Fridman v. Denison CA4/3 ( 2014 )

Filed 5/30/14 Fridman v. Denison CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
GIDEON FRIDMAN,
Plaintiff and Appellant, G047864
v. (Super. Ct. No. 30-2012-00562011)
GLORIA DENISON et al., OPINION
Defendants and Respondents.
Appeal from orders of the Superior Court of Orange County, Sheila Fell,
Judge. Affirmed.
Law Office of Glenn E. Stern, Glenn E. Stern, Jan T. Aune and Richard
Coberly for Plaintiff and Appellant.
Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendant
and Respondent Gloria Denison.
Law Offices of Robert A. Walker, Robert A. Walker and Michelle N. Vo
for Defendants and Respondents Sara Colamonico and Carlo Colamonico.
* * *
This is an appeal from an order granting defense motions pursuant to Code
of Civil Procedure section 425.16,1 the anti-SLAPP statute,2 in an action for defamation,
malicious prosecution, and intentional infliction of emotional distress. The underlying
dispute relates to a neighborhood quarrel in the City of Fullerton (the City). On one side
is the plaintiff, Gideon Fridman. He is the trustee of the estate of Nieves Lemanski’s
husband. On the other are the defendants, Gloria Denison and Sara and Carlo
Colamonico (collectively the defendants, although we refer to “the Colamonicos” jointly
or as Sara and Carlo where it is necessary to distinguish them). The defendants are
Lemanski’s neighbors.
Fridman’s complaint alleges the defendants defamed him to each other and
the City by falsely reporting that he was conducting a business from Lemanski’s
residence, engaged in malicious prosecution by reporting the alleged business and
purportedly abusing Lemanski, and these same activities constituted intentional infliction
of emotional distress. The defendants filed the instant anti-SLAPP motions, with
Denison also filing a demurrer to the intentional infliction of emotional distress cause of
action.3 The court granted the motions and sustained the demurrer. The court
subsequently denied Fridman’s motion to reconsider. We agree with the defendants that
the motions were properly granted, and the motion to reconsider properly denied, and we
therefore affirm.
1Unless otherwise indicated, subsequent statutory references are to the Code of Civil
Procedure.
2 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 732, fn. 1.)
3 Fridman offers no argument that the demurrer should not have been sustained, any
argument on this point is therefore waived. (Kurinij v. Hanna & Morton (1997) 55
Cal. App. 4th 853, 865.)
2
I
FACTS
In April 2012, Fridman filed the instant case against the defendants, and on
June 14, he filed the first amended complaint (the complaint). The complaint alleged that
in June 2006, Fridman became “the trustee for Nieves Lemanski.” At the time, Denison
had medical power of attorney for her. She was a neighbor who lived close by. The
Colamonicos were also neighbors. Although Fridman lived in Woodland Hills, he had
worked in the City for more than 30 years and had a good reputation.
According to the complaint, around October 2009, the defendants discussed
among themselves that there were too many deliveries to Lemanski’s home, and
therefore, Fridman must be running a business of some kind. These allegations were
eventually reported to the City. Around the same time, they discussed that Lemanski had
missed medication dosages, and that Fridman was responsible for elder abuse. The
complaint alleged these statements were not privileged and made with knowledge of their
falsity and no reasonable grounds to believe they were true.
In response to the complaint to the City, police and paramedics performed a
welfare check on Lemanski in October 28, 2009. Lemanski was “taken from the home
against her will for observation regarding her blood pressure . . . .” Fridman alleged that
he was investigated for elder abuse. Shortly thereafter, Fridman and Lemanski were
questioned by police detectives regarding the purported abuse, and a City employee
inquired about the home business.
The complaint alleged that the statements regarding the conduct of a
business were defamatory because “they imputed criminal activity.” Fridman further
alleged that as a result of the investigation by the City, he filed a lawsuit against the City
3
which resulted in a “stroke related to the stress of” that case.4 He also alleged general
damages to his reputation, the cost of a private investigator to determine who had made
the allegations, and the cost of legal counsel. The same basic facts were alleged with
respect to Fridman’s causes of action for malicious prosecution and intentional infliction
of emotional distress. Fridman claimed he was entitled to punitive damages due to the
defendants’ malice, oppression and fraud.
