Bleckman v. Katzenbach CA2/2 ( 2021 )

Filed 12/21/21 Bleckman v. Katzenbach CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
GAIL BLECKMAN, B308819
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STLC01640)
RYAN KATZENBACH,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Laura A. Seigle, Judge. Affirmed.
The Kernan Law Firm, S. Michael Kernan and R. Paul
Katrinak for Plaintiff and Appellant.
Ryan Katzenbach, in pro. per., for Defendant and
Respondent.
_________________________
Gail Bleckman (appellant) appeals from the denial of her
Code of Civil Procedure section 425.161 motion to dismiss the
cross-complaint filed by Ryan Katzenbach (respondent). He
alleged that appellant made false statements that clouded title to
a film he was trying to relicense to a cable network for further
broadcast. We find no error and affirm because appellant failed
to establish that her statements were either made in anticipation
of litigation or were an exercise of free speech in connection with
a matter of public interest.
FACTS
The Complaint
In a complaint filed February 13, 2019, appellant sued
respondent for an accounting.
As alleged: Appellant was introduced to respondent in
2010 while he was in the early stages of developing a film about
the 1974 murders committed by Ronald DeFeo, Jr., (DeFeo) in
Amityville, New York (Amityville Project). The project led to the
development of three films, a special aired on television by
REELZChannel (REELZ), and a DVD interview with DeFeo.
Based on information and belief, (1) appellant and respondent are
co-owners of the Amityville Project, and (2) they “orally agreed
that [appellant] was to receive 5 [percent] of any gross receipts
from the Amityville Project, and as consideration [appellant]
would conduct research and perform other work for the
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
Section 425.16 is known and referred to as the anti-SLAPP
statute. (Guessous v. Chrome Hearts, LLC (2009) 179
Cal.App.4th 1177, 1180.) “SLAPP is an acronym for strategic
lawsuit against public participation.” (Id. at p. 1180, fn. 1.)
2
Amityville Project as an independent producer and at her own
expense[.]”
On April 20, 2018, appellant obtained a judgment ordering
respondent to pay her $4,806.80 related to the Amityville Project.
Respondent paid the judgment. Since that time, respondent has
continued to license or sell “the film in question,” and he has
failed to account for the monies received. Without an accounting,
appellant does not know whether respondent owes her any
money.
The Cross-Complaint
Respondent filed a cross-complaint that alleged causes of
action against appellant for intentional interference with
prospective economic advantage, negligent interference with
prospective economic advantage, defamation, and violation of
Business and Professions Code section 17200. He alleged the
following facts.
In 2010, respondent was working on an independent film
about the Amityville murders (Film). Appellant represented that
she could secure distribution for the Film and work as a
researcher. They entered a verbal agreement that would entitle
appellant to a 5 percent royalty of the Film’s adjusted gross
income. The parties understood that the verbal agreement was
to be reduced to a written contract. When appellant was
presented with the written contract in October 2012, she did not
sign it. Rather, she proceeded to disappear for two years. She
resurfaced in October 2014 after learning that respondent had
licensed the Film to REELZ. Though she never performed her
duties, she demanded to be paid. Respondent promised to pay
her if she signed the contract. She disappeared again. Then, in
2016, she sued respondent and sought contract damages as well
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as punitive damages. That action was classified as a limited
jurisdiction case, and then she dismissed it in favor of seeking
$10,000 in small claims court. In April 2018, she obtained a
judgment for about $4,800.
After the license expired, respondent entered negotiations
with REELZ for a renewal in a deal worth $50,000.
Subsequently, in July or August 2018, respondent “received a
phone call from REELZ advising him that the deal was off the
table because [appellant] had personally contacted the network
and advised them that [respondent] ‘did not have the right to sell
the film because he did not have clear rights or he did not own
the rights.’” Appellant may have communicated with REELZ
executives through e-mails and other written correspondence.
Notice and Acknowledgment of Receipt
Appellant’s counsel completed a Notice and
Acknowledgement of Receipt stating, “This acknowledges receipt
of . . . [¶] . . . [¶] Cross-complaint of [respondent], which was
never served.”
