Kaplan v. Gimelstob CA2/2 ( 2022 )


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  • Filed 11/23/22 Kaplan v. Gimelstob CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    RANDALL KAPLAN,                                              B315197
    Cross-Complainant and                                   (Los Angeles County
    Respondent,                                                  Super. Ct. No.
    19STCV19647)
    v.
    JUSTIN GIMELSTOB,
    Cross-Defendant and
    Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Kevin C. Brazile, Judge. Affirmed with
    directions.
    Vedder Price, Eric R. McDonough, Deborah A. Hedley,
    Lauren E. Wertheimer; and Robert M. Dato for Cross-Defendant
    and Appellant.
    Gordon Rees Scully Mansukhani, Matthew G. Kleiner,
    Norvik Azarian, and Scott W. McCaskill for Cross-Complainant
    and Respondent.
    ******
    In a display that a trial court characterized as “junior high
    and high school” conduct, two wealthy, middle-aged men—one a
    former professional athlete and the other a venture capitalist—
    got into a fistfight while trick or treating with their families on
    Halloween night 2018. The men have now moved their spat into
    the court system. After the ex-athlete pled no contest to felony
    assault, he went on a podcast to claim that he was the victim of
    an attack “initiated” by the venture capitalist, that he had
    entered the plea because the criminal court system was rigged,
    and the venture capitalist was conspiring with the ex-athlete’s
    ex-wife to manipulate the family court to get her custody of the
    child the ex-athlete had with her. After the venture capitalist
    sued the ex-athlete for slander for his remarks on the podcast,
    the ex-athlete filed a motion to strike the slander claim under our
    State’s anti-SLAPP law (Code Civ. Proc., § 425.16).1 The trial
    court denied the motion, thereby allowing the slander claim to
    move forward. The ex-athlete challenges that ruling. Many of
    his arguments reflect a fundamental misunderstanding of how
    the anti-SLAPP law works. All of his arguments are also
    1     “SLAPP” is short for Strategy Lawsuit Against Public
    Participation.
    2
    meritless. Thus, we largely affirm, but elect to strike certain
    allegations from the slander claim despite the ex-athlete’s failure
    to ask the trial court for such relief.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    A.    The parties
    Justin Gimelstob (Gimelstob) was a professional tennis
    player until he retired in 2007. Since then, he has coached other
    players as well as, in his own words, worked as a “broadcaster,
    producer, talent representative, and brand ambassador.”
    Randall Kaplan (Kaplan) is a “venture capitalist.”
    Gimelstob and Kaplan were friends for a while, but their
    relationship soured when Kaplan got upset because Gimelstob
    did not show up to his birthday party.
    B.    The Halloween 2018 incident2
    On Halloween night in 2018, both Gimelstob and Kaplan
    were out trick or treating in Brentwood, which is an upscale
    neighborhood on the west side of Los Angeles, California. Kaplan
    was with his wife and their two-year-old daughter; Gimelstob,
    with his girlfriend and his five-year-old son. Gimelstob was
    dressed up as “Maverick” from Top Gun.
    As Kaplan’s wife and child were watching, Gimelstob
    “ambushed” Kaplan from behind and—“unprovoked and entirely
    without warning”—knocked Kaplan to the ground. Gimelstob
    mounted Kaplan’s prone body, and proceeded to punch him 50 to
    100 times. The attack lasted three minutes and ended only when
    a passerby pulled Gimelstob off of Kaplan.
    2     Consistent with the applicable standard of review
    governing anti-SLAPP motions, we set forth these facts in the
    light most favorable to Kaplan, as the nonmoving party.
    3
    C.     Gimelstob’s criminal plea
    The Los Angeles County District Attorney charged
    Gimelstob with committing a battery inflicting serious bodily
    injury, which is a crime that can be charged as a felony or a
    misdemeanor. (Pen. Code, § 243, subd. (d).) The District
    Attorney charged it as a felony.