On August 10, 2012, the Colamonicos filed an anti-SLAPP motion, arguing
their actions of reporting the alleged business to the City and requesting a welfare check
were protected and privileged. In her supporting declaration, Sara testified that her home
was situated in a way where utilities are accessed through backyard easements. One
evening, she saw an AT&T technician in her backyard and asked what he was doing. He
said he was installing a “business line in the garage at the corner house,” which belonged
to Lemanski. She also saw the technician enter the garage several times. On another
day, her husband told her that he saw a worker from the power company, who said he
was installing a “220-line for commercial motors” in the same garage. On another day,
she saw “casting equipment” being moved from a van to the inside of the garage. She
knew that such equipment could be hazardous and dangerous. On many other occasions,
she saw UPS trucks making deliveries. She asked Lemanski about these activities, but
she said she did not know about them, and was “locked out of her garage.” Sara was
concerned because Lemanski seemed confused about the activities at her house. She then
decided to call the City to report that a business was possibly being conducted and to
request a welfare check. Carlo’s declaration was similar, and he further stated that
Lemanski had told him that “Gideon Fridman does not allow her to go into her garage.”
4 In 2012, this case apparently settled. There is no indication of any admission of liability
on the City’s part, nor is the amount of the settlement set forth in the document Fridman
references. According to Fridman, the settlement means he “was cleared of any charges.”
4
Denison also filed an anti-SLAPP motion, arguing the first and second
causes of action should be stricken. Her declaration in support stated that she had been
friends with Lemanski since 2006, and took her grocery shopping and on other errands.
She was unaware he was her trustee until the events surrounding this case occurred.
After Lemanski’s husband died, Fridman started showing up once or twice a week. After
a time, it became “very noticeable” deliveries were being made on a regular basis, “as
well as people coming and going in lab coats.” When Denison asked Lemanski about the
people moving boxes into her garage, Lemanski said it was “making her nervous to have
some many people she didn’t know at her house.” Lemanski thought Fridman was using
the garage for storage, since he could no longer afford the building he had been renting.
She also told Denison she was concerned about a phone line being installed in the garage,
and she was unclear why it was needed if the garage was using for storage. Lemanski
also said that Fridman was going to upgrade the electricity. At another point, Lemanski
told her that there was going to be some “dental equipment coming from [Fridman’s] lab.
He could no longer afford the rent so he was going to use her garage.”
Denison further stated she had not initiated contact with the City. She had
spoken to the City worker twice, once when she knocked on her door to ask if she knew
whether Lemanski was home. She then told Lemanski that people from the City wanted
to talk to her, and Lemanski replied that they wanted to inspect her garage and she did not
know what to do because Fridman was not there and had put a lock on the garage. She
said she would not answer the door until Fridman came again and he could deal with the
City.
The second time Denison had contact with the City was when the worker
also called her on the date of the welfare check to ask if any emergency personnel were at
Lemanski’s home, because Fridman had called the worker and stated the investigation
had caused her to have a heart attack. The City worker then sent paramedics to the home
5
based on Fridman’s statement. Denison went to Lemanski’s home and saw the
paramedics taking vitals, but according to the paramedics, she was not having any chest
pains and had not had a heart attack. She had no idea that Lemanski was behind on her
medication until that day, when she retrieved the medications for the paramedics. She
overheard the police question Fridman, who referred to himself as Lemanski’s “care
giver” but said he just picked up the medications, he did not make sure she took them.
Because the paramedics were concerned that Lemanski was not taking her medication,
they suggested taking her to the hospital for observation because her blood pressure was a
little high. Lemanski stated she did not want to go, and the paramedics advised her to see
her doctor. Just before they left, she was feeling dizzy and said she would go to the
hospital. She went of her own free will. Fridman was not in the room during this
conversation. Denison reiterated that this was the first time she had learned that
Lemanski was behind on her medication, and therefore, Denison had never said this to
anyone or reported it to the City.
