Filed 11/19/18 Pouliot v. Cohen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Craig L. Griffen, Judge. Affirmed.

Winsten Law Group and Michael Winsten; Jeffrey Lewis for Defendant and Appellant.

Szmanda Law Group, Brett Szmanda and Matthew Gustin for Plaintiff and Respondent.

Richard Cohen appeals from the trial court’s order denying in part and granting in part his special motion to strike[1] Jean-Lauren Pouliot’s complaint. Cohen argues the trial court erred by denying his special motion to strike two of Pouliot’s claims because Pouliot did not demonstrate a probability of prevailing on those claims. We disagree and affirm the order.

FACTS

Cohen and Lauralin Anderson (Lauralin) were married and had three children, including Son[2] who was born in 1999. In 2004, Cohen and Lauralin hired Pouliot to help care for Son who was disabled (severe Attention Deficit Hyperactivity Disorder (ADHD) and Reactive Attachment Disorder (RAD)). Cohen and Lauralin divorced in 2008. Lauralin and Pouliot married in 2013. The incident that produced this litigation occurred two years later in October 2015, when Son was 16 years old.

The parties seem to agree the incident began when Son arrived home after 11:00 p.m., Pouliot confronted Son about violating the conditions of his restricted driver’s license, and Pouliot tried to grab his car keys. The parties disagree about what happened next.

Pouliot stated that when he tried to grab the keys to prevent Son from driving away, Son turned around and punched him. Pouliot persuaded Son to go for a walk, but Son changed his mind. When Son reentered the house, he knocked Pouliot down, causing him to hit his head on the concrete. When Pouliot recovered, Son had locked him out of the house, and Pouliot called the police. Pouliot got back into the house, went upstairs to Son’s room, and told him to wait outside for the police, which he did. While outside, Son realized he did not have his cell phone and attempted to reenter the house. Son “launched himself” at Pouliot to get back in the house, but he fell and hit his head on the ground. Pouliot, who said he is 5’9”, denied pushing Son, who is 6’2” and played high school football, down the stairs.[3]

Cohen stated Son called and told him that when Pouliot tried to grab the keys, Son pushed him and walked away. Pouliot grabbed Son and punched him. During this exchange, Pouliot and Son fell down a set of stairs, and Son hit his head on the corner of a wall extremely hard.

In January 2016, June 2016, March 2017, and April 2017, Cohen filed income and expense declarations in the family law case Cohen v. Cohen (Super. Ct. Orange County, 2006, No. 06D009414). In those declarations, Cohen stated, “[Son] spends 100[ percent] of the time with [him] as it is not safe for him to be in his mother’s home as his step-father abused him.” In a declaration filed with the court in January 2016, Cohen stated, “[Son] was recently involved in a physical altercation with [Lauralin’s] husband and suffered a concussion.”

In May 2017, Pouliot filed a complaint against Cohen alleging the following three causes of action: defamation—libel; defamation—slander; and intentional infliction of emotional distress (IIED). Pouliot’s theory of the case was Cohen accused him of abusing Son to increase his custody from 90 percent to

100 percent to seek a change in circumstance that would warrant a decrease in his child support payments.

After Cohen filed an answer, he filed a special motion to strike supported by his declaration and a declaration from the attorney who was representing him in the family law case against Lauralin.

Pouliot filed an opposition to the special motion to strike supported by his, Lauralin’s, and an attorney’s declarations. He also filed an objection to evidence and declarations Cohen submitted in support of his special motion to strike. Cohen filed a reply and an objection to Pouliot’s evidence.

Before the hearing on the special motion to strike, the trial court posted its tentative ruling. At the hearing, the court heard argument and took the matter under submission. A couple days later, the court issued its minute order adopting its tentative decision as its final ruling.

The court granted Cohen’s special motion to strike Pouliot’s slander cause of action but denied his special motion to strike Pouliot’s libel and IIED causes of action. The court opined Pouliot’s claims arose from Cohen’s protected activity because Cohen made all his statements in court filings or in open court. (§ 425.16, subd. (e)(1).) The court ruled Pouliot did not demonstrate a probability of prevailing on its slander claim but did demonstrate a probability of prevailing on his libel and IIED claims. As to the slander claim, the court explained Pouliot’s claim was premised on Cohen’s oral statements in court, which are privileged pursuant to Civil Code section 47, subdivision (b). With respect to the libel claim, the court reasoned Pouliot presented sufficient evidence to demonstrate he did not abuse Son, Cohen knew or should have known he did not abuse Son, and he was harmed. The court added Cohen did not offer evidence to defeat Pouliot’s claim as a matter of law. As to the IIED claim, the court stated Cohen’s statement Pouliot committed child abuse, if knowingly false and made for an ulterior purpose, were sanctionable (Fam. Code, § 3027.1, subd. (a)). The court overruled Pouliot’s evidentiary objections and overruled all but two of Cohen’s evidentiary objections.

