Vorobiev v. Wolf CA2/8 ( 2022 )

Filed 5/27/22 Vorobiev v. Wolf CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DAVID VOROBIEV, B312666
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV39035)
v.
ERIC WOLF et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Maurice A. Leiter, Judge. Affirmed.
Eric Wolf, in pro. per., for Defendant and Appellant.
Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit and
Matthew C. Smith for Defendants and Appellants Robert J.
Hudock and Hudock Employment Law Group, APC.
Law Offices of Rodney T. Lewin and Chandler Owen
Bartlett for Plaintiff and Respondent.
**********
Defendants and appellants Robert J. Hudock and Hudock
Employment Law Group, APC, appeal from the order denying
their special motion to strike pursuant to Code of Civil Procedure
section 425.16 (anti-SLAPP motion). All further undesignated
statutory references are to this code. Defendant and appellant
Eric Wolf, who joined in the motion, also appeals from the court’s
denial.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from a long-running dispute between
property owners in a planned community known as Bell Canyon.
Eric Wolf is a property owner and resident of Bell Canyon, as
well as a longtime member of the board of directors for the Bell
Canyon homeowners’ association.
Leon and Marina Reingold, a married couple, also own
property in Bell Canyon. They are not parties to this appeal.
Since at least 2016, the Reingolds have had a contentious
relationship with Wolf stemming primarily from the Reingolds’
belief that Wolf had engaged in misconduct as a member of the
board and had unfairly interfered with their efforts to develop
their property. Marina’s father is plaintiff and respondent David
Vorobiev. Vorobiev apparently did not have any personal
interactions with Wolf.
In 2016, while the Reingolds were beginning to develop
their property, they used an e-mail account set up by Marina
under her father’s name. When e-mails were sent from that
account, the sender was identified as “David Vorobiev” with the
actual e-mail address identified as jem***@*********.net
(partially redacted for privacy). On October 1, 2016, Leon, using
the Vorobiev e-mail account, sent an e-mail to Barry Schehr,
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another member of the Bell Canyon board of directors. The e-
mail outlined numerous complaints and accusations of
misconduct against Wolf regarding his alleged interference in the
Reingolds’ development plans. Among other things, the e-mail
asserted that Wolf had threatened the Reingolds, telling them
their development plans would not be approved if they used a
builder (Nissim David-Chai) who was in litigation against the
homeowners’ association. Wolf was a defendant in that action.
Leon also said Wolf told him he better do whatever he says or
Leon would not get the approvals for his property.
In October 2017, Wolf, represented by Robert J. Hudock
and his firm, Hudock Employment Law Group, filed an action for
defamation and intentional infliction of emotional distress
against the Reingolds and Vorobiev in Ventura County Superior
Court (the Defamation Action). Wolf alleged the Reingolds and
Vorobiev, along with unidentified Doe defendants, engaged in
numerous illegal acts, either personally or as members of a
conspiracy, that were intended to defame Wolf, damage his
reputation and cause him distress. Wolf alleged the Reingolds
and Vorobiev fraudulently obtained Wolf’s private cellular phone
records from Sprint and then used the information to
anonymously contact Wolf’s friends, family and colleagues,
accusing Wolf of unethical and corrupt behavior. Wolf further
alleged the the Reingolds and Vorobiev made and published
numerous oral and written defamatory statements over a period
of several months. The statements in the October 1, 2016 e-mail
sent to Schehr from the Vorobiev e-mail account were described
in detail in the complaint. Wolf alleged the statement was made
by Leon and published by Vorobiev via e-mail.
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In September 2019, Vorobiev filed a motion for summary
judgment in the Defamation Action. In a supporting declaration,
Vorobiev stated he was not computer literate, did not own or use
a computer, was not fluent in English, and primarily spoke his
native language, Russian. Vorobiev further attested he had
nothing to do with the October 1, 2016 e-mail and had first
learned of its existence when he was sued by Wolf.
