Case Number: BC602949 Hearing Date: November 01, 2016 Dept: 58

Hearing Date: Tuesday, November 1, 2016
Calendar No: 10
Case Name: Mikhail, et al. v. Kelk, et al.
Case No.: BC602949
Motion: Special Motions to Strike
Moving Party: (1) Defendant Mohammad Ordoubadi
(2) Defendant Ahang Kelk Zarin
Responding Party: Plaintiffs Joseph Mikhail and Reza Bidari

Tentative Ruling: (1) Special motion to strike by Mohammad Ordoubadi is granted (as to the 13th through 16th COAs).

(2) Special motion to strike by Ahang Kelk Zarin is granted only as to the 16th COA and is otherwise denied.

Background –
On 12/4/15, Plaintiffs Joseph Mikhail and Reza Bidari filed this action against Ahang Zarin Kelk aka Ahang Kelk aka Ahang Mirshojaie and Justin Langdon arising out of declarations accusing Plaintiffs of attempted murder which was filed in an action between Reza’s father Taimoor Bidari and Kelk in which Taimoor had obtained a monetary judgment (SC115503), and the subsequent arrest of Mikhail and the investigation by the Sheriff’s Department of Mikhail. On 5/31/16, Plaintiffs filed the operative First Amended Complaint which added Mohammad aka Afshin Ordoubadi as a defendant.

Plaintiffs assert libel per se and intentional infliction of emotional distress claims (1st and 2nd COAs) against Kelk and Langdon arising out of the declarations submitted in SC115503. Mikhail asserts a malicious prosecution claim (3rd COA) against Kelk and Langdon arising out of the subsequent arrest and investigation by the Sheriff’s Department. Mikhail also asserts defamation, intentional infliction of emotional distress, and negligence claims against Kelk for statements that Mikhail tried to kill Kelk which are alleged to have been made to Michael Ansari on 8/15/15 (4th through 6th COAs), Bob Mirdamadi on 10/15/15 (7th through 9th COAs), and Javier Valencia on 1/5/16 (10th through 12th COAs), and against Ordoubadi (13th through 15th COAs) for stating to Chris Nicely on 9/28/15 that Mikhail had planned to kill Kelk and asked Ordoubadi to help by driving Mikhail. Finally, Mikhail asserts a civil conspiracy claim (16th COA) against Kelk and Ordoubadi arising out of Ordoubadi’s statements to Nicely.

OSC re: dismissal of Langdon (for failure to serve), status conference, and mediation setting are set for 11/1/16. Trial is set for 5/15/17; FSC for 5/4/17.

Special Motions to Strike –
Ordoubadi and Kelk move to strike the claims asserted against them pursuant to CCP § 425.16, the anti-SLAPP statute. “An anti SLAPP motion requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” Brenton v. Metabolife International Inc. (2004) 116 Cal.App.4th 679, 684. Though the motions are distinguished by the different factual claims asserted against Ordoubadi and Kelk, the motions raise substantively identical legal issues and are supported by the same evidence

1. Procedural Objections
Plaintiffs argue that Kelk’s anti-SLAPP motion was filed on 8/11/16, beyond the 60-day time period to file the motion based on the service of the FAC on 6/1/16, and that the hearing date is beyond the 30 days after service of the motion. See CCP § 425.16(f). However, the Court has discretion to permit late anti-SLAPP motions so long as the purpose of the anti-SLAPP statute is not diminished. See generally Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1188-89. This is the case here, where the untimeliness of Kelk’s anti-SLAPP motion is minimal and is a much shorter lapse than what has been permitted and not nearly as long as the lengthy delays for which the motions were denied (see id. at 1189-90). Finally, the calendaring of the hearing on Kelk’s anti-SLAPP motion was dictated by the Court’s docket conditions which makes the motion timely heard. See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348-49.

2. Evidentiary Objections
Ordoubadi objects to portions of the declarations of Mikhail, Taimoor, and Reza. Plaintiffs object to portions of the declaration of Kelk (as part of Kelk’s anti-SLAPP motion only). All objections are overruled.

3. Protected Activity
“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. “The phrase ‘arising from’ means the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” City of Cotati v. Cashman (2002) 29 Cal.4th 69, 67.

Plaintiffs’ claims against Ordoubadi and Kelk arise out of the following conduct taken by them. Kelk submitted a declaration in SC115503 accusing Plaintiffs of attempting to murder her (FAC ¶¶ 8-9, 14-16). Kelk reported Mikhail to the Sheriff’s Department for attempting to murder her (id. ¶ 24). And Kelk made statements that Mikhail attempted to murder her to Michael Ansari (id. ¶ 30), Bob Mirdamadi (id. ¶ 46), and Javier Valencia (id. ¶ 63). Ordoubadi made statements to Chris Nicely that Mikhail had planned to murder Kelk and asked Ordoubadi to assist him. Id. ¶ 80 (Kelk is also alleged to have conspired with Ordoubadi to make the statements to Nicely (id. ¶ 98)). Although Nicely is not identified in the FAC, Ordoubadi and Kelk submit undisputed evidence that Nicely is a private investigator hired by Kelk. See Ordoubadi Decl. ¶ 7; see also Kelk Decl. ¶ 6 (stating that her attorney advised that Ordoubadi’s deposition could not be taken but that her attorney would hire a private investigator to take Ordoubadi’s testimony).

