Zochlinski v. Blum CA3

Filed 6/28/23 Zochlinski v. Blum CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
HOWARD ZOCHLINSKI, C091878
Plaintiff and Appellant, (Super. Ct. No. CVCV-19-315)
v.
JUDY BLUM et al.,
Defendants and Respondents.
Plaintiff Howard Zochlinski and defendant Judy Blum were neighbors in Davis.
In 2017, the house plaintiff was occupying as a renter was placed in receivership and he
was forced to move out. Plaintiff, in propria persona, filed a complaint against Blum,
defendant Scott Ragsdale, Blum’s son, and others, seeking to recover damages for,
among other things, libel, defamation, intentional infliction of emotional distress,
negligent infliction of emotional distress, and violation of his federal and state civil
rights. The complaint focused on Blum’s alleged decades-long campaign, motivated by
alleged anti-Semitism, to force plaintiff out of the neighborhood by making code
1
enforcement complaints against him, circulating a petition, and sending an e-mail to the
receiver’s representative claiming plaintiff had been seen trespassing on Blum’s property
and that police had been notified.
Blum and Ragsdale (hereinafter, collectively, defendants) filed a special motion to
strike the complaint insofar as asserted against them pursuant to Code of Civil Procedure
section 425.16, the anti-SLAPP statute.1 Plaintiff opposed the motion and filed exhibits,
to which defendants filed evidentiary objections. After oral argument in the trial court,
the court sustained defendants’ objections, granted their special motion to strike the
complaint, and awarded them attorney fees under section 425.16, subdivision (c).
On appeal, plaintiff contends (1) he asserts causes of action other than those based
on slander and libel, including civil rights claims, seeming to imply section 425.16 does
not apply to these other causes of action, and specifically asserting that section 425.16
does not apply to federal civil rights claims, (2) Blum’s e-mail to the receiver’s
representative was not protected activity, (3) the trial court erred in not permitting him to
present additional evidence and cure any defects in that evidence, and (4) whether he
prevails on this appeal or not, he should not have to pay attorney fees under section
425.16, subdivision (c).
We affirm.
BACKGROUND
The Complaint
Plaintiff, in propria persona, commenced this action against Blum and Ragsdale,
among others, by filing a complaint seeking to recover damages for, among other things,
1 “Anti-SLAPP” refers to the procedural vehicle provided by Code of Civil
Procedure section 425.16 to strike legal actions intended as a “ ‘strategic lawsuit against
public participation.’ ” (See Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1
(Navellier).) Undesignated statutory references are to the Code of Civil Procedure.
2
libel, defamation, intentional infliction of emotional distress, negligent infliction of
emotional distress, and violation of plaintiff’s federal and state civil rights. The
complaint did not set forth discrete causes of action, but rather advanced a number of
claims throughout.
The action was centered on plaintiff’s allegations concerning Blum, whom
plaintiff claimed to be a “vicious anti-Semite.” Blum’s actions, as asserted by plaintiff,
consisted of reporting plaintiff for code violations while ignoring the violations of others:
“Blum has made it her mission in life to harass and slander [plaintiff] since he moved into
the neighborhood in 1984, supported in these efforts by the other defendants. It was not
until his falling out with the University of California in 1992 that the City of Davis
. . . acted on her pathological psychopathic racial[] and personal animus. From that time
on the City harassed [plaintiff], using any excuse to persecute [him] – and nearly all the
excuses were provided in complaints made by Blum. Many of these were false; all were
biased in that she ignored similar and even worse violations . . . by other residents of
[their street] and surrounding streets, including friends living closer to her home. . . .
Such use of the abatement code by Blum and the City for precisely this purpose – i.e., to
force ethnic/racial/religious minority ‘undesirables’ from their homes and from the city –
has been declared unconstitutional . . . .”
In addition to alleging Blum complained of plaintiff’s code violations while not
complaining of worse violations by others, plaintiff alleged Blum “petition[ed] others in
the neighborhood to force [plaintiff] out . . . .” In what plaintiff denominated an exhibit
to his complaint, entitled “History of Defendants’ Actions 1984-2017 – Evidence of
Racism, Bias, Malice and Madness” (some capitalization omitted), plaintiff asserted
Blum “circulat[ed] a petition to have [plaintiff] removed from the neighborhood,” and
that a codefendant “was recruited by Blum to get signatures on the anti-[plaintiff]
petition.”
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In 2017, the City of Davis (City) filed a petition for the appointment of a receiver
for the house where plaintiff lived as a tenant. Following a hearing on November 28,
2017, the court granted the City’s petition for the appointment of a receiver. Plaintiff
ultimately was forced from the home. Plaintiff alleged Blum was instrumental in the
receivership, alleging she “had been using her influence with the City to not merely
advocate but to exhort and likely extort the City’s authorities into forcing [plaintiff] from
his home.” Plaintiff later alleged the court in the receivership proceeding was “swayed
by Blum’s false and defamatory statements and the misrepresentations the Receiver made
based on them,” to plaintiff’s detriment.
Plaintiff emphasized an e-mail Blum allegedly wrote to the receiver’s
representative in which she stated plaintiff had been reported to police for trespassing and
in which she expressed fear of plaintiff as mentally unstable. According to plaintiff,
these statements were false. Plaintiff alleged numerous injuries as a proximate result of
the e-mail.
