Geiser v. Kuhns CA2/5

Filed 5/25/23 Geiser v. Kuhns CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
GREGORY GEISER, B279738
Plaintiff, Appellant, and (Los Angeles County
Cross-Respondent, Super. Ct. Nos. BS161018,
BS161019, BS161020)
v.
PETER KUHNS et al., ORDER MODIFYING
OPINION
Defendants, Respondents,
and Cross-Appellants. [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on May 8, 2023, is
modified as follows:
On page 3, in the last sentence of the Introduction, “their
civil harassment petitions” is replaced with “plaintiff’s civil
harassment petitions”.
On page 19, “The parties are to bear their own costs on
appeal” is replace with “Defendants are awarded their costs on
appeal.”
There is no change in the judgment.
BAKER, Acting P. J. MOOR, J. KIM, J.
2
Filed 5/8/23 Geiser v. Kuhns CA2/5 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
GREGORY GEISER, B279738
Plaintiff, Appellant, and (Los Angeles County
Cross-Respondent, Super. Ct. Nos. BS161018,
BS161019, BS161020)
v.
PETER KUHNS et al.,
Defendants, Respondents,
and Cross-Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Armen Tamzarian, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Beach Cities Law Group, Frank Sandelmann and Joshua
A. Valene, for Plaintiff, Appellant, and Cross-Respondent.
Law Office of Matthew Strugar, Matthew Strugar; Law
Office of Colleen Flynn, Colleen Flynn, for Defendants,
Respondents, and Cross-Appellants.
INTRODUCTION
Plaintiff Gregory Geiser filed petitions for civil harassment
restraining orders against defendants Peter Kuhns and spouses
Mercedes and Pablo Caamal, after defendants demonstrated at
plaintiff’s place of business and in front of his residence in an
attempt to prevent the Caamals’ eviction from their home. In
response, defendants moved to strike the civil harassment
petitions as strategic lawsuits against public participation (anti-
SLAPP motions). After plaintiff voluntarily dismissed his civil
harassment petitions, the trial court awarded defendants
attorney fees as the prevailing parties on the petitions. The trial
court denied defendants’ attorney fees on their anti-SLAPP
motions, ruling they would not have prevailed on the motions.
Plaintiff appeals the trial court’s determination that
defendants were the prevailing parties on the civil harassment
petitions and, alternatively, the calculation of the attorney fees
award. Defendants appeal the trial court’s determination that
they would not have prevailed on their anti-SLAPP motions.
On August 30, 2018, the panel majority affirmed the trial
1
court’s orders. On November 14, 2018, the California Supreme
Court granted defendants’ petition for review. On September 11,
2019, the Supreme Court transferred the matter back to us with
directions to reconsider the matter in light of its decision in
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 1331
Justice Baker dissented from the panel majority’s anti-
SLAPP holding.
2
(FilmOn.com) which interpreted the “catchall provision” of the
2
anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (e)(4) ).
On February 28, 2020, having considered FilmOn.com’s
application to this matter, the panel majority again affirmed the
3
trial court’s orders. On July 22, 2020, the Supreme Court
granted defendants’ petition for review. On August 29, 2022, the
Supreme Court held that the panel majority “erred in holding
that the demonstration outside [plaintiff’s] home did not
constitute speech in connection with a public issue under the
anti-SLAPP statute’s catchall provision” and remanded for
further proceedings consistent with its opinion. (Geiser v. Kuhns
(2022) 13 Cal.5th 1238, 1256 (Geiser).) Having considered the
matter in light of the Supreme Court’s opinion, we affirm the
trial court’s order awarding defendants’ attorney fees on their
civil harassment petitions, reverse the court’s order denying
defendants their attorney fees under the anti-SLAPP statute, and
remand the matter for further proceedings as set forth below.
BACKGROUND
Plaintiff is the founder, President, and Chief Executive
Officer of Wedgewood LLP, which is in the business of
purchasing, rehabilitating, and selling distressed properties. On
September 23, 2015, through a non-judicial foreclosure sale, a
2
All statutory citations are to the Code of Civil Procedure,
unless otherwise stated.
3
Justice Baker again dissented from the panel majority’s
anti-SLAPP holding.
