Case Number: 19STCV37983 Hearing Date: February 14, 2020 Dept: 32

austin baul,

Plaintiff,

v.

TONY THOMPSON, et. al.

Defendants.

Case No.: 19STCV37983

Hearing Date: February 14, 2020

[TENTATIVE] order RE:

special motion to strike under ccp section 425.16

BACKGROUND

Plaintiff Austin Baul (“Plaintiff”) commenced this action against Defendant Tony Thompson (“Defendant”) on October 24, 2019. The Complaint asserts a single cause of action for libel. The Complaint alleges in pertinent part as follows.

Plaintiff was the former president of the Filipino American Community of Los Angeles, Inc. (“FACLA”), an organization whose objective is to promote the well-being of Filipino Americans in Los Angeles County.

31 disgruntled members of FACLA filed three lawsuits against Plaintiff and FACLA’s Board of Directors. All three lawsuits were dismissed with prejudice.

To cease these frivolous lawsuits, Plaintiff issued an executive order denying the renewal of FACLA membership to the 31 members. In retaliation, the 31 members filed another lawsuit (LASC Case No. BC589650) against Plaintiff for libel, slander, and violation of due process. The 31 members prevailed in the lawsuit. As a consequence, the trial court ordered Plaintiff to be removed as FACLA President and the 31 members to be reinstated as FACLA members.

Fernandico Gonong Jr. (“Gonong”) was elected FACLA President in May 2017. A judgment was entered against Gonong removing him as FACLA President, and Gonong appealed. Defendant, an attorney acting on Gonong’s behalf, filed an opening brief with the California Second District Court of Appeal. In the opening brief’s statement of facts section, Defendant accused Plaintiff of launching an assault upon FACLA. According to the brief, Plaintiff (1) terminated 31 members of FACLA, (2) mortgaged FACLA premises at 1740 West Temple Street, Los Angeles, CA 90026, even though FACLA had no means to repay the mortgage, (3) committed title fraud when he transferred title of FACLA property from FACLA to a fictitious entity, (4) failed to provide for maintenance on FACLA property resulting in a leaking roof, rotting ceiling, and peeling flooring, and (5) committed other acts of gross mismanagement and lawlessness. All accusations in the opening brief were false and defamatory. As a result of the publication of these statements, Plaintiff has suffered detriments to his reputation and shame.

LEGAL STANDARD

A special motion to strike under CCP section 425.16 — the anti-SLAPP statute — allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP, that is, a strategic lawsuit against public participation. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) A SLAPP is “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.” (CCP § 425.16(b)(1).) Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (3) 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, 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. (CCP § 425.16(e).)

Evaluation of an anti-SLAPP motion requires a two-prong 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. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, supra, 159 Cal.App.4th at 1035.) Only a cause of action that satisfies both prongs of the anti-SLAPP statute is a SLAPP subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

DISCUSSION

Defendant Thompson moves pursuant to CCP section 425.16 to strike the Complaint.

A. First Prong

To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.) To determine whether a claim arises from protected activity, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at 1063.) Courts must then evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of acts enumerated in CCP section 425.16(e). (Wilson, supra, 7 Cal.5th at 884.)

Defendant argues that Plaintiff’s sole cause of action for libel is based on protected activity. The Court agrees. Plaintiff’s libel claim is based on statements made by Defendant in an opening brief submitted to the California Second District Court of Appeal. (Compl. ¶¶ 21-27.) Statements made in such briefs are plainly “written or oral statement[s]” made before a judicial proceeding. (CCP § 425.16(e)(1).) Consequently, Plaintiff’s libel claim is based on protected activity.

Plaintiff responds that these statements are not protected by the anti-SLAPP statute because they are unrelated to the appellate proceeding in which they were made. However, for purposes of CCP section 425.16(e)(1), the content of the statements is irrelevant. “Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity [took] place in an official proceeding….” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.)

Defendant has satisfied the first prong.

B. Second Prong

To satisfy the second prong, the plaintiff must show a probability of prevailing on the challenged claim. (Nygard, supra, 159 Cal.App.4th at 1035.) To show a probability of prevailing, the plaintiff “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.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) “For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ ” (Ibid.)

Defendant contends that Plaintiff cannot show that his libel claim is legally sufficient because the statements are protected by the litigation privilege, Civil Code section 47(b). The Court agrees.

Civil Code section 47(b) precludes tort liability arising from certain statements. The privilege applies to any communication made in, inter alia, “any (1) legislative proceeding, (2) judicial proceeding, [or] (3) in any other official proceeding authorized by law.” (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120.) The privilege is absolute in nature and any doubt about whether the privilege applies is resolved in favor of applying it. (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 116.)

“The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)

The first two elements are clearly met. As noted ante, the statements in question were made in a judicial proceeding — a proceeding before the Second District Court of Appeal — by a participant to the litigation — an appellant’s attorney.

Plaintiff takes issue with the third and fourth elements. Plaintiff insists that the statements were not related in any way to the issues under appellate review and are therefore not privileged.

Resolution of Plaintiff’s argument requires an examination of the underlying action.[1]

On July 29, 2015, three individuals claiming to be former members of FACLA brought a lawsuit entitled Manuel, et al. v. Baul, et al., LASC Case No. BC589650 (“Underlying Action”) against Plaintiff and others for (1) libel, (2) slander, (3) violation of their due process rights, (4) violation of their rights as members of a non-profit public benefit corporation, (5) declaratory relief, and (6) injunctive relief.

