Case Number: BC663504 Hearing Date: July 26, 2018 Dept: 34

SUBJECT: Special motion to strike

Moving Party: Defendant Yaffa Basson, individually and as trustee of The Basson Family Trust

Resp. Party: Cross-Complainant Ruth Salman

The motion is DENIED.

PRELIMINARY COMMENTS:

At the May 17, 2018 hearing, the Court requested that counsel use the names of the parties, rather than the initials “YB,” “RS” or “DA” in their briefs. Counsel for Basson has still used initials throughout his brief. As the Court previously stated, this makes it harder for the Court to read the brief, and hence makes it harder for the Court to follow counsel’s argument.

The Court hopes that two words to the wise will be sufficient.

BACKGROUND:

Plaintiff commenced this action on 05/31/17 against defendants for: (1) declaratory relief; (2) constructive trust; (3) specific performance; (4) injunction; and (5) fraud.

On 12/07/17, defendant Yaffa Basson filed a Cross-Complaint for: (1) intentional misrepresentation; (2) negligent misrepresentation; (3) conversion; (4) constructive trust; (5) conspiracy to defraud; (6) civil harassment; (7) battery; (8) assault; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) forgery; (12) identity theft; (13) declaratory relief; (14) negligence; (15) breach of contract; and (16) unfair business practices.

On 03/14/18, Ruth Salman, who was named as a defendant in Basson’s cross-complaint, filed a cross-complaint against Basson for: (1) slander per se.

ANALYSIS:

Cross-Defendant Basson seeks to strike Salman’s cross-complaint and recover her attorney fees and costs related to this anti-SLAPP motion. (See Notice of Motion, p. 2:8-12.)

Relevant Law

The California Supreme Court recently summarized the showings and findings required for a motion under Code of Civil Procedure section 425.16(b).

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396. See also Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-151.)

Protected activity

In determining whether a defendant seeking to strike a claim under the anti-SLAPP statute has made a prima facie showing that the plaintiff’s action arises from activity protected by statute, the critical consideration is whether the plaintiff’s cause of action itself, and the act which the plaintiff complains of, is based on an act taken by defendant in furtherance of her right of petition or free speech. (See, e.g., Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “The anti-SLAPP statute’s definitional focus is not on 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 [emphasis in original].) The statute is to be broadly applied and includes four categories of protected conduct:

“(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 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.” (Code Civ. Proc., § 425.16(e).)

Discussion

The cross-complaint alleges a cause of action for slander per se based on the following actions:

“Upon information in belief, in May of 2017, Cross-Defendant began to tell various persons that Ruth Salman had stolen hundreds of thousands of dollars from her by taking money out of Cross-Defendant’s banking account.” (Id. at ¶ 10.)

“Cross-Defendant began telling a number of people that Salman was a criminal and a thief.” (Id. at ¶ 11.)

“The foregoing statements were made by Cross-Defendant to Edna Lieberman, as well as multiple women at Cross-Defendant’s temple. Moreover, Cross-Defendant made these statements to a person on the phone while out in front of her house and in the presence of Danielle Aviksis and Joseph Aviksis. Cross-Defendant also made these statements to an unidentified female friend who regularly accompanies Cross-Defendant to work.” (Id. at ¶ 12.)

“Upon information the unidentified female friend referenced in Paragraph 12 above also relayed these statements to multiple other people.” (Id. at ¶ 13.)

“In or around May of 2017, cross-defendants began telling multiple people that Salman had stolen large sums of money from cross-defendant’s banking account and that Salman was a thief.” (Cross-Complaint, ¶ 19.)

“These statements were made to multiple people, including Cross-Defendant’s sister, Edna Lieberman, an unidentified female friend, a number of women in Cross-Defendant’s temple, and in front of Danielle Aviksis, among others.” (Id. at ¶ 20.)

Basson does not deny making these statements or accusing Salman of being a thief: “In fact, [Yaffa Basson] is stating those allegations against [Ruth Salman] in her complaint, which is now in the public domain and is definitely within the scope of CCP § 425.16.” (Motion, p. 5:23-25.) Basson argues that all of the alleged statements in Salman’s cross-complaint are protected free speech because:

“it arises from ‘statement[s] or writing[s] . . . made before . . . [an] executive . . .or any other official proceeding authorized by law . . . because it arises from ‘written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by [an] executive, or judicial body, or any other official proceeding authorized by law’ . . . and from ‘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.’” (Id. at p. 8:26-9:6 [citing Code Civ. Proc. §§ 425.16(e)(1)-(4)].)

Basson relies on the rule that “[t]here is no requirement that the writing or speech be promulgated directly to the official body” in order to fall within the protection of section 425.16. (See Motion, p. 9:20-23 [quoting Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17-18].) In accordance with this rule, courts have found that “communications preparatory to or in anticipation of the bringing of an action or other official proceeding” fall within the free speech protections.” (Motion, p. 10:1-2; Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.) These preparatory communications may include “letters soliciting support for an intended complaint” or “prelitigation demand letters.) (Motion, p. 4-7.) In those cases, even though the “allegedly actionable statements could not be literally under consideration or review by a judicial body at the time they were made,” the courts found that they constituted protected speech under section 425.16. (Id. at p. 10:6-9.)

While Basson is correct that the definition of protected speech is applied expansively in evaluating a motion pursuant to section 425.16, the allegations in Salman’s cross-complaint simply are not directed at any protected speech. Salman alleges that Basson made the allegedly defamatory statements to multiple people, including “a number of women in Cross-Defendant’s temple” as well as an “unidentified” coworker who allegedly repeated the statements to other individuals. (See Cross-Complaint, ¶¶ 12, 13, 20.) These allegations suggest gossip – albeit malicious gossip –more than any protected effort to discuss the allegations for the purpose of planning for a legal action. Basson’s motion fails to refute this impression.

Further, the cross-complaint alleges that these defamatory statements were made in May 2017, some 7 months before the cross-complaint was filed. There is no evidence that the cross-complaint was even being contemplated at that time.

Here, Basson has failed to show that the alleged statements are protected free speech; therefore the Court need not reach the second step in the anti-SLAPP analysis, in which the burden would shift to Salman to show the likelihood of prevailing on her claim. To shift the burden, Basson would need to show that each of the alleged repetitions of the defamatory statements was made in connection to the allegations in her cross-complaint or that they were made in the process of preparing to make those allegations. Common sense shows that the defamatory statements – made seven months before the cross-complaint was filed – were not made in connection with the cross-complaint. More importantly, Basson has failed to meet her burden on this motion.

Accordingly, the anti-SLAPP motion is DENIED.