3
Wedgewood subsidiary purchased from Wells Fargo a triplex
Ms. Caamal owned (the property) for $284,000. Wedgewood then
obtained an eviction judgment for one of the units.
According to Ms. Caamal, on December 17, 2015, she and
her husband, along with a group of concerned citizens, went to
Wedgewood’s office building and requested a meeting with
plaintiff to attempt to prevent their eviction and to negotiate a
repurchase of her home. The concerned citizens included Kuhns
and persons involved with the Alliance of Californians for
Community Empowerment (ACCE), an entity whose various
missions include saving homes from foreclosure and fighting
against displacement of long-term residents. Kuhns is the Los
Angeles Director for ACCE. The group set up a tent in
Wedgewood’s lobby and disrupted its business.
Plaintiff was not present. Wedgewood’s Chief Operating
Officer Darin Puhl and its General Counsel Alan Dettelbach went
to the lobby. Dettelbach attempted to move the tent and was
shoved by one of the demonstrators. The police were called. No
one was arrested or cited.
Puhl spoke with the Caamals and learned they were
interested in repurchasing the property. He offered to meet with
them in private if the demonstrators left the building. The
Caamals agreed. In the meeting, the Caamals told Puhl they
could afford to repurchase the property. Puhl agreed to hold off
enforcement of Wedgewood’s eviction judgment on the property’s
first unit (an unlawful detainer trial was set for January 2016 for
the other two units) for several weeks so the Caamals could meet
with a lender to assess whether they could qualify for a loan.
Although Puhl “gave [the Caamals] an idea of the value [of the
4
property] according to similar properties in the area,” they did
not discuss a purchase price.
The Caamals subsequently submitted to Wedgewood a
prequalification letter apparently with a purchase price of
$300,000. In early January 2016, Puhl again met with the
Caamals. Puhl informed them that Wedgewood believed the
property was worth $400,000 according to real estate websites
and $300,000 was unacceptable. Wedgewood offered to sell them
the property for $375,000.
The Caamals asked for additional time to obtain a home
loan, agreeing to vacate the entire property within 60 days—by
March 20, 2016—if they could not obtain financing. On
March 18, 2016, the Caamals sent Wedgewood a prequalification
letter with a $300,000 purchase price. Wedgewood deemed the
prequalification letter unacceptable because it was not for the
purchase price of $375,000 and it expressly stated that it did “not
constitute loan approval.”
The Caamals did not vacate the property by the date
agreed upon, and, on March 23, 2016, they, Kuhns, and persons
involved with ACCE returned to Wedgewood’s office building
seeking to meet with plaintiff. Mr. Caamal allegedly stated,
“‘[Y]ou’re not getting me out of this property alive.’” The Caamals
and their supporters left the premises either because the police
were called and removed them or because Puhl agreed to review
the Caamals’ “prequalification” documents.
Because the Caamals had not arranged to purchase the
property by the date agreed upon, Wedgewood had the San
Bernardino Sheriff’s Department evict them on March 30, 2016.
Later that night, defendants and persons involved with ACCE
went to plaintiff’s residence. According to defendants, the
5
Caamals and their supporters staged a residential picket on the
sidewalk outside of plaintiff’s home. They held signs, sang songs,
chanted, and gave short speeches. The demonstration lasted for
about an hour—from about 9:00 p.m. to 10:00 p.m. Officers from
the Manhattan Beach Police Department were present, but did
not order the demonstrators to disburse or intervene to stop the
demonstration. No one was arrested or cited.
According to Gilbert Saucedo, a National Lawyers Guild
legal observer, ACCE organized the demonstration to protest the
unfair and deceptive practices Wedgewood and its agents used to
purchase the property and to evict the Caamals. He estimated
there were 25 to 30 demonstrators and described the
demonstration as “peaceful.”
Plaintiff viewed the demonstration at his home differently.
Two days after the demonstration, he filed petitions for civil
harassment restraining orders against defendants. In his
petitions, plaintiff stated that around 9:00 p.m., a “mob” of about
30 persons arrived at his residence and chanted, “Greg Geiser,
come outside! Greg Geiser, you can’t hide!” Plaintiff called the
police. His wife sneaked out the back door and hid at a
neighbor’s house.