    After the trial court expressed its tentative inclination to
    reduce the offense to a misdemeanor if Gimelstob entered a plea
    to the charge as a felony, the court allowed Kaplan and Kaplan’s
    wife to read their victim impact statements to the court. While
    Kaplan was speaking, Gimelstob repeatedly shook his head and
    said “not true,” made facial expressions and otherwise engaged in
    “demonstration[s] of frustration,” tried to get the trial court
    judge’s attention, and glanced back at the press assembled in the
    courtroom gallery. Given what the trial court perceived to be
    petulant and sophomoric antics by Gimelstob while Kaplan
    spoke, the court expressed concern that Gimelstob did not really
    want to accept responsibility for the charged crime and might be
    better suited to proceed to trial on the felony battery charge.
    After Gimelstob assured the court that he wanted to accept
    responsibility for the crime, Gimelstob entered a no contest plea
    to the battery crime as a felony. Consistent with its prior
    indication, the trial court then reduced the felony to a
    misdemeanor, and placed Gimelstob on probation for three years;
    as conditions of probation, Gimelstob was ordered to complete 60
    days of community labor and take a one-year anger management
    course. Gimelstob thereafter was ordered to pay Kaplan
    $15,204.42 in restitution, which was comprised of $268 to replace
    the clothing Kaplan was wearing during the incident, $875 for
    4
    medical expenses, $2,325 for physical therapy, and the remainder
    for mental health therapy.
    D.      The January 2019 podcast
    On January 19, 2021, Gimelstob appeared on a tennis-
    focused podcast entitled “Control the Controllables,” which was
    hosted by Dan Kiernan. The host asked Gimelstob for “the truth”
    about the Halloween 2018 incident. In response, Gimelstob
    stated:
    ●       He “neither provoked [n]or initiated any incident that
    evening,” either “verbally or physically.” According to Gimelstob,
    it was Kaplan who “initiated physical contact,” and only after
    Kaplan “engaged and initiated” did Gimelstob lose “restraint.”
    Consistent with Kaplan being the aggressor and assailant,
    Gimelstob stated that there was “absolutely not 100ths of the
    damage” Kaplan had reported suffering; this was confirmed,
    Gimelstob pointed out, by the police report, in which the police
    had checked a box indicating “no physical damage.” Gimelstob
    nevertheless bragged—not once, but twice—that he “got the
    better” of Kaplan in the fight. Gimelstob characterized his plea
    to the felony battery crime as the “legal system” “[u]nfortunately”
    “hav[ing] its blind spots,” including Marsy’s Law allowing “a
    victim . . . to say whatever they want.”
    ●       Kaplan had “threatened to help [Gimelstob’s] ex-wife
    take custody of [his] son,” which included “l[ying]” and
    “misrepresenting” the truth about the altercation as part of their
    joint “mission to manipulate . . . the legal process.”
    Gimelstob lamented that he had “lost everything” due to
    the Halloween 2018 incident and its fallout, but said, “you know
    what? It just makes for a better comeback.”
    5
    II.    Procedural Background
    A.    Pleadings
    Kaplan’s wife sued Gimelstob for (1) intentional infliction of
    emotional distress, (2) negligent infliction of emotional distress,
    and (3) loss of consortium.
    Gimelstob filed a cross-complaint against Kaplan. In the
    operative first amended cross-complaint, Gimelstob sued Kaplan
    for (1) assault (on Halloween 2018), (2) battery (on Halloween
    2018), (3) equitable indemnity (to reimburse Gimelstob for any
    judgment Kaplan’s wife obtains against him), (4) abuse of
    process, (5) intentional interference with contractual relations
    (with all of Gimelstob’s postretirement activities), and (6)
    intentional interference with a prospective economic advantage
    (with other possible postretirement activities that had not yet
    ripened into contracts). Gimelstob seeks actual damages and
    punitive damages.