Cohen filed an appeal from the court’s order denying his special motion to strike Pouliot’s libel and IIED claims. Pouliot did not appeal from the court’s order granting Cohen’s special motion to strike his slander claim.

DISCUSSION

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) We review a special motion to strike de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

I. Arising From

“‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ [Citation.] In short, in ruling on an

anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at p. 1063; § 425.16.)

Here, Pouliot concedes his claims arise from Cohen’s protected conduct. He states, “The [s]tatements which are the subject of this action were made before a judicial proceeding, and [he] does not contest that the first prong of the analysis is satisfied.” Section 425.16, subdivision (e)(1), protects written and oral statements made in a judicial proceeding. Here, Cohen made his written statements in the family law case, a judicial proceeding. Thus, Cohen satisfied the first prong, and we must address whether Pouliot demonstrated a probability of prevailing on his libel and IIED claims.

II. Probability of Prevailing

The second step is “a ‘summary-judgment-like procedure.’ [Citation.]” (Baral, supra, 1 Cal.5th at p. 384, fn. omitted.) “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 law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral, supra, 1 Cal.5th at pp. 384-385.)

A. Defamation—Libel

“Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage. [Citation.] Thus, to state a defamation claim, the plaintiff must present evidence of a statement of fact that is provably false. [Citation.] False statements that accuse the plaintiff of criminal conduct are defamatory on their face. [Citation.]” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 (Grenier)).)

Mindful of the fact Pouliot’s burden is not high (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699), we conclude he made a prima facie factual showing sufficient to sustain a favorable judgment on his libel claim. Pouliot’s libel claim alleged Cohen defamed him in court documents in January 2016, June 2016, March 2017, and April 2017, when Cohen stated Son’s “step-father abused him.”

Pouliot’s evidence was his, Lauralin’s, and his attorney’s declarations. His attorney, Matt Gustin, stated he visited the Orange County Superior Court family law case access website and input Cohen and Lauralin’s family law case number. Gustin stated Cohen’s income and expense declarations were available for purchase through the website.

In his declaration, Pouliot denied he abused Son that evening, or ever, and stated Cohen fabricated his description of what transpired. Pouliot explained that on another occasion a year earlier, Son punched him in the face, and Cohen rewarded Son by giving him money to buy a video game. He added that Cohen knew Son was having behavior problems at home and school. As to the incident, Pouliot explained he tried to take Son’s keys so he would not hurt himself or anyone else, and after Son punched him in the face, he took a defensive posture to protect himself. Pouliot denied he pushed Son down the stairs. He added that as he “grapple[d]” with Son, they “tumbled slowly down the stairs,” but “[n]either . . . suffered any serious injuries during the slow roll down the stairs.” Pouliot said he feared Cohen’s false statements he abused Son tarnished his reputation beyond repair.

Pouliot’s and Gustin’s declarations, which we must accept as true, were prima facie evidence Cohen’s statements in the court documents were intentional, false, and had a natural tendency to injure Pouliot. The evidence tended to show Cohen knew Son had behavioral problems and previously attacked Pouliot, and he knew his statement was false, or should have used reasonable care to determine the truth of his statement, i.e., review the OCSD report that named Pouliot as the victim and Son as the suspect, and which stated Son admitted to Khannakhjavani that he hit Pouliot. In his declaration, and on appeal, Cohen asserts he conducted an investigation, speaking with Son, Lauralin, and his wife, and reviewing the CHOC report. But in her declaration, Lauralin stated she told Cohen that Son attacked Pouliot and punched him in the face, which should have caused Cohen to expand his investigation.

Additionally, Cohen accused Pouliot of committing a crime, child abuse (Pen. Code, § 273a), which can be defamatory on its face. (Grenier, supra,

234 Cal.App.4th at p. 486.) This evidence of a false statement met the “minimal merit” requirement necessary to proceed with the lawsuit. Cohen cherry picks isolated words/phrases from Pouliot’s declaration and deposition, i.e., “[he] had a few glasses of wine at dinner,” “grapple[d],” and “immobilized,” to argue his statements were true or the gist of them was true. (See Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180-1181 [sufficient substance of statement true regardless of slight inaccuracies if imputation substantially true to justify gist or sting of statement].) This is a factual dispute and does not establish as a matter of law that Pouliot cannot prevail on his libel claim. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Cohen raises additional arguments, which we will address in turn.

Cohen contends Pouliot offered no evidence his statements were published or that they were understood to refer to Pouliot.[4] As to publication, Gustin, in his declaration, stated Cohen’s income and expense declarations were available on the Orange County Superior Court case access website. Additionally, there was evidence Cohen served his income and expense declarations on Lauralin and her attorney, and filed them with the court where court personnel could review them. (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 855 [statement must be communicated to a third person].) With respect to whether Cohen’s statements were understood to refer to Pouliot, again Cohen served his income and expense declarations on Lauralin and her attorney—they knew who Son’s step-father was. This was sufficient prima facie evidence Cohen published the statements and they were understood to refer to Pouliot.