The e-mail was attached as an exhibit to plaintiff’s complaint. The portion of the
e-mail written by Blum to the receiver’s representative stated, in pertinent part: “You
have suggested I contact you if [plaintiff] is around. It was reported to me he was on my
property . . . on Tuesday where he was seen by a neighbor’s girl friend and reported to
the police. That is not something that I ever have had a problem with before. [¶]
Though my car was there I was not aware of his presence. [¶] My next door neighbor
also said he was up a 5 [sic] and [plaintiff] was on the street. I am assuming he is not free
to trespass, but there are no laws prohibiting his riding on the street. I did notice what
appears to be lights on at [plaintiff’s former property] when I came from the area on F
Street at night last week, but I can’t be certain they were from [that address]. [¶]
Obviously, I am still uneasy about [plaintiff’s] intent. It certainly is intimidating to know
he was on my property.”
4
Plaintiff alleged Blum’s actions over the prior 33-year period violated his civil
rights. Plaintiff asserted: “Blum, because she is a narcissistic psychopath driven by
racial-animus and personal hatred, rather than speak with [plaintiff] directly and deal with
any issues on a personal basis, continually acted through local authorities, with whom she
had influence.”
Later in the complaint, plaintiff alleged: “Numerous times over the 33 years . . .
Blum repeatedly did what she could to curtail [plaintiff’s] lease rights: Contacting . . .
[plaintiff’s] landlord to demand his eviction; harassment through complaints about . . . the
condition of his property; having Ragsdale, her son, vandalize his property, etc. all these
efforts culminated with his eviction,[] forced by the police, and even this wasn’t enough
as she made a false claim of [plaintiff] trespassing onto her property in an effort to
prevent [plaintiff] from returning to the neighborhood.”
Additionally, plaintiff alleged Blum interfered with his property rights through her
efforts to have the City tow his car.
Plaintiff asserted Ragsdale had trespassed on plaintiff’s property, threatened
neighbors, assaulted plaintiff, slashed his tires, and committed other acts of vandalism.
Specifically, in his exhibit A to his complaint, plaintiff claimed that, at a 2013 event,
Ragsdale harangued plaintiff, struck him from behind, and pushed him on the chest.
Defendants Special Motion to Strike
Pursuant to section 425.16, defendants filed a special motion to strike the
complaint insofar as asserted against them. They summarized plaintiff’s factual
allegations, including that they regularly complained to the City about the condition of
his property and vehicles; Blum started a petition regarding the state of plaintiff’s
property; and Blum made allegedly defamatory statements about plaintiff when she
reported someone told her plaintiff had trespassed on her property.
Blum acknowledged writing a letter to code enforcement about “potential soil
contamination and toxic waste due to the items that were clearly visible on the Plaintiff’s
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property and were spilling over onto the public sidewalk.” Blum also acknowledged
writing to neighbors to tell them they could contact the police about plaintiff’s property.
Additionally, Blum acknowledged a neighbor had told her plaintiff had been seen
trespassing on her property in or around February 2018, after plaintiff’s home had been
placed in receivership. According to Blum, the neighbor stated his girlfriend had called
the police, but Blum did not know whether a report had been filed.
Defendants asserted the conduct plaintiff alleged as to Blum was protected activity
under section 425.16. According to defendants, the statements plaintiff alleged they
made “were in the form of complaints made to local law enforcement for plaintiff’s
violations of city codes and ordinances as well as a petition that plaintiff alleges was
started by” Blum. According to defendants, these were all forms of protected speech.
Specifically, defendants asserted Blum’s communications with the receivership and with
local law enforcement were protected under section 425.16, subdivision (e)(1). As for
the petition regarding plaintiff’s property, defendants asserted it was protected speech as
a public issue or issue of public interest under section 425.16, subdivision (e)(4).
Defendants further asserted plaintiff could not establish a probability of prevailing
on his claims.
Defendants requested attorney fees under section 425.16, subdivision (c).
In a declaration Blum concluded: “All actions I have taken, and words I have
spoken, in connection with the allegations under the complaint arose out of my concern
regarding the hazardous state of Plaintiff’s property. I believed, and continue to believe,
these matters were of public interest in the neighborhood.”
Defendants’ attorney’s declaration set forth the hours he spent preparing the
special motion to strike plus fees resulting in a total expenditure of $3,207.50.
Plaintiff’s Opposition
In his opposition to defendants’ special motion to strike, plaintiff asserted the “acts
complained of herein is [plaintiff’s] loss of personal property, emotional distress, and
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other violations under civil rights laws – Defendants[’] motives, objectives and results are
the Cause of Action and Claims, not merely the email and sham complaints and
petitioning, which are the evidence.”
Plaintiff asserted Blum’s e-mail to the receiver’s representative was not privileged
under Civil Code section 47, subdivision (b), as Blum was not a witness at trial, the
communication was not made to a court, and the issues in the statement were not relevant
to issues before a court. Plaintiff further asserted the e-mail, at most, was subject to
qualified immunity, and that there was “an abundance of evidence of malice to overcome
this privilege.”
Plaintiff asserted section 425.16 is not applicable to federal or California civil
rights statutes.