In October 2019, prior to the hearing on Vorobiev’s
summary judgment motion, Wolf filed a voluntary dismissal of
Vorobiev from the Defamation Action with prejudice.
Vorobiev then filed this action, stating a sole cause of action
for malicious prosecution against Wolf, Hudock and Hudock
Employment Law Group, APC, based on the filing and
prosecution of the Defamation Action.
Hudock and Hudock Employment Law Group filed an anti-
SLAPP motion. Wolf, proceeding in propria persona, joined in
the motion and did not submit any additional evidence on his
own behalf. Defendants argued that Vorobiev could not establish
the essential elements of a malicious prosecution claim of
favorable termination, lack of probable cause and malice.
In his supporting declaration, Hudock attested to his efforts
to negotiate a dismissal of Vorobiev from the Defamation Action,
including requesting a declaration from Vorobiev acknowledging
he played no role in the publication of the October 1, 2016 e-mail.
He explained that counsel for Vorobiev rebuffed all of his efforts
in that regard.
Vorobiev opposed defendants’ motion, conceding that a
malicious prosecution claim involves protected activity under the
anti-SLAPP statute, but arguing that his evidence established a
probability of prevailing on the merits. Vorobiev argued
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defendants’ motion focused solely on the October 1, 2016 e-mail
and did not address the other allegations made in the Defamation
Action, including the alleged conspiracy to steal cell phone
records. The opposition included Vorobiev’s declaration stating
the same facts he had attested to in his summary judgment
motion, and declarations from Leon and Marina Reingold.
In his declaration, Leon said he used the e-mail account set
up by his wife in the name of Vorobiev to regularly correspond
with Wolf, the other Bell Canyon board members, and the
architectural committee. Copies of several e-mail exchanges
between April to October 2016 were attached as exhibits. Leon
said he was the one who sent the October 1, 2016 e-mail to
Schehr and that his father-in-law, Vorobiev, had nothing to do
with it. In an e-mail dated October 27, 2016, from Wolf to the
Vorobiev e-mail account, Wolf wrote “Dear Mr. and
Mrs. Reingold” and concluded the e-mail with the following
statement: “For the record, I notice that David Vorobiev is an
alias for your email. I have noticed this fact on other
communications. Please consider any email to this email address
a delivery to Mr. and Mrs. Reingold.”
Leon also said that well before Wolf filed the Defamation
Action, Wolf threatened to drag his elderly father-in-law into
“this situation,” referencing their ongoing dispute. Wolf told
Leon that if he did not retract the statements he had made in the
October 1, 2016 e-mail, he would sue Vorobiev. Wolf also told
Leon “[w]e might approve you and you can build your house, but
I’ll own it if you don’t retract” the October 1, 2016 e-mail.
Vorobiev also presented portions of deposition transcripts
from the lawsuit filed by Nissim David-Chai against Wolf, the
Bell Canyon homeowners’ association and others. Hudock was
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present at the depositions as Wolf’s counsel. The deposition of
Wolf took place on August 15, 2017. He admitted that he
considered the Vorobiev e-mail account to be “an alias” of Leon.
The deposition of Leon took place on October 26, 2017. Leon
admitted he was the one who wrote and sent the October 1, 2016
e-mail. Yet the Hudock defendants filed the Defamation Action
against Vorobiev on October 5, 2017, after Wolf admitted in
deposition that he knew the Vorobiev e-mail account was an alias
of Leon, and continued to prosecute it after Leon admitted he
sent the allegedly defamatory e-mail.
The hearing on the motion took place on May 5, 2021. The
court entertained argument and then took the motion under
submission. Later that day, the court issued a written order
denying the motion, finding Vorobiev had established sufficient
facts on the elements of favorable termination, lack of probable
cause, malice and damages.
This appeal followed.
