Opinion
A157440
02-27-2024
RAMON CUSI, Plaintiff and Respondent, v. ALISON GIBSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. FCS051022)
Markman, J.[*]
Alison Gibson's appeal from the denial of her anti-SLAPP motion concerns the consequences of her demonstrably false online speech. Ramon Cusi sued Gibson after she had posted in a large Facebook community group that Cusi had been "fired for sexual harassment" from his position as principal of her daughter's middle school, as well as from a prior position at another school. Neither school, however, had terminated Cusi "due to allegations or a legal finding of sexual harassment." Cusi's attorney tried to get Gibson to take the post down, but Gibson instead posted an edited version of her comments and Gibson's husband left the attorney a voicemail refusing to take further action.
California law bars strategic litigation against public participation, known as SLAPP lawsuits. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Special motions to strike SLAPP lawsuits, filed under Code of Civil Procedure section 425.16, are often called anti-SLAPP motions. (Equilon, at p. 58.) Unless otherwise indicated, the statutory references in this opinion are to the Code of Civil Procedure.
On appeal, Gibson argues that Cusi did not sufficiently support the elements of his claims. In so doing, Gibson relies on the wrong burden of proof applicable to an anti-SLAPP motion. We conclude Cusi established that his claims had at least minimal merit and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Gibson's May 22, 2018 Facebook Post
On May 22, 2018, Gibson posted in the "Vacaville Crime &Community Info" Facebook group. The group had over 28,000 members and was public, so Facebook users could also see the posts without needing to join the group.The original post stated: "Dr. Ramon Cusi, former principal for Vaca Pena was fired for sexual harassment. In 2016, he was fired for sexual harassment at a school in Davis. I'm irritated and disappointed in Vacaville Unified School District for hiring him in the first place."
Cusi's verified complaint alleged that the Facebook group had over 26,000 members, but his opposition to the anti-SLAPP motion and his declaration say the group had over 28,000 members.
B. Communications with Cusi's Attorney
The next day, at 10:43 a.m., Cusi's attorney sent a text message to Gibson via Facebook Messenger. The message said: "Ms. Gibson, I am the attorney for Ramon Cusi. Mr. Cusi has informed me of, and I have independently reviewed, your posting of May 22, 2018 on the Vacaville Crime &Community Info Facebook page." After quoting Gibson's post, Cusi's counsel continued, "Neither of these statements are true or accurate and, as such, my client considers them to be defamatory. My client hereby demands that you immediately delete your posting and refrain from making any additional untrue or inaccurate statements about my client. If you fail to do so, my client will be forced to initiate litigation against you leaving you liable for his damages, attorney's fees, and costs. You may contact me via Facebook messenger or at [phone number] if you have any questions or concerns." Gibson's husband called Cusi's counsel and left a voicemail at 12:28 p.m. According to Cusi's complaint, Gibson's husband "insinuated that Plaintiff's counsel was attempting to bully Mrs. Gibson to remove her Facebook post and she would not do so because she believed that she had the right to do so to protect her children." Cusi's attorney subsequently declared: Gibson's husband "indicated that Plaintiff's claim was 'absolutely the most hilarious fucking thing I have ever heard of in my entire life' and that he had 'an abundance of amount of money' to litigate this issue. He also indicated that they (he and Defendant) had friends and family who had children who went to Vaca Pena and [counsel] had no right to accuse Defendant of defamation of character or demand that she delete her Facebook post. Finally, he indicated that 'nothing was told to us that it happened.' "
C. Gibson's May 23, 2018 Facebook Post
At some point later on May 23, Gibson removed her original post and wrote a second post. The second post read: "Dr. Ramon Cusi, former principal for Vaca Pena, was fired for sexual harassment. He has hired a lawyer who has requested I delete this post." Gibson also wrote in a comment to her second post: "Ramon Cusi's lawyer contacted me today to tell me to take this post down. There's definitely something they don't want the public to know about. When the guy is the principal of our middle school and disappears, people will start wondering and asking questions."
D. District Response to Gibson's Posts
The public information officer (PIO) for the Vacaville Unified School District (VUSD), who is also the administrator for VUSD's Facebook page, wrote comments on both Gibson's original May 22 post and second May 23 post. The PIO wrote: "Dr. Cusi resigned. He was originally going to complete the school year, and parents were going to be notified at the end of the year. However, he is now unable to finish the year for personal reasons. A letter to Vaca Pena parents is scheduled to go out via email today. Absolutely no report or claim about harassment or misconduct involving Dr. Cusi and any VUSD employee or students has ever been made." Gibson knew about VUSD's explanation, because she commented on the PIO's post: "I look forward to reading the email. This is pretty significant news. I'm confused why it's taken weeks for parents to be notified."