According to plaintiff, defendants were not complaining about any matter of
public interest. Rather, they were pursuing a private interest, “racial cleansing of the
neighborhood,” in service to which Blum “through repeated sham complaints under color
of law, attempted and failed to make into a ‘matter of public interest.’ ”
Plaintiff made numerous factual representations in asserting he could demonstrate
a probability of prevailing on the merits of his claims.
Tentative Ruling
In its tentative ruling, the trial court granted defendants’ special motion to strike.
The court concluded defendants had established plaintiff’s complaint arose out of
protected activity, and further that plaintiff failed to show a probability of prevailing on
the merits. The court further specified plaintiff’s federal causes of action were subject to
the special motion to strike. The trial court awarded defendants attorney fees and costs in
the amount of $3,207.50.
Oral Argument Before the Trial Court
At oral argument before the trial court, plaintiff asserted his claims should not be
stricken because they supported a distinct claim on which he demonstrated a probability
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of prevailing on the merits, specifically his civil rights claims. Plaintiff asserted the
supremacy clause “should be determinative.” He further asserted what should be
determinative was the ultimate effect and objective in the matter, “not whether or not
letters and complaints were what you call it, privileged.” He asserted the e-mail at issue
was not subject to any litigation privilege.
Defendants argued the speech at issue was protected activity under section 425.16.
Defendants emphasized the “letter that he attached to his Complaint, the e-mail, and the
claimed Petition, he had violations of abatement codes on his property as he has stated
himself.”
The Trial Court’s Order
In an order after oral argument, the trial court adopted the tentative ruling, with
modifications, granting defendants’ special motion to strike and awarding them attorney
fees in the amount of $3,207.50.
DISCUSSION
I
Self-represented Litigants, Appellate Procedure, and the Appellant’s Burden
As a self-represented litigant, defendant “is entitled to the same but no greater
consideration than other litigants.” (County of Sacramento v. Rawat (2021)
65 Cal.App.5th 858, 861 (County of Sacramento).) “Accordingly, he must follow the
rules of appellate procedure.” (Ibid.) “Those rules require an appellate brief to support
each point by argument and, if possible, by citation to authority and to provide a citation
to the record for a factual assertion.” (Ibid., citing Cal. Rules of Court, rule
8.204(a)(1)(B) & (C).) “ ‘[W]e may disregard factual contentions that are not supported
by citations to the record [citation] or are based on information that is outside the record
[citation]. We may disregard legal arguments that are not supported by citations to legal
authority [citation] or are conclusory [citation].’ ” (County of Sacramento, at p. 861.)
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“Further, we may treat a point that is not supported by cogent legal argument as
forfeited.” (Ibid.)
“ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v.
Superior Court of Los Angeles (1970) 2 Cal.3d 557, 564.) “It is the appellant’s burden to
demonstrate the existence of reversible error.” (Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 766 (Del Real).)
II
Anti-SLAPP Special Motions to Strike and Standard of Review
California’s anti-SLAPP statute, section 425.16, provides 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 plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
As the California Supreme Court has instructed: “ ‘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. We have described this second step as a
“summary-judgment-like procedure.” [Citation.] The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated
a legally sufficient claim and made a prima facie factual showing sufficient to sustain a
favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of
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law. [Citation.] “[C]laims with the requisite minimal merit may proceed.” ’ [Citation.]
. . . As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the
claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be
made upon competent admissible evidence.’ ” (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) “The grant or denial of an anti-SLAPP
motion is reviewed de novo.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788.)
As used in section 425.16, “ ‘act in furtherance of a person’s right of petition or
free speech under the United States or California Constitution in connection with a public
issue’ includes: (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.” (§ 425.16, subd. (e).)
III
Applicability of Section 425.16 to Civil Rights Causes of Action
Before we turn to the application of the two-step analysis, plaintiff asserts section
425.16 cannot be used to strike federal civil rights causes of action. He asserts that the
supremacy clause of the United States Constitution prevails over section 425.16. He also
asserts section 425.16 does not apply to state civil rights causes of action.
Those California courts that have considered whether section 425.16 applies to
federal civil rights claims have concluded that it does. (Patel v. Chavez (2020)
48 Cal.App.5th 484, 488 [“section 1983 does not preempt application of the anti-SLAPP
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statute to section 1983 claims in state court”]; Vergos v. McNeal (2007) 146 Cal.App.4th
1387, 1392, fn. 4 [“Federal civil rights claims brought in California state courts are
subject to section 425.16 motions.”]; Bradbury v. Superior Court (1996) 49 Cal.App.4th
1108, 1117-1118 [rejecting claim “that section 425.16 does not apply to the civil rights
cause of action because it violates federal substantive law”]; see Tichinin v. City of
Morgan Hill (2009) 177 Cal.App.4th 1049, 1056 [citing Vergos and Bradbury and for the
proposition that § 425.16 applies to federal claims under 42 U.S.C. § 1983]; see also
Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 710 [applying § 425.16 to 42 U.S.C.
§ 1983 claims].)
Plaintiff has neither addressed these cases in his briefing nor offered any
persuasive reason why we should depart from their conclusions here. Based on this well
established case law, we conclude the fact that plaintiff asserts federal civil rights causes
of action pursuant to, among other sections, 42 U.S.C. section 1983, does not bar
application of section 425.16 to any or all of plaintiff’s complaint.