The Anti-SLAPP Motion
Appellant filed an anti-SLAPP motion and respondent
opposed the motion.
In his declaration, respondent stated that when appellant
was awarded about $4,800 in small claims court, he paid the
judgment and informed REELZ. They proceeded to speak about
renewing the license to the Film. In mid-2018, Steve Cheskin
(Cheskin) from REELZ called respondent to tell him that
appellant had contacted the network and said something “to the
effect[] that ‘[REELZ] needed to compensate her because
[respondent] did not have the right to license the film from the
start[,]’ and that if [REELZ] didn’t pay up, she was going to sue
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them next.’ She made it very clear . . . that the chain of title had
issues.” Cheskin informed respondent that the license renewal
deal was dead.
The Ruling
In its minute order on the matter, the trial court noted the
following facts: Respondent never served the cross-complaint.
Appellant’s counsel, nonetheless, e-mailed respondent and stated,
“You filed a cross-complaint but never served it. We downloaded
it from the court website today. We will deem it served today and
have a response within 30 days.” Appellant filed a Notice and
Acknowledgement of Receipt of the cross-complaint. Two days
later, respondent e-mailed appellant’s counsel, averring, “This
counterclaim was withdrawn in early August—I have no idea, in
checking the Court docket, why this hasn’t been reflected. This is
why the cross-complaint was never served. I will dismiss it via a
fax filing yet again. . . . Two hours later, at 4:10 p.m., [appellant]
filed her anti-SLAPP motion. . . . [Appellant] does not contest
these facts.”2
The trial court stated, “The anti-SLAPP motion . . . [is]
unnecessary and a waste of time and resources. [Respondent]
never served the cross-complaint and had decided not to serve it,
so there was no reason for [appellant] to proactively accept
service. [Respondent] told [appellant’s] counsel he had tried to
2 The trial court did not mention the parties’ subsequent
communications. On January 24, 2020, appellant’s counsel
e-mailed respondent, stating, “Just dismiss your cross-complaint
as you said you would do. Send me the dismissal.” Respondent
e-mailed back, “You either dismiss your case with prejudice or I
will seek my legal remedies. [¶] You dismiss and I will dismiss
my [cross-complaint].”
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dismiss the cross-complaint and would submit the dismissal
again, [and] there was no reason for [appellant] to immediately
file the anti-SLAPP motion without first giving [respondent] the
time to dismiss the cross-complaint.” According to the trial court,
appellant did not display the cooperation that is expected of
parties during litigation. Under the circumstances, “the filing of
the anti-SLAPP motion was unnecessary and appears to have
been filed only to gain an advantage and seek attorney fees.” The
trial court ruled: “Accordingly, subject to [respondent] dismissing
the cross-complaint, the anti-SLAPP motion is [denied][.] . . . If
[respondent] does not dismiss the cross-complaint within 20 days
of the date of this order, the [trial court] will put the anti-SLAPP
motion . . . back on calendar for a hearing on the merits.”
This appeal followed.
DISCUSSION
I. Anti-SLAPP Law.
Section 425.16, subdivision (b)(1) provides: “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.”
The speech and conduct protected by the anti-SLAPP
statute are: “(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
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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.” (§ 425.16, subd. (e).)
Statements made in anticipation of litigation are protected
under section 425.15, subdivision (e), clause (2). (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
They must concern “‘the subject of the dispute’” and the future
litigation must be “‘“contemplated in good faith and under serious
consideration”’ [citation][.]” 3 (Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1268 (Chudacoff).) The statute applies even if
the statements are made to “persons who are not parties or
potential parties to litigation[.]” (Id. at p. 1270.)
Courts employ a two-prong analysis when analyzing an
anti-SLAPP motion. (Navellier v. Sletten (2002) 29 Cal.4th 82,
88.) First, the moving party must make an initial showing that
the anti-SLAPP statute applies to the claims that are the subject
of the motion. (Wilcox v. Superior Court (1994) 27 Cal.App.4th
809, 819.) If the moving party does so, the motion will be granted
unless the court determines that the plaintiff has established a
probability of prevailing on the claim. (DuPont Merck
Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562,
567–568.)