Cohen also claims he cannot be liable for libel because he merely offered an opinion it was not safe for Son to live with Pouliot. Again, Cohen fails to present the complete picture. Cohen did state it was unsafe for Son to live with Pouliot, but he also stated in the same sentence why it was unsafe, because “his step-father abused him.” Contrary to Cohen’s claim otherwise, he expressed a factual matter and did not merely offer an opinion. Even if we considered it an opinion, opinion can be actionable “where an expression of opinion implies a false assertion of fact[.]” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 [critical issue “‘“whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact”’”].) A reasonable fact finder could conclude Cohen’s statements “‘“implies a provably false assertion of fact.”’”

Cohen argues defamation’s one-year statute of limitations (§ 340,

subd. (c)), bars liability for any statements he made in January 2016 because Pouliot did not file his complaint until May 2017. But this is not fatal to Pouliot because Cohen made the same statements in June 2016, March 2017, and April 2017. We decline Cohen’s invitation to strike the January 2016 statements because this issue can be litigated below.

Cohen contends his statements were privileged pursuant to Civil Code section 47, subdivision (b)’s litigation privilege. Perhaps, but not as a matter of law. Civil Code section 47, subdivision (b), makes privileged communications made in judicial proceedings except pleadings or affidavits filed in dissolution actions. Civil Code section 47, subdivision (b)(1), states the litigation privilege does not apply to the following: “An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.”

“This marital dissolution exception (sometimes called the ‘divorce proviso’; [citation]) applies unless the challenged statement is ‘sworn to,’ is material and relevant to the action, and the person making the statement does so without malice and with ‘reasonable and probable cause’ to believe the statement is true. [Citation.]” (L.G. v. M.B. (2018) 25 Cal.App.5th 211, 214.) “‘“The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights [citations].”’” (Taus v. Loftus (2007)

40 Cal.4th 683, 721.)

Here, as we explain above, Pouliot offered evidence Cohen knew his statements were false, as evidenced by Son’s behavioral issues and previous attack on Pouliot, or at the least lacked reasonable grounds for believing them true, as evidenced by Lauralin telling Cohen that Son was the aggressor. Additionally, Pouliot offered evidence Cohen’s statements were motivated by hatred or ill will towards him, the younger man who married Cohen’s ex-wife. In his declaration, Pouliot explained that after Son punched him in the face in June 2014, Cohen rewarded Son—he gave him money to buy a video game. And Son repeated things Cohen said to Son, including that Cohen “‘owned’” Pouliot, and Son did not have to listen to Pouliot. This was prima facie evidence Cohen’s statements Pouliot abused Son were motivated by hatred and ill will towards Poulit.[5]

Finally, Cohen contends his statements were privileged pursuant to Civil Code section 47, subdivision (c)’s common interest privilege. The common interest privilege of Civil Code section 47, subdivision (c), provides that a publication or broadcast is privileged if it is made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Italics added.)

As we explain above, Pouliot offered evidence Cohen made his statements with hatred and ill will towards Pouliot. In conclusion, Pouliot stated a legally sufficient libel claim, and Cohen did not defeat the libel claim as a matter of law, and thus Pouliot demonstrated a probability of prevailing on his libel claim.

B. IIED

“A cause of action for intentional infliction of emotional distress exists when there is ‘“‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”’”’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’”’ [Citation.] And the defendant’s conduct must be ‘“‘intended to inflict injury or engaged in with the realization that injury will result.’”’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Here, Pouliot’s IIED claim alleged that Cohen’s statements in court documents that Pouliot abused Son were extreme and outrageous and caused him to suffer emotional distress. As we explain above, Pouliot offered documentary evidence that Cohen knew Son had behavior problems and previously assaulted Pouliot. There was evidence Cohen knew or should have known or used reasonable diligence to review the OCSD report, which indicated Son was the suspect and Pouliot was the victim, and which indicated Son told Khannakhjavani that he punched Pouliot. Cohen’s statement Pouliot abused Son, despite the evidence Son was the attacker, was extreme and outrageous conduct.

Cohen relies on Bidna v. Rosen (1993) 19 Cal.App.4th 27, 39, to argue “‘ordinary court proceedings’ in a family law case are insufficient to support a cause of action for intentional infliction of emotional distress.” This is a defamation case, not a family law case. And Cohen claims “[n]othing occurred that exceeded all bounds of what is usually tolerated in a civilized society.” Although what is usually tolerated in a civilized society has grown increasingly unclear every day, we are certain that falsely accusing someone of child abuse is not one of those things. Thus, Pouliot demonstrated a probability of prevailing on his IIED claim.

DISPOSITION

The order is affirmed. Respondent is awarded his costs on appeal.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.