The day after Lemanski was admitted to the hospital, Denison and Sara
visited her. She seemed content and “happy about all the attention she was getting.” She
never said anything about being there against her will. During this visit, Lemanski signed
a new advance directive and gave Denison health care power of attorney. Sara told
Denison and Lemanski that it was she who had contacted the City to ask about zoning
laws and business permits. Their home had recently been burglarized and she was
concerned about the extra activity. Lemanski said she understood the concern and did
not show she was upset.
Denison also filed a demurrer to the third cause of action for intentional
infliction of emotional distress, arguing that Fridman had failed to allege outrageous
conduct as a matter of law.
6
In his opposition to the Colamonicos’ motion, Fridman argued that their
statements to the City were not privileged and the anti-SLAPP statute did not apply
because the topic was not one of widespread public interest. With respect to the
defamation claim, he asserted that establishing that the defendants had discussed among
themselves their allegation that he was running a business and had abused Lemanski were
sufficient because his settlement with the City established those allegations were false.
With respect to malicious prosecution, he argued it was sufficient that he had alleged a
lack of probable cause, with malice thereby implied. On his claim for intentional
infliction of emotional distress, Fridman argued that it was sufficient he could prove
statements were made about him without probable cause, resulting in damages.
His opposition to Denison’s motion made similar arguments. With respect
to Denison’s demurrer, he argued that he had sufficiently alleged “baseless and reckless”
behavior that resulted in severe emotional distress.
Fridman’s evidence in support of his opposition to the motions consisted of
nearly identical declarations, portions of the deposition of the City worker who had taken
the defendants’ complaints, and the report from the investigating detective, which
ultimately concluded that “[a] crime could not be established.”
In his declaration, Fridman said that he and Denison had never gotten
along. He had asked for her key to Lemanski’s house to be returned. He stated he had
seen Denison talk to the Colamonicos, and “then get quiet as I was around.” He said he
was “surprised” that anyone would make such false allegations against him.
The City worker’s deposition contradicted Denison’s declaration in some
respects. The worker stated she had Denison’s telephone number because Denison had
called her previously. During that conversation, Denison said that Fridman had asked her
to stay away from Lemanski and had demanded the return of a house key. Denison had
told the worker that Lemanski might be “scared or intimidated.” There was no mention
7
that Denison had disparaged Fridman in any way, or accused him of running a business
or of elder abuse. The worker testified consistently with Denison about the events of
October 28, the day of the welfare check. It was the worker who initiated the welfare
check based on Fridman’s statement that Lemanski had suffered a heart attack.
The defendants filed replies without additional evidence. After argument,
on October 17, 2012, the court granted the Colamonicos’ motion to strike the complaint.
The court also granted Denison’s motion to strike the first two causes of action and
sustained the demurrer to the third cause of action. The court found that the anti-SLAPP
statute applied, and Fridman had not presented evidence that demonstrated minimal merit
as to his claims. With respect to the demurrer, the court found that reporting a neighbor’s
suspicious behavior to the police was not extreme conduct as a matter of law.
On October 29, Fridman filed motions to reconsider. According to
Fridman, he spoke to Lemanski, who had previously not wanted to be involved in the
case. Lemanski “had a change of heart” after the court’s ruling. He offered declarations
by Lemanski which he argued supported his claims. He argued these constituted “new
facts” and therefore justified reconsideration. The defendants, unsurprisingly, opposed,
arguing that his claim of “new facts” was not supported by a valid reason why those
alleged facts could not have been discovered earlier.
The court denied the motion, concluding that the “new facts” were not
“new” within the meaning of the statute. Further, even if they were, they were
insufficient to establish malice on the part of the defendants. Fridman now appeals.