Later in the same comment thread, the PIO for VUSD posted a screenshot of a letter, dated May 23, 2018, from the Davis Joint Unified School District (DJUSD), which had previously employed Cusi. Cusi explained the context of the letter in a declaration: "The letter, authored by Matt Best, the Deputy Superintendent of DJUSD, provided, in relevant part: 'while a tort claim against the [D]USD]was filed in 2016, in which Dr. Cusi was accused publically [sic] of sexual harassment stemming from an incident in 2009, there were [sic] no evidence or findings of sexual harassment against Dr. Cusi.'" "It has been unfortunate for Dr. Cusi and the District that these allegations were made public during the tort claim process, despite the evidence provided in the complaint findings following a thorough investigation."
E. Gibson's Deletion of Second Post
At some point prior to Cusi filing his complaint, Gibson deleted her second Facebook post. Gibson said that the post was up for "no more than 48 hours," and she removed it because of an e-mail sent to parents via the "SchoolLoop" website from the school's vice principal, who Gibson viewed as "well-known and well-respected by the community."
F. Cusi's Complaint
Cusi filed a complaint against Gibson asserting causes of action for (1) defamation; (2) false light; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. The complaint attached copies of Gibson's Facebook posts, as well as a screenshot displaying Facebook comments and reactions to both posts. The screenshot of the first post showed at least 117 users reacted to Gibson's original post (reflecting surprise, anger, or "liking" the post with a "thumbs up" emoji), and at least 12 users had shared the post with others. The screenshot of the second post showed it had 129 reactions, had been shared 14 times, and had 49 comments.
G. Gibson's Anti-SLAPP Motion
Gibson filed a request for leave to file an anti-SLAPP motion, along with the proposed motion, attempting to strike Cusi's complaint in its entirety. Gibson argued that Cusi, as a middle school principal, was a "limited public figure" and her Facebook posts were of "public interest" made in a "public forum." She then argued that Cusi had not sufficiently demonstrated various elements of his claims: that Gibson acted with actual malice, that her comments were not privileged, and that Cusi suffered damages.
Gibson filed two declarations along with her request and motion. Gibson described her understanding of the circumstances leading up to her posts:
"Very suddenly-four weeks before the end of the school term-the community learned that Plaintiff was no longer school principal. One day he was there, the next day he was gone without any explanation. Ordinarily there is some sort of announcement to prepare the community for the coming change. That did not happen in Plaintiff's case. [¶] Efforts to find out what happened met with a brick wall of silence: District administrators wouldn't talk about whatever had happened. I am informed that there was a meeting for all staff in which they were instructed not to discuss the fact that Plaintiff was no longer working at Vaca Pena Middle School."
Gibson opined that "Any parent would view a sudden departure of a high ranking school official followed by a wall of silence as to the reasons for the departure as signs that something serious had happened."
Gibson declared that she "began asking other members of the community if they knew what happened" and "was told by people I trust that Plaintiff had left because of sexual harassment." Gibson later declared that her daughter had told her that Cusi was "fired for sexual harassment" and that her husband stated that "a friend of his" told him that Cusi had been "fired for sexually harassing a teacher." She provided no further description of her other alleged source or sources in her declarations.
Gibson then "searched for Plaintiff's name in Google." She found a 2016 Davis Vanguard article, which she attached to one of her declarations. She described the article as reporting a lawsuit against Cusi alleging sexual harassment in connection with his work as a principal for a school in the DJUSD. The attached article, however, concerns allegations that a DJUSD teacher had "filed a request for a right to sue with the district, based [on a] claim of sexual harassment against former North Davis Elementary (NDE) Principal R[amon] Cusi." The reporting concerns a "tip received through Yolo Leaks," a public records request that yielded "the cover sheet" to a government tort claim filing, and an administrative complaint and request for a right to sue letter filed with the Department of Fair Employment and Housing (DFEH). The DFEH filing reported "an especially tight and personally-offensive hug in 2011." It also reported other claims relating to other personnel in connection with providing special education services.
According to Gibson, "the 2016 news article" constituted "reporting" that Cusi "had been sued for sexual harassment" and "confirmed, to me, what I was hearing about the reason Plaintiff was no longer serving [at] Vaca Pena Middle School. I was angry with the School District for hiring Plaintiff without checking his history as I just did." Gibson said she believed the "issue of sexual harassment is very important to the public and to our community."
