Opinion
A147501
03-24-2017
NATHANIEL BASOLA SOBAYO, Plaintiff and Appellant, v. MARIA SOSA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV535877)
Defendants filed an anti-SLAPP motion addressed to all four of causes of action in plaintiff's complaint. The trial court granted it, and dismissed plaintiff's lawsuit. Plaintiff appeals. We affirm.
BACKGROUND
The Complaint
On October 16, 2015, representing himself, Nathaniel Basola Sobayo, dba Kingsway Capital Partners, LLC (Sobayo) filed a complaint in San Mateo County Superior Court naming two defendants: Maria Sosa and Steve Leydiker. The complaint alleged four causes of action: (1) libel; (2) abuse of process; (3) unlawful debt collection; and (4) intentional infliction of emotional distress. All four causes of action were alleged against both defendants.
Actually the complaint purported to allege two more causes of action, both for an "injunction," based on the earlier claims. We ignore the "fifth" and "sixth" causes of action for injunction.
The allegations as to the essence of the relationship between the parties leading to the complaint are set forth in eight short paragraphs in the second cause of action, as follows:
"14. On July 8, 2014, Defendant Sosa, represented by Defendant Leydiker filed a complaint in Unlawful detainer San Mateo County Superior Court case number CLJ209779 against Plaintiff. On June 29, 2015, defendants dismissed the lawsuit, after plaintiff paid court filing fees, and paid attorneys, and spent time and effort of responding by Demurrer to the lawsuit.
"15. Without serving Mr. Sobayo of the dismissal, Defendants filed an identical second lawsuit against Plaintiff, Mr. Sobayo, on July 6, 2015, San Mateo County Superior Court Case No. CLJ211357.
"16. Mr. Sobayo again paid court filing fees and spent time and effort by hiring an attorney specially to assist him in preparing the motion to strike. Before the motion was heard by the Court, Maria Sosa dismissed her complaint on September 9, 2015.
"17. On the same date that she dismissed the second case, she filed a new case in San Mateo County Superior Court Case no. CLJ211655, on September 9, 2015. The third Unlawful Detainer Case was an identical complaint as the first two, causing plaintiff to again pay filing fees, pay for attorney consultation, and spend valuable time and effort to oppose the complaint.
"18. Defendant did this for the reasons to gain a tactical advantage, and attempt to get a default judgment over Mr. Sobayo. In addition, Defendants have intentionally caused plaintiff emotional, mental and physical distress, inconvenience and to expend numerous hours of his time and money in opposing his meritless actions. Defendant's actions are a gross abuse of process.
"19. On or about October 25, 2014, defendants sent an email to plaintiff threatening to enjoy kicking Plaintiff's butt in Court and stating defaming words implying that Plaintiff's assistant is his gay lover, even though Plaintiff is a married man.
"20. Plaintiff immediately sent an email to defendant on October 25, 2014 at 3:01 p.m. that he should cease and desist contacting Plaintiff ever again via email, facsimile or telephone. Moreover, Plaintiff specified that he would not agree to receive any process service from Defendants through email or facsimile.
"21. Nevertheless, Defendants has [sic] continued to . . . attempt a tactical advantage over Plaintiff by sending via facsimile and email by sending 21 harassing, and annoying emails. . . ."
The e-mail referred to in paragraph 19 was the basis of the first cause of action, for defamation, where the e-mail was quoted in more detail, as follows:
"Mr. Sobayo.. your strategy is sad [sic] display of your ignorance. It's clear that you and your boyfriend have absolutely no idea of what you're doing. With that in mind, I am going to enjoy kicking your butt in court."
The third cause of action, for alleged unlawful debt collection, alleged this:
"24. On or about August 31, 2015, defendant Maria Sosa, as plaintiff, obtained a judgment in the approximate amount of $4250.00 against plaintiff herein, as defendant. The prior judgment is case number 14-CV-3666-RS in the US District Court Northern District of California, and was entered in an action for her attorney's fees.
"25. Defendants are debt collectors, within the meaning of Civil Code Section 1788.29(c), duly licensed by the State of California.