Plaintiff further recounted the incident in his declaration in
support of restraining orders as follows: “Sometime before
midnight, as a result of discussions with the police and
Wedgewood’s lawyer, the mob disbanded. My wife and I were left
shaken by the escalating campaign of harassment that has
followed me from work to my home. In view of the mob actions
combined with the direct verbal threats, we are in fear for our
safety. We have arranged for private security to stand guard
outside both our place of business and our house.
6
“I further understand from conversations Wedgewood’s
general counsel had with the police the night the mob assaulted
my home that police require a court order to keep the mob away
from my house by any meaningful distance. This is why we are
seeking this Court’s assistance in issuing an order for these
respondents to stay away from my wife and me, my business, and
my home, by at least 100 yards.”
The trial court issued temporary restraining orders. The
orders required defendants to stay at least 50 yards from
plaintiff, his wife, and Wedgewood for the following three weeks.
Defendants responded to the civil harassment petitions by
filing anti-SLAPP motions. They claimed plaintiff was
attempting to stifle their free speech and expressive activity.
In addition to the civil harassment petitions, plaintiff
sought to prevent further demonstrations in front of his home
through the Manhattan Beach City Council. The day after the
demonstration, plaintiff spoke with a city council member. Based
on that conversation, the council member proposed an ordinance
to the Manhattan Beach City Council that would prohibit
targeted residential picketing.
On July 5, 2016, plaintiff spoke at the Manhattan Beach
City Council meeting at which the proposed ordinance was
4
addressed. During a break in the meeting, Manhattan Beach
Police Department Chief Eve Irvine approached plaintiff and
assured him that what had happened at his home on March 30
would never be allowed to happen again. She explained the
police department had received additional training about how to
4
On August 17, 2017, the City Council tabled a motion to
approve the ordinance.
7
enforce the city’s existing laws in those types of situations. If the
demonstrators returned to his home, the police department would
do everything in its power to make sure that his home, family,
and neighbors were protected. Following that meeting, plaintiff
had several phone conversations with other members of the
Manhattan Beach Police Department and members of the
Manhattan Beach City Council during which he was assured that
if a similar demonstration happened, he could expect a “full
response” from the police department.
On August 4, 2016, plaintiff dismissed without prejudice
5
the three civil harassment petitions. He dismissed the petitions
because, based on his July 5, 2016, conversation with Chief
Irvine, he “felt reassured” the police department would respond
appropriately if the demonstrators returned. Also, it had become
clear to plaintiff from ongoing settlement negotiations with the
Caamals that they were not going to repurchase the property and
he believed it would be easier to list and sell the property without
pending litigation.
When plaintiff dismissed the civil harassment petitions, the
trial court had not ruled on defendants’ anti-SLAPP motions.
Defendants moved for an award of $84,150 in attorney fees (a
$56,100 lodestar with a 1.5 multiplier) and $370 in court costs as
the prevailing parties under the mandatory attorney fees
provision of the anti-SLAPP statute (§ 425.16, subd. (c)(1)) and,
5
Plaintiff and Wedgewood had also filed a civil action
against defendants and ACCE relating to essentially the same
conduct giving rise to the civil harassment petitions (case number
BC615987). We grant plaintiff’s request to take judicial notice of
plaintiff’s dismissal of that action on July 14, 2016, and otherwise
deny his request for judicial notice.
8
alternatively, as the prevailing parties under the discretionary
attorney fees provision of the civil harassment statute (§ 527.6,
6
subd. (s)) (attorney fees motion). The trial court ruled that
defendants would not have prevailed on the anti-SLAPP motions,
but found they were the prevailing parties on the civil
harassment petitions. The trial court thus awarded defendants
$40,000 in attorney fees and court costs. In declining to award
the full amount sought by defendants, the trial court found that
the hourly rates defendants’ attorneys requested were high in
light of their experience and the nature and difficulty of the
litigation. The trial court also found that large parts of the
requested attorney fees related to unsuccessful settlement
negotiations and the anti-SLAPP motion, which the trial court
concluded would not have succeeded.