II
DISCUSSION
A. Motion for Reconsideration
We address this issue first because it directly impacts the evidence that we
consider in connection with the anti-SLAPP motions. A party affected by an order may
8
move for reconsideration “based upon new or different facts, circumstances, or law.” (§
1008, subd. (a).) To be entitled to reconsideration, a party must (a) show evidence of
new or different facts and (b) provide a satisfactory explanation for failing to produce this
evidence at an earlier time. (Kalivas v. Barry Controls Corp. (1996) 49 Cal. App. 4th
1152, 1160-1161.)
A trial court’s ruling on a motion for reconsideration is reviewed under the
abuse of discretion standard. (Robbins v. Los Angeles Unified School Dist. (1992) 3
Cal. App. 4th 313, 319.) The trial court’s “discretion is only abused where there is a clear
showing [it] exceeded the bounds of reason, all of the circumstances being considered.
[Citations.]” (People v. DeJesus (1995) 38 Cal. App. 4th 1, 32.)
The relevant “new facts” at issue were the information in Lemanski’s
declaration, offered to the court for the first time in connection with Fridman’s motion for
reconsideration. Fridman’s explanation for his failure to produce Lemanski’s declaration
earlier is that he “respected the wishes of his friend who is an elderly woman . . . with a
heart condition.” He asserts that “previous attempts to discover these facts had been
unsuccessful.”
In his reply brief, for the first time and without reference to evidence, he
states: “Lemanski had already refused to provide information in this case.” He also
asserts, again without a record reference, that “the declarations of Mr. Fridman and Mrs.
Lemanski together demonstrate that Mrs. Leamanski was asked to provide information
early in the case.” Lemanski’s declaration says no such thing; the only references to
Lemanski’s desire not to stay out of the disputes relate to the time they were developing.5
5 For example, Lemanski’s declaration stated: “It was also kind of odd that a few days
later [Denison] stated that she had done some research on Mr. Fridman. She believed
him to be divorced and living with a friend in Van Nuys. I did not react because I do not
want to be involved in people’s disagreements.” The declaration made two more similar
statements, such as “I again tried to stay out of the conflict,” and “I tried to avoid being
involved[.]” Neither of those statements involved the instant case.
9
Her declaration does not say at any point that she was asked and refused to give
testimony earlier, or anything close to such a statement. Fridman’s declaration stated
only that “out of respect for her wishes, I have not asked her for information regarding
my case.” (Italics added.) Fridman’s willingness to play fast and loose with the facts
here is disturbing.
In support of his argument that reconsideration based on “new facts” was
required, Fridman claims this case has some factual similarity to Hollister v. Benzl (1999)
71 Cal. App. 4th 582. In that case, however, the newly discovered information was in the
hands of the opposing party and required a motion to compel to obtain it. (Id. at p. 585.)
That is rather obviously distinguishable from the facts here, where Fridman knew or
should have known that Lemanski had relevant information and chose not to attempt to
obtain it, whatever his reasons.
In Kollander Construction, Inc. v. Superior Court (2002) 98 Cal. App. 4th
304 (disapproved on other grounds by Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1107,
fn.5), the other case Fridman cites, the plaintiff moved to set aside a dismissal of certain
defendants on the ground of mistake. (Kollander Construction, Inc. v. Superior Court,
supra, 98 Cal.App.4th at p. 308.) During the hearing, after briefing was completed, the
defendants asked for an opportunity to respond to one of plaintiff’s declarations. The
court granted the request and took the matter under submission. Defendants then
submitted a 75-page response, and the court denied the motion. (Id. at p. 309.) The
plaintiff’s motion for reconsideration was granted based on the filing of the 75-page
response, which raised new issues and to which the plaintiff had no opportunity to
respond. (Ibid.) The Court of Appeal held this was proper. (Id. at p. 314.) Kollander
has no resemblance to the instant case. This is not a situation where the defendants
attempted to ambush Fridman with new information he had no chance to respond to; this
is a situation where Fridman was well aware Lemanski was a potential witness.
