Judge Upinder S. Kalra, Case Number: 24STCP01502, Date: 2025-01-10 Tentative Ruling

RESPONDING PARTY(S): Defendant Corey Reeser, individually and as trustee of The Corey Reeser Trust dated April 23, 2024, and Two Point Productions, Inc.

On May 9, 2024, Plaintiffs Corey Reeser, individually and as trustee of The Corey Reeser Trust, dated April 23, 2024, and Two Point Productions, Inc. (Plaintiffs) filed a Petition for Judicial Supervision of Voluntary Corporate Dissolution and Individual and Derivative Complaint (Complaint) [1] against Defendants Matt Tyrnauer and Altimeter Films, Inc. (Defendants) with causes of action for: (1) Judicial Supervision of Voluntary Dissolution; (2) Defamation Per Se; (3) Interference with Contract; (4) Interference with Prospective Economic Advantage; (5) Failure to Pay Wages; (6) Breach of Fiduciary Duties [Reeser Trust against Tyrnauer]; and (7) Breach of Fiduciary Duties [Reeser Trust Derivatively on behalf of Altimeter against Tyrnauer].

According to the Complaint, Plaintiff Reeser and Defendant Tyrnauer own Altimeter Films, Inc. (Altimeter) fifty-fifty and are its sole directors. Plaintiffs allege that the relationship deteriorated. Plaintiffs further allege they commenced dissolution procedures because Defendant Tyrnauer frustrates Plaintiffs’ ability to run Altimeter. Plaintiff Reeser also alleges that Defendant Tyrnauer defamed him.

On May 22, 2024, Defendant Tyrnauer filed a Notice of Related Cases with Los Angeles Superior Court Case entitled Tyrnauer v. Reeser, et al. Case No. 24STCV11741 pending in Dept. 36.

On September 17, 2024, Defendant Tyrnauer filed the instant Special Motion to Strike (Anti-SLAPP).

On November 21, 2024, the parties filed a Stipulation and Proposed Order to Appoint J. Michael Issa as Receiver which the court GRANTED.

On December 27, 2024, Plaintiff filed an opposition to the Special Motion to Strike. On January 3, 2025, Defendant filed a reply.

“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 p. 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 p. 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 pp. 384-385 [citations omitted].)¿¿

The court need not rule on the objections for purposes of ruling on this motion.

CCP § 425.16(e) provides that an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; and (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body or other official proceeding authorized by law. (CCP § 425.16(e)(1) and (2).)

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883 [citations omitted] (“Digerati”).)

“Section 425.16 ‘does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with ‘an issue under consideration or review’ in the proceeding.’ [Citation.] Statements that ‘bear [] no relationship to or ‘ha[ve] nothing to do with the claims under consideration’ in the litigation do not meet that standard. [Citation.]” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1264, emphasis added.) "[A]lthough litigation may not have commenced, if a statement "concern[s] the subject of the dispute" and is made "in anticipation of litigation `contemplated in good faith and under serious consideration'" [citation] then the statement may be petitioning activity protected by section 425.16." (Id., at p. 1268; see also Briggs v. Eden Council for Hope Opportunity (1999) 19 Cal.4th 1106, 1115.)

Here, there is no dispute that the Second Cause of Action is seeking liability based on a letter Defendant Tyrnauer’s counsel, Mr. Stone, mailed to counsel for Altimeter Films,Inc., as well as other professionals employed by or connected to Altimeter, the entity that was the victim of the alleged $231,000 embezzlement. (Petition, Exhibit A.) Moreover, there can be no reasonable argument that at the time counsel Stone sent the letter, Defendant Tyrnauer was “serious[ly] consider[ing]” litigation concerning the $231,000 wire transfer as Mr. Stone had drafted a complaint and had corresponded with Plaintiff’s counsel accordingly. (Declaration of Daniel G. Stone (Stone Decl.) ¶¶ 4-8.) Indeed, not only did counsel Stone indicate in the text of the letter that “[w]e are writing to advise you of the possibility of litigation,” and the subject matter of the dispute, more significantly, counsel Stone ultimately filed that complaint on behalf of Tyrnauer. (Id. at ¶ 8; see also Notice of Related Case.)

The disagreement is whether sending the letter to the named recipients—Altimeter’s lawyer, accountant, bookkeeper as well as a talent agent and talent manager—was reasonably related to this litigation. These individuals are not parties to the litigation nor does moving party contend that they are potential parties. Nonetheless, Defendant maintains that the letter sent to third parties was protected communication since the statements were made “in connection with” pending or anticipated litigation. Plaintiff responds that the statements “had no conceivable connection to any possible dispute over the $231,000 loan.” (Opposition at p. 5.)

In construing the term “in connection with” pending or anticipated ligation, case law has consistently afforded broad protection to statements directed to non-parties. (Neville v. Chudacoff (2008)160 Cal. App. 4th 1255, 1270 (Neville) [letter warning customers to avoid doing business with former employee to preclude the risk of being ensarled as material witnesses];(Contemporary Services Corporation v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055(CSC ) [e-mail to customers accusing competitor of litigation-related misconduct]; Healy v. Tuscany Hills Landscaping & Recreation Corp. (2006)137 Cal.App.4^th1, 5–6 (Healy) [letter from homeowners’ association to nonparty association members].)