3 Good faith refers to a good faith intention to file a lawsuit
rather than a good faith belief in the truth of the communication.
(Digerati Holdings, LLC v. Young Money Entertainment, LLC
(2011) 194 Cal.App.4th 873, 887.)
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II. Standard of Review.
We independently review the denial of an anti-SLAPP
motion. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067.) If the record supports the trial
court’s order, it will be upheld regardless of the grounds relied
upon by the trial court. (Becerra v. County of Santa Cruz (1998)
68 Cal.App.4th 1450, 1457.)
III. First Prong Analysis.
Appellant argues that the statements she allegedly made
are protected because they: (1) were made in anticipation of
litigation and fell within section 425.16, subdivision (e),
clause (2); and (2) stemmed from the exercise of free speech in
connection with a public issue or a matter of public interest and
are protected by section 425.16, subdivision (e), clause (4).
The law is not on her side.
A. Whether the Statements were Made in Anticipation of
Litigation.
In her opening brief, appellant asserts that Feldman v.
1110 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1481
(Feldman) supports the conclusion that the statements she made
to REELZ disparaging respondent’s title to the Film were made
in anticipation of litigation.
In Feldman, an agent of an apartment building told
subtenants of a unit that their sublease had not been approved
and they had to either pay higher rent or move out. According to
one of the subtenants, the agent made these threatening
comments: “‘(A) That he has done hundreds of evictions, so he
knows the landlord will win, and how many had we done? [¶]
(B) That regardless of the outcome of the current case, my wife
and I will never be able to rent another apartment in
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San Francisco; [¶] (C) That he understands the law and has
discussed the case with his uncle, who is a federal judge; [¶]
(D) That we will not be able to file suit against them because they
will win; [and] [¶] (E) That we could not have read the
Addendum properly.’” (Feldman, supra, 160 Cal.App.4th at
pp. 1474–1475.) The apartment building filed an unlawful
detainer action against the subtenants who, in turn, filed a cross-
complaint alleging causes of action for contract and tort damages
arising out of the dispute. The trial court granted the apartment
building’s anti-SLAPP motion as to one cause of action,
retaliatory eviction. (Id. at pp. 1475–1477.)
The Feldman court held that the agent’s “threats” were
“within the scope of the anti-SLAPP statute” because they were
“communications in connection with an ongoing dispute and in
anticipation of litigation. [Citation.]” (Feldman, supra, 160
Cal.App.4th at pp. 1474–1475.)
There is no analogy between this case and Feldman. The
threats in Feldman concerned the subject of the dispute over the
subtenants’ occupancy of a unit in the apartment building. Given
that the apartment building filed an unlawful detainer action, it
is apparent that the threats were made in anticipation of
litigation contemplated in good faith and under serious
consideration. (Chudacoff, supra, 160 Cal.App.4th at p. 1268.)
Here, in contrast, the statements disparaging respondent’s title
to the Film did not concern the contract dispute between
appellant and respondent over whether she was entitled to a
percentage of the proceeds earned by the Film. Also, appellant
did not sue respondent over ownership of the Film or otherwise
challenge his right to either license or sell the Film, so there is no
basis to infer that she was seriously and in good faith
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contemplating such litigation. The one sentence in the complaint
alleging that appellant believes that she and respondent are
co-owners of the Amityville Project does not shore up the
deficiency. The complaint offers no factual basis for her belief,
and, in any event, it is superfluous. Even assuming the
allegation is somehow relevant to appellant’s claim for an
accounting, it does not implicate litigation over whether
respondent lacked title or the right to sell or license the Film.
Alternatively, appellant cites Graham-Sult v. Clainos
(9th Cir. 2014) 756 F.3d 724 (Graham-Sult) and argues that her
statements categorially qualify as protected activity under the
anti-SLAPP statute because they were made to REELZ, an entity
that had at least “some interest” in past and future litigation
between appellant and respondent. Graham-Sult is not the
panacea appellant hopes.