"26. On or about September 3, 2015, and continuing thereafter, defendant Leydiker has repeatedly and maliciously telephoned, faxed and emailed plaintiff at plaintiff's employment over 22 times with regard to the prior judgment, in order to annoy and harass plaintiff, in violation of Civil Code Sections 1788.11(d) and 1788.11(e).
"27. As a proximate result of defendant's conduct, plaintiff suffered mental distress and has been damaged thereby."
The fourth cause of action, for intentional infliction of emotional distress, was alleged to be as "a proximate result of the acts alleged above."
The Anti-SLAPP Motion
On November 25, 2015, Sosa and Leydiker (when referred to collectively, defendants) filed a special motion to strike under Code of Civil Procedure section 425.16 (SLAPP or anti-SLAPP motion). The motion was supported by an 18-page memorandum of points and authorities, and the declaration of attorney Leydiker. Leydiker's declaration attached eight exhibits, which included various court orders from both federal and state courts, with holdings adverse to Sobayo. The exhibits also included documents from the bankruptcy proceeding "In Re: Kingsway Capital Partners, LLC," including court orders critical of Sobayo, the "responsible individual" of Kingsway. Leydiker's declaration also attached an e-mail from Sobayo to Leydiker threatening Leydiker. The papers accompanying the SLAPP motion set forth in vivid detail exactly what had occurred prior to Sobayo's lawsuit, presenting a tale that did not reflect highly of Sobayo, or his conduct. Specifically:
It begins in July, 2014, when Sosa filed an unlawful detainer action against Sobayo, who had stopped paying rent on a commercial property he leased. Sobayo filed a demurrer, but before his demurrer was heard, he removed the case to the federal court. The case was remanded, following which Sobayo filed an appeal to the Ninth Circuit. The appeal was ultimately dismissed as frivolous, and Sosa was awarded $4,250.00 in attorney's fees and a judgment for that amount was entered against Sobayo.
Meanwhile, as the unlawful detainer action made its way through the federal court system, Sobayo filed a lawsuit against Sosa and thirteen other defendants. At the time, Sosa was in the process of selling her commercial property in which Sobayo was a tenant, and the lawsuit halted the sale of the property, as the named defendants in Sobayo's lawsuit included Sosa's realtor, the buyer, and the buyer's realtor.
This is how Sobayo identified the defendants:
"1. Maria Sosa, purported land lady and property owner.
"2. Sosa Maria G Trust, as property owner.
"3. Maria Sosa's insurer, to be identified.
"4. Jeffrey Johnson, of Roof Guard Company, Inc.
"5. Roof Guard Company, Inc.
"6. Inter West Insurance Services, Insurance Agency for Jeffrey Johnson & Roof Guard Company, Inc.
"7. Steve Carmassi, Inter West Insurance Services, Jeffrey Johnson & Roof Guard Company, Inc.
"8. First Mercury Insurance NAIC # 10657, Insurer for Jeffrey Johnson & Roof Guard Company, Inc.
"9. State Compensation Insurance Fund (CA) NAIC # 35076 Insurer for Jeffrey Johnson & Roof Guard Company, Inc.
"10. Jaime Alvarez, Real Estate Broker for Maria Sosa, as Property Sale listing agent.
"11. Dan Beatty, Attorney at Law for Maria Sosa, without the required investigation and due diligence(s).
"12. Jennifer Loskamp, Realtor of Coldwell Banker, for proposed new buyer of subject Property.
"13. Chris Shaheen, Commercial Associate of Coldwell Banker.
"14. Bret Husted, Prevention Inspector for proposed new buyer.
"15. Proposed New Buyer of Subject Property, to be identified."
Then, when he was unsuccessful in federal court, Sobayo filed for Chapter 11 bankruptcy protection, which bankruptcy effectively stayed any further proceedings in the unlawful detainer action. But Sobayo also sought to stay his lawsuit against Sosa and the other defendants, in response to which Sosa's attorney Leydiker sent Sobayo the e-mail that is the claimed basis of the first cause of action. The e-mail reads in its entirety as follows:
"Mr. Sobayo:
"I see that you filed a declaration re a Chapter 11 petition. You would be mistaken if you think that you can get a stay in your own action. The stay only applies to claim or litigation brought against the debtor, rather than claims or litigation brought by the debtor. Estate of Carr ex rel. Carr v. U.S. 482 F.Supp.2d 842, 852 (W.D.Tex.,2007). The Bankruptcy Code only references these types of claims.