10
Neither case Fridman cites is applicable here, and he offers no “satisfactory
explanation” for failing to obtain Lemanski’s declaration earlier within the meaning of
section 1008. (Kalivas v. Barry Controls Corp., supra, 49 Cal.App.4th at pp. 1160-
1161.) Merely learning new facts,which is what Fridman describes, is not enough. A
motion for reconsideration requires “a strong showing of diligence” that is not present
here. (Forrest v. Deptartment of Corporations (2007) 150 Cal. App. 4th 183, 202
(disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172, fn.
3.) As Fridman’s own declaration admits, prior to the hearing on the anti-SLAPP
motions, he had not “asked [Lemanski] for information regarding my case.” Therefore,
the trial court did not abuse its discretion by denying the motion for reconsideration, and
accordingly, we disregard Fridman’s references to the evidence included therein, which
he relies on significantly throughout his briefs.
B. The Anti-SLAPP Statutory Framework
The anti-SLAPP statute states: “A cause of action against a person arising
from any act of that 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 shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) Section 425.16, subdivision (e), specifies the type of
acts covered by the statute. An “‘act in furtherance of a person’s right of petition or free
speech . . . 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, (2) any written or oral statement or writing 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, (3) any written or oral
11
statement or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)
The purpose of the anti-SLAPP statute is to dismiss meritless lawsuits
designed to chill the defendant’s free speech rights at the earliest stage of the case. (See
Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 815, fn. 2.) The statute is to be
“construed broadly.” (§ 425.16, subd. (a).) Defamation and intentional infliction of
emotional distress are among the “favored causes of action in SLAPP suits . . . .”
(Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal. App. 4th 1388, 1400,
fn. 9.)
To determine whether an anti-SLAPP motion should be granted or denied,
the trial court engages in a two-step process. “‘First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one arising
from protected activity. The moving defendant’s burden is to 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 issue,” as defined in the statute. (§ 425.16, subd. (b)(1).)’ [Citation.]”
(Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.)
If that threshold is met, courts then look to the second step, determining
whether the plaintiff has demonstrated a probability of prevailing on the merits. To do
so, the plaintiff must state and substantiate a legally sufficient claim (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1122-1123), thereby
demonstrating his case has at least minimal merit. (Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal. App. 4th 1095, 1105 (Cole).) “Put another way, the
plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by
12
a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.’ [Citations.]” (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal. 4th 811, 821.) Accordingly, Fridman “must produce evidence
that would be admissible at trial. [Citation.]” (HMS Capital, Inc. v. Lawyers Title Co.
(2004) 118 Cal. App. 4th 204, 212.) “Only a cause of action that satisfies both prongs of
the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks
even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier
v. Sletten (2002) 29 Cal. 4th 82, 89.)
On appeal, we “review an order granting an anti-SLAPP motion de novo,
applying the same two-step procedure as the trial court. [Citation.]” (Cole, supra, 206
Cal.App.4th at p. 1105.) In conducting our review, “[w]e consider ‘the pleadings, and
supporting and opposing affidavits . . . upon which the liability or defense is based.’
[Citation.] However, we neither ‘weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal. 4th 260, 269, fn. 3 (Soukup).)
C. Protected Activity
We must first decide whether the challenged claims arise from acts in
furtherance of the defendants’ right of free speech or right of petition under one of the
four categories set forth in section 425.16, subdivision (e). Fridman argues that the anti-
SLAPP statute does not apply for several reasons.6 First, because the statements were
malicious. Second, the conversations were not part of any petitioning activity. Third, the
6 He refers to this as the “privilege” of the anti-SLAPP statute’s catch-all provision in
section 425.16, subdivision (e). But it is not a privilege; it is merely a question of
whether the statute applies.
13
defendants cannot establish that the “public interest was served” by the purportedly
defamatory statements or the reports to the City.7
We can address one of these points quickly. First, Fridman’s assertion that
the statements were “malicious” is the tail wagging the dog. That is a conclusion, not an
argument, and not evidence. Further, the case Fridman cites on this point is inapposite.
