Filed 4/27/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
YASSER ABUEMEIRA et al., 2d Civil No. B264542
(Super. Ct. No. 56-2012-00421674-
Plaintiffs and Respondents, CU-MC-VTA)
(Ventura County)
v.
JOHN F. STEPHENS et al.,
Defendants and Appellants.
The parties in this case are neighbors. Appellants ignored Rodney King's
famous entreaty. Instead of getting along, they initiated events resulting in a brawl with
respondents. Appellants videotaped and distributed the video-recording to news agencies
and various members of the public. Respondents sued, alleging numerous causes of
action stemming from the altercation. Appellants responded with a motion to strike,
challenging two causes of action as a strategic lawsuit against public participation
("SLAPP"). (Code Civ. Proc., § 425.16.)1
A video-recording of an unseemly private brawl, no matter how wide its
distribution, is far removed from a citizen's constitutional right of petition or free speech
involving a public issue.
John F. Stephens and Razmik B. Ekmekdjian appeal an order denying a
motion to strike two causes of action in a second amended complaint for damages filed
1
All further statutory references are to the Code of Civil Procedure unless stated
otherwise.
by Yasser and Daria Abuemeira. The trial court properly denied the motion to strike.
We affirm.
FACTUAL AND PROCEDURAL HISTORY2
Stephens, Ekmekdjian, and Yasser and Daria Abuemeira are neighbors in a
gated community in Bell Canyon.3 On July 15, 2012, Stephens, Ekmekdjian, and Yasser
engaged in a physical altercation on the roadside of Bell Canyon Road, within the
community. Yasser had been driving a motorcycle and Stephens and Ekmekdjian had
been driving a passenger sedan. Daria, Yasser's wife, and their two young children were
in a nearby park; Daria observed some of the events. Stephens used his cellular
telephone to record part of the incident, including profanities and derisive words uttered
by the participants. Eventually, a passerby stopped and separated the combatants.
Sheriff's deputies soon arrived and arrested Yasser and Ekmekdjian. Yasser claimed
physical injuries and received treatment at a local hospital. Upon this much, the parties
agree.
Criminal Prosecution of Yasser Abuemeira
The district attorney filed charges against Yasser, but later filed a motion to
dismiss the charges. By written motion, the prosecutor explained that it is unclear who
the initial aggressor was in the incident; the video-recording reflects that Stephens and
Ekmekdjian appear "hostile and agitated," thereby suggesting provocation; no
independent witness corroborates the version of events described by Stephens and
Ekmekdjian; and, circumstantial evidence supports Yasser's account of the incident. The
prosecutor stated that Stephens appeared agitated and angry from the inception, pointed
his finger at Yasser and stated that Yasser should "go fuck [himself]." The prosecutor
added that Yasser "rushed" Stephens after Stephens refused to cease video-recording
Yasser's children. Finally, the prosecutor described a conversation between Stephens and
2
Unfortunately, this opinion contains an abundance of obscene language. Reader
discretion advised; unsuitable for precocious children of reading age.
3
As the context demands, we shall refer to Yasser and Daria Abuemeira by their first
names not from disrespect but to ease the reader's task.
2
Ekmekdjian overheard in the courthouse hallway discussing "run[ning]" Yasser "off the
road." The trial court granted the prosecutor's motion to dismiss in the interests of
justice. (Pen. Code, § 1385, subd. (a).)
The Abuemeiras filed a second amended complaint for damages, alleging
eight causes of action regarding Yasser's "detention" by Stephens and Ekmekdjian, the
ensuing verbal argument, the physical altercation, and later acts of defamation. The
Abuemeiras allege that Stephens and Ekmekdjian edited the video-recording of the
incident and then published it to third parties, including attendees at homeowner
association meetings and to a television news reporter. In those forums, Stephens and
Ekmekdjian described the incident as a "hate crime" against homosexuals.
Stephens and Ekmekdjian filed a special motion to strike the second and
fourth causes of action of the second amended complaint, pursuant to the anti-SLAPP
law. (§ 425.16.) These two causes of action were based on allegations of intentional
infliction of emotional distress and defamation. In the motion, Stephens and Ekmekdjian
characterized the roadside skirmish as "a hate crime against a homosexual couple."
Following the filing of the Abuemeiras' complaint, Stephens and Ekmekdjian displayed
the video-recording to family, friends, law enforcement, and news agencies, and created
an on-line petition demanding that the California Attorney General investigate the
incident. Stephens and Ekmekdjian asserted that the two causes of action were also
precluded by the litigation privilege of Civil Code section 47, subdivision (b).
