Verdun v. Reno CA2/6

Filed 10/19/20 Verdun v. Reno CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JESSIE JAMES VERDUN, 2d Civil No. B301027
(Super. Ct. No. 56-2019-00528249-CU-
Plaintiff, Cross-Defendant, and PO-VTA)
Appellant, (Ventura County)
v.
CHRISTOPHER ALBERT
RENO,
Defendant, Cross-Complainant,
and Respondent.
Jessie James Verdun appeals a pretrial order denying
his special motion to strike (Code Civ. Proc., § 425.16)1
Christopher Albert Reno’s cross-complaint for interference with
contract, defamation, and false imprisonment. The trial court
found the cross-complaint did not arise out of a protected speech
activity in connection with a public issue, within the meaning of
the anti-SLAPP statute. (See § 425.16, subds. (b) & (e).) We
affirm.
All statutory references are to the Code of Civil Procedure.
1
Facts and Procedural History
This appeal is about a tow job that went bad. The
trial court has provided us the backstory: “Plaintiff Jessie James
Verdun had parked his car in the lot of another business owner,
and with the permission of that other business owner. That lot,
however, was owned by John Taft. Taft wanted plaintiff to move
his car, but [p]laintiff refused claiming permission from the other
business owner. Defendant Reno (the owner of a towing
business) was called by Taft to remove Verdun’s vehicle. The
removal did not go smoothly. Reno allegedly botched the tow and
damaged Verdun’s vehicle. There were also harsh words
exchanged, and Reno allegedly pulled a knife and threatened the
wife of one of [p]laintiff’s employees, and plaintiff’s attorney
(Andre Verdun). Plaintiff’s attorney, Andre Verdun, filed a
complaint for conversion, trespass and assault. Reno filed an
answer on June 17, 2019, as well as a cross[-]complaint for
interference with a contract (with the Auto Club), defamation and
false imprisonment. It is that cross-complaint which has
generated the present motion to strike. [¶] Reno has a contract
with the Auto Club to tow vehicles. Jessie Verdun sent a copy of
the complaint to the Auto Club because he thought that ‘. . . they
should be aware of the contents of the lawsuit Complaint,’
Verdun declaration, page 2. Verdun now complains that because
the [c]omplaint contains certain allegations about Reno, it is
protected speech which is sufficient to cut off Reno’s cross[-]
complaint.”
The trial court denied the anti-SLAPP motion
because “[t]his is a private dispute between private persons.
There is no issue of public interest at stake. The Auto Club is not
2
a public, or even a quasi-public entity. As such, the court finds
that this is not protected speech.”
The Anti-SLAPP Motion - a Two Step Analysis
We review the denial of an anti-SLAPP motion de
novo, applying the same two-step analysis as the trial court.
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) Step one
requires that Verdun show his alleged activities (i.e., defamation,
interference with contract, and false imprisonment), as set forth
in the cross-complaint, arise from a protected speech activity.
(§ 425.16, subds. (b) & (e) [defining protected activity]; Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) If Verdun
makes the required showing, step two comes into play and the
burden shifts to Reno to demonstrate a probability of prevailing
on the cross-complaint. (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral).) “‘[I]f the defendant does not meet its burden on the
first step, the court should deny the motion and need not address
the second step.’ [Citations.]” (Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574, 586 (Okorie).)
Step One: Protected Activity?
Step one focuses on the gravamen of the cross-
complaint, i.e., the wrongful, injury-producing conduct and
whether it arises from a protected speech activity. (Castleman v.
Sagaser (2013) 216 Cal.App.4th 481, 490-491.) It is hard to
imagine how false imprisonment or intentional interference with
contract is a protected speech activity, but Verdun argues it is all
part of a privileged communication to the Auto Club. “The anti-
SLAPP statute does not insulate [Reno] from any liability for
claims arising from [Verdun’s] protected rights of petition or
speech. It only provides a procedure for weeding out, at an early
3
stage, meritless claims arising from protected activity.” (Baral,
supra, 1 Cal.5th at p. 384.)
Verdun admits that he sent a copy of his complaint to
the Auto Club even though it was not a party to the action.
Verdun claims it is a protected speech activity in connection with
a public issue, but that is not what the Legislature had in mind
when it enacted the anti-SLAPP statute. “‘[A]n issue of public
interest’ within the meaning of section 425.16, subdivision (e)(3)
[and by virtue of identical language, subdivision (e)(4),] is any
issue in which the public is interested.” (Nygard, Inc. v. Uusi–
Kerttula (2008) 159 Cal.App.4th 1027, 1042.) “‘“[A] matter of
public interest should be something of concern to a substantial
number of people. [Citation.] Thus, a matter of concern to the
speaker and a relatively small, specific audience is not a matter
of public interest. [Citation.] . . . [T]he focus of the speaker’s
conduct should be the public interest. . . .”’ [Citation.]” (Rivera v.
First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716.)
The cross-complaint alleges that Verdun spoke to the
Auto Club and “told them that [Reno] had threatened him with a
knife . . . .” Verdun followed up by sending a copy of his
complaint to the Auto Club. The fact that Reno filed his cross-
complaint after Verdun sued is irrelevant. (See, e.g., Episcopal
Church Cases (2009) 45 Cal.4th 467, 477.) The question of
whether Verdun engaged in a protected speech activity by
contacting the Auto Club does not turn on who got to the
courthouse first.
Verdun argues that his complaint, even if false and
defamatory, is protected by the litigation privilege (Civ. Code,
§ 47, subd. (b)). But falsely telling an Auto Club representative
that Reno committed a criminal assault, and then sending a copy
4
of the complaint to the Auto Club (the republication) is not a
protected activity. (See Shahvar v. Superior Court (1994) 25
Cal.App.4th 653, 658 [republication of false complaint to
nonparties generally not privileged]; Susan A. v. County of
Sonoma (1991) 2 Cal.App.4th 88, 93-94 [litigation privilege does
not apply where publication is to persons not connected with the
proceeding].) If the rule were otherwise, any person could shield
himself or herself from liability by filing a defamatory pleading
and broadcasting (i.e., republishing it) it to the world. “[T]he
Legislature did not intend such an absurd result.” (City of Cotati
v. Cashman (2002) 29 Cal.4th 69, 77.)
Prong Two
Verdun complains that Reno failed to make a prima
facie showing that he was likely to succeed on the cross-
complaint. That wasn’t required because prong one was not
2
satisfied. The burden never shifted to Reno to establish a
reasonable probability that he would prevail on the cross-
complaint. (See Okorie, supra, 14 Cal.App.5th at p. 586; Martin
v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611,
624.)
2
The trial court found that “Reno has a reasonable chance
of prevailing. Verdun admits that he contacted the Auto Club,
with whom Reno had a contract. Reno alleges that his contract
with the Auto Club was suspended because of Verdun’s
allegations and the communication of those allegations to the
Auto Club.” Attorney fees were not awarded (see § 425.16, subd.
(c)(2) [attorney fees for opposing frivolous motion]) because Reno
did not file opposition papers to the anti-SLAPP motion.
5
Disposition
The order denying the special motion to strike is
affirmed. Reno is awarded costs on appeal. Reno’s request for
attorney fees (§ 425.16, subd. (c)) is denied. (See fn. 2, ante.)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
6
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Andre L. Verdun, for Plaintiff, Cross-Defendant and
Appellant.
Ferguson Case Orr Paterson, Wendy C. Lascher and
Leslie A. McAdam, for Defendant, Cross-Complainant and
Respondent.