    Kaplan then filed a cross-claim against Gimelstob for (1)
    assault, (2) battery, and (3) slander per se. Kaplan also named
    the podcast host and the host’s businesses as defendants to the
    slander claim. With regard to his slander claim, Kaplan alleged
    that:
    ●     Gimelstob had falsely accused Kaplan “of committing
    an assault upon him” on Halloween 2018, while falsely denying
    that Gimelstob was responsible for the attack and that Kaplan
    had “suffered any injuries in the assault.”
    ●     Gimelstob had “falsely accused Kaplan of conspiring
    with Gimelstob’s ex-wife to ‘manipulate the legal process’ to
    damage Gimelstob.”
    6
    ●     Gimelstob had falsely said that Kaplan had told
    Gimelstob, on Halloween 2018, that Gimelstob’s recently
    deceased father was an “asshole.”
    As part of his slander claim, Kaplan alleged that
    Gimelstob’s statements did “damage to [his] business reputation
    and damage to [his] personal reputation in the community,” and
    also “imput[ed to Kaplan] criminal conduct.”
    B.    Gimelstob’s anti-SLAPP motion
    Gimelstob filed an anti-SLAPP motion to strike the entirety
    of Kaplan’s slander per se claim. In support of his motion,
    Gimelstob submitted declaration and deposition testimony (given
    in Gimelstob’s dissolution case) from himself, from his girlfriend,
    and from Kaplan’s former housekeeper. This testimony paints a
    very different picture of what happened on Halloween 2018:
    Kaplan approached Gimelstob, and told him, “I heard your dad
    just dropped dead and he was an even bigger asshole than you.”
    Shocked and angry, Gimelstob asked Kaplan, “What the fuck is
    wrong with you?” After Kaplan walked away, Gimelstob ran to
    catch up to Kaplan and demanded to know, “What is your fucking
    problem with me?” When Kaplan responded, “Fuck you” and
    pushed Gimelstob “hard in the chest,” Gimelstob responded by
    “clotheslin[ing]” Kaplan with his “left arm” and thereby knocking
    Kaplan down to the grass, where the two got into a “wrestling
    scrap” as Gimelstob sat astride Kaplan “swinging” his fists for 20
    to 30 seconds. In support of his motion, Gimelstob also included
    the police report from the incident. Although the report noted
    that Gimelstob had “approached victim from behind, [and]
    punched [him],” the reporting officer also checked the box for “no
    serious injury to victim.”
    7
    Kaplan opposed the motion. In support of the opposition,
    Kaplan submitted a declaration laying out his version of what
    happened during the Halloween 2018 incident (and his wife
    submitted a similar declaration), as well as the fact that he had
    spoken with Gimelstob’s ex-wife only on the night of the incident
    as well as once before in the prior five years; on neither occasion,
    Kaplan attested, had he “coordinate[d] or conspire[d]” with her
    “to help her custody case or cause harm to” Gimelstob.
    Following Gimelstob’s filing of a reply, the parties’ filing of
    objections to one another’s evidence, and a hearing, the trial court
    issued a ruling denying Gimelstob’s anti-SLAPP motion. The
    court found that Gimelstob’s statements on the podcast
    constituted “protected activity” under the anti-SLAPP statute
    because Gimelstob is a “person . . . in the public eye” and because
    the Halloween 2018 incident itself “was [a] subject [of] media
    attention.” The court also found that Kaplan had carried his
    burden of showing that his slander per se claim had the minimal
    merit necessary to withstand dismissal under the anti-SLAPP
    statute.
    C.    Appeal
    Gimelstob filed this timely appeal of the trial court’s anti-
    SLAPP ruling.
    DISCUSSION
    Gimelstob argues that the trial court erred in denying his
    anti-SLAPP motion to strike Kaplan’s slander per se claim. We
    independently review the denial of an anti-SLAPP motion.