In Healy, supra, 137 Cal.App.4th 1, a homeowners association needed to gain access to homeowner’s property for weed abatement to reduce the risk of a fire hazard. The homeowner refused to grant the association permission so the association sued the homeowner. Thereafter Counsel for the association sent a letter to other homeowner members of the development informing them that, “The Association is performing this weed abatement at an additional cost to the Association, primarily because of [sic ] ingress and egress through the gate at the end of Villa Scencero is being prohibited by the owner of 6 Villa Scencero [the homeowner]. Please note, normal weed abatement is a standard part of the landscape maintenance contract expense. However, where ingress and egress is changed and more difficult, a cost is charged. This cost has a direct impact on operating expenses and assessments.” (Id. at p. 4.) The homeowner filed a cross-complaint asserting the letter was defamatory. In the resulting anti-SLAPP motion to strike, the Court of Appeal concluded that the letter to third parties was protected speech. “Because one purpose of the letter,” the court stated, “was to inform members of the association of pending litigation involving the association, the letter is unquestionably ‘in connection with’ judicial proceedings (§ 425.16, subd. (e)(2)) and bears ‘ “some relation” ’ to judicial proceedings. [Citations.]” (Id. at pp. 5–6.)

In CSC, the plaintiff and defendant were business competitors who sued one another. (CSC, supra, 152 Cal.App.4th. at pp. 1047–1048.) During the course of the litigation, defendant’s president sent an e-mail to nine of defendant’ clients in which the president accused plaintiff of paying former employees of defendant to “ ‘make false statements in declarations [which] ... were then presented to [defendant’s] clients . . . .’ ” (Id. at p. 1050.) The trial court concluded that the e-mail was protected activity. The Court of Appeal affirmed the trial court’s order relying upon Healy. “Meredith's e-mail,” the court said, “... constitutes a litigation update, which describes the parties' contentions and court rulings, and is directed to individuals who had some involvement in the parties' litigation.” (Id. at p. 1055.)

In Neville, Maxsecurity terminated defendant Neville, alleging that Neville was a former employe who misappropriated a customer list and solicited those customers after forming a rival business. (Neville, supra, 160 Cal. App. 4th at p. 1259.) Maxsecurity’s counsel sent a letter to their customers which, in relevant part, said the following:

“Please be advised that this office represents Maxsecurity in the above-matter [sic ]. It has recently come to our attention that a former employee of *1260 Maxsecurity may have been in contact with you, or may attempt to contact you. The name of the former employee is Mark Neville, and he may be representing himself as ABD Audio and Video.

“Mr. Neville is in direct violation of an employment and confidentiality agreement he had with Maxsecurity. Mr. Neville's relationship with Maxsecurity ended at the end of last year. Contact and/or communication with Maxsecurity customers was, and is, specifically prohibited under his employment contract. We have notified Mr. Neville of his breach and shall be aggressively pursue [sic ] all available remedies.

“Any work contracted with Mr. Neville or his company would be in violation of our agreement with him. In order to avoid any involvement in litigation that my [sic ] arise between us and Mr. Neville (as a material witness, or otherwise), we suggest that you have no further dealings with Mr. Neville or his company. You should know that any monies paid to him or his company properly belong to Maxsecurity, and we shall, if necessary, seek an accounting of all monies paid out.”

(Neville, supra, 160 Cal. App. 4th at pp. 1259–60.) Neville filed a cross-complaint alleging the letter was defamatory. The trial court granted a special motion to strike, finding the letter was protected activity. The Court of Appeal affirmed, specifically rejecting Neville’s contention that the letter was not protected because it was sent to non-parties. (Id. at p. 1266.) As the Court of Appeal explained, the “Letter related directly to Maxsecurity's . . . claims against Neville. . . .The Letter was directed to Maxsecurity's current and former customers—persons whom Maxsecurity reasonably could believe had an interest in the dispute as potential witnesses to, or unwitting participants in, Neville's alleged misconduct. The Letter constituted an attempt to prevent further misuse of Maxsecurity's proprietary information, and thereby mitigate Maxsecurity's potential damage. [And] the Letter contained no statements of fact concerning Neville that were not based on or related to the allegations that formed the basis of Maxsecurity's claims. (Id. at pp. 1267–68.)

