Rosen v. Nelson CA4/1

Filed 4/22/15 Rosen v. Nelson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAMUEL ROSEN, D065658

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00052830-
CU-DF-NC)
BEATRICE NELSON,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Earl H. Maas

III, Judge. Affirmed.

Samuel Rosen, in pro. per., for Plaintiff and Appellant.

North County Law Firm and Anton C. Gerschler for Defendant and Respondent.

In this defamation case plaintiff Samuel Rosen, appearing in propria persona as he

did in both the trial court and this court in his unsuccessful prior appeal in this matter

(Rosen v. Nelson (July 25, 2013, D062501 [nonpub. opn.] (Rosen I), appeals an award of

attorney fees and costs ($45,081 in fees and $2,473 in other costs) that the court granted

in favor of defendant and prevailing party Beatrice Nelson after it granted her Code of
Civil Procedure1 section 425.16 motion─commonly known as an anti-SLAPP (strategic

lawsuit against public participation) motion─to strike the defamation complaint Rosen

filed against her. In Rosen I, Rosen unsuccessfully challenged the order granting

Nelson's anti-SLAPP motion.

In this new appeal, Rosen's principal contention is that the award of fees and costs

in favor of Nelson under the anti-SLAPP statute (§ 425.16) should be reversed because

the court erroneously granted her anti-SLAPP motion to strike his complaint. As the law-

of-the-case doctrine bars Rosen from relitigating in this appeal his unsuccessful claim in

Rosen I that the court erred in granting Nelson's motion to strike the complaint, we affirm

the award of fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND2

At all times relevant, Rosen and Nelson were residents of a mobilehome

community known as San Luis Rey Homes (SLRH), where Rosen and another SLRH

resident, Phil Hauser,3 were paid in connection with a project to upgrade SLRH's utility

infrastructure.

1 All further statutory references are to the Code of Civil Procedure.

2 The following background is derived in part from this court's unpublished opinion
in Rosen I.

3 Phil Hauser separately sued Nelson for defamation based on the same alleged
defamatory statements that are the subject of the instant case. (See Hauser v. Nelson
(Super. Ct. San Diego County, 2012, No. 37-2012-00053288-CU-DF-NC).) The trial
court in that action also issued an order granting an anti-SLAPP motion brought by
Nelson, and this court affirmed that order. (See Hauser v. Nelson (Nov. 15, 2013,
D062611) [nonpub. opn.].)
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 A. Rosen's Complaint

In his complaint, Rosen alleged that in early February 2012, when he was the

revitalization project director of SLRH, Nelson made libelous statements about him by

"publish[ing] a four-page written statement to Owners/Members of [SLRH]" in which

she falsely stated (among other things):

"There was nothing about [Rosen's] qualifications, his background,
education, work history, his experience to qualify him to be in
charge of any revitalization project, and inquiry indicates there is no
resume on file at our office."

"At the December meeting, Russ Burns asked [Rosen]: '[H]ow
much time do you and Phil [Hauser] take to do the research, reading,
and evaluation for our benefit? [Rosen's] reply: 'Phil and I work
about 100 hours a week each . . . on this.' That would leave less than
10 hours a day to eat, sleep and all else.' When someone tells that
humongous a whopper, who would believe anything that person ever
said?"; and

"[Rosen] is very charismatic, with a gift of persuasive speech, but
his bullying a member at the [February] meeting by putting him in a
vice-like grip under his left arm was humiliating and not funny!
Would you like this if he did it to you? One has to be either brave or
foolhardy to speak at a meeting."

Rosen also alleged in his complaint that Nelson made libelous statements about

him by "publish[ing] a three-page written statement to the Board of Governors and

Owners/Members of [SLRH]" in which she falsely stated (among other things):

"Our reserve funds may be used only for the repair, restoration,
replacement, or maintenance of major components for which the
fund was established. It was not established to support Sam Rosen
or Phil Hauser neither of whom have the background or
qualifications in what our underground utilities revitalization
requires."

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 "It has reached the point where a member is either brave or
foolhardy to speak or ask questions, as demonstrated by Sam
Rosen's bullying and humiliating a member at our February meeting.
This was not cute nor funny! How would you feel if this was done
to you?"

In his cause of action for slander per se, Rosen alleged the same three-page written

statement to the board of governors and the owners/members of SLRH falsely stated:

"I also want to inform the Board that I have been in contact with the
San Diego District Attorney's office, and have sent them copies of
all my documentation. If anyone again threatens to 'murder' me, I
expect the Board to follow necessary action as set forth in our
Bylaws. I am now going to read some of our facts and concerns,
which may possibly qualify as Financial Abuse of the Elderly."

Rosen further alleged "these statements are defamatory because the language

carries a meaning that [his] conduct was criminal and harmful to others."