    (Flatley v. Mauro (2006) 
    39 Cal.4th 299
    , 325-326; Bowen v. Lin
    (2022) 
    80 Cal.App.5th 155
    , 161.) Because our task is to review
    the trial court’s ruling and not its reasoning (People v. Zapien
    (1993) 
    4 Cal.4th 929
    , 976; Musgrove v. Silver (2022) 82
    
    8 Cal.App.5th 694
    , 704, fn. 4), we need not consider Gimelstob’s
    attacks on the trial court’s reasoning.
    I.     Law, Generally
    A.    The anti-SLAPP statute
    The anti-SLAPP statute “provides a procedure for weeding
    out, at an early stage, meritless claims arising from protected
    activity.” (Baral v. Schnitt (2016) 
    1 Cal.5th 376
    , 384 (Baral).)
    Specifically, the anti-SLAPP statute protects—and thus
    “subject[s] to a motion to strike”—any “cause of action . . . arising
    from any act of [a] person in furtherance of the person’s right of
    petition or free speech under the United States Constitution or
    the California Constitution in connection with a public issue.”
    (Code Civ. Proc., § 425.16, subd. (b)(1).)
    When a party moves to strike a cause of action (or specific
    allegations within that cause of action) under the anti-SLAPP
    statute, a trial court has two tasks. (Barry v. State Bar of
    California (2017) 
    2 Cal.5th 318
    , 321 (Barry).) First, the court
    must evaluate whether the moving party has “made a threshold
    showing that the challenged cause of action arises from protected
    activity.” (Rusheen v. Cohen (2006) 
    37 Cal.4th 1048
    , 1056.)
    Second, and only if the court concludes that the moving party has
    made this “threshold showing,” the court must examine whether
    the nonmoving party has “established . . . a probability that [he]
    will prevail on the [challenged cause of action].” (Code Civ. Proc.,
    § 425.16, subd. (b)(1); see Oasis West Realty, LLC v. Goldman
    (2011) 
    51 Cal.4th 811
    , 819-820 (Oasis West).) That burden is met
    if the nonmoving party demonstrates that the challenged cause of
    action has “minimal merit” (Navellier v. Sletten (2002) 
    29 Cal.4th 82
    , 94), and he does so by making a “prima facie factual
    showing”—based on admissible evidence—“sufficient to sustain a
    9
    favorable judgment” on that cause of action (Baral, supra, 1
    Cal.5th at pp. 384-385; Steed v. Department of Consumer Affairs
    (2012) 
    204 Cal.App.4th 112
    , 124.) In assessing the sufficiency of
    this showing, a court is to “consider the pleadings, and
    supporting and opposing affidavits” (Code Civ. Proc., § 425.16,
    subd. (b)(2)), but must “‘“accept as true the evidence favorable to
    the [nonmoving party] and evaluate the [moving party’s] evidence
    only to determine if it has defeated that submitted by the
    [nonmoving party] as a matter of law.”’” (Oasis West, at p. 820.)
    Thus, a court is generally not to make credibility determinations
    or otherwise weigh the evidence submitted. (Kashian v.
    Harriman (2002) 
    98 Cal.App.4th 892
    , 906; Ross v. Kish (2006)
    
    145 Cal.App.4th 188
    , 197.) If the nonmoving party satisfies its
    burden, the anti-SLAPP motion must be denied; if it fails to do
    so, the pertinent cause of action must be stricken. (Barry, at p.
    321.)
    B.    Slander and slander per se
    Slander is a species of defamation. (Civ. Code, § 44.)3 To
    prove a claim for slander, a plaintiff must prove (1) a publication
    (2) that was false, (3) that was unprivileged, and (4) that either
    (a) has a “natural tendency to injure” or (b) “causes special
    damage.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 
    46 Cal.App.5th 869
    , 888; Gonzalez v. Fire Ins. Exchange (2015) 
    234 Cal.App.4th 1220
    , 1240, fn. 5; Nguyen-Lam v. Cao (2009) 
    171 Cal.App.4th 858
    , 867.) If the statement has a “natural tendency”
    to injure (that is, to be defamatory), it is slander per se and the
    plaintiff need not prove any special damages flowing from the
    false publication. (Regalia v. The Nethercutt Collection (2009)
    3    All further statutory references are to the Civil Code unless
    otherwise indicated.