The Underlying Action came on for a court trial on December 13, 2016. On March 20, 2017, the trial court entered a judgment against Plaintiff and others. (Def. Ex. A.) The judgment ordered, among other things, that (1) certain individuals be deemed reinstated as FACLA members and (2) Plaintiff be removed as FACLA President.

On September 10, 2018, Veronico Agatep (“Agatep”), one of the named defendants in the Underlying Action, brought a motion to enforce the judgment by appointing Agatep as interim president of FACLA. Marc Caratao (“Caratao”) and other named defendants opposed this motion. (Def. Ex. D.) Caratao noted the following in his opposition brief’s statement of facts section:

“By way of background, Plaintiff Austin Baul (for brevity BAUL) was the previous President and Director of [FACLA]. The organization owns a realty located on 1740 West Temple Street, Los Angeles, California. During his tenure, BAUL committed the breach of fiduciary duty and mismanagement of the organization:

1.) Terminated 31 members and exposed FACLA and its Directors to liability for his egregious conduct;

2.) Mortgaged the FACLA premises on 1740 West Temple Street, Los Angeles, CA 90026 for a $100,000 loan which FACLA did not have the means of even making the monthly interest payments on the note;

3.) Exposed the FACLA property to foreclosure and loss due to the lack of finances to make the monthly mortgage payments;

4.) Committed title fraud when he transferred title of the FACLA property from the corporation to a fictitious name;

5.) Mismanaged the $100,000 loan whereby no a penny was used to fix and repair the FACLA property. When BAUL was terminated by the LA Superior Court, the roof was leaking; the ceiling rotting and falling; and the flooring peeling in many parts.

6.) Placed FACLA property to imminent loss by his and his previous counsel’s urging that title be transferred to the developer even without any guarantees, commitments as to FACLA’s role, participation and involvement in the development. Mr. Agatep joined Mr. Gonong’s TRO to restrict Mr. Baul from further acts that would lien, encumber or secure the property as collaterals of any loans.” (Def. Ex. D.)

On December 10, 2018, the court granted Agatep’s motion in part, ordering Agatep be installed as FACLA President “to conduct a membership and board of directors meeting in accord with FACLA Bylaws and to thereby duly select all new board members and officers.” (Def. Ex. B.) Gonong and Caratao appealed this enforcement order.

Defendant submitted an opening brief on behalf of Gonong and Caratao. (Def. Ex. C.) Defendant asserted that the enforcement order should be reversed for several reasons including (1) the enforcement order impermissibly modified a previous court order and (2) the enforcement order was barred by judicial estoppel. (Ibid.) In the brief’s statement of facts section, Defendant writes:

“[FACLA] has been a pillar of and a valuable resource to the Los Angeles Filipino-American community was many years. The vibrant health of FACLA took a sharp turn for the worse in 2016 and thereabouts when Austin Baul (‘Baul’ for brevity), then the President of FACLA, launched a startling assault upon FACLA. Baul:

1.) Terminated 31 members of FACLA;

2.) Mortgaged FACLA premises at 1740 West Temple Street, Los Angeles, California, 90026, even though FACLA had no means to repay the mortgage;

3.) Committed title fraud when he transferred title of FACLA property from FACLA to fictitious name;

4.) Failed to provide for maintenance on FACLA property, resulting in leaking roof, a rotting ceiling, and peeling flooring; and

5.) Committed other acts of gross mismanagement.

The FACLA board then split into two opposing factions. One faction of

seven (7) directors was headed by Baul, the director and President leading the

mismanagement of FACLA. The other faction of seven directors was headed by

Appellant Fernandico Gonong, and included Respondent Agatep. Although

Appellant Gonong and Respondent Agatep now oppose each other on this appeal, at the time they had joined forces, together with other directors, under the leadership of Appellant Gonong, to put a stop to Baul’s egregious misconduct.” (Def. Ex. C.)

An examination of the Underlying Action’s case file reveals that Plaintiff’s argument is without merit. To reiterate, the litigation privilege’s third element requires that the communication at issue be made to achieve the objects of the litigation, and its fourth element requires that the communication have some connection or logical relation to the action. The two elements are interrelated: the third element 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.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) Moreover, the courts construe these elements liberally: “The matter to which the [litigation] privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety.” (Irwin v. Newby (1929) 102 Cal.App. 110, 114.)

In this case, both elements are satisfied for, at least, two reasons. First, the statements are logically related to the appellate proceeding because they give a background for the issues in the trial proceedings that preceded the appeal. Given that a fundamental function of an appellate court is a review the underlying proceedings, such statements have clear relevancy. Second, the statements in the opening appellate brief are lifted from similar statements made by Caratao and others in opposing the motion to enforce the judgment. As the appellate proceeding concerned the validity of the trial court’s grant of that motion, a reiteration of these statements is logical and appropriate.

For the aforementioned reasons, the litigation privilege applies. Because the litigation privilege applies, Plaintiff cannot show that his libel claim has merit.

Plaintiff has failed to meet his burden on the second prong.

CONCLUSION

Defendant’s special motion to strike the Complaint is GRANTED.

Defendant requests attorney fees and costs of no less than $2,500. (CCP § 425.16(c).) Defendant’s request is denied without prejudice because Defendant’s counsel has not submitted a declaration to support this request.

[1] The Court, on its own motion, has taken judicial notice of the case file in Manuel, et al. v. Baul, et al., LASC Case No. BC589650. (Evid. Code § 452(d).)