B. Nelson's Opposed Anti-SLAPP Motion To Strike Rosen's Complaint

In her anti-SLAPP motion, which Rosen opposed, Nelson argued the court should

strike Rosen's complaint under section 425.16 "on the grounds that [her] allegedly

libelous and slanderous statements . . . sued upon . . . arose from [her] exercise of her

'right of petition or free speech under the United States Constitution or the California

Constitution in connection with a public issue,' to wit, her questioning the Board of

Governors of the mobilehome park association, San Luis Rey Homes, Inc., . . . about its

expenditure of the association's monies to compensate other park residents, [Rosen] and

Phil Hauser, as paid consultants on the park's utility revitalization project."

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 1. Order granting Nelson's anti-SLAPP motion

The court granted Nelson's anti-SLAPP motion and struck Rosen's complaint. In

granting the motion, the court found Rosen had failed to meet his burden of establishing a

reasonable probability of prevailing on his defamation claims. The court stated:

"Almost all of these statements by [Nelson] are statements of
opinion or concern [about] inaction of the Board. [Nelson's] speech
concerns the failure of the Board to require [Rosen] to account for
his time and whether [Rosen] is paid too much. Even though the
statement allegedly made by [Nelson] that the Board is not paying
[Rosen] for his 'extra-curricular activity' could be interpreted as an
insinuation that [Rosen] is not doing the work he is paid to do, the
statement really concerns the Board's lack of supervision or failure
to account for members' money paid to [Rosen] when it is read in
conjunction with the rest of the allegations. Again, the statement
concerns the Board[,] not [Rosen].

"With regard to the allegations that [Nelson] informed everyone that
[Rosen] put a member in a 'vice-grip,' [Rosen] has not sufficiently
alleged defamation. [Rosen] alleges this statement was made to the
Board, distributed in the minutes, and the alleged actions took place
at a meeting. Defamation requires that the statement be published to
a third person. Arguably, the members are not third persons . . . .
[Rosen] even produced numerous Declarations from those present
that support his position that he did not put the member in a 'vice
grip' but was demonstrating how someone had put an arm around
him. This illustrates the members were present when the conduct
occurred. Whether the conduct was too aggressive or not is a matter
of opinion and without more specific allegations[,] such as
identification of the people that received [Nelson's] statement that
were not present when the conduct occurred, [Rosen] has not alleged
publication.

"Lastly, [Rosen] also alleges statements made by [Nelson]
concerning financial elder abuse. [Nelson] indicates that these were
published to the District Attorney's Office along with all other
statements including the statement that [Rosen] put a member in a
'vice-grip[.]' [¶] Defamation is not the appropriate cause of action
with regard to these statements because any statements to the

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 District Attorney, especially those concerning financial or physical
elder abuse[,] would be protected by privilege."

D. Rosen's Prior Appeal (Rosen I)

In Rosen I, Rosen challenged the order granting Nelson's anti-SLAPP motion.

This court affirmed the order, concluding that "Rosen ha[d] not met his burden of

overcoming the presumed correctness of the challenged order by affirmatively

demonstrating error because he ha[d] failed to provide this court with an adequate record

on appeal."

This court thereafter denied Rosen's petition for rehearing. On October 2, 2013,

the California Supreme Court denied his petition for review (Rosen v. Nelson, S212757).

E. Court's Award of Attorney Fees and Costs in Favor of Nelson, and Rosen's
New Appeal

As the prevailing party, Nelson thereafter brought a motion to recover her attorney

fees and costs under the anti-SLAPP statute (§ 425.16, subd. (c) (hereafter § 425.16(c)).

The court awarded Nelson reasonable attorney fees in the amount of $45,081 and other

costs in the amount of $2,473. Rosen's appeal challenging that award followed.

DISCUSSION

In challenging the award of attorney fees and costs awarded to Nelson under

section 425.16(c), Rosen's principal contention in this new appeal is that─despite the trial

court's finding to the contrary in granting Nelson's anti-SLAPP motion─he "established a

probability of prevailing on his defamation/slander/libel claims," and, thus, Nelson's

award of fees must be reversed "because they do not arise from [Nelson's] protected

speech." In support of this contention, he asserts Nelson's counsel "abuse[d] the Anti-

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SLAPP Motion jurisprudence" in order to "enrich his practice." Rosen also asserts that

"[Nelson's] statements concerning [him] are not protected political speech about public

figures in the performance of their public duties, and were not made in the furtherance of

her right of petition or free speech under the United States or California Constitution."

He complains that this court "allowed [Nelson's] meretricious attempt to insulate alleged

torturous conduct behind a procedural gimmick in the misuse of the Anti-SLAPP statute

by ruling that [Nelson's] Anti-SLAPP Motion is affirmed in its July 25, 2013 [opinion]."

We conclude Rosen's main contention─that the award of fees and costs in favor of

Nelson should be reversed because the court erroneously granted her anti-SLAPP

motion─is unavailing.