Plaintiff also asserts section 425.16 does not apply to civil rights causes of action
under California law. For this premise, he cites Siam v. Kizilbash (2005)
130 Cal.App.4th 1563. However, that court did not pronounce that section 425.16 was
inapplicable to state civil rights causes of action. Rather, it concluded that a particular
cause of action asserted pursuant to Civil Code section 51.7 based on allegations the
defendant committed violence and made threats of violence did not arise from protected
activity and therefore was “not encompassed by the anti-SLAPP statute.” (Siam, at
p. 1570.) Siam does not stand for the proposition that all state civil rights causes of
action are, in effect, immune from anti-SLAPP special motions to strike.
Nothing in section 425.16 “categorically excludes any particular type of action
from its operation . . . .” (Navellier, supra, 29 Cal.4th at p. 92.) “The anti-SLAPP
statute’s definitional focus is not 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
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activity constitutes protected speech or petitioning. Evidently, ‘[t]he Legislature
recognized that “all kinds of claims could achieve the objective of a SLAPP suit — to
interfere with and burden the defendant’s exercise of his or her rights.” ’ [Citation.]
‘Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or
form of the action is not what is critical but rather that it is against a person who has
exercised certain rights.’ ” (Id. at pp. 92-93.) Plaintiff has not established section 425.16
does not apply to his state civil rights causes of action as a general matter. (See, e.g.,
Doe v. State of California (2017) 8 Cal.App.5th 832, 842-843 [affirming granting of
§ 425.16 special motion to strike including as to Civ. Code, § 52.1 cause of action].)
IV
The Granting of Defendants’ Special Motion to Strike
Plaintiff asserts this case is not merely one sounding in slander and libel, but also
asserts civil rights claims spanning more than 30 years. According to plaintiff, only his
claim related to the e-mail sounded in slander and libel, and all other actions involved
civil rights violations. As near as we can discern, plaintiff asserts the specific instances
of, for example, code complaints were evidence of liability for civil rights violations
rather than the actual wrong complained of, and seems to imply that, because he asserts
causes of action for civil rights violations rather than, for example, defamation, section
425.16 does not apply.
Defendants respond that all of their alleged oral and written statements were made
in connection with their protected right of reporting code violations to law enforcement,
and thus the subject of plaintiff’s action was protected speech. Defendants maintain all
of the speech at issue was protected activity under section 425.16, subdivision (e)(1) and
(4). Defendants further assert plaintiff cannot demonstrate a probability of prevailing on
the merits of his claims.
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We conclude the acts that are the subject of plaintiff’s claims arose from protected
activity. We further conclude plaintiff has not demonstrated a probability of prevailing
on the merits of those claims.
A. Step One — Protected Activity
Plaintiff’s complaint focuses on Blum’s actions in communicating with law
enforcement and/or municipal code enforcement about plaintiff’s property, including the
vehicles on the property, circulating a petition, and communicating with the receiver’s
representative. We find these actions arise from protected activity.
“The law is that communications to the police are within SLAPP.” (Comstock v.
Aber (2012) 212 Cal.App.4th 931, 941; see § 425.16, subd. (e)(1) [covering statements or
writings before an “executive” proceeding].) Thus, plaintiff’s allegations concerning
Blum contacting law enforcement about him or his property address protected activity.
Similarly, communications with municipal code enforcement with complaints
about plaintiff’s property, and seeking to have those agencies initiate corrective action, is
also protected activity under section 425.16. (ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993, 1009 (ComputerXpress) [filing a complaint with a government
agency constitutes a “statement before an official proceeding” within the meaning of
§ 425.16, subd. (e); “ ‘ “communication to an official administrative agency . . . designed
to prompt action by that agency” ’ is ‘ “as much a part of the ‘official proceeding’ as a
communication made after the proceedings had commenced” ’ ”]; accord, Lee v. Fick
(2005) 135 Cal.App.4th 89, 97 [complaint to the government is itself “part of the official
proceedings”].) Thus, all of plaintiff’s allegations concerning Blum contacting code
enforcement with complaints about his property address protected activity.
Communications with the receiver’s representative were also protected activity as
statements before a judicial proceeding. (See Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal.App.4th 1153, 1167-1168 [statements to the court-appointed liquidator in
pending liquidation proceeding were made in connection with an issue under
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consideration by a court in a judicial proceeding under § 425.16, subd. (e)(2)]; Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658,
671 [communications opposing Securities and Exchange Commission’s efforts to appoint
a receiver necessarily involved written or oral statements made before a judicial
proceeding within the meaning of § 425.16, subd. (e)(1)].) Thus, plaintiff’s
communications with the receiver’s representative here, and specifically the e-mail she
sent reporting that a neighbor’s girlfriend had seen plaintiff on her property and reported
the sighting to the police addressed protected activity.
Lastly, plaintiff’s allegation that Blum circulated a petition seeking defendant’s
ouster from the neighborhood also constituted protected activity. Specifically, this would
be “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)(4).) “Protection under section 425.16 for statements in
connection with a public issue or an issue of public interest is not dependent on those
statements having been made in a public forum. Rather, subdivision (e)(4) of section
425.16 applies to private communications concerning issues of public interest.”
(Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736.) Addressing a public issue of
nuisance and safety, this constituted protected activity. (See Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400, 1420 [in addition to being made in connection with an issue
under consideration or review by a judicial body, a letter to condominium association was
also protected activity under § 425.16, subd. (e)(4) as it addressed conduct “that arguably
involved public issues of nuisance and safety”].)