It is a summary judgment case relating to the conditional common interest privilege
under Civil Code section 47 subdivision (c). (Noel v. River Hill Wilsons, Inc. (2003) 113
Cal. App. 4th 1363.) Whether the statements were malicious is pertinent to success on the
merits, but it has nothing to do with whether the first prong of the anti-SLAPP statute is
met.8
Second, with regard to whether the case arose from the defendants’
petitioning activity, Fridman argues that no petitioning activity occurred. But his own
complaint alleges otherwise — it asserts the defendants “discussed these allegations
[relating to running a business and elder abuse] among themselves prior to reporting
these allegations to the [C]ity. . . .” (Italics added.) “‘“‘[T]he constitutional right to
petition . . . includes the basic act of . . . seeking administrative action.’”’ [Citations.]”
(Chavez v. Mendoza (2001) 94 Cal. App. 4th 1083, 1087.) Filing a complaint with a
government agency qualifies as a “statement before an official proceeding” within
7 A fourth argument was based entirely on matter in Lemanski’s declaration, and we
therefore disregard it.
8 Fridman cites Lefebvre v. Lefebvre (2011) 199 Cal. App. 4th 696, for the proposition that
a falsified police report does not qualify for protection under the anti-SLAPP statute.
What he neglects to mention is that the trial court in that case found “the record
‘conclusively’ established that [the defendants’] statements to the police were ‘illegal
activity’ under Penal Code section 148.5, and as such, not a ‘protected activity’ within
the meaning of the anti-SLAPP statute.” (Id. at p. 701.) There was, obviously, no such
finding here, nor under any circumstance would we be able to reach that conclusion in
this case. For the same reason, Flatley v. Mauro (2006) 39 Cal. 4th 299, 320, is also
inapposite.
14
section 425.16, subdivision (e)(1). (ComputerXpress, Inc. v. Jackson (2001) 93
Cal. App. 4th 993, 1009; see also Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941-942
[report to police]; Wallace v. McCubbin (2011) 196 Cal. App. 4th 1169, 1186 [report to
animal control].)
“In the anti-SLAPP context, the critical consideration is whether the cause
of action is based on the defendant’s protected free speech or petitioning activity.
[Citations.]” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) To conclude the “arising
from” prong is met, the action must actually allege the harm was caused by the protected
acts. “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that
determines whether the anti-SLAPP statute applies [citation] . . . .” (Martinez v.
Metabolife Internat. Inc. (2003) 113 Cal. App. 4th 181, 188.)
Here, the complaint alleged that the defendants’ false reports to the City
and the police constituted the tortious acts that caused him damage. It was not the
defendants’ alleged publication of defamatory comments to each other, but to third
parties that purportedly caused Fridman’s harm. Thus, the principal gravamen of the case
is the defendants’ allegedly false reports to the City caused his harm. Because these
reports constituted protected acts of petitioning, the anti-SLAPP statute applies.
Further, because the petitioning activity falls under section 425.16,
subdivision (e)(1), we need not consider further whether an issue of public interest was
present. “When the defendant’s alleged acts fall under the first two prongs of section
425.16, subdivision (e) (speech or petitioning before a legislative, executive, judicial, or
other official proceeding, or statements made in connection with an issue under review or
consideration by an official body), the defendant is not required to independently
demonstrate that the matter is a ‘public issue’ within the statute’s meaning. [Citation.]”
(Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal. App. 4th 595,
600.) Accordingly, we find the defendants have satisfied the first prong of the anti-
15
SLAPP statute. We therefore turn to the question of whether Fridman’s claims can
succeed on the merits.
D. Success on the Merits
1. Defamation
“The elements of a defamation claim are (1) a publication that is (2) false,
(3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage. [Citation.]” (Wong v. Jing (2010) 189 Cal. App. 4th 1354, 1369.)
Fridman’s first problem is that he has not established, by admissible
evidence, the existence of defamatory statements. He states “the false allegations against
Mr. Fridman were that he was running an illegal business and engaging in elder abuse.