Stephens and Ekmekdjian submitted declarations in support of their anti-
SLAPP motion. They stated that on July 15, 2012, they saw Yasser speeding on his
motorcycle and followed him to obtain his license-plate number. Yasser stopped the
motorcycle and gestured for them to approach. Yasser then "lunged" at Ekmekdjian who
"shoved" Yasser in response. "[I]n rage," Yasser called the two men "faggots" and
"cocksuckers." Yasser then "jumped" Stephens, struck him, and demanded that he cease
recording the incident. When Ekmekdjian intervened, Yasser struck him too.
Eventually, a passerby separated the combatants. Although sheriff's deputies arrested
Yasser and Ekmekdjian, prosecution ensued only against Yasser.
3
Not surprisingly, Yasser described the encounter differently. He stated that
he gestured for Stephens and Ekmekdjian to drive past him, but instead, they forced him
off the roadway and blocked his passage. When Stephens left his vehicle, he began
filming the encounter with his cellular telephone. He "forced [the] phone into [Yasser's]
face," and stated, "Say hello to the world." Stephens and Ekmekdjian yelled and made
accusations and then Ekmekdjian shoved Yasser. Stephens later filmed Daria and the
two children, despite Yasser's pleas not to do so. Stephens stated: "I can do whatever the
fuck I want. I'm a super lawyer -- do something about it." A physical altercation then
ensued. During the fight, Stephens and Ekmekdjian referred to Daria as a "bitch," and a
"cunt," and to Yasser as a "nigger" and an "animal." They also suggested or implied that
Yasser was "a terrorist." Yasser was thrown to the ground and punched and kicked in the
head. Daria and her infant received some bruises and scratches when they attempted to
rescue Yasser.
In response to the anti-SLAPP motion, Yasser stated that Stephens and
Ekmekdjian were "self-appointed traffic bullies who seemed to be looking to pick a
fight." Yasser declared that he had never met Stephens or Ekmekdjian before the
incident and was unaware of their sexual orientations.
Yasser also declared that the video-recording of the incident is incomplete,
the participants' statements are "muffled," and the recording appears to have been edited.
Yasser presented a written expert opinion that the recording reflects a GPS coordinate of
an address in West Hills, suggesting that the recording had been edited at that address,
after filming.4
The trial court denied the anti-SLAPP motion. In a written ruling, the trial
judge stated: "The statements in question do not come within the litigation privilege.
This case involves a dispute between private persons. The efforts of the defendants to
publicize it do not transform it into an issue of public interest."
4
The Abuemeiras have provided a copy of the video-recording in their respondents'
appendix. We have viewed it.
4
Stephens and Ekmekdjian appeal and contend that the trial court erred by
denying the anti-SLAPP motion because their communications regarding a hate crime are
matters of public interest that also fall within the litigation privilege.
DISCUSSION5
I.
Stephens argues that the Abuemeiras' second and fourth causes of action
rest upon protected activity pursuant to section 425.16, subdivisions (e)(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"] and (e)(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"].) He asserts that
his communications to friends, family members, and the general public are acts involving
the constitutional right of free speech regarding an issue of public interest.
Section 425.16, subdivision (b)(1) provides that a cause of action "arising
from" a defendant's act in furtherance of a constitutionally protected right of free speech
shall be struck unless the plaintiff establishes a probability that he will prevail on his
claim. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.)
Section 425.16 "provides a procedure for the early dismissal of what are commonly
known as SLAPP suits . . . litigation of a harassing nature, brought to challenge the
exercise of protected free speech rights." (Fahlen, at p. 665, fn. 3.) A SLAPP suit is
generally brought to obtain an economic advantage over the defendant, not to vindicate a
legally cognizable right of the plaintiff. (Graffiti Protective Coatings, Inc. v. City of Pico
Rivera (2010) 181 Cal.App.4th 1207, 1215 [SLAPP plaintiff does not expect to succeed
in his lawsuit, only to tie up defendant's resources to allow plaintiff sufficient time to
accomplish his underlying objective].) "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
5
Hereafter, we shall refer to Stephens and Ekmekdjian collectively as "Stephens" except
where clarity demands that we draw a distinction.
5
rise to his or her asserted liability--and whether that activity constitutes protected speech
or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
The analysis of an anti-SLAPP motion pursuant to section 425.16 is two-
fold. (Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722,
727; Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1104.)
The trial court first decides whether defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. If the court finds that a
showing has been made, it then determines whether the plaintiff has demonstrated a
probability of prevailing on his claim. (Ibid.) Our inquiry regarding the first prong of the
analysis concerns the principal thrust or gravamen of the cause of action--the allegedly
wrongful and injury-producing conduct that provides the foundation for the claims.
(Talega Maintenance Corp., at p. 728.)