A. Applicable Legal Principles (Fees Awarded Under § 425.16, subd. (c)(1))

Section 425.16, subdivision (c)(1), provides that "in any action subject to [a

special motion to strike under section 425.16], a prevailing defendant . . . shall be entitled

to recover his or her attorney's fees and costs." An award of attorney fees to a defendant

who brings a successful special motion to strike─or so-called anti-SLAPP motion─under

section 425.16 is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fee

award to the prevailing defendant "may include not only the fees incurred with respect to

the underlying claim, but also the fees incurred in enforcing the right to mandatory fees

under . . . section 425.16. . . . '[A]bsent circumstances rendering the award unjust, fees

recoverable . . . ordinarily include compensation for all hours reasonably spent, including

those necessary to establish and defend the fee claim.'" (Ketchum, at p. 1141.)

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 1. Standard of review

"We review the amount of attorney fees awarded for abuse of discretion.

[Citation.] An attorney fee award will not be set aside 'absent a showing that it is

manifestly excessive in the circumstances.'" (Mallard v. Progressive Choice Ins. Co.

(2010) 188 Cal.App.4th 531, 544.) "A ruling amounts to an abuse of discretion when it

exceeds the bounds of reason, and the burden is on the party complaining to establish that

discretion was abused." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193

Cal.App.4th 435, 450 (Gerbosi).)

B. Analysis

As already discussed, Rosen's principal contention is that the award of fees and

costs in favor of Nelson should be reversed because the court erroneously granted her

anti-SLAPP motion and, thus (he suggests), Nelson is not entitled to recover her fees and

costs under section 425.16(c).

However, Rosen is barred by the law-of-the-case doctrine from relitigating in this

new appeal his unsuccessful claim in Rosen I that the court erred in granting Nelson's

motion to strike the complaint. "The rule of 'law of the case' generally precludes multiple

appellate review of the same issue in a single case." (Searle v. Allstate Life Ins. Co.

(1985) 38 Cal.3d 425, 434.) "The primary purpose served by the law-of-the-case rule is

one of judicial economy." (Id. at p. 435.) Here, Rosen litigated to finality in Rosen I the

propriety of the court's order granting Nelson's special anti-SLAPP motion to strike

Rosen's defamation complaint. In Rosen I, as already discussed, this court affirmed that

order, we denied Rosen's petition for rehearing, and the Supreme Court denied his

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petition for review. Thus, under the law-of-the-case doctrine Rosen is barred from

relitigating in this new appeal his unsuccessful claim in Rosen I that the court erred in

granting Nelson's special motion to strike his complaint. (See Searle, at p. 434.) Thus,

Rosen's challenge to the award of fees and costs fails to the extent it is based on his

already-litigated unsuccessful claim that the order granting Nelson's special anti-SLAPP

motion was erroneous.

Rosen also appears to challenge the amount of the award of attorney fees

($45,081) by stating that "a defendant should not be entitled to obtain as a matter of

right . . . her entire attorney fees incurred on successful and unsuccessful claims merely

because the attorney's work on those claims was overlapping. [His] claims were never

completely addressed." However, in asserting that the defamation claims alleged in his

complaint "were never completely addressed," Rosen is again attempting to relitigate in

this new appeal his unsuccessful claim in Rosen I that the court erred in granting Nelson's

special motion to strike his complaint. We have already concluded that he may not do so

in this new appeal. In any event, as already discussed, "the burden is on the party

complaining to establish that discretion was abused." (Gerbosi, supra, 193 Cal.App.4th

at p. 450.) We conclude that, to the extent Rosen complains about the amount of the

award of attorney fees, he has failed to meet his burden of establishing the court abused

its discretion.

Rosen also complains that the trial court "did not allow for Discovery necessary to

allow [him] the opportunity to prevail on his complaint." Once again, he is attempting to

relitigate his unsuccessful claim in Rosen I that the court erred in granting Nelson's

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special motion to strike his complaint. He is barred under the law-of-the-case doctrine

from doing so. (See Searle v. Allstate Life Ins. Co., supra, 38 Cal.3d at p. 434.)

Citing a motion for injunctive relief he filed in the trial court in January 2014,

Rosen also complains that the trial court "has seen fit to ignore [his] request to stop

[Nelson] from continuing slandering and libeling [him] to the public, police departments,

and Oceanside City employees." He asks this court to "compel the lower court to hear

[his] Motion for Injunctive Relief." However, Rosen's notice of appeal shows he appeals

only from the award of attorney fees and costs. Any claim that the court erroneously

refused to hear Rosen's motion for injunctive relief is not justiciable in this appeal.

DISPOSITION

The order awarding fees and cost in favor of Nelson is affirmed. Nelson shall

recover her costs on appeal.

NARES, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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