The case arose out of the probate of the estate of a
successful rock and roll concert promoter who was survived by
two sons. The executor of the estate (who doubled as trustee of
the sons’ testamentary trusts) and his attorneys made
statements that deceived the sons and probate court into
thinking the decedent had assigned away his intellectual
property (copyrights and a trademark), and the executor
promised to distribute scrapbooks to the sons but never fulfilled
that promise. Further, the attorneys prepared, and the executor
signed, an assignment confirming that the intellectual property
was owned by a corporation the decedent had founded. Following
the probate court’s final order of distribution, the sons sued the
executor and his attorneys for breach of fiduciary duty, aiding
and abetting breach of fiduciary duty, breach of trust, fraud,
promissory estoppel, conversion, aiding and abetting conversion,
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and unjust enrichment, claiming they had been cheated out of a
pro rata distribution of the intellectual property, the scrapbooks,
and a series of original posters. The defendants filed an anti-
SLAPP motion, which was granted. (Graham-Sult, supra, 756
F.3d at pp. 731–740.)
In its first prong analysis, the Ninth Circuit concluded that
the conversion and unjust enrichment causes of action did not
implicate protected activities of the executor. It reached the
opposite conclusion as to breach of fiduciary duty, aiding and
abetting breach of fiduciary duty, breach of trust, aiding and
abetting conversion, fraud and promissory estoppel. (Graham-
Sult, supra, 756 F.3d at pp. 735–740.)
With respect to breach of fiduciary duty and aiding and
abetting breach of fiduciary duty, the court explained that the
defendants’ activity was protected “to the extent it involve[d]
making representations to the probate court, or preparing
documents for filing in court. [Citation.]” (Graham-Sult, supra,
756 F.3d at p. 736.) Also, it was protected “to the extent it
involve[d] statements made to the [sons], who had ‘some interest’
in the probate proceedings. [Citation.]” (Ibid.) To support this
latter point, the court cited Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal.App.4th 1153, 1167 (Fremont), a case explaining
that a “‘statement is ‘in connection with’ an issue under
consideration by a court in a judicial proceeding [within the
meaning of clause (2) of section 425.16, subdivision (e)] if it
relates to a substantive issue in the proceeding and is directed to
a person having some interest in the proceeding.’” (Graham-Sult,
supra, 756 F.3d at p. 736.) By citing Fremont, Graham-Sult
impliedly concluded that the deceptive statements that the
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defendants made to the sons related to substantive breach of
fiduciary duty issues.4
Regarding breach of trust, the sons alleged that the
executor “‘breached . . . duties in his ‘characterization, valuation
and distribution of assets,’ and that the trusts received reduced
distribution[.]” (Graham-Sult, supra, 756 F.3d at p. 737.) The
court concluded that “these activities were all preparatory to
probate court filings, or required the probate court’s approval.
Accordingly, [the son’s] [c]ause of [a]ction arises from protected
activity. [Citation.]” (Ibid.)
The sons alleged that the attorneys aided and abetted the
executor’s conversion of property by “(1) falsifying probate court
filings, (2) concealing information from [the sons] and the probate
court, (3) making false statements to [the sons] and the probate
court, and (4) assisting with the preparation of the [a]ssignment.”
(Graham-Sult, supra, 756 F.3d at p. 739.) This was a mixed
cause of action but the anti-SLAPP benefits applied because the
representations made to the sons and the court filings “could
have constituted independent acts of aiding and abetting
. . . conversion.” (Ibid.)
Turning to fraud, the court concluded that misleading
statements and omissions “made to persons with an interest in a
4 The breach of fiduciary duty and aiding and abetting
breach of fiduciary duty were mixed causes of action because they
contained allegations of both protected activity (misleading
statements and court filings) and unprotected activity (self-
dealing and preparation and execution of the assignment). Anti-
SLAPP benefits applied to the protected activity because it was
not merely incidental to the unprotected activity. (Graham-Sult,
supra, 756 F.3d at pp. 735–736.)