Ordoubadi and Kelk argue that the FAC arises out of protected activity because the statements and writings are in connection with civil litigation (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35) and criminal prosecution (Dickens v. Provident Life & Accidental Ins. Co. (2004) 117 Cal.App.4th 705, 716). The Court agrees except as to Kelk’s statements to Ansari, Mirdamadi, and Valencia.

Kelk’s declaration in SC115503 was submitted in a civil action. Kelk’s report to the Sheriff’s Department was in support of a criminal prosecution, and it is undisputed that Ordoubadi’s statements were to a private investigator hired by Kelk which supports that the statements to Nicely could be for the purpose of seeking review by law enforcement or pursuing a civil case. Plaintiffs argue that Ordoubadi’s statements were not made about an existing case, but whether an actual civil or criminal case was pending at the time is not determinative.

The Court notes that Ordoubadi submits that he repeated the statements to a detective investigating the accusations of attempted murder or to Kelk’s attorney for submission to law enforcement or in support of a future civil action. Ordoubadi Decl. ¶¶ 4-5. But this is irrelevant because Mikhail’s claims are not based on statements made to those individuals.

However, there are no facts alleged or even evidence submitted to explain the relationship of the third-parties to whom Kelk made statements in the 4th through 12th COAs. This results in the Court being unable to determine that these statements made to these individuals were made in connection with a judicial or official proceeding. Kelk’s general assertion that all statements about Mikhail were for the purpose of seeking review by law enforcement or pursuing a civil case is alone insufficient to establish protection of these statements under the anti-SLAPP statute. Stated simply, if these individuals were family or friends (i.e., nonparticipants to the contemplated criminal or civil actions by Kelk), communications to them would not be protected under the anti-SLAPP statute because mere false allegations of criminal conduct by private communications about private matters are not subject to the anti-SLAPP statute (see Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127-28, 1136).

Therefore, the Court concludes that the FAC arises from protected activity except as to Kelk’s statements made to Ansari, Mirdamadi, and Valencia in the 4th through 12th COAs.

4. Probability of Success on the Merits
Because Ordoubadi and Kelk establish that the 1st through 3rd and 13th through 16th COAs arise out of protected activity, the burden shifts to Plaintiffs to present admissible evidence that supports a prima facie case in their favor, much like the burden on a motion for summary judgment or motion for directed verdict. CCP § 425.16(b)(1); Taus v. Loftus (2007) 40 Cal.4th 683, 714; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087. The Court notes that Mikhail has submitted evidence disputing that he attempted to murder Kelk (see Kelk Decl. ¶¶ 9, 11-12; Reza Decl. ¶¶ 6-7) and supporting the proposition that Ordoubadi’s statements to Nicely were false (Taimoor Decl. ¶ 12; Sheava Decl. ¶¶ 2-5).

a. Litigation Privilege
Ordoubadi and Kelk argue that the litigation privilege applies. The Court agrees in part. The absolute litigation privilege is broadly applied to any communication (Silberg v. Anderson (1990) 50 Cal.3d 205, 211-12) including prelitigation communications (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057) regardless of malice (see, e.g., Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 95-56) and applies to all claims except malicious prosecution (see, e.g., Rohde, 154 Cal.App.4th at 38). But the litigation privilege only applies to communications that have some connection or logical relation to the judicial or quasi-judicial proceedings. It does not apply to publications to nonparticipants or to the general public through the press. Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1299.

Ordoubadi’s statements to Nicely (upon which the conspiracy claim is dependent (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 968-69)) are subject to the litigation privilege because it is undisputed that these statements were made to a private investigator. Regardless of the malice involved, this is sufficient to establish that the 13th through 16th COAs are based on communications covered by the litigation privilege. Therefore, the anti-SLAPP motions are granted as to the 13th through 16th COAs.

However, all other communications by Kelk are not covered by the litigation privilege. The litigation privilege does not apply to the 3rd COA for malicious prosecution. As to the 1st and 2nd COAs, no evidence is submitted to support that Kelk’s declaration in SC115503 had a reasonable relation to any judicial or official proceeding. Indeed, the transcript of the hearing mostly concerned motions to expunge a lis pendens and to intervene concerning a sale of property to satisfy an underlying judgment. As to Kelk’s declaration (Complaint RJN Ex. B), the Court denied the ex parte on jurisdictional and procedural grounds without considering the substance of the declarations (id. Ex. B p. 48:16-18).

b. Malicious Prosecution
Kelk argues that Mikhail cannot establish that Kelk “actively caused” Mikhail to be prosecuted or that the criminal investigation was terminated in Mikhail’s favor. See Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341-42; see generally Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (elements of malicious prosecution). However, Mikhail alleges that Kelk wrongfully accused him of attempted murder resulting in his arrest, that Mikhail fully cooperated with the Sheriff’s Department by submitting to polygraph tests, by providing a DNA sample, and by submitting to multiple interviews, that Kelk never participated in the investigation, and that the District Attorney has not filed any charges against Mikhail. Mikhail Decl. ¶¶ 2-8. Combined with Mikhail’s general evidence that disputes the declarations of Kelk and Ordoubadi, this is sufficient to support that Kelk initiated the criminal investigation of Mikhail which was terminated in Mikhail’s favor as a reflection on the merits.

5. Ruling
Consistent with the Court’s discussion above, Ordoubadi’s anti-SLAPP motion is granted as to the 13th through 16th COAs. Kelk’s anti-SLAPP motion is granted only as to the 16th COA and is otherwise denied.