Both are criminal in nature.” He provides no evidence that running a business from a
garage is a criminal offense in the City. The only evidence in the record is the letter from
the City worker, which states that running businesses from a home is legal except under
certain conditions, and businesses must be licensed. The letter also states that failure to
comply with an inspection requirement would result in an “administrative citation” and
result in a fine. Fridman provides no authority stating that an “administrative citation” is
equivalent to a criminal penalty. Simply put, there is no evidence in the record that the
activity the defendants allegedly reported is a crime, and it was Fridman’s burden to
produce admissible evidence — or at least a legal citation — on this point. (HMS
Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212.)
With respect to the allegation the defendants reported Fridman for elder
abuse, that, indeed, would be a crime. Fridman, however, has no evidence such an
allegation was ever made to the City. Denison had no idea that Lemanski was behind on
her medication until the night of the welfare check. Sara testified she only asked for the
City to perform a welfare check; she did not admit any other accusation. Carlo never
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contacted the City at all. The City worker testified that Denison had said that Lemanski
might be “scared or intimidated,” but she did not say by whom, and in any event, that is
not equivalent to an accusation of a crime. The worker did not recall anybody, prior to
the welfare check, using the words “elder abuse,” and nowhere in her testimony does she
attribute such a statement to any of the defendants. Indeed, the first person to raise
Lemanski’s health with the worker was Fridman, who said the worker had given her a
heart attack. Fridman offered no admissible contradictory evidence. Thus, Fridman has
not established the existence of defamatory statements, and this alone would be enough to
doom his defamation claim.
The defendants, though, also argue that any statements, assuming the
statements were defamatory, were privileged. As pertinent here, Civil Code section 47,
subdivision (c)9 provides a privileged publication is made “[i]n a communication, without
malice, to a person interested therein, (1) by one who is also interested, or (2) by one who
stands in such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) who is requested by
the person interested to give the information.” Malice cannot be inferred from the
communication itself. (Civ. Code, § 48.)
We agree with the defendants that citizens are “interested” in reporting
either the existence of an unlicensed business or an elder who might be subject to abuse
to the City. Thus, Fridman must establish malice at the time the communication was
published. (Katz v. Rosen (1975) 48 Cal. App. 3d 1032, 1037.) The malice necessary to
9 In his reply brief, Fridman argues that defendants did not argue this, among other
issues, below, and they cannot therefore argue them now. It is true that generally, we do
not consider arguments made for the first time in this court. But when the issue is purely
a matter of law, we may consider it for the first time. (Gonzalez v. County of Los Angeles
(2004) 122 Cal. App. 4th 1124.) That is particularly true where, as here, our review is de
novo and we consider the issues in full without reliance on the trial court’s findings.
Further, Fridman had an opportunity to respond.
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defeat the qualified privilege under Civil Code section 47, subdivision (c) is “‘hatred or
ill will going beyond that which the occasion for the communication apparently
justified. . . .’ [Citation.]” (Katz v. Rosen, supra, 48 Cal.App.3d at p. 1037. ) Fridman
has come nowhere close to establishing this with evidence. There is simply no evidence
of the hate or ill will necessary to vitiate the privilege. The best he could come up with in
his own declaration, with regards to Denison, was that “[h]er and I have never gotten
along.” The City worker, when asked, said that Denison never used insulting language
toward Fridman. He offers nothing at all with regard to the Colamonicos. Fridman
simply has nothing on this key issue, and without it, he has no possibility of prevailing on
his claim for defamation.
2. Malicious Prosecution
“To prevail on a malicious prosecution claim, the plaintiff must show that
the prior action (1) was commenced by or at the direction of the defendant and was
pursued to a legal termination favorable to the plaintiff; (2) was brought without probable
cause; and (3) was initiated with malice. [Citation.]” (Soukup, supra, 39 Cal.4th at p.