Gibson also made declarations regarding her intent when she wrote the Facebook posts. She declared: "When I made the post on Facebook, I didn't make my comment with knowledge that my comment wasn't true. I didn't do it because of any hatred or dislike I felt for Plaintiff. I didn't comment in reckless disregard of the truth or falsity of my comment. I believed what I said was true based on hearing the same story from different credible sources that I trust and then finding a news article that told me that what I was hearing had happened before in another school district. The Google search of Plaintiff's name seemed to validate the details I had heard." She further declared that she "knew there was a large number of people who were interested in knowing our principal was no longer at Vaca Pena Middle School, why this had happened, and the fact that the issue of Plaintiff and sexual harassment also happened before."
Regarding her decision to remove her first post but not the second, Gibson declared: "I removed the comment about Plaintiff being fired from Davis Unified but I left up my comment about him being terminated as Vaca Pena Middle School Principal for sexual harassment reasons because I still believed my sources. Then I removed the whole comment because I didn't want to get sued." She continued, "I wish none of this had happened, and I will be much, much more careful and think about anything I post on the internet from now on. I am reluctant to post anything at all ever again. I am worried I will be sued again for saying or publishing something I believe is true and that I feel the Vacaville community is interested in learning about and discussing."
H. Cusi's Opposition to Anti-SLAPP Motion
Cusi filed an opposition to the anti-SLAPP motion, conceding for the purposes of the motion that he was a "limited public figure" and that the allegation of a school official being fired for sexual harassment is one of "public interest." Cusi then argued that he had presented evidence sufficient to show his claims had at least minimal merit. As described above, Cusi submitted a declaration that attached screenshots of the Facebook posts, and Cusi's attorney submitted a declaration regarding his communications with Gibson and her husband.
I. Trial Court's Ruling
The trial court denied the anti-SLAPP motion. It found that the voicemail message and Gibson's second post, after being advised of the falsity of her statement, was circumstantial evidence to support malice. The court explained that Gibson's proffered evidence "does not negate [Cusi's] ability to state a prima facie case as a matter of law." Gibson did not identify the" 'trusted inside source' who told her husband information" about Cusi, and the court found that rumors spread among middle-schoolers were not reliable. The court further concluded that Gibson "couples the hearsay, rumor and innuendo, with her personal opinions regarding length and duration of employment of school personnel, for which she presents no foundation."
This appeal followed.
DISCUSSION
The anti-SLAPP statute is" 'intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.'" (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.) "Strategic litigation against public participation" constitutes claims that lack "even minimal merit." (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) "Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."' [Citation.] If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni); § 425.16, subd. (b)(1).)
The first step of the anti-SLAPP framework is not at issue here because Cusi conceded for purposes of this motion that he was a limited public figure and that his employment status was a matter of public interest.
While we need not address the first step, we note that the parties have not provided definitive, binding authority that a California middle school principal is a limited public figure for purposes of First Amendment jurisprudence. Gibson cites Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394, but that case involved statements made to the school board concerning the way a principal ran a school and attempted to influence the board. (Id. at p. 403.)
Accordingly, we address Gibson's arguments that the trial court erred on the second step. Our review is de novo. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.)
The second step of the anti-SLAPP analysis requires that, "To establish a probability of prevailing, the plaintiff' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.] In doing so, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. [Citation.] Although 'the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim.'" (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 527.)
As a preliminary matter, Gibson relies on an incorrect legal standard that infects her specific arguments on this second step. Paraphrasing Bonni, she contends that Cusi must show a "substantial likelihood" of prevailing on his claims. But as explained above, Bonni requires only a showing of" 'minimal merit.'" (Bonni, supra, 11 Cal.5th at p. 1009.) Another court recently observed that the non-movant's "burden on prong two is 'not high,' and we are required to 'accept as true all evidence favorable to'" Cusi. (Edward v. Ellis (2021) 72 Cal.App.5th 780, 794 (Edward).) Gibson's inaccurate paraphrase would improperly impose a substantially higher burden on Cusi (and others opposing anti-SLAPP motions). With the correct legal standards in mind, we turn to Gibson's three specific arguments.
Actual Malice
We credit Cusi's declaration and supporting evidence that neither VUSD nor DJUSD terminated him, let alone terminated him due to sexual harassment. Gibson argues that Cusi did not present sufficient evidence to show minimal merit on the element of actual malice.