DISCUSSION
I. Plaintiff’s Appeal
Plaintiff appeals the award of attorney fees and costs,
claiming the trial court erred by: (1) excluding evidence that was
crucial to determine that plaintiff was the prevailing party on the
civil harassment petitions; (2) ultimately concluding that
defendants were prevailing parties; and (3) miscalculating the
amount of fees.
6
Defendants did not separately request attorney fees for
work performed on the anti-SLAPP motion and for work
performed on the civil harassment petition. Instead, they sought
an award of attorney fees for all work performed in the litigation.
9
A. “Exclusion” of Evidence
Plaintiff contends the trial court erred when it excluded as
hearsay his declaration testimony that Chief Irvine assured him
the police department would protect him and his family in the
event of further demonstrations at his home. The ruling was
error, plaintiff argues, because the testimony was offered to show
that plaintiff acted in reliance on that assurance when he
dismissed his civil harassment petitions, and not for the truth of
the matter asserted—i.e., that the police would protect him.
Plaintiff contends the error was prejudicial because it was crucial
to the trial court’s prevailing party determination. The trial
court did not err.
We review a trial court’s rulings on evidentiary objections
for an abuse of discretion. (Carnes v. Superior Court (2005) 126
Cal.App.4th 688, 694.) “Discretion is abused only when in its
exercise, the trial court ‘exceeds the bounds of reason, all of the
circumstances before it being considered.’” (Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 281 (Shaw).) An
appellant bears the burden of establishing an abuse of discretion
when challenging a trial court’s discretionary rulings. (Ibid.)
In the declaration he submitted in opposition to defendants’
attorney fees motion, plaintiff stated that Chief Irvine, other
members of the Manhattan Beach Police Department, and
members of the Manhattan Beach City Council assured him the
police department would protect him if the demonstrators
returned to his home. Defendants objected to those parts of
plaintiff’s declaration as hearsay.
The trial court ruled, “[Plaintiff] claims he obtained the
relief he sought outside of court after he received an assurance
10
from Manhattan Beach Police Chief Eve Irvine that ‘what happed
at [his] home on the night of March 30 would never be allowed to
happen again.’ This statement and similar alleged statements by
Chief Irvine and other city officials, however, are inadmissible
hearsay.” In a footnote appended to the ruling, the trial court
stated, “[Plaintiff] argues that the statements are admissible to
show what his state of mind was when he dismissed the petitions.
The court agrees. (See Evid. Code, § 1250.) But petitioner’s state
of mind is of marginal relevance to the issue of who was the
prevailing party in this litigation and the other issues the court
must decide to adjudicate [defendants’] motions.”
Later, in a section addressing defendants’ evidentiary
objections, the trial court sustained hearsay objections to the
statements made by other members of the Manhattan Beach
Police Department and by Manhattan Beach City Council
members. With respect to the statements attributed to Chief
Irvine, the trial court sustained the hearsay objection, explaining
that “Chief Irvine’s statements are hearsay to the extent they are
offered for the truth of the matter asserted.”
Plaintiff’s appeal concerns only the trial court’s ruling on
Chief Irvine’s alleged statements. His argument that the trial
court erred by excluding the statements as hearsay fails because
the trial court did not exclude the statements for all purposes.
The trial court’s ruling is clear. It excluded the police chief’s
statements to the extent they were offered for the truth of the
matter asserted, but admitted them to explain why plaintiff
dismissed his civil harassment petitions—the very reason
plaintiff argues on appeal they were admissible. Accordingly, we
find no error with respect to the trial court’s evidentiary ruling.
11
B. Prevailing Party
Plaintiff contends the trial court abused its discretion when
it determined that he was not the prevailing party under section
527.6. He argues that he prevailed because he “obtained the
object of the litigation, namely assurances from representatives
of the City of Manhattan Beach that future harassment would be
prevented.” We disagree.
We review a trial court’s prevailing party ruling under
section 527.6 for an abuse of discretion. (Adler v. Vaicius (1993)
21 Cal.App.4th 1770, 1777; Elster v. Friedman (1989) 211
Cal.App.3d 1439, 1443 (Elster).) As stated above, a trial court
abuses its discretion “only when in its exercise, the trial court
‘exceeds the bounds of reason, all of the circumstances before it
being considered.’” (Shaw, supra, 170 Cal.App.4th at p. 281.)
