Filed 4/1/20 Garvin v. Faratzis CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

CHRISTOPHER GARVIN,      

   

Plaintiff and Respondent,   

   

v.   

   

JOHN FARATZIS,       

   

Defendant and Appellant.   

          B294213   

   

      (Los Angeles County   

       Super. Ct. No. BC706102)   

   
   

APPEAL from an order of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge.  Affirmed.   

Hamburg Karic Edwards & Martin, Gregg A. Martin and Ann S. Lee for Defendant and Appellant.  

No appearance for Plaintiff and Respondent.   

SUMMARY

This case involves an interaction between two individuals with long-standing hostilities which developed, at least in part, as a result of a protracted custody battle. The participants are respondent Christopher Garvin, on one hand, and appellant John Faratzis, the fiancé of Emmy Davila (Garvin‘s former girlfriend and the mother of his minor son, Jagger), on the other. Garvin sued Faratzis, alleging numerous causes of action stemming from Faratzis’s alleged attack on Garvin on April 13, 2018, following a custody exchange between Garvin and Davila. Faratzis responded with a special motion to strike, challenging the complaint as a strategic lawsuit against public participation (anti-SLAPP motion). (Code Civ. Proc., § 425.16.) Faratzis appeals an order denying the anti-SLAPP motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Background of the Parties’ Dispute

Garvin and Davila have been embroiled in a contentious custody dispute over Jagger since 2015. Faratzis has funded Davila’s litigation expenses in connection with her custody battle. Over time, Garvin’s relationship with Davila and Faratzis appears to have become increasingly hostile.

Garvin and Davila conduct custody exchanges of Jagger at a police station “to ensure that the exchange . . . is peaceful and without any violence.” On June 28, 2016, in a harassment action filed by Faratzis against Garvin, Faratzis obtained the civil harassment restraining order (Restraining Order) involved here. Among other things, the Restraining Order requires that Garvin stay at least 100 yards away from Faratzis.

The Incident on April 13, 2018

On the evening of April 13, 2018, Garvin met Davila for a custody exchange at the LAPD precinct on Butler Avenue in West Los Angeles. After Garvin left the precinct and turned onto Iowa Avenue, his car got “boxed in” by heavy traffic. While Garvin was waiting for traffic to clear, Faratzis suddenly “jumped out from hiding in the dark behind a tree” on Iowa Avenue, and “immediately ran towards Garvin’s car yelling obscenities at Garvin.” Garvin (who had not expected to see Faratzis at the custody exchange), was “a sitting duck” stuck in traffic and unable to escape. He went “into a panic for his safety” fearing “an immediate battery” by Faratzis. Without Garvin’s consent, Faratzis “reached into Garvin’s car with his outstretched arm” through the open passenger side window and came “within inches of Garvin’s face.” Faratzis then “intentionally squirted a wet caustic substance into Garvin’s face.” Garvin, who was afraid Faratzis had thrown acid in his face, was “immediately [temporarily] blinded and couldn’t breathe.” The substance “burn[ed] Garvin’s eyes, nose, throat and mouth.” And, “[f]or several moments it was impossible for Garvin to do anything due [sic] as he was frozen in shock,” “experiencing excruciating pain,” and was in “immediate fear for his life having been . . . blinded while . . . behind the wheel of his car.”

After he regained his eyesight and had composed “himself, [Garvin] made a u-turn on Iowa to . . . escape from [Faratzis].” Faratzis came at Garvin’s car a second time. This time he approached shining a “bright high intensity light” into Garvin’s burning eyes. Faratzis “was . . . screaming obscenities” and began “pounding [on] Garvin’s car and prevented [him] from driving.” He “blocked Garvin’s car with his body [and] dared Garvin to run him over if he wanted to escape [Faratzis’s] harmful actions.” Faratzis made a video recording of the second attack. When Garvin saw Faratzis come “at him a second time . . . he felt an immediate apprehension the [sic] [Faratzis] was going to batter him a second time.” Garvin believed Davila and Faratzis concocted a scheme to “set up” Garvin for a premeditated surprise attack after the custody exchange on April 13. As a result of Faratzis’s acts, Garvin claimed to have suffered “mental distress, embarrassment and physical injury.”