"Actual malice" is a requirement for Cusi's defamation and false light causes of action because he conceded he was a limited public figure. (See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259 [public figure must prove libelous statement was made with actual malice to recover for defamation claim]; CACI No. 1802 [false light claim subject to same requirements of libel claim, including proof of malice when required].)Actual malice requires either knowledge of falsity or reckless disregard as to truth or falsity of the defendant's statements. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.) The United States Supreme Court has explained that "although the concept of 'reckless disregard' 'cannot be fully encompassed in one infallible definition,'" the defendant must have made the false publication with a high degree of awareness of probable falsity or" 'entertained serious doubts as to the truth of [the] publication.'" (Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 667.)
We note that there is also a heightened intent requirement for Cusi's intentional infliction of emotional distress claim (see CACI No. 1600), but neither party briefed the question of whether or how actual malice relates to the showing on that claim, or Cusi's claim for negligent infliction of emotional distress. Any such argument is forfeited and we need not address it. Gibson's argument concerning those claims is identical to her argument concerning the defamation and false light claims-that Cusi failed to make a showing of actual malice.
In the context of "libel in a daily or weekly news publication, or of a slander by radio broadcast," California defines "actual malice" as "that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice." (Civ. Code, § 48a, subd. (d)(4).)
Gibson cites various cases addressing the threshold to ultimately prove actual malice, but that is not the relevant inquiry on an anti-SLAPP motion. "Although at trial a public figure plaintiff must establish actual malice by clear and convincing evidence, in the context of an anti-SLAPP motion the plaintiff must instead establish only a 'probability' that he or she can produce clear and convincing evidence of actual malice." (Edward, supra, 72 Cal.App.5th at pp. 793-794.)
"[A]ctual malice can be proved by circumstantial evidence. 'Evidence of negligence, of motive and of intent may be adduced for the purposes of establishing, by cumulation and by appropriate inferences, the fact of a defendant's recklessness or of his knowledge of falsity.'" (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257-258 (Reader's Digest).)" 'Considerations such as "anger and hostility toward the plaintiff," "reliance upon sources known to be unreliable [citations] or known to be biased against the plaintiff," and "failure to investigate" may, "in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication." [Citation.] Such evidence is relevant "to the extent that it reflects on the subjective attitude of the publisher." '" (Edward, supra, 72 Cal.App.5th at pp. 793-794.)
We therefore turn to the evidence presented regarding whether Gibson knew the statements in her posts were false or whether she acted with reckless disregard as to the falsity of them. Before Gibson made her second post, the PIO for the VUSD had already posted a comment on Gibson's original post that Cusi had resigned, and unequivocally explaining that "Absolutely no report or claim about harassment or misconduct involving Dr. Cusi and any VUSD employee or students has ever been made." Gibson not only saw the explanation, but commented on it. Cusi's attorney had also messaged Gibson, notifying her that her statements were not true or accurate. Gibson's husband called Cusi's attorney in response, profanely rejecting counsel's request to stop saying that Cusi had been terminated by VUSD. This is ample evidence to show minimal merit on the element of actual malice in Gibson's second post. Given the information provided by Cusi's attorney and the PIO, it is probable Cusi can provide evidence that Gibson should objectively have had "serious doubts" regarding the truth of her statements. (Edward, supra, 72 Cal.App.5th at pp. 793-794.)
At oral argument, Gibson's counsel argued that even if Cusi had shown minimal merit on actual malice as to the second post, there was insufficient evidence regarding actual malice as to the first post (made before the attorney and PIO comments). Gibson's counsel suggested that the trial court should have struck allegations regarding the first post contained in Cusi's complaint. As a preliminary matter, Gibson's anti-SLAPP motion did not make any such request, instead attempting to strike Cusi's complaint in its entirety. "[T]he trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions." (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1109.)
Even if it had, we conclude that Cusi met his burden to show minimal merit on the element of actual malice even on Gibson's first post. Gibson identified her daughter as a "source" for the information she posted about Cusi. Of course, Gibson's daughter was one of Cusi's middle school students, and it is reasonable to infer that she was simply repeating middle school rumors. Gibson's declaration said she had another source, an adult acquaintance of her husband somehow associated with the middle school, but she does not identify the source by name, title, or job description. Without more information from Gibson concerning her alleged adult source, it is also reasonable to conclude there is at least minimal merit to the claim that Gibson wrote her posts with reckless disregard for their truth. (See Reader's Digest, supra, 37 Cal.3d at p. 257 [recklessness "may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports"]; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 994 [relying on a source with a criminal history and reputation for dishonesty would be sufficient to show reckless disregard for purposes of anti-SLAPP].)