    10
    
    172 Cal.App.4th 361
    , 367; Albertini v. Schaefer (1979) 
    97 Cal.App.3d 822
    , 829 (Albertini).)
    Section 46 delineates four categories of slander per se, two
    of which are relevant to this case—namely, a statement that
    either (1) “[c]harges any person with a crime, or with having been
    indicted, convicted, or punished for a crime” (§ 46, subd. (1)), or
    (2) “[t]ends directly to injure [a person] in respect to his office,
    profession, trade or business, either [(a)] by imputing to him
    general disqualification in those respects which the office or other
    occupation peculiarly requires, or [(b)] by imputing something
    with reference to his office, profession, trade, or business that has
    a natural tendency to lessen its profits” (id., subd. (3)). As section
    46’s separation of these categories into different subdivisions
    separate by the word “or” confirms (§ 46), these categories are
    independent of one another; contrary to what Gimelstob urged
    during oral argument, a plaintiff who shows that a statement
    charges someone with a crime under subdivision (1) of section 46
    does not also have to show injury to reputation under subdivision
    (3) of section 46.
    In assessing whether a particular statement falls into a
    category of slander per se, a court is to consider the speaker’s
    statement “in its entirety” rather than “divide[] [it] into
    segments,” and is also to focus on the ‘“natural and probable
    effect upon the mind of the average’ listener” rather than engage
    in a “critical analysis of a mind trained in the law.” (Correia v.
    Santos (1961) 
    191 Cal.App.2d 844
    , 851 (Correia); accord, Baker v.
    Los Angeles Herald Examiner (1986) 
    42 Cal.3d 254
    , 261; Stevens
    v. Storke (1923) 
    191 Cal. 329
    , 334.) With this standard, a
    defendant accordingly is liable not only for what he states
    11
    explicitly, but also for what he insinuates. (MacLeod v. Tribune
    Publishing Co. (1959) 
    52 Cal.2d 536
    , 547.)
    II.    Analysis
    On appeal, neither party challenges the trial court’s finding
    that Gimelstob’s podcast statements constitute “protected
    activity” under the anti-SLAPP statute. Thus, the propriety of
    the trial court’s ruling turns on whether Kaplan established that
    his slander per se claim has minimal merit. The parties are in
    agreement that Kaplan did not carry his burden with respect to
    three statements alleged in Kaplan’s cross-complaint but not
    made by Gimelstob during the podcast—namely, that (1) Kaplan
    said he was “glad” that Gimelstob’s father passed away, (2) that
    Kaplan said Gimelstob’s father was an “asshole,” and (3) that
    Kaplan said Gimelstob’s father was “a bigger asshole than”
    Gimelstob. The trial court did not strike these statements
    because Gimelstob’s anti-SLAPP motion only sought to strike the
    slander per se claim in its entirety; on our de novo review, we will
    overlook Gimelstob’s procedural blunder and strike these
    individual allegations from Kaplan’s complaint because they were
    never published in an unprivileged manner. Thus, we are left to
    examine two statements made by Gimselstob during the
    podcast—namely, (1) Gimelstob’s statements accusing Kaplan of
    “committing an assault upon him” on Halloween 2018, and (2)
    Gimelstob’s statements that Kaplan was “conspiring with
    Gimelstob’s ex-wife to manipulate the legal process” in
    Gimelstob’s ongoing custody battle with his ex-wife.
    On appeal, Gimelstob raises what boils down to three
    reasons why Kaplan did not establish minimal merit to his
    slander per se claim based on these statements—namely, that (1)
    they do not qualify as slander per se (and thus fail because
    12
    Kaplan did not otherwise establish any special damages), (2) they
    are privileged by the litigation privilege (§ 47, subd. (b)), and (3)
    they are not false.