“‘A plaintiff will be considered a prevailing party when the
lawsuit ‘“was a catalyst motivating defendants to provide the
primary relief sought’” or succeeded in ‘“activating defendants to
modify their behavior.’” [Citation.]’ [Citation.]” (Elster, supra,
211 Cal.App.3d at pp. 1443–1444 [section 527.6 action].)
Ordinarily, when a plaintiff voluntarily dismisses an action, the
defendant is the prevailing party. (See Coltrain v. Shewalter
(1998) 66 Cal.App.4th 94, 100, 107 [alleged SLAPP suit dismissed
without prejudice].) However, “a court may base its attorney fees
decision on a pragmatic definition of the extent to which each
party has realized its litigation objectives, whether by judgment,
settlement, or otherwise.” (Santisas v. Goodin (1998) 17 Cal.4th
599, 622 [contract action].)
The trial court ruled that defendants were the prevailing
parties, finding that “they obtained what they wanted out of the
12
litigation—[plaintiff] dismissed his actions and did not get
restraining orders or any other relief.” It rejected plaintiff’s claim
that he was the prevailing party because he achieved what he
sought outside of court through Police Chief Irvine’s assurances
that what happened at his home would not be allowed to happen
again. The trial court found that plaintiff “did not obtain this
alleged promise by Chief Irvine as a result of these lawsuits.” It
reasoned that plaintiff could have sought Chief Irvine’s
commitment without filing the civil harassment petitions.
Moreover, the trial court recognized the substantial difference
between what plaintiff did achieve outside of the lawsuit, i.e., “a
commitment by Chief Irvine to enforce existing law—whatever
that is worth,” and the “gravity” of what plaintiff sought through
the lawsuit, i.e., “remedies that would have limited [defendants’]
liberty, namely their freedom of movement and communication,”
as well as “a court finding that they engaged in socially
unacceptable behavior.”
We agree with the trial court. The objective of plaintiff’s
civil harassment petitions was to obtain orders restraining
defendants from, among other things, harassing or contacting
him or his wife, and requiring defendants to stay 100 yards
award from him, his wife, his home, and his workplace—i.e.,
Wedgewood. Plaintiff failed to achieve that objective, and
obtaining Chief Irvine’s assurances fell short of such objective.
Moreover, to the extent obtaining Chief Irvine’s
commitment to enforce the law can be characterized as having
obtained plaintiff’s objectives in bringing suit, there is no
evidence that plaintiff’s civil harassment petitions motivated
Chief Irvine to give her assurances or even that Chief Irvine
knew of the petitions. In this regard, we reject plaintiff’s
13
contention the trial court impermissibly “required” a nexus
between plaintiff’s filing the petitions and Chief Irvine’s actions.
The trial court never stated such a nexus was necessary for
plaintiff to be a prevailing party. Rather, the trial court’s
consideration of the lack of any causation between the lawsuit
and Chief Irvine’s assurance to plaintiff was a valid (if not
dispositive) factor in the exercise of its discretion. We likewise
reject plaintiff’s suggestion that the absence of evidence that his
civil harassment petitions were not a motivating factor for the
police department means we should infer the petitions were a
motivating factor. That suggestion fails to acknowledge that
plaintiff bears the burden of showing the trial court’s prevailing
party determination exceeded the bounds of reason. (Shaw,
supra, 170 Cal.App.4th at p. 281.)
For the foregoing reasons, we find no abuse of discretion in
the trial court’s determination that defendants were prevailing
parties.
C. Attorney Fees Calculation
Plaintiff contends the trial court erred in calculating
defendants’ attorney fees award on the civil harassment
petitions. Plaintiff has failed to demonstrate error.
“A trial court’s exercise of discretion concerning an award
of attorney fees will not be reversed unless there is a manifest
abuse of discretion. [Citation.] ‘“The ‘experienced trial judge is
the best judge of the value of professional services rendered in his
court, and while his judgment is of course subject to review, it
will not be disturbed unless the appellate court is convinced that
it is clearly wrong[’]—meaning that it abused its discretion.