In his appellate brief, plaintiff asserts he has pleaded that Blum “and the other
defendants, through their actions, sought to deprive [plaintiff] of his rights under both
Federal and State law: property, privacy, due process, etc. and not merely loss of
reputation.” He asserts he seeks to recover for more than 30 years of civil rights
violations. However, the specific allegations of conduct in the complaint raised by the
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plaintiff all relate to Blum’s communications to law enforcement and/or code
enforcement, the receiver’s representative, and circulating a petition. As defendants
correctly assert, the crux of plaintiff’s complaint is that their communications to law
enforcement, code enforcement, and to the receiver’s representative were libelous,
slanderous, defamatory, violated his civil rights, and ultimately caused him to lose his
home as well as personal property. In other words, these actions constitute “the
defendant[s’] activity that gives rise to [their] asserted liability . . . .” (Navellier, supra,
29 Cal.4th at p. 92.) As we have concluded, these communications constituted protected
activity.
Plaintiff emphasizes California Supreme Court case law stating that “a claim is not
subject to a motion to strike simply because it contests an action or decision that was
arrived at following speech or petitioning activity, or that was thereafter communicated
by means of speech or petitioning activity. Rather, a claim may be struck only if the
speech or petitioning activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability is asserted.” (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060, italics
added.) Plaintiff claims that the communications we have discussed are not protected
activity and, further, are “the last known acts in [Blum’s] long standing and continuing
campaign of civil rights violations aimed at forcing [plaintiff] from his home and
depriving him of property.”
The fact remains, however, that these actions and communications we have
discussed represent the specific factual allegations in plaintiff’s complaint and we have
determined that the alleged acts constituted protected activity. That plaintiff claims these
are merely examples or indicators of defendants’ ongoing course of conduct that caused
him harm does not remove the allegations from the scope of protected activity.
Moreover, plaintiff fails to identify any other actionable conduct and demonstrate that it
did not constitute protected activity.
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Accordingly, we proceed to the second step of the analysis to determine whether,
in opposition, plaintiff established a probability of prevailing on the merits.
B. Step Two – Plaintiff’s Probability of Prevailing on the Merits
1. Civil Code Section 47 Privilege
In the trial court, addressing plaintiff’s probability of prevailing on the merits,
defendants asserted, among other things, that “a variety of defenses and privileges”
would preclude a finding in plaintiff’s favor on the merits. The nature of plaintiff’s
claims, focused on Blum’s actions in reporting him for code violations, her
communication with the receiver’s representative, and petitioning others in the
neighborhood, implicate Civil Code section 47 privilege. As he did in his opposition to
the special motion to strike and at oral argument before the trial court, plaintiff asserts
Civil Code section 47 privilege does not apply.
“A privileged publication or broadcast,” with specified statutory exceptions, is one
made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official
proceeding authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084)
of Title 1 of Part 3 of the Code of Civil Procedure . . . .” (Civ. Code, § 47, subd. (b).)
The privilege in Civil Code section 47, subdivision (b) is “ ‘an “absolute” privilege, and
it bars all tort causes of action except a claim of malicious prosecution.’ ” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 322.)
Reports to law enforcement about suspected criminal activity are considered
privileged pre-litigation communications under Civil Code section 47, subdivision (b).
(Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364 (Hagberg).) Similarly,
complaints to a governmental agency are absolutely privileged by Civil Code section 47,
subdivision (b), which “protects ‘ “communication to an official administrative agency
. . . designed to prompt action by that agency . . . .” ’ ” (ComputerXpress, supra,
93 Cal.App.4th at p. 1015; accord, Hagberg, at pp. 360-361 [reports to “ ‘ “public
16
authorities whose responsibility is to investigate and remedy wrongdoing” ’ ” are subject
to privilege in Civ. Code, § 47, subd. (b)]; Williams v. Taylor (1982) 129 Cal.App.3d
745, 753 [“communication concerning possible wrongdoing, made to an official
governmental agency such as a local police department, and which communication is
designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a
communication made after an official investigation has commenced”].) Thus, plaintiff’s
claims concerning Blum’s alleged complaints about plaintiff’s code violations were
absolutely privileged as complaints to a governmental agency seeking to prompt action
by that agency.
Plaintiff’s claims concerning communications Blum made in connection with the
receivership were also privileged. Civil Code section 47, subdivision (b) privileges a
publication or broadcast made in any judicial proceeding. “The privilege applies even
where made outside the courtroom and no function of the court or its officers is
involved.” (Cayley v. Nunn (1987) 190 Cal.App.3d 300, 304 (Cayley).)
Plaintiff also raised Blum’s alleged circulation of a petition aimed at having
plaintiff removed from the neighborhood. In Cayley, supra, 190 Cal.App.3d 300, the
plaintiffs asserted certain remarks the defendants made while they were circulating a
petition in support of their proposed variance constituted slander. (Id. at p. 302.)