    A.     Slander per se
    Both statements made by Gimelstob on the podcast qualify
    as slander per se because they “[c]harge[]” Kaplan “with [a]
    crime.” (§ 46, subd. (1).) Although it “must be appear from the
    [speaker’s] words themselves . . . that the [speaker has] charged
    the plaintiff with a crime” (Haub v. Freiermuth (1905) 
    1 Cal.App. 556
    , 557), “it is not necessary that the language used should be
    chosen with the technical nicety required in an indictment” (Carl
    v. McDougal (1919) 
    43 Cal.App. 279
    , 281 (Carl)). Thus, a speaker
    charges another with a crime if he accuses him of being a “thief”
    (Albertini, supra, 97 Cal.App.3d at pp. 829-830), of being a
    “lockbreaker” (Leaper v. Grandy (1937) 
    22 Cal.App.2d 475
    , 477),
    of taking money not belonging to him (Douglas v. Janis (1974) 
    43 Cal.App.3d 931
    , 940), of forging a check (Carl, at p. 281), or of
    belonging to a criminal organization like the mafia (Arno v.
    Stewart (1966) 
    245 Cal.App.2d 955
    , 960-961).
    This standard is met here.
    With regard to the Halloween 2018 incident, Gimelstob
    stated that he “neither provoked nor initiated” and it was Kaplan
    who “initiated physical contact,” and that it came to blows that
    Kaplan exaggerated. Because the only other participant in the
    melee was Kaplan, Gimelstob’s statements insinuated that
    Kaplan provoked and initiated a “fight” that involved an
    exchange of punches. The conduct Gimelstob attributes to
    Kaplan constitutes both an assault and a battery. (See Pen.
    Code, § 240 [assault is “an unlawful attempt, coupled with a
    present ability, to commit a violent injury on the person of
    13
    another”], § 242 [battery is “any willful and unlawful use of force
    or violence upon the person of another”].) Gimelstob contends
    that he never used the words “assault” or “battery” and only
    accused Kaplan of “initiat[ing] physical contact,” but this
    contention ignores the context of his statement and rests upon
    precisely the type of ‘“hair-splitting analysis of language”’ that
    the courts have rejected. (Correia, supra, 191 Cal.App.2d at p.
    851.)
    With regard to Kaplan’s coordination with Gimelstob’s ex-
    wife, Gimelstob stated that the two were on a “mission to
    manipulate . . . the legal process,” including through “l[ying]” and
    “misrepresent[ation],” to obtain a court order granting “custody of
    [Gimelstob’s] son” to his ex-wife. This constitutes the crime of
    “conspir[ing]” to “[f]alsely . . . maintain any suit, action, or
    proceeding.” (Pen. Code, § 182, subd. (a)(3).)
    *       *     *
    In light of our analysis, we have no occasion to decide
    whether Gimelstob’s statements are slander per se for the
    additional reason that they impugned his professional reputation
    under subdivision (3) of section 46.
    B.     Litigation privilege
    Because slander does not reach “privileged” statements (§
    46), a person’s statements that fall within the so-called “litigation
    privilege” are not actionable. The litigation privilege applies to
    any communication made in a judicial or quasi-judicial
    proceeding that (1) is made by authorized participants, (2) is
    made to achieve the objects of litigation, and (3) has a logical
    connection to the action. (Silberg v. Anderson (1990) 
    50 Cal.3d 205
    , 212; Action Apartment Assn., Inc. v. City of Santa Monica
    (2007) 
    41 Cal.4th 1232
    , 1241.)