292.) Even if we assume the existence of the first two requirements (which, frankly, is
quite unlikely), for the same reason Fridman could not establish malice with respect to
the qualified privilege of Civil Code section 47, subdivision (c), he cannot establish it
here.
“The ‘malice’ element . . . relates to the subjective intent or purpose with
which the defendant acted in initiating the prior action. [Citation.] The motive of the
defendant must have been something other than that of bringing a perceived guilty person
to justice or the satisfaction in a civil action of some personal or financial purpose.
[Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior
motive. [Citation.]” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal. App. 4th 478, 494
(Downey Venture).)
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Nearly all of the evidence Fridman relies upon to establish malice come
from Lemanski’s excluded declaration. The only fact that comes from other evidence is
the statement that the City worker reported that all the defendants called her to “express
their gratitude that Mr. Fridman was being investigated.” What the worker’s report
actually said is somewhat different. “Neighbors Sara and Carlo [Colamonico] called to
let me know that Mrs. Lemansk[i] was doing well and thank me for calling the police to
check on Mrs. Lemansk[i.] [¶] Gloria Denison called to thank me and let me know that
she is now the primary person on file for Mrs. Lemansk[i]’s medical care. Said she did
not have a heart attack and they are keeping her in the [hospital] for observation[.]”
Neither of these statements are evidence of malice.
Fridman next argues that the lack of probable cause was evidence of
malice. But that alone is not sufficient. (Downey Venture, supra, 66 Cal.App.4th at p.
494.) “[T]hat evidence must include proof of either actual hostility or ill will on the part
of the defendant or a subjective intent to deliberately misuse the legal system for personal
gain or satisfaction at the expense of the wrongfully sued defendant. [Citation.]” (Id. at
pp. 498-499; see also Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 225.) While
malice may be inferred from circumstantial evidence such as the lack of probable cause,
such evidence must be “supplemented with proof that the prior case was instituted largely
for an improper purpose.” (Cole, supra, 206 Cal.App.4th at p. 1114.)
Moreover, we keep in mind that malicious prosecution is a “disfavored
action.” (Leonardini v. Shell Oil Co. (1989) 216 Cal. App. 3d 547, 566.) “[T]he elements
of [malicious prosecution] have historically been carefully circumscribed so that litigants
with potentially valid claims will not be deterred from bringing their claims to court by
the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert
& Oliker (1989) 47 Cal. 3d 863, 872.) We are therefore entirely disinclined to read out
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the malice requirement from a malicious prosecution cause of action, as Fridman would
have us do.
As we discussed above, Fridman has no such evidence here; taken
separately or together, the evidence is entirely insufficient to establish malice on the
defendants’ behalf. He has simply come nowhere close, and therefore, he did not
demonstrate a probability of success on his claim for malicious prosecution.
3. Intentional Infliction of Emotional Distress
Fridman next argues that he has presented sufficient evidence of a claim for
intentional infliction of emotional distress to overcome an anti-SLAPP motion. The two-
paragraph argument in his opening brief states the elements of such a cause of action, and
then argues that he suffered emotional damage based on the defendants “bullying
tactics,” again supported only by Lemanski’s declaration. He then asserts: “This is a
classic case of Intentional Infliction of Emotional Distress.”
Fridman is wrong. He has neither pleaded this cause of action properly nor
offered any evidence to support it. “‘[T]o state a cause of action for intentional infliction
of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2)
the defendant’s intention of causing or reckless disregard of the probability of causing
emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant’s
outrageous conduct.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1259.) Fridman has actually
failed to support this claim on each and every element, but we can dispense with this
issue quickly by focusing on one: extreme and outrageous conduct. “‘Conduct, to be
“‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a
civilized society.’ [Citation.]” (Ibid.) Nothing alleged here comes anywhere close.
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III
DISPOSITION
The anti-SLAPP’s motion were properly granted. As prevailing
defendants, Denison and the Colamonicos are entitled to attorney fees on appeal pursuant
to section 425.16, subdivision (c)(1), in an amount to be decided by the trial court. They
are also entitled to their costs.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.
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