Garvin Files the Instant Action Against Faratzis

Garvin filed the instant action against Faratzis on May 14, 2018. His verified complaint alleges that Faratzis’s “illegal acts of April 13, 2018” gave rise to nine causes of action for: (1) assault; (2) battery; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) negligence; (6) false imprisonment; (7) invasion of privacy; (8) trespass to chattel; and (9) conversion.

Most of the lengthy complaint contains Garvin’s recitation of his version of the background of this action and allegations regarding Faratzis’s and Davila’s malice and long-term campaign of harassment against Garvin, in the course of Davila’s all-out effort to obtain custody of Jagger. Garvin claims Faratzis harbors significant “disdain and venom” against him, has an “explosive temper,” and has engaged in an ongoing pattern and practice of abuse against Garvin. Garvin alleges that, among other things, Davila and Faratzis repeatedly have made false police reports claiming Garvin harmed Jagger, and Davila has filed at least 100 false reports alleging that he harmed Jagger, necessitating countless embarrassing “welfare checks” on Garvin by the Department of Children and Family Services. Garvin also claims that Faratzis urged Davila to contact Garvin’s employer in an effort to get him fired based on false allegations of drug abuse. Garvin claims that Faratzis has expended untold sums on his and Davila’s litigation in an effort to harass and bankrupt Garvin and enable Davila to obtain custody of Jagger.

The Anti-SLAPP Proceedings

Faratzis responded to the complaint with a special motion to strike, challenging the entire complaint as a strategic lawsuit against public participation (anti-SLAPP motion). (§ 425.16.) Faratzis characterizes this lawsuit as “the quintessential SLAPP suit filed for the unambiguous purpose of harassing Faratzis for acts taken in furtherance of his constitutional right to petition.” Specifically, Faratzis has provided Davila with “funds, advice and other assistance” in connection with the custody battle. Garvin “resents” Faratzis’s assistance to Davila and has purportedly “resorted to various unlawful means to punish Faratzis for engaging in such petitioning activities,” including retaliating against him by filing this action. Faratzis argued that the entire complaint falls “squarely within the ambit of the anti-SLAPP statute” because Garvin claims to have suffered emotional distress and financial loss based on Faratzis’ protected conduct of enforcing the Restraining Order against Garvin whom, he claims, has “a long history of stalking and harassing Faratzis.” Faratzis and his attorney submitted declarations in support of the anti-SLAPP motion.

Faratzis argued that Garvin is “highly volatile, erratic and potentially dangerous,” and Faratzis was forced to obtain the Restraining Order after Garvin “stalked and harassed” him. Faratzis accompanied Davila to the April 13, 2018 custody exchange but had her drop him off a few blocks away (near the intersection of Idaho and Corinth Avenues, not Iowa Avenue) to avoid Garvin. Despite Faratzis’s efforts, Garvin “somehow managed to figure out where [Faratzis] was and drove his car within 5 feet of where [he stood] . . . in violation of the Restraining Order.”

When Faratzis saw Garvin driving toward him, he turned on his phone’s camera and “videotaped the entire interaction that took place between [him] and [Garvin] that evening.” Faratzis claimed there was minimal traffic on the street where he was waiting for Davila on April 13, 2018, and Garvin had not been forced to stop. Rather, he could have driven past Faratzis “had he chosen to comply with the Restraining Order. Instead, [Garvin] drove very close to where [Faratzis] was standing, nearly hitting [him], and then voluntarily stopped his car.” Faratzis denied reaching into Garvin’s car, and denied “spray[ing] or throw[ing] anything towards” Garvin. Faratzis merely told Garvin repeatedly to “stop following [him.]” Afterwards, Faratzis went immediately to the LAPD station to report Garvin’s violation of the Restraining Order. Faratzis believes Garvin and his attorney are “embarked upon a course of action intended to punish [Faratzis] for supporting Davila in [the custody dispute], obtaining the Restraining Order and reporting [Garvin’s] violations of the Restraining Order to the police.” Faratzis also claimed that several documents Garvin attached to his complaint impermissibly disclosed Faratzis’s personal and confidential information.