Gibson also declared that she relied on the 2016 Davis Vanguard article relating to a sexual harassment administrative claim involving him in Davis. The evidence reflects, however, that Gibson had incorrectly interpreted that article. It never said that Cusi had been terminated by anyone for sexual harassment (or that VUSD had hired Cusi knowing he had been terminated for sexual harassment). Gibson's serious misreading of this article, coupled with her reliance on an unreliable source, could support an inference of recklessness on the first post. (Reader's Digest, supra, 37 Cal.3d at p. 257.)
We also note that Cusi did not take discovery before Gibson filed her anti-SLAPP motion, leaving Gibson's subjective intent very much an open question. Intent often must be accomplished through circumstantial evidence and inferences rather than direct evidence. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 113; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.) Gibson's own intent is uniquely within her personal knowledge, making it difficult to allege with particularity or to develop evidence without even a deposition. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549551; Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028; Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858.)
Cusi contends that the language in Gibson's Facebook posts and comments about Cusi were angry and hostile. He also notes that Gibson's husband's reaction on Gibson's behalf to Cusi's attorney's take-down request was rude, intemperate, and angry. His voicemail message saying that Cusi's concern about Gibson's posts concerning his alleged sexual harassment were "absolutely the most hilarious fucking thing I have ever heard of in my entire life" could well indicate that Gibson was acting out of anger and personal animosity to Cusi.
Gibson's ex post facto declaration professing that she did not bear ill will toward Cusi is insufficient to defeat Cusi's claim at this stage, especially before any discovery has yet taken place concerning her subjective intent. "[A] defendant cannot 'automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation.'" (Reader's Digest, supra, 37 Cal.3d at p. 257, quoting St. Amant v. Thompson (1968) 390 U.S. 727, 732, fn. omitted.) Cusi presented evidence that his attorney had asked Gibson to delete her original post because it was false. Gibson continued to tell the Facebook Vacaville Crime &Community Info group that Cusi had been fired for sexual harassment even after Gibson was warned she was wrong. Further, the school district PIO twice posted that Gibson's assertions were false, even making available a letter from Cusi's former school in Davis noting that he had not been terminated due to sexual harassment. Yet Gibson waited to remove her posts from Facebook until sometime after the Vaca Pena vice principal sent a letter to parents a few days later.
In sum, under the "low standard" applicable to the second step of an anti-SLAPP motion, we conclude Cusi met his burden of showing the actual malice element for his defamation and false light claims against Gibson had at least" 'minimal merit.'" (Edward, supra, 72 Cal.App.5th at p. 794.) The actual merits of Cusi's claims "must be resolved by the trier of fact." (Ibid.) Civil Code Section 47, Subdivision (c)
Gibson argues that Cusi failed his burden on the second step because her Facebook posts are protected under the "common interest privilege" set out in Civil Code section 47, subdivision (c). She concedes, however, that the privilege does not apply where the statement is made with malice. (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119 [conditional privilege against defamation extends "to statements made without malice"], quoting Hawran v. Hixson (2012) 209 Cal.App.4th 256, 287.) Given our conclusion that Cusi met his burden on the second step as to "actual malice," the statute does not apply.
Damages
Gibson argues that Cusi failed his burden on the second anti-SLAPP step because he did not present evidence supporting his claim for damages. As a preliminary matter, Gibson made this argument in a single sentence of her reply brief on the underlying motion. (See Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 607, 636 fn. 8 [declining to consider argument raised for first time in reply brief with scant analysis and no citation to legal authority].) Even if not forfeited, the argument is not persuasive. It is true that a plaintiff who has proved the elements of defamation is entitled to recover actual damages if he or she can prove that the wrongful conduct was a substantial factor in certain harms. (See CACI Nos. 1700-1701.) But even if a plaintiff has not proved any actual damages, defamation per se assumes harm and entitles a plaintiff to receive compensation for such harm in whatever sum the trier of fact determines is reasonable. (CACI No. 1701.) Cusi did not fail his burden to show minimal merit by not presenting evidence of damages on the anti-SLAPP motion.
DISPOSITION
The March 20, 2019 order denying the anti-SLAPP motion is affirmed. Cusi is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: Stewart, P. J., Miller, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.