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court proceeding are categorically protected activity under the
anti-SLAPP statute. [Citation.]” (Graham-Sult, supra, 756 F.3d
at p. 739.) Once again, the court cited Fremont in support of its
conclusion. Thus, the court implied that the statements and
omissions related to substantive issues in the case. (Ibid.)
The promissory estoppel cause of action alleged that the
executor promised to give the scrapbooks to the sons as part of
the distribution of the assets of the estate. The court concluded:
“Because [the executor] made this [promise] to parties with an
interest in the litigation about the subject matter of the probate
proceedings (the distribution of assets), we conclude under
Fremont that [the promissory estoppel] cause of action arises
from protected activity. [Citation.]” (Graham-Sult, supra, 756
F.3d at p. 740.)
In the second prong analysis, the question was whether the
sons had a reasonable probability of prevailing “in the face of
three substantive defenses: (i) the litigation privilege, (ii) the
statute of limitations, and (iii) res judicata.” (Graham-Sult,
supra, 756 F.3d at p. 741.) The Ninth Circuit concluded that all
but one cause of action arising from protected activity were
barred by defenses and properly dismissed. The exception was
breach of fiduciary duty. The district court erred when it ruled
that all the cause of action’s allegations implicated the litigation
privilege. While some did (those related to statements made to
the probate court or the sons), others (such as allegations of self-
dealing) did not. (Id. at pp. 746–748, 753.) The case was
remanded for the district court “to determine whether [the sons]
can make an adequate showing to survive a motion to strike on
the remainder of the claim.” (Id. at pp. 746–747.)
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The takeaway from Graham-Sult and Fremont for purposes
of this appeal is that a statement made to a party with an
interest in litigation is entitled to the benefits of the anti-SLAPP
statute only if it passes the relatedness test. Appellant’s reliance
on Graham-Sult fails because her statements were not related to
a substantive issue in her accounting claim.
In her reply brief, appellant argues that her statements
qualified as protected activity because they “were made shortly
before she initiated this lawsuit for an accounting;” REELZ was
the main damages witness in the prior case and the current case;
and “any statement to the effect that [respondent] did not acquire
any rights to her copyrighted work would be completely protected
as true . . . because one cannot acquire copyrighted works
through an oral agreement.”5
We cannot agree. Once again, her statements were
unrelated to a substantive issue in her complaint for an
accounting.
B. Whether the Statements were an Exercise of Free
Speech Involving an Issue of Public Interest.
Taking a new tack, appellant posits that her statements to
REELZ were an exercise of her right of free speech in connection
with the creation, casting and broadcasting of the Film, and that
the Film was a matter of public interest. (Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“The creation
of a television show is an exercise of free speech,” and acts
designed to assist in the creation, casting and broadcasting of the
television show were in furtherance of its creation]; Daniel v.
5 Appellant does not identify her “copyrighted works.” She
implies that she alone owns the copyright to the Film but does
not explain how that is possible.
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Wayans (2017) 8 Cal.App.5th 367, 383–384 [statements on a film
set and in Internet promotions were made in furtherance of the
creation of the film, an act of free speech]; Seelig v. Infinity
Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807–808 [radio
commentary about a participant on a television show called Who
Wants to Marry a Multimillionaire was protected activity because
it involved a matter of public interest].)
This argument fails to land. There is no basis to conclude
that appellant was assisting the Film’s creation or casting by
disparaging respondent’s title many years after the Film was
made and first broadcast. Furthermore, it is impossible for us to
discern how appellant’s statements disparaging respondent’s title
helped get the Film broadcast on REELZ when, in fact, the
statements sabotaged the deal for renewal of the license.
Because the statements were not connected to creating and
distributing the Film, we reject appellant’s argument that they
involved a matter of public interest.
IV. Other Issues.
The parties debate whether the trial court properly denied
appellant’s motion because it was unnecessary and a waste of
resources, and whether respondent established a likelihood of
success on the merits. These issues are moot because the cross-
complaint does not arise from activity that is protected by the
anti-SLAPP statute.
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DISPOSITION
The order is affirmed. Respondent shall recover his costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
LUI
____________________________, J.
CHAVEZ
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