Attached to a declarations filed by Faratzis and his attorney were screenshots from the video Faratzis took of the April 13, 2018 incident, which purportedly support Faratzis’s account of the encounter with Garvin. The attorney declared that nothing in the (unviewable) screenshots or the video shows that Faratzis “threw anything at the driver of the car, reached into the car or hit his fists on the car.”

Garvin did not file a declaration in support of his opposition to the anti-SLAPP motion. Instead, Garvin’s opposition argued, among other things, that Faratzis’s anti-SLAPP motion had to be denied because the motion was not supported by any evidence or law demonstrating that any cause of action in the complaint “arising from [Faratzis’s] violent assault and battery upon [Garvin] on April 13, 2018 restrain[ed] [Faratzis’s] protected speech or activity.”

In his reply, Faratzis argued the trial court should grant the anti-SLAPP motion because: (1) Garvin’s assertion that he was not suing Faratzis based on Faratzis’s protected petitioning activity was demonstrably false, as the complaint is “replete with allegations that [Garvin] has been ‘harmed’ by [Faratzis’s] petitioning activities,” i.e., the “filing, funding and directing” of litigation against Garvin; (2) Garvin cannot evade the reach of the anti-SLAPP statute by a pleading artifice alleging that Faratzis also engaged in unprotected conduct; and (3) Garvin failed to submit any admissible evidence to support his claims, and cannot rely solely on the allegations of his complaint. Faratzis filed evidentiary objections both to Sacks’s declaration and to Garvin’s reliance on his verified pleading and attached exhibits as evidence.

Following a hearing, the trial court denied the anti-SLAPP motion. The court found every cause of action in the complaint predicated on Garvin’s allegations that on April 13, 2018, while Garvin “was driving his car, [Faratzis] approached the vehicle and sprayed an offensive substance in [Garvin’s] eyes. [¶] When [Garvin] tried to maneuver his car away, [Faratzis] blocked [Garvin’s] movement by standing in front of [Garvin’s] car, banging on the car, and shouting obscenities.” The court found that the remaining pages of allegations with which Faratzis took issue (regarding Faratzis’s occupation, wealth, personal purchases and improper involvement in the custody dispute) were insufficient to transform “a complaint about an alleged assault into [an issue] which [arose] from protected activity.” The court sustained Faratzis’s evidentiary objections to Sacks’s declaration and overruled his objections to the complaint and exhibits.

DISCUSSION

Faratzis, the only party to file an appellate brief, contends the trial court erred in denying the anti-SLAPP motion. He asserts that all of Garvin’s claims are based, at least in part, on Faratzis’s constitutionally protected activity, and Garvin presented no admissible evidence to demonstrate that his claims are meritorious or, alternatively, not barred by the litigation privilege. (Civ. Code, § 47, subd. (b).)

1. The Trial Court Properly Denied the Anti-SLAPP Motion as Faratzis Did Not Engage in Conduct in Furtherance of Constitutionally Protected Activity
2.

Faratzis contends that Garvin’s complaint must be stricken because it is premised on Faratzis’s protected activity pursuant to section 425.16, subdivision (e)(3) (“any . . . oral statement . . . made in a place open to the public . . . in connection with an issue of public interest”.) Faratzis asserts that his communication—“yelling, screaming and videotaping”—directed toward Garvin, was communicative conduct in furtherance of his constitutional right of free speech under the Restraining Order that requires Garvin to stay at least 100 yards from Faratzis.

Section 425.16, subdivision (b)(1) requires the trial court to strike a cause of action “arising from” a defendant’s act in furtherance of a constitutionally protected right of free speech unless the plaintiff can establish a probability of prevailing on the claim. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) Section 425.16 “provides a procedure for the early dismissal of [SLAPP suits], . . . litigation of a harassing nature, brought to challenge the exercise of protected free speech rights.” (Ibid.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92, some italics added.)

