions, or concealment exists within [Defendant’s] productions.”  (Id., ¶ 17.)

            Cipollini provides proper foundation for this opinion.  Defendant relies on certain text messages he purportedly sent to Plaintiff between 4:31 a.m. and 4:38 a.m.  The messages do not exist on Defendant’s mobile telephone.  (Declaration of Joseph Cipollini, ¶ 18.)  Defendant also relies on certain photographs that Plaintiff allegedly sent him, including some nude photographs of Plaintiff via the Grindr application.  Again, Cipollini states that these images “do not exist” on Defendant’s mobile telephone.  (Id., ¶ 19.)  Cipollini’s forensic collection of the text free application also did not include the purported messages and images.  (Id., ¶ 21.)  Cipollini opines that “Defendant modified relevant information based upon the forensic examination of the Text Free application.”  (Id., ¶ 26.)  Cipollini states there was an installation/reinstallation of the Grindr application on October 11, 2022, which overwrote or deleted relevant information.  (Id., ¶¶ 20, 26.) 

            Plaintiff relies on his own supplemental declaration stating that “[t]he images and screenshots are an inaccurate and incomplete record of [his] communications with Defendant.”  (Declaration of Kapish Haldia, ¶ 7.)  Plaintiff states: “I never received any kind of indication from defendant that he is a minor and his profile on the Grindr explicitly indicated he is over the age of majority.”  (Id., ¶ 8.)  Plaintiff states: “The recently submitted images and screenshots are not the original messages and were modified by defendant.”  (Id., ¶ 13.)

            The Court has reviewed and considered Defendant’s supplemental reply brief, as well as the declaration of Gordon K. Sattro.  Defendant argues that it is not extraordinary that these communications were not located on his mobile telephone because they occurred on Grindr; he must create a new Grindr account after every such encounter; and doing so automatically deletes all of the messages.  (Defendant’s Supplemental Reply Brief, p. 3.)  Defendant’s counsel also “surmise[s] that the online application is different from the phone application and that is why the online application has duplicated statements and the phone application does not.”  (Declaration of Gordon K. Sattro, ¶ 5.)  None of this undermines Plaintiff’s showing because they do not defeat his claims as a matter of law.

            The more difficult issue relates to certain communications that occurred via text message at 4:40 a.m. and 4:47 a.m. as follows: 

Defendant at 4:40 a.m.      “Yeah I don’t like surprises  Being 15 sux lol”

Defendant at 4:40 a.m.      “Im nalmost 16 tho  Yeah it would make me more comfortable”

Defendant at 4:47 a.m.      “Yeah I mean I just want to be safe and kind of talk a little bit about it 1^st  But like I said I’m down to do whatever  I think I want to top  I’m 15 and curious haha”

Cipollini’s declaration does not address these texts, i.e., Cipollini does not state that these texts were fabricated or do not exist on telephone or messaging application.     

            The Court is concerned by the omission in Cipollini’s declaration.  Nevertheless, the Court denies the motion, as Plaintiff proffers sufficient evidence that, if true, would support his causes of action.  Defendant purportedly sent Plaintiff an image of a young person at 4:42 a.m. via the text messaging application.  Cipollini states that the forensic collection of the Text Free application failed to contain a purported image of Defendant looking like a teenage boy.  (Declaration of Joseph Cipollini, ¶ 21.)  If true, this evidence would establish that Defendant fabricated at least one part of the text message conversation between 4:40 a.m. and 4:47 a.m., calling into question the authenticity of other texts.  Similarly, Cipollini opines that Defendant fabricated one representation of having been a minor, specifically, at 4:34 a.m. when he states: “Do you mind if I’m not 18 tho.”  Based upon this evidence, the trier of fact may reasonably conclude that Defendant fabricated the remaining references as well. 

CONCLUSION AND ORDER

            The parties do not dispute that they communicated over Grindr and a text messaging application, following which they arranged to meet for a sexual encounter.  Rather, the dispute is over whether Defendant—who is an adult—told Plaintiff that he was a minor in an effort to “catch” him.  The text messages are clear on their face.  However, Plaintiff’s forensic expert calls their authenticity into question, opining that Defendant deleted certain relevant information and modified the communications, and Plaintiff states in his declaration that Defendant never represented himself as being a minor.  This is sufficient to defeat Plaintiff’s motion, as Plaintiff need only demonstrate that his evidence, if true, would be sufficient to establish his claims.  Simply, either Plaintiff or Defendant is lying; either the communications are authentic or not.  The trier of fact will need to evaluate each party’s credibility and consider their forensic evidence.  But this is a decision for the trier of fact, as the Court cannot weigh evidence in ruling on this motion.  Therefore, the special motion to strike and motion for attorney’s fees are denied.  Defendant’s counsel shall provide notice and file proof of such with the Court.