"As far as the unlawful detainer action, your strategy is sad a [sic] display of your ignorance. It's clear that you and your boyfriend have absolutely no idea what you're doing. With that in mind, I am going to enjoy kicking your butt in court."
Leydiker sent the e-mail to Sobayo at nathaniel.sobayo@gmail.com, Sobayo's personal e-mail address. Leydiker did not send the e-mail to anyone else.
The bankruptcy case was dismissed in June 2015, lifting the stay of Sosa's unlawful detainer action.
During the course of the bankruptcy, Leydiker learned that Sobayo had not been properly served with a three-day notice to pay rent or vacate (three-day notice). So, to avoid any later procedural problems, Leydiker dismissed the unlawful detainer action, to properly serve Sobayo with a three-day notice. The dismissal caught Sobayo by surprise, as he was planning to file a motion for summary judgment for improper service of the three-day notice. Sobayo filed a motion to vacate the dismissal. The trial court found that the dismissal was proper, and that Sobayo's "professed intent to file a summary judgment motion does not stand in the way of dismissal."
During the course of the bankruptcy, Leydiker learned that the service of the original three-day notice was defective. The commercial lease required that notice to be given by mail. Mistakenly, Sobayo was served by personal service.
Sobayo was served with another three-day notice. He failed to respond, and Sosa filed another unlawful detainer action, to which Sobayo responded by filing an anti-SLAPP motion. Sosa again dismissed the unlawful detainer action before the matter could be heard and again served Sobayo with a three-day notice. Sobayo again failed to respond and Sosa refiled her unlawful detainer action. Sobayo again filed an anti-SLAPP motion, which was denied.
The reason this unlawful detainer action was dismissed is that Sosa learned that the three-day notice did not include the phone number for her attorney, as required by Code of Civil Procedure section 1161(2).
In the words of defendants' brief, "Sobayo's antics have cost Sosa tens of thousands of dollars." And the brief goes on, "In an attempt to provide some financial relief to Sosa, Leydiker contacted Sobayo to collect on the judgment that was issued following Sobayo's frivolous appeal to the Ninth Circuit Court of Appeals. Attempts to communicate with Sobayo proved unsuccessful. Consequently, Leydiker served Sobayo with interrogatories. Leydiker filed a motion to compel after Sobayo failed to respond."
On December 14, 2015, Sobayo filed his response in opposition to the anti-SLAPP motion. It attached exhibits, including the e-mail referred to above, and a series of e-mails. Two days later, on December 16, Sobayo filed what he called an "Amended Declaration of Nathaniel Sobayo. . . with Exhibits." The substance of Sobayo's declaration was twenty-one lines long, reading in its entirety as follows:
There is no original declaration in the record.
"1. I am the Plaintiff in the above referenced case;
"2. I have personal knowledge of the facts I state below, and if I were to be called as a witness, I could competently testify about what I have written in this declaration;
"3. Defendants' comments calling me homosexual by saying that I have a boyfriend are on its face libel;
"4. Defendants' [sic] knew that the email that they sent me was to an office/business email system that I have asked him not to email me, and he continues knowing that it is publicized to the entire office staff.
"5. I have requested that Defendants' [sic] not email me (Please see Exhibit 1, a true and correct copy of the email requesting that Defendants' [sic] not email me, attached hereto and incorporated by reference).
"6. Defendants' [sic] continue to email me at my office email address, even after the filing of this lawsuit. (Please see Exhibit 2, a true and correct copy of the emails that Defendants' [sic] continue to send me even after the filing of this lawsuit, attached hereto and incorporated hereto by reference.)
"7. I have not consented to receive emails from Defendants in the course of litigation.
"8. The Defendants' actions and emails sent to me are an abuse of process, annoying, intimidating and continues to cause me extreme emotional distress and embarrassment."
The anti-SLAPP motion came on as scheduled, on January 13, 2016. Leydiker appeared as attorney for Sosa and on his own behalf. Sobayo did not appear. No transcript of the hearing is in the record, and we do not know what there occurred. What we do know is that on January 25 the trial court filed its order granting the anti-SLAPP motion. Meanwhile, on January 19 Sobayo filed his notice of appeal.