Specifically, one of the defendants allegedly stated, “that the telephone people came to
the [plaintiffs’] house and found [the defendant’s] telephone line in the [plaintiff’s] house
and that the [plaintiffs] had connected illegal wires to a listening device, and that is how
they tapped his phone.” (Ibid.) The plaintiffs sued the defendants for denial of their
constitutional rights and slander. (Ibid.) The trial court granted the defendants summary
judgment on the ground that the comments were absolutely privileged under Civil Code
section 47. (Cayley, at p. 302.) The Court of Appeal affirmed. (Id. at p. 307.) The court
stated: “the question before the court is whether the absolute privilege of Civil Code
section 47 . . . applies to the above alleged slanderous remarks made by defendants to
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potential petition signers, where the remarks were made while defendants were
circulating a petition to be given to the City Council, and where the purpose of the
petition was to support defendants’ request for a height variance.” (Id. at p. 303.) The
court first determined the Civil Code section 47 privilege applied to local city council
proceedings. (Cayley, at p. 303.) Next, the court stated that communications made prior
to the legal action itself were privileged if they had “some logical connection to the suit
and are made to achieve the objects of the litigation.” (Id. at pp. 303-304.) The Court of
Appeal concluded that “the alleged slanderous statements were made during preliminary
conversations while defendants were marshalling evidence and preparing for their
presentation at the city council meeting. Therefore, defendants’ statements cannot be
considered irrelevant to the proceedings and they were directed toward the achievement
of the objects of the proceeding.” (Id. at p. 304.) Addressing whether the statements
were sufficiently connected to the privileged proceeding, the court concluded: “by
plaintiffs’ own admission in their complaint, the . . . statements on wiretapping were
made to ‘encourage the neighbors to sign the [defendants’] petition’ and to ‘attempt to
influence the outcome of the city council vote.’ Therefore, plaintiffs themselves have
alleged the relation and connection between the alleged slander and the privileged
judicial or legislative proceeding. Since there was a logical connection or relatedness
between defendants’ remarks and the city council proceedings, and the remarks were
made while marshalling support of their position, defendants’ remarks had the benefit of
the absolute privilege of Civil Code section 47 . . . , and the summary judgment is
affirmed.” (Id. at p. 306.)
Plaintiff has not identified any particular statements in the petition he alleges Blum
circulated. His allegations on this claim are sparse at best and lacking in any detail. He
alleges Blum “petition[ed] others in the neighborhood to force [him] out . . . .” He
alleges a third party had participated in Blum’s efforts to force him from the
neighborhood and “had gone around with the petition against [him] and encouraged
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neighbors to sign it.” He asserts unidentified individuals “signed the petition aimed at
forcing [him] from the neighborhood that he had been informed was circulated by Blum.”
In the second-to-last paragraph of his complaint, plaintiff states certain unidentified
defendants engaged in a conspiracy with Blum, as “a proximate result of . . . which Blum
was able to create a petition to present to City of Davis authorities which led to the
forcing of [plaintiff] from his home . . . .” He advanced similar allegations in his exhibit
to the complaint. Otherwise, plaintiff offers no detail concerning the substance of the
petition. In any event, because the alleged petition, “which led to the forcing of” plaintiff
from his home, necessarily related to Blum’s alleged efforts to instigate or further the
receivership, which was in fact what forced him from his home, Blum’s communications
would be privileged under Civil Code section 47, subdivision (b) as being made in a
judicial proceeding. Under the reasoning of Cayley, statements Blum made in circulating
the petition, if any, would also be privileged to the extent they related to promoting the
petition, although, again, plaintiff does not identify or allege any such statements. We
note also that, if such a petition was intended to be presented to plaintiff’s landlord, his
landlord did not evict him, but instead he was evicted pursuant to the receivership; thus,
the plaintiff has not alleged any harm resulting from the petition under these particular
circumstances.
Because Blum’s communications of which plaintiff complains are absolutely
privileged under Civil Code section 47, plaintiff cannot establish a probability of
prevailing on the merits of his claims based on them. Thus, insofar as he asserts them,
plaintiff failed to meet his burden in opposition to defendants’ special motion to strike to
establish his probability of prevailing on the merits of his causes of action for, among
other things, libel and defamation. (See Flatley v. Mauro, supra, 39 Cal.4th at p. 322
[“the privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a
claim of malicious prosecution’ ”].)
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2. Civil Rights Claims
Recasting his allegations as civil rights violations does not save the plaintiff’s
complaint. In Tichinin v. City of Morgan Hill, supra, 177 Cal.App.4th 1049, the court
found it unnecessary to reach the issue of whether Civil Code section 47 “immunizes
conduct from liability for a civil rights violation under the federal statute.” (Tichinin, at
p. 1084, fn. 16.) Similarly, in Hagberg, supra, 32 Cal.4th 350, the Supreme Court found
it unnecessary “to resolve the broad legal question whether proof that a business
establishment has called for police assistance (or has a policy of calling for police
assistance) based on racial or ethnic prejudice could give rise to liability under the Unruh
Civil Rights Act notwithstanding the provisions of section 47 [subdivision ] (b).” (Id. at
p. 376.) To the extent these cases give rise to doubts as to whether the absolute privilege
of Civil Code section 47, subdivision (b) applies to federal and state civil rights causes of
action such as those plaintiff purports to assert here, we conclude plaintiff nonetheless
failed to meet his burden of establishing a probability of prevailing on the merits of those
claims.