We independently review the trial court's determination of each step of the
analysis. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Kenne v. Stennis (2014) 230
Cal.App.4th 953, 963.) "'[W]e engage in the same, two-step process as the trial court to
determine if the parties have satisfied their respective burdens. [Citations.] If the
defendant fails to show that the lawsuit arises from protected activity, we affirm the trial
court's ruling and need not address the merits of the case under the second prong of the
statute.'" (Talega Maintenance Corp. v. Standard Pacific Corp., supra, 225 Cal.App.4th
722, 728.)
The trial court properly denied the anti-SLAPP motion because Stephens's
conduct did not involve an act in furtherance of his constitutional right of petition or free
speech in connection with a public issue. (§ 425.16, subd. (b)(1); Lefebvre v. Lefebvre
(2011) 199 Cal.App.4th 696, 703 [making of false police report is not an act in
furtherance of the constitutional right of petition or free speech].) Causes of action
arising from false allegations of criminal conduct are not subject to the anti-SLAPP laws.
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127.)
Moreover, Stephens did not present any evidence to establish that the
Abuemeiras were anyone other than "private, anonymous" parties or that the dispute was
6
anything other than a private controversy. (Weinberg v. Feisel, supra, 110 Cal.App.4th
1122, 1132.) Section 425.16, subdivisions (e)(3) and (e)(4) require that the complained
of communications concern "an issue of public interest." "A person cannot turn
otherwise private information into a matter of public interest simply by communicating it
to a large number of people." (Weinberg, at p. 1133.) In addition, the focus of the
speaker's conduct should be the public interest rather than an effort "'to gather
ammunition for another round of [private] controversy.'" (Id. at pp. 1132-1133.) Under
the circumstances here, Stephens did not establish the threshold showing required to
support a special motion to strike.
II.
Pointing out that the defamation allegations rest upon communications
made after the Abuemeiras filed their initial complaint, Stephens asserts that the
communications are protected by the litigation privilege of Civil Code section 47,
subdivision (b) and judicial interpretations thereof. Stephens relies upon Kenne v.
Stennis, supra, 230 Cal.App.4th 953, 965 [litigation privilege applies to communications
that have "some relation" to a lawsuit, i.e., making of allegedly false police reports and
filing of harassment petitions] and Healy v. Tuscany Hills Landscape & Recreation Corp.
(2006) 137 Cal.App.4th 1, 5-6 [litigation privilege applies to attorney's letter sent to
members of homeowners' association in lawsuit involving the association].
The litigation privilege of Civil Code section 47 pertains to any
communication 1) made in judicial or quasi-judicial proceedings; 2) by litigants or other
participants authorized by law; 3) to achieve the objects of the litigation; and 4) that have
some connection or logical relation to the action. (GetFugu, Inc. v. Patton Boggs LLP
(2013) 220 Cal.App.4th 141, 152.) The principal purpose of the litigation privilege is to
afford litigants and witnesses the utmost freedom of access to the courts without fear of
litigation reprisal. (Ibid.) Republications to nonparticipants in the action are not
privileged and are actionable unless privileged on some other basis. (Ibid. [litigation
privilege does not apply where publication is to persons in no way connected with the
proceeding].) Thus, the litigation privilege does not apply to publications to the general
7
public through the press. (Id. at p. 153.) "Litigating in the press" does not serve the
purpose of the privilege; it serves no purpose other than to provide immunity to those
who would inflict damage upon the judiciary. (Ibid.; Rothman v. Jackson (1996) 49
Cal.App.4th 1134, 1146 [public mudslinging not entitled to protection afforded by
litigation privilege].)
The litigation privilege does not protect Stephens because he has not
established that the speech recipients are connected with the litigation or that his
communications achieve any objective of the litigation. "A party's legitimate objectives
in the litigation are limited to the remedies which can be awarded by courts. . . . [A]
defendant's 'objects' are to resist a determination of liability and whatever assessment of
damages, penalty or other order that the plaintiff seeks." (Rothman v. Jackson, supra, 49
Cal.App.4th 1134, 1147-1148.) Moreover, Stephens's communications to the general
public through the Internet and the media are not protected by the litigation privilege.
(GetFugu, Inc. v. Patton Boggs LLP, supra, 220 Cal.App.4th 141, 152.) An expansion of
the rule to allow publication to the general public through the press would be contrary to
our Supreme Court's holding that the litigation privilege does not protect republications
to nonparticipants in the action. (Id. at p. 153.)
The order is affirmed. The Abuemeiras shall recover costs on appeal.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
8
Henry Walsh, Judge
Superior Court County of Ventura
______________________________
Law Offices of Randy Godin, Randy Godin for Defendants and Appellants.
Gerard Fox Law P.C., Gerard P. Fox, Marina V. Bogorad, Jeffrey Z. Liu
for Plaintiffs and Respondents.
9