The analysis of an anti-SLAPP motion is two-fold. (Wilson v. Cable News Network. Inc. (2019) 7 Cal.5th 871, 884 (Wilson); Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 727 (Talega).) First, the trial court determines whether the defendant has made a threshold showing that the plaintiff’s claims arose from protected activity. Second, if the defendant makes a satisfactory showing, the burden shifts to plaintiff to demonstrate a probability of prevailing on his claims. (Wilson, 7 Cal.5th at p. 884; Talega, 225 Cal.App.4th at p. 727.)

We independently review a trial court’s denial of anti-SLAPP motions. (Monster Energy Co. v. Schecter (2019) 7 Cal.5th 781, 788.) We employ “‘the same, two-step process as the trial court to determine if the parties have satisfied their respective burdens. [Citations.]’” (Talega, supra, 225 Cal.App.4th at p. 728.) Thus, we first ascertain whether the moving defendant has shown the plaintiff’s claims arose from constitutionally protected speech or activity. (Ibid.) If the defendant fails to meet its burden on the first step, the court should deny the motion and need not address the second step, to evaluate the merits. (Ibid; Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162.)

We conclude here that the court properly denied Faratzis’s anti-SLAPP motion. The tortious conduct Garvin alleges did not involve an act in furtherance of Faratzis’s constitutional right of petition or free speech in connection with a matter of public interest. (§ 425.16, subd. (b)(1).) As relevant here, section 425.16 protects an “oral statement . . . made in a place open to the public or a public forum in connection with an issue of public interest.” (§ 425.16, subd. (e)(3), italics added.) Three general categories of speech or conduct have been deemed to be in the “public interest” They are: (1) when the statement or conduct concerns a person or entity in the public eye; (2) when the case involves conduct that may directly affect a large number of people beyond the direct participants; and (3) when the case involves a topic of widespread public interest. (See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.)

In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn), the California Supreme Court condemned as unworthy of protection, public interest arguments “too tenuously tethered to the issues of public interest . . . , and too remotely connected to the public conversation about those issues.” (Id. at p. 140.) When evaluating an anti-SLAPP motion, the court must “discern what the challenged speech is really ‘about’—a narrow, largely private dispute, for example, or the asserted issue of public interest.” (Id. at p. 149.) There must be “‘some degree of closeness’” between the challenged statements and the asserted public interest. (Id. at p. 150.) It is not sufficient for a party to claim a specific dispute bears some relationship to “a broad and amorphous public interest.” (Ibid.) The proper focus of the judicial inquiry must instead be on “‘the specific nature of the speech,’” not “‘generalities that might be abstracted from it.’” (Id. at p. 152.)

Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291 (Abuemeira) informs our decision. In Abuemeira, defendants recorded a video of a physical altercation between neighbors. (Id. at p. 1294.) That video, which defendants described as an “incident as a ‘hate crime’ against homosexuals” was shown to attendees at homeowners’ association meetings and to a television news reporter. (Id. at p. 1295.) Plaintiffs filed a complaint for damages that included claims of defamation based on the publication of the video. (Ibid.) The trial court denied defendants’ anti-SLAPP motion as to claims for intentional infliction of emotional distress and defamation. (Id. at p. 1296.) The court found that a “video recording of an unseemly private brawl, no matter how wide its distribution, is far removed from a citizen’s constitutional right of petition or free speech involving a public issue.” (Id. at pp. 1294.) The fight involved “private, anonymous” parties and was nothing but a private dispute. (Id. at p. 1298.)

The record here contains no evidence that anyone involved in this dispute is anything other than a private party or that the altercation on April 13, 2018 involved more than a private controversy. Section 425.16, subdivision (e)(3) requires that the communications about which the plaintiff complains involve “an issue of public interest.” Our analysis would be the same even if many passersby on Iowa Avenue saw or heard the altercation. “‘A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.’” (Abuemeira, supra, 246 Cal.App.4th at p. 1298.) “[T]he focus of the speaker’s conduct should be the public interest rather than an effort “‘to gather ammunition for another round of [private] controversy.”’ [Citation.]” (Id. at p. 1298, italics added.)