DISCUSSION
1. Applicable Law
The anti-SLAPP statute was enacted to provide a
procedure for the early dismissal of frivolous causes of action that
infringe on the rights to free speech and to petition for a redress
of grievances. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1060.) The statute states that
“[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
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plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
In resolving an anti-SLAPP motion, the court engages in a
two-step analysis. The court must first determine whether the
moving defendant “has made a threshold showing that the
challenged cause of action is one arising from protected activity.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If the court
determines the defendant met this initial burden, the burden
shifts to the plaintiff and the court “must then determine
whether the plaintiff has demonstrated a probability of
prevailing on the claim.” (Ibid.) Only those causes of action that
satisfy both prongs of section 425.16 (arising from protected
activity and lacking minimal merit) are subject to being stricken
under the statute. (Navellier, at p. 89.)
We independently review a ruling on an anti-SLAPP
motion, applying the same two-step procedure as the trial court.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3 (Soukup).) We consider the pleadings and the
admissible evidence submitted in the moving and opposing
papers. (§ 425.16, subd. (b)(2).) We accept as true all evidence
favorable to the nonmoving plaintiff and do not compare the
weight of the parties’ evidence or make credibility
determinations. We only evaluate the moving defendant’s
evidence to determine if it defeats the plaintiff’s evidence as a
matter of law. (Soukup, at p. 269, fn. 3.)
2. Step One: Protected Activity
Vorobiev’s sole cause of action against defendants is for
malicious prosecution of a civil action. He concedes, as he did
below, that a malicious prosecution claim is subject to an anti-
SLAPP motion. We agree. (Jarrow Formulas, Inc. v. LaMarche
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(2003) 31 Cal.4th 728, 735 [every reviewing court “that has
addressed the question has concluded that malicious prosecution
causes of action fall within the purview of the anti-SLAPP
statute”].)
3. Step Two: Minimal Merit
To defeat defendants’ motion, Vorobiev was required to
demonstrate his malicious prosecution claim was “both legally
sufficient and supported by a sufficient prima facie showing of
facts” to sustain a judgment in his favor if his evidence was
credited. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th
811, 820.) “ ‘[C]laims with the requisite minimal merit may
proceed.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 385.)
A malicious prosecution claim consists of three elements.
The plaintiff must demonstrate the underlying action
(1) terminated favorably to plaintiff, (2) was brought or
maintained without probable cause and (3) was brought or
maintained with malice. (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 871 (Sheldon Appel); accord, Parrish v.
Latham & Watkins (2017) 3 Cal.5th 767, 775 (Parrish).)
a. Favorable termination
“ ‘In order for a termination of a lawsuit to be considered
favorable with regard to a malicious prosecution claim, the
termination must reflect on the merits of the action and the
plaintiff’s innocence of the misconduct alleged in the lawsuit.’ ”
(Lee v. Kim (2019) 41 Cal.App.5th 705, 720.) A voluntary
dismissal generally reflects on the merits. (Medley Capital Corp.
v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 47.)
Defendants admit they dismissed Vorobiev from the
Defamation Action after he filed the summary judgment motion
declaring his lack of involvement with, or knowledge of, the
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allegedly defamatory October 2016 e-mail. Defendants claim the
dismissal does not reflect on the merits because it was merely a
strategic decision to refocus the litigation on the Reingolds and
avoid additional litigation costs in opposing the summary
judgment motion. Vorobiev’s evidence is sufficient at this stage
of the proceedings to support a finding defendants dismissed
their claims against Vorobiev because he was not liable on the
merits, which satisfies the favorable termination element.
b. Lack of probable cause
The probable cause element requires “ ‘the trial court to
make an objective determination of the “reasonableness” of the
defendant’s conduct, i.e., to determine whether, on the basis of the
facts known to the defendant, the institution [or maintenance] of
the prior action was legally tenable.’ ” (Parrish, supra, 3 Cal.5th
at p. 776, italics added.)
Where the facts known to the defendant are in dispute,
“that dispute must be resolved by the trier of fact before the
objective standard can be applied by the court.” (Mendoza v.