14
[Citations.]”’ [Citation.] Accordingly, there is no question our
review must be highly deferential to the views of the trial court.
[Citation.]” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233,
1239 (Nichols).)
In their attorney fees motion, defendants requested $84,150
7
in attorney fees and $370 in court costs. The trial court awarded
a reduced amount—$40,000—finding defendants’ attorneys’
hourly rates were too high and a large amount of time was spent
on unsuccessful settlement negotiations and the anti-SLAPP
motion, which would not have succeeded.
Plaintiff contends the trial court disregarded its findings in
reducing the requested attorney fees and court costs by $44,520
because time spent on the anti-SLAPP motion alone accounted
for $43,230 of the initial request. Thus, plaintiff concludes, the
trial court essentially reduced the attorney fees award by the
amount spent on the anti-SLAPP motion with no reductions for
the attorneys’ unreasonably high hourly rates or fruitless
settlement negotiations.
Plaintiff does not explain how he arrived at the $43,230
figure. His opening brief cites his opposition to defendants’
attorney fees motion, which in turn does not explain how plaintiff
arrived at the unmodified lodestar of $28,820 ($28,820 x 1.5 =
$43,230) for work on the anti-SLAPP motion referenced in the
7
In their reply in support of their motion, defendants
increased their request for attorney fees to $100,525, the
adjustment reflecting attorney time responding to plaintiff’s
opposition. The trial court based its attorney fees award on the
$84,150 figure in defendants’ attorney fees motion and not on the
$100,525 figure in their reply. Defendants do not claim on appeal
that the trial court erred.
15
opposition. “Counsel is obligated to refer us to the portions of the
record supporting his or her contentions on appeal.
[Citations.] . . . [W]e will not scour the record on our own in
search of supporting evidence. [Citation.] Where, as here,
respondents have failed to cite that evidence, they cannot
complain when we find their arguments unpersuasive.
[Citation.]” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133,
1149.) Plaintiff has failed to show the trial court abused its
discretion in awarding defendants’ attorney fees and court costs.
(Nichols, supra, 155 Cal.App.4th at p. 1239.)
II. Defendants’ Cross-Appeal
Defendants contend the trial court erred in denying
attorney fees related to their anti-SLAPP motions on the ground
that defendants would not have prevailed on such motions.
Specifically, they argue the trial court erred in finding that the
anti-SLAPP statute did not apply to plaintiff’s civil harassment
petitions because defendants failed to establish the first step in
bringing a successful motion—i.e., that defendants engaged in
protected activity.
“A SLAPP suit—a strategic lawsuit against public
participation—seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The
Legislature enacted . . . section 425.16—known as the anti-
SLAPP statute—to provide a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of
constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
16
8
1055–1056; § 425.16, subd. (b)(1) .) We review an order denying
an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39
Cal.4th 299, 325–326.)
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384.)
The Supreme Court held that defendants established the
anti-SLAPP statute’s first step. (Geiser, supra, 13 Cal.5th at
9
p. 1243.) Because the trial court denied defendants’ anti-SLAPP
attorney fees motions based on its ruling that defendants did not
establish the anti-SLAPP statute’s first step, it did not reach the
statute’s second step. The parties agree that when an appellate
court reverses a trial court’s ruling that the anti-SLAPP statute
8
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.”
9
The Supreme Court’s first step analysis and holding
focused on the protests at plaintiff’s home. (Id. at pp. 1243,
1250–1251, 1253, 1256.) By parity of reason, the court’s first step
analysis applies equally to the protests at Wedgewood’s office
building.
17
did not apply and the trial court did not address the anti-SLAPP
statute’s second step, “the more prudent course is to remand the
matter to the trial court to determine in the first instance
whether [the plaintiff] demonstrated a reasonable probability of
prevailing on the merits of his causes of action[—i.e., to perform a
second step analysis]. [Citations.]” (Hunter v. CBS Broadcasting
Inc. (2013) 221 Cal.App.4th 1510, 1527–1528; Bowen v. Lin
(2022) 80 Cal.App.5th 155, 163.)