DISCUSSION
Introduction
Sobayo's opening brief on appeal totals 12 pages, including the cover page, the table of contents, and the table of authorities. The substance of Sobayo's brief begins on page four, with a brief "Introduction" and "Statement of Case." The "Argument" section follows, which section has four arguments, that the trial court committed "prejudicial error" in these claimed four particulars: (1) "granting defendant's motion to strike . . . pursuant to [Code of Civil Procedure, section] 425.16(E)(2)"; (2) "granting defendant's motion to strike . . . pursuant to [Code of Civil Procedure, section] 425.16(E)(1)"; (3) "granting defendant's motion to strike because defendant's actions were unlawful as a matter of law"; and (4) "striking plaintiff's entire complaint because the complaint consists of a mixed cause of action."
The brief also contains what Sobayo calls an addendum, which contains 112 pages in six categories of items. The addendum lists these items:
"1) Original Complaint, Filed October 16, 2015.
"2) Email from Defendants
"3) Court Judgment of 1/21/16
"4) Notice of Appeal
"5) Unlawful Detainer Matter
"6) Civil Matter Pending between the Parties"
Sobayo's four arguments are set forth in a total of six pages, in a conclusory fashion. They fall far short of meeting Sobayo's burden here.
SLAPP Law and the Standard of Review
Subdivision (b)(1) of Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
Subdivision (e) of Code of Civil Procedure section 425.16 elaborates the four types of acts within the ambit of a SLAPP, which, as pertinent here, "includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . ."
We set forth the principles governing an anti-SLAPP case in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463-464:
"A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
" 'The Legislature enacted section 425.16 to prevent and deter "lawsuits [referred to as SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete "the defendant's energy" and drain "his or her resources" [citation], the Legislature sought " 'to prevent SLAPPs by ending them early and without great cost to the SLAPP target' " [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.' (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
"Finally, and as subdivision (a) of section 425.16 expressly mandates, the section 'shall be construed broadly.' "
With these principles in mind, we turn to a review of the issues before us, a review that is de novo. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)
All of Sobayo's Claims Are Within the SLAPP Statute
The General Rule
It hardly needs citation of authority that litigation conduct and communications related to litigation are within the SLAPP statute. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) As to the litigation itself, a claim for relief filed in court "indisputedly is a ' statement or writing made before a . . . judicial proceeding.' " (Navellier, supra, 29 Cal.4th at p. 90; Feldman v. 1100 Park Lane Associates. (2008) 160 Cal.App.4th 1467, 1480 [prosecution of unlawful detainer action " 'indisputably is protected activity within the meaning of section 425.16' "].) And statements and writings "in connection with" civil litigation are covered by the SLAPP statute. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.)
Moreover, Code of Civil Procedure section 425.16, subdivision (e)(2)—the "in connection with" subsection—has been construed by the California Supreme Court similarly to the analysis the "litigation privilege" in Civil Code section 47. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) That is, both Code of Civil Procedure section 425.16 subdivision (e)(2) and Civil Code section 47 are construed broadly, to protect the right of litigants to " 'the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.' " (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) So, a communication is absolutely immune from liability if it has " 'some relation' " to judicial proceedings. (Id. at p. 1193.) Leydiker's e-mail fits that description.
The one case cited by Sobayo—McConnell v. Innovative Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169—is distinguishable. There, two employees filed lawsuits against their employer while they were still employees. Thereafter, the employer sent the employees a letter outlining their new job duties. The employees were ultimately fired, and they amended their complaints to add causes of action for retaliation and wrongful termination. The employer filed anti-SLAPP motions, claiming that the letter constituted statements made in connection with anticipated litigation. The court denied it, holding that "even if one could conclude that [the employees'] retaliation and wrongful termination claims arose from [the employer's] letter, and not from his action eliminating virtually all of their job duties, the letter, on its face, was not written in connection with 'an issue under consideration or review by a . . . judicial body.' " (Id. at p. 177.)