Wichmann (2011) 194 Cal.App.4th 1430, 1450; accord, Sheldon
Appel, supra, 47 Cal.3d at p. 881.) The facts here are in dispute
as to Wolf’s and Hudock’s knowledge regarding Vorobiev’s
involvement in any of the allegedly defamatory conduct.
Vorobiev argues the evidence shows defendants knew the e-mail
account was used by the Reingolds and that Vorobiev had no
involvement in any of the communications or in any of the other
alleged conduct. Defendants assert they had a reasonable basis
for believing Vorobiev sent the October 1, 2016 e-mail because it
came from an e-mail account in his name, he was related to the
Reingolds, and he had refused, until the filing of the summary
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judgment motion, to provide a declaration attesting to his lack of
involvement.
Our task is not to resolve the disputed facts. We are not
deciding the merits of Vorobiev’s malicious prosecution claim.
We are only deciding whether Vorobiev has shown his claim has
the requisite minimal merit to defeat the anti-SLAPP motion. As
explained above, in making that assessment, we accept as true
all evidence favorable to Vorobiev and do not weigh the evidence
or make credibility determinations. We only consider and
evaluate defendants’ evidence to determine if it defeats
Vorobiev’s evidence as a matter of law. (Soukup, supra,
39 Cal.4th at p. 269, fn. 3.)
The e-mail correspondence between Leon and Wolf, as well
as other members of the Bell Canyon board, supports a finding
that Wolf knew, long before the filing of his Defamation Action,
that Leon was the author and sender of the e-mails and that
Vorobiev, Leon’s elderly father-in-law, was not involved. We
cannot rule out at this stage the reasonable inference that
Hudock, as Wolf’s counsel, was also aware of this same
information. There was no other evidence raising a reasonable
belief Vorobiev had any involvement in an alleged conspiracy to
defame Wolf.
c. Malice
The malice element requires a showing the underlying
action was filed due to actual ill will or some other improper
motive. (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538.)
“Malice requires more than proof that the party acted without
probable cause.” (Ibid.)
Here, the same evidence discussed above regarding
probable cause is sufficient to establish the malice element. Leon
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testified that Wolf directly threatened to sue his elderly father-in-
law in order to extort a retraction from him of the accusations he
made against Wolf. That evidence, accepted as true for purposes
of the motion, supports a finding the action was initiated and
maintained with the requisite malice.
The evidence, including the e-mail correspondence from
April to October 2016 and the depositions in the David-Chai
lawsuit, also demonstrates that Hudock knew or had reason to
know well before the filing of the Defamation Action that
Vorobiev was not the one who sent the October 1, 2016 e-mail.
No other evidence was presented supporting any bases for
concluding Vorobiev had conspired to defame Wolf. Nevertheless,
Hudock, acting as Wolf’s attorney, continued to prosecute the
Defamation Action for almost another two years before
dismissing Vorobiev. The evidence is sufficient to raise an
inference of malice by the Hudock defendants.
d. Damages
Damages are an element of any tort cause of action but
defendants did not assert in their anti-SLAPP motion below that
Vorobiev could not show he suffered damages. Thus, Vorobiev
did not offer evidence of damages in opposition to the anti-SLAPP
motion. In their reply papers in the trial court, the Hudock
defendants argued that Vorobiev failed to submit any evidence he
suffered either emotional distress or monetary damages in the
form of attorney fees defending the Defamation Action. The trial
court found damages could be inferred. On this record, we agree
with the trial court that damages could be inferred from
Vorobiev’s evidence in opposition to the motion.
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DISPOSITION
The order denying the special motion to strike by
defendants and appellants Robert J. Hudock and the Hudock
Employment Law Group, APC, and denying the joinder by
defendant and appellant Eric Wolf is affirmed.
Plaintiff and respondent David Vorobiev shall recover costs
of appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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