Nevertheless, defendants state “there may be good reasons
to depart from the typical court here.” They suggest we are more
familiar with the case and their motions than the trial court—the
assigned trial court judge having changed—and could preserve
judicial resources by deciding the second step in the first
instance. Defendants cite no authority for their proposition, and
we believe the better course is to remand the matter to the trial
court for it to consider the anti-SLAPP statute’s second step.
18
DISPOSITION
The trial court’s order awarding defendants’ attorney fees
under the civil harassment statute is affirmed. The trial court’s
order denying attorney fees under the anti-SLAPP statute is
reversed and the matter is remanded to the trial court for it to
consider the anti-SLAPP statute’s second step. The parties are to
bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
19
Gregory Geiser v. Peter Kuhns et al.
B279738
BAKER, Acting P. J., Concurring
When this case was twice before this court, I partially
dissented each time, and our Supreme Court granted review each
time. Now that the case is back before us on remand from the
Supreme Court, I have signed the opinion for the court. I write
separately, however, to explain why remanding this case to the
trial court, while generally harmless, only appears to delay the
inevitable.
Both sides in this appeal take the position that we should
remand this cause to the trial court to undertake the second-step
anti-SLAPP analysis that it never performed. The opinion for the
court does what the parties agree we should do. And that seems
unobjectionable: the trial court can analyze the issue in the first
instance and any error can be corrected in yet another appeal, if
necessary. But the issue the trial court will be called to resolve is
straightforward.
The purpose of the anti-SLAPP statute is to provide a
remedy against those who use the litigation process to suppress
constitutionally protected speech or petitioning activity. The
statue itself says so: “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 . . . .” (Code Civ. Proc.,
§ 425.16, subd. (b)(1).) Our Supreme Court has held, definitively,
that Gregory Geiser’s petitions for civil harassment restraining
orders arose from conduct protected by the anti-SLAPP statute,
i.e., that the petitions were filed based on acts done in
1
furtherance of constitutionally protected speech or petitioning.
(Geiser, supra, at 1243; see also id. at 1256 [quoting the
observation in Terminiello v. City of Chicago (1949) 337 U.S. 1, 4
that “‘[s]peech is often provocative and challenging’” and holding
the demonstration outside Geiser’s home was speech in
connection with a public issue].) That conclusion is dispositive
because the civil harassment restraining order statute that
Geiser invoked in filing his petitions expressly provides a
restraining order may not issue based on constitutionally
1
The organization and focus of the Supreme Court’s opinion
in this case demonstrates the Court understood Geiser’s
restraining order petitions arose from the sidewalk
demonstration outside his house, not the earlier office protests.
(See, e.g., Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243 [“The
case before us features a sidewalk picket purporting to protest a
real estate company’s business practices after the company
evicted two long-term residents from their home”] (Geiser).) That
is also evident from the petitions themselves, which identify the
date of the alleged harassment as the date of the sidewalk
demonstration outside Geiser’s house, and from Geiser’s own
brief filed after the most recent remand from our Supreme Court,
which admits Geiser filed his restraining order petitions “based
on” the understanding that “the police could not protect him from
such an incident [i.e., the sidewalk protest] in the future without
a court order.”
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protected conduct. (Code Civ. Proc., § 527.6, subd. (b)(1)
[“Constitutionally protected activity is not included within the
meaning of ‘course of conduct’”]; see also Code Civ. Proc., § 527.6,
subd. (b)(3) [defining harassment as unlawful violence or a
credible threat of violence—neither of which are at issue in this
case—or an alarming, annoying, or harassing “course of
conduct”].) So Geiser has no chance of prevailing on his
restraining order petitions not only because he voluntarily
dismissed them when confronted with the anti-SLAPP motions at
issue, but also because the governing statute would not permit
issuance of restraining orders even if he had not given up the
fight.
The only practical effect I can accordingly discern from
remanding this case to the trial court is that the amount of
attorney fees Geiser will be required to pay to counsel for the
defendants will increase. But that is the course of action that
Geiser himself advocates, so I see no reason not to do it.
BAKER, Acting P. J.
2
There may be a sliver of theoretical daylight for exploration
in another case between constitutionally protected conduct and
an act in furtherance of constitutionally protected conduct. But
there is no such daylight here where the sidewalk demonstration
is at issue.
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