As Neville pointed out, “these cases stand for the proposition that a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation. (Neville, supra, 160 Cal. App. 4th at p. 1266.) Here, Defendant Tyrnauer made a threshold showing that the letter constituted protected activity in that the letter set forth the substance of the dispute and was directed to individuals who may have an interest in and information about the litigation

First, the letter described the substance the dispute. “The dispute involves a $231,000 wire transfer from the Company’s City National Bank account to Lawyers Title Company (Inland Empire Escrow Trust Account) dated March 11, 2019. This transfer was made at the direction of Corey Reeser in connection with his personal purchase of real property. Mr. Reeser contends that this transaction was a loan that was approved by and subsequently repaid to the Company. Mr. Tyrnauer contends that he did not know of or approve this transaction.” (Stone Decl., Ex. 4.) Notably, as in Healy and CSC, the letter informs the third-parties of the nature of the dispute, setting forth each parties contentions in a neutral fashion. Nor, as Neville noted, did the letter include statements “of fact that were not based on or related to the allegations that formed the basis of” Tyrnauer’ claims. (Neville, supra, 160 Cal. App. 4th at p. 1268.) Second, the third parties may have an interest in the litigation. As in Neville, these third parties are potential witnesses or even unwitting participants who may have evidence that is reasonably related to the disputed issues. Thus, it is more than arguable, as Plaintiff concedes, that Altimeter’s lawyer, accountant, bookkeeper may have an interest in the litigation. As Defendant further explained, the accountants and bookkeepers reported to Plaintiff Reeser and not to Defendant. (Ex. 3 Stone 3.19.24 letter at P. 1.) Moreover, these parties may have had documentary evidence that needed to be preserved. The letter also served as notice to the Altimeter’s “attorneys, accountant and bookkeeper” to preserve the evidence. (Ex. 3 Stone 3.19.24 letter at P. 4.) As to the talent agents, they too may have possessed information regarding revenue, expense payments and distributions in their capacity as agents or representatives of the entity and Reeser. In fact, the letter closed by specifically solicited their assistance. “If you have any information or documentation about this transaction, or any other suspicious transaction, please let us know.” (Stone Decl., Ex. 4.) Therefore, as in Neville, the letter concerned the subject of the dispute and was made in anticipation of litigation. Plaintiff’s argument that the letter did not concern the litigation because it was not directed to interested parties ultimately fails.

When defendants carry their initial burden to make a prima facie showing that the claims are subject to CCP § 425.16, the burden shifts to the plaintiff to establish a probability that they will prevail at trial on that claim by making a prima facie showing on that claim.¿ (Roberts v. Los Angeles County Bar Assoc.¿(2003) 105 Cal.App.4th 604, 613.)¿ “Put another way, the plaintiffs ‘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.’ [Citations.]”¿ (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-78).¿ “Thus, plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.”¿ (Id.)¿ While the Court does not weigh the evidence, “the trial court must consider facts so as to make a determination whether [Cross-Complainants] can establish a prima facie probability of prevailing on [their] claims.”¿ (Blanchard v. DIRECTV, Inc.¿(2004) 123 Cal.App.4th 903, 921.)¿¿ “If there is a conflict in the evidence (the existence of a disputed material fact), the anti-SLAPP motion should be denied. (Citizens of Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598.)

Civil Code section 47, subdivision (b), provides that a privileged publication or broadcast is one made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2…of Title 1 of Part 3 of the Code of Civil Procedure…”

The judicial proceeding privilege, also known as the “litigation privilege,” applies to communications (1) made in a judicial or quasi-judicial proceeding; (2) by litigants or other participants authorized by law; (3) to achieve the objects of litigation; and (4) that has some connection or logical relation to the action. (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 681-82.) This privilege, however, is not limited to statements made during a trial or other proceeding, but may extend to steps taken prior to the commencement of litigation. (Id. at p. 682.) “The test is: ‘To be protected by the litigation privilege, a communication must be “in furtherance of the objects of the litigation.” [Citation.] This is “part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.” [Citation.]’ ” (Id.)

Importantly, the litigation privilege is an absolute privilege that applies to all publications, irrespective of their maliciousness, and bars all causes of action except for a claim of malicious prosecution. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 964-65.) The privilege is so broad it applies to the presentation of potentially false evidence. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969-70.) The Court in Seltzer explained:

“The principal purpose of the¿Civil Code section 47 litigation privilege ‘ “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. [Citations.]” [Citation.] The privilege promotes effective judicial proceedings by encouraging “ ‘open channels of communication and the presentation of evidence’ ” without the external threat of liability. [Citation.] The litigation privilege “further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests.” [Citation.] “Finally, in immunizing participants from liability for torts arising¿from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citations.]” [Citation.]’¿[Citation.] ‘ “Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to¿any¿communication, whether or not it is a publication, and to¿all¿torts other than malicious prosecution. [Citations.] Thus, the privilege has been applied to suits for fraud [citations], negligence and negligent misrepresentation [citation], and interference with contract [citation].” [Citation.]’¿[Citation.]”

Here, Plaintiff did not meet their burden to demonstrate probability of success on the merits. Notably, Plaintiff’s claim for defamation per se is based on a letter made in anticipation of litigation that is protected by the litigation privilege.

Accordingly, Defendant Tyrnauer’s Special Motion to Strike as to the Second Cause of Action is GRANTED.

[1]In 24STCP01502, in a unitary pleading, since Reeser has filed both a Petition and a Complaint, he is proceeding both as a Petitioner and Plaintiff. However, since this special motion to strike is only directed to portions of the Complaint, Reeser will be referred to as Plaintiff. Similarly, Tyrnauer is proceeding both as Respondent and Defendants, but will only be referred to as Defendant in this ruling.