    14
    Gimelstob’s statements regarding the Halloween 2018
    incident and Kaplan’s alleged conspiracy with his ex-wife are not
    covered by the litigation privilege because Gimelstob published
    those statements during a podcast wholly divorced from any
    litigation. Gimelstob argues that he more explicitly accused
    Kaplan of committing an assault and battery in his cross-
    complaint. This is true, but utterly irrelevant because, for the
    reasons discussed above, Gimelstob’s earlier statements on the
    podcast sufficiently charge Kaplan with crimes, such that
    Kaplan’s slander per se claim rests on Gimelstob’s unprivileged
    podcast statements. It goes without saying that a person cannot
    convert an unprivileged statement into a privileged one (and
    thereby immunize himself from liability for defamation) merely
    by repeating that statement in subsequent litigation.
    C.    Falsity
    Kaplan also made a prima facie factual showing that
    Gimelstob’s statements on the podcast were false. (Civ. Code, §
    46.) Both Kaplan and his wife offered declarations recounting
    that Kaplan did not assault or batter Gimelstob; rather, they
    declared, it was Gimelstob who engaged in an “unprovoked
    attack” by “ambushing” Kaplan from behind and without any
    prior “interaction or discussion” between the two men. Kaplan
    also declared that he did not “coordinate or conspire” with
    Gimelstob’s ex-wife “to help her custody case or to cause harm to
    Gimelstob,” and only contacted the ex-wife on the night of the
    assault “to obtain information relative to Gimelstob’s
    whereabouts and state of mind,” such as whether he possessed a
    gun.
    15
    Gimelstob offers three reasons why, in his view, Kaplan did
    not make a prima facie showing of the falsity of Gimelstob’s
    podcast statements.
    First, he asserts that Kaplan’s “self-serving” declaration
    cannot be credited. This argument has the applicable standard of
    review backwards. As explained above, we must construe the
    evidence in the light most favorable to the nonmoving party
    (here, Kaplan)—not, as Gimelstob seems to suggest, construe it
    in the light least favorable to Kaplan.
    Second, Gimelstob asserts that the trial court erred in
    relying on his misdemeanor conviction as tending to prove that
    Gimelstob’s denial of responsibility for the Halloween 2018
    incident was false. This assertion is triply irrelevant. It is
    irrelevant because our task is to review the trial court’s ruling,
    not its reasoning. It is irrelevant because the declarations of
    Kaplan and his wife are sufficient on their own to make a prima
    facie showing that Gimelstob’s statements were false. And it is
    irrelevant because the cases Gimelstob cites chiefly deal with
    whether a prior plea is a binding admission of the underlying
    conduct in a subsequent civil case, but the issue here is whether
    Kaplan has shown his slander per se claim to have minimal
    merit—not conclusive merit.
    Finally, Gimelstob asserts that the evidence he submitted
    in support of his anti-SLAPP motion corroborates his version of
    the events that took place on Halloween in 2018 and negates
    Kaplan’s evidence of falsity. This argument once again
    misunderstands the principles applicable to an anti-SLAPP
    motion. Kaplan only needed to show that the claim has “minimal
    merit” (Baral, supra, 1 Cal.5th at pp. 384-385), and this standard
    views the evidence through a prism friendly to the
    16
    plaintiff/nonmoving party. Because the conflicting evidence
    Gimelstob offers does not defeat Kaplan’s evidence “‘“as a matter
    of law”’” (Oasis, supra, 51 Cal.4th at p. 820), Gimelstob is at
    bottom asking us to reweigh the evidence in a light more
    favorable to him; this we cannot do. (Baral, at p. 384.)
    DISPOSITION
    The order denying Gimelstob’s anti-SLAPP motion is
    affirmed with directions for the trial court to strike those
    allegations in paragraphs 17 and 32 of Kaplan’s cross-complaint
    regarding Gimelstob’s accusation that Kaplan disparaged his
    father. The parties are to bear their own costs on appeal.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.
    CHAVEZ
    _________________________, J.*
    BENKE
    *      Retired Associate Justice of the Court of Appeal, Fourth
    Appellate District, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    17
    

Document Info

Docket Number: B315197

Filed Date: 11/23/2022

Precedential Status: Non-Precedential

Modified Date: 11/23/2022