For these reasons the anti-SLAPP motion fails on the first prong: Faratzis failed to make the necessary threshold showing. Neither he nor Garvin is in the public eye, their interaction on April 13, 2018 involved, at most, a few people, and the activity at issue—Faratzis’s attack on Garvin—cannot in any way be characterized as activity of widespread public interest. That Garvin was subject to the Restraining Order does not change this analysis. Faratzis’s arguments are too tenuously tethered to any public conversation about those issues to merit protection. (FilmOn, supra, 7 Cal.5th at p. 140.) Because Faratzis failed to establish the first prong, we need not proceed to the second prong of the anti-SLAPP analysis.

3. Faratzis Did Not Establish That Specific Allegations Regarding Protected Activity Must be Stricken
4.

Faratzis maintains that the trial court’s exclusive focus on allegations of unprotected activity violated the Supreme Court’s decision in Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), which held that a plaintiff cannot avoid scrutiny under the anti-SLAPP statute by artfully mixing allegations of protected and unprotected activity into each cause of action pleaded. (Id. at p. 381.) Relying on Baral, Faratzis insists the trial court erred in failing to strike the broad swath of allegations in the first portion of the complaint regarding his purportedly protected activity.

Baral does not assist Faratzis. Raising this issue in only a single footnote in his moving papers below (and somewhat greater depth in his reply), Faratzis maintained that Baral required the court to strike at least “the first 14 pages of the Complaint because these allegations describing Faratzis’s petitioning activities . . . are absolutely protected by the litigation privilege [and] cannot support any cause of action.” Unlike Baral, this case does not involve “mixed” claims. Only one interaction is at issue, and it was simply another (possibly more physical) installment in the ongoing enmity between Faratzis and Garvin. That private conflict is not a matter of “public interest.”

Further, Faratzis raised Baral only in connection with his assertion that—had the court reached the second analytical step—Garvin could not demonstrate a likelihood of prevailing on his claims. There was and is no need to address the second prong of the anti-SLAPP analysis given Faratzis’s failure to beyond the first hurdle, i.e., to show his alleged misconduct involved a constitutionally protected activity in connection with a matter of public interest. The trial court appropriately observed that the colorful background Garvin has painted in his complaint is “largely irrelevant” to the claims he pled.

5. We Do Not Address the Question Whether Garvin’s Claims Are Barred by the Litigation Privilege
6.

Faratzis’s final contention is that the anti-SLAPP motion should have been granted because Garvin “cannot overcome the absolute bar of the litigation privilege” as the “Complaint contains extensive allegations regarding [Faratzis’s] counseling, funding and filing of litigation against” Garvin, all of which are protected by the litigation privilege. (Civ. Code, § 47, subd. (b).)

The litigation privilege pertains to communications (1) made in a judicial proceeding; (2) by a litigant or participant authorized by law; (3) to achieve the objects of the litigation; and (4) that bear a connection or logical relation to the action. (Abuemeira, supra, 246 Cal.App.4th at p. 1299.) Courts may look to the litigation privilege as an aid in anti-SLAPP cases to construe the scope of section 425.16. But, although the two statutes share similar language, they serve substantively different purposes. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322–324; see Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770 [“privilege informs interpretation of the ‘arising from’ prong of the anti-SLAPP statute [citation], but protections afforded by the statute and the privilege are not entirely coextensive [citations]”].) “The principal purpose of the litigation privilege is to afford litigants . . . the utmost freedom of access to the courts without fear of litigation reprisal.” (Abuemeira, 246 Cal.App.4th at p. 1299; GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 152.)

Again, Faratzis has not established that Garvin’s claims fall within the protective ambit of the anti-SLAPP statute. Because we do not determine whether Garvin showed a probability of prevailing on the merits, we need not address whether Faratzis’s claim of protected activity involves privileged conduct. The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1195.) Public mudslinging between private parties regarding matters unrelated to the public interest is likely not entitled to protection of the litigation privilege. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146; see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 957 [“‘Because the litigation privilege protects only publications and communications, a “threshold issue in determining the applicability” of the privilege is whether the defendant’s conduct was communicative or noncommunicative.’ [Citation.]”].)

DISPOSITION

The order is affirmed. Neither party shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.