To prove a violation of a plaintiff’s federal civil rights generally, the plaintiff must
prove (1) the defendant committed an act, (2) the defendant was acting or purporting to
act in the performance of official duties, (3) the defendant’s conduct violated the
plaintiff’s right, (4) the plaintiff was harmed, and (5) the defendant’s wrongful act was a
substantial factor in causing the plaintiff’s harm. (CACI No. 3000.) Plaintiff also
purported to assert state civil rights claims under Civil Code sections 51.7, 52, 52.1, 54,
and 54.3 based on the same actions. (See CACI Nos. 3060, 3063, 3064, 3066, 3070)
As best we can determine, plaintiff’s civil rights claims appear to be based on the
fact that he was displaced by defendants’ conduct, motivated by Blum’s alleged anti-
Semitism, and affected by defendants acts discussed herein, and, as a result, plaintiff lost
his home as well as personal property. He also asserts that, by “being forced to seek
housing and nearly ending up homeless,” he suffered mental and emotional distress.
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However, it is undisputed that the house he lived in was placed in receivership and that
he was evicted as a result through this proceeding. In short, because defendants did not
cause plaintiff to lose his housing, they did not cause the damages he claims—losing his
home and personal property and the resulting distress.
In any event, with regard to the evidence plaintiff submitted to substantiate his
claims, with his complaint, plaintiff submitted his exhibit A, denominated “History of
Defendants’ Actions 1984-2017 – Evidence of Racism, Bias, Malice and Madness.”
(Some capitalization omitted.) This was, in essence, an expansion on factual allegations
plaintiff asserted in his complaint consisting only of plaintiff’s verified representations
and allegations. He also submitted a copy of the e-mail exchange between Blum and the
receiver’s representative. In that e-mail, of relevance, Blum reported to the receiver’s
representative that a neighbor’s girlfriend saw defendant on Blum’s property and reported
that to the police. Plaintiff has not offered a cogent argument on appeal as to how this e-
mail could give rise to a deprivation of his civil rights. (County of Sacramento, supra,
65 Cal.App.5th at p. 861 [“We may disregard legal arguments that are not supported by
citations to legal authority [citation] or are conclusory.”].)
With his opposition to defendant’s special motion to strike, plaintiff submitted 11
exhibits. This evidence consisted of a letter from a neighbor discussing his favorable
opinion of plaintiff, essentially a character reference letter for plaintiff (exhibit A); a
Sacramento News & Review article discussing plaintiff that appears to have been
published in 2001 (exhibit B); a Davis Enterprise article published in 1998 discussing
numerous code enforcement complaints in plaintiff’s neighborhood by various residents
which discussed four named residents, including plaintiff, but which did not name
defendants (exhibit C); a 1999 letter from plaintiff to the Hearing Examiner and City
Manager requesting a continuance of his hearing and responding to correspondence
(exhibit D); a handwritten note plaintiff claims to be from Ragsdale, which stated only:
“Howard [¶] My apology for my part in our little flair [sic] up. My mom set me
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straight. [¶] Bygones [¶] Judith’s son [¶] Scott.” (exhibit E); two letters to the editor
of the Davis Enterprise written by Ragsdale discussing, in one instance, the United States
Women’s National Soccer Team and, in the other, “what was objectionable about
shouting down the Sacramento Synagogue Cantor at the protest against ICE separating
families at the border” (exhibit F); photographs purportedly showing code violations of a
nonparty neighbor of plaintiff,2 presumably to demonstrate Blum did not complain of
violations similar to plaintiff’s because she was using code enforcement as a pretext to
target plaintiff (exhibit G); photographs of bushes at plaintiff’s house, purportedly
showing they were “vandalized to expose items that had been concealed behind them in
accord with police inspection” (exhibit H); two character reference letters on behalf of
plaintiff that he submitted as he fought receivership and eviction (exhibit I); a printout of
items of personal property plaintiff apparently posted online for sale (exhibit J); and a
photograph purportedly showing plaintiff’s property as of 2014 (exhibit K).
The trial court sustained defendants’ objections to all of plaintiff’s exhibits and did
not consider them in deciding the special motion to strike. This ruling and whether
plaintiff should have been afforded the opportunity to cure the inadmissibility of the
evidence is the subject of another of plaintiff’s claims of error, discussed in part VI, post.
However, even if we were to consider all of the evidence plaintiff offered, we conclude
he failed to establish his probability of prevailing on the merits of his civil rights claims.
Putting aside issues of admissibility, having reviewed this evidence, summarized ante, we
conclude it was largely irrelevant to plaintiff’s claims. (See Evid. Code, § 210.) To the
extent it was relevant, it was only relevant to prove there were other code violations in
2 Included among the exhibits is a printout of a Code Enforcement Request for
Investigation addressing an alleged code violation at the nonparty neighbor’s address
seemingly submitted by plaintiff. This item does not appear on the summary of
plaintiff’s exhibits.
22
the neighborhood and that Ragsdale apparently apologized for his role in a flare up with
plaintiff. Plaintiff has failed to offer a cogent argument as to how this evidence, even if it
was considered, established his probability of prevailing on the merits of his claims.
(County of Sacramento, supra, 65 Cal.App.5th at p. 861.)
3. Ragsdale’s Actions
While Ragsdale’s alleged action in assaulting plaintiff in 2013 would not
constitute protected activity under section 425.16, we note here plaintiff has not raised
any substantive argument on appeal about that particular allegation, or about the
allegations concerning trespass or vandalism, with citation to the record and supported by
authority. (See County of Sacramento, supra, 65 Cal.App.5th at p. 861; Cal. Rules of
Court, rule 8.204(a)(1)(B) & (C).) As stated, “[i]t is the appellant’s burden to
demonstrate the existence of reversible error.” (Del Real, supra, 95 Cal.App.4th at
p. 766.)
4. Conspiracy
“ ‘ “A conspiracy cannot be alleged as a tort separate from the underlying wrong it
is organized to achieve.” ’ [Citation.] Therefore, ‘conspiracy to commit a tort is not a
separate cause of action from the tort itself . . . .’ ” (ComputerXpress, supra,
93 Cal.App.4th at p. 1015.) Inasmuch as plaintiff has not established a probability of
prevailing on the merits of his underlying claims, he cannot establish a probability of
prevailing on a theory of conspiracy.
5. Conclusion
In conclusion, the trial court’s order “ ‘is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown.’ ” (Denham v. Superior Court of Los Angeles, supra,
2 Cal.3d at p. 564.) As to all causes of action we can detect in plaintiff’s complaint,
plaintiff has failed to meet his burden of proving that the trial court committed reversible
error in concluding he failed to demonstrate the probability of prevailing on the merits of
23
his claims. (See Del Real, supra, 95 Cal.App.4th at p. 766 [appellant’s burden to
establish reversible error].)
V
Evidentiary Rulings
With his opposition to defendants’ special motion to strike, plaintiff submitted 11
exhibits, discussed ante. Defendants filed evidentiary objections to plaintiff’s evidence.
In its tentative ruling, the trial court sustained defendants’ objections. Ultimately, the
trial court adopted its tentative ruling, with modifications we need not detail here,
sustaining defendants’ objections.
Plaintiff asserts the trial court erred in refusing to allow him to present evidence
and proceed with discovery. He asserts he should have been afforded the opportunity to
overcome defendants’ evidentiary objections.
We have concluded ante that, even taking all of plaintiff’s proffered evidence into
consideration, plaintiff failed to establish a probability of prevailing on the merits of his
claims. As such, regardless of the merits of plaintiff’s contention that the trial court erred
in failing to afford him the opportunity to cure the impediments to the admissibility of his
evidence (see generally Sweetwater Union High School Dist. v. Gilbane Building Co.,
supra, 6 Cal.5th at p. 949; Fashion 21 v. Coalition for Humane Immigrant Rights of Los
Angeles (2004) 117 Cal.App.4th 1138, 1145-1149), plaintiff cannot establish he was
prejudiced as a result of the trial court’s ruling. An appellant has the burden not only to
show error but prejudice from that error. (Cal. Const., art. VI, § 13.) Because plaintiff
cannot demonstrate he was prejudiced as a result of the trial court’s evidentiary rulings,
he cannot carry his burden of establishing reversible error. (See Del Real, supra,
95 Cal.App.4th at p. 766 [appellant has the burden to demonstrate reversible error].)
To the extent plaintiff asserts the trial court erred in failing to rule on evidentiary
objections, or that the trial court relied on Gallant v. Carson (2005) 128 Cal.App.4th 705,
disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7,
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for the premise that it need not rule on evidentiary objections, these contentions are
without merit and belied by the record. The trial court did rule on defendants’
evidentiary objections, sustaining them all, and did not rely on Gallant for the premise
that it need not rule on evidentiary objections.
VI
Attorney Fees
Plaintiff asserts that, assuming we decide the appeal in his favor, the order
awarding defendants attorney fees should be reversed. On the other hand, should
defendants prevail, he requests, in effect, that we vacate the award of attorney fees.
Defendants counter that plaintiff is required to pay attorney fees under section
425.16, subdivision (c). Therefore, defendants assert the trial court properly awarded
attorney fees.
With exceptions not relevant here, section 425.16, subdivision (c) provides, in
pertinent part: “in any action subject to subdivision (b), a prevailing defendant on a
special motion to strike shall be entitled to recover that defendant’s attorney’s fees and
costs.” (§ 425.16, subd. (c)(1).) “Thus, under . . . section 425.16, subdivision (c), any
SLAPP defendant who brings a successful motion to strike is entitled to mandatory
attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)
Plaintiff has offered no argument or authority in support of his assertion that he
should not have to pay attorney fees. As such, plaintiff has not established the trial court
committed reversible error in awarding mandatory attorney fees to defendants under
section 425.16, subdivision (c). (Del Real, supra, 95 Cal.App.4th at p. 766.)
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DISPOSITION3
The order granting defendants’ special motion to strike is affirmed. Defendants
shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
\s\ ,
McADAM. J.*
We concur:
\s\ ,
DUARTE, Acting P. J.
\s\ ,
BOULWARE EURIE, J.
3 To the extent plaintiff moves for judicial notice of a declaration submitted in a
Yolo County Superior Court No. PT-17-1327, we deny the request “ ‘because the
proffered material is unnecessary to our decision.’ ” (City of Grass Valley v. Cohen
(2017) 17 Cal.App.5th 567, 594, fn. 13, quoting City of Emeryville v. Cohen (2015)
233 Cal.App.4th 293, 312, fn. 13.)
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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