Sobayo's third argument quoted above also addresses the e-mail. The argument is that the anti-SLAPP statute does not apply because the e-mail is "unlawful." This argument was not made below. It has no place here. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) But even if the argument could be made, it would not succeed. The anti-SLAPP statute applies unless the " 'defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.' " (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.) Leydiker makes no such concession, and Sobayo does not demonstrate the e-mail is illegal as a matter of law.
The cases that have applied this exception are relatively few, and only where the conduct was egregious. (See, e.g., Flatley v. Mauro, supra, 39 Cal.4th at pp. 325-333 [criminal extortion]; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1289-1291, 1296 [violent acts, extreme vandalism, and harassment]; and Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1363, 1365-1367 [illegal money laundering].)
An abuse of process claim is subject to the anti-SLAPP statute. (Rusheen, supra, 37 Cal.4th at pp. 1063-1064.) In his complaint, Sobayo alleged that Leydiker abused process by dismissing and refiling the unlawful detainer action to gain a tactical advantage. Whatever Sobayo means by "tactical advantage," the facts demonstrate that Leydiker dismissed and refiled the unlawful detainer action to avoid later procedural problems for an improper three-day notice. Indeed, Sobayo was well aware of these procedural problems, as he was preparing to file a motion for summary judgment following the bankruptcy dismissal. Dismissing and refiling an unlawful detainer action are statements made in a judicial proceeding.
As indicated above, when the federal court remanded the unlawful detainer case to state court, Sobayo appealed that to the Ninth Circuit. The appeal was ultimately dismissed as frivolous, Sosa was awarded $4,250 in attorney's fees, and a judgment entered against Sobayo in that amount. Leydiker attempted to contact Sobayo in an attempt to collect it. Sobayo refused to communicate, so Leydiker served Sobayo with interrogatories. Leydiker attempted to meet and confer after Sobayo failed to respond, to no avail, and ultimately, Leydiker filed a motion to compel. The trial court rightly determined that Sosa's actions constituted acts in furtherance of her right of petition and free speech.
Sobayo's cause of action for emotional distress is based entirely on the alleged conduct in his three earlier causes of action for libel, abuse of process, and unlawful debt collection. It thus stands or falls with them. (See Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 812.)
Having determined that all causes of action in Sobayo's complaint are within the SLAPP statute, we turn to step two in the analysis, whether Sobayo demonstrated a likelihood of prevailing on the merits.
Sobayo Has Failed to Demonstrate
a Likelihood of Prevailing on the Merits
Hecimovich also confirmed the law governing the second step in the SLAPP analysis:
"We confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at page 989: 'We decide the second step of the anti-SLAPP analysis on consideration of "the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b).) Looking at those affidavits, "[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) [¶] That is the setting in which we determine whether plaintiff has met the required showing, a showing that is "not high." (Overstock.com, Inc. v.Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a "minimum level of legal sufficiency and triability." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of "minimal merit." (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten [, supra,] 29 Cal.4th 82, 95, fn. 11 . . . .)'
"While plaintiff's burden may not be 'high,' he must demonstrate that his claim is legally sufficient. (Navellier, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with 'competent and admissible evidence.' (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)" (Hecimovich, supra, 203 Cal.App.4th at pp. 468-469.) Sobayo's demonstration does not measure up.
Libel
Sobayo's first claim is for libel, a form of defamation. Libel is "a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which . . . has a tendency to injure him in his occupation." (Civ. Code, §§ 44(a), 45.) Publication means "communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Put slightly differently, publication is communication to one other than the person defamed. (Hellar v. Bianco (1952) 111 Cal.App.2d 424, 426.) Here, Sobayo did not show that he would probably prevail on his defamation claim, for several reasons.
First, he did not show publication. The e-mail was sent directly to Sobayo's own e-mail address—nathaniel.sobayo@gmail.com. If Sobayo chose to share his personal e-mail password with others, that was his choice. Indeed, even if Sobayo's "normal course of business" is to allow his office members to view his personal e-mails, that is not publication. "[A] plaintiff cannot manufacture a defamation cause of action by publishing the statements to third persons; the publication must be done by the defendant." (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284.)
An additional reason why Sobayo could not prevail is the privilege provided by Civil Code section 47, subdivision (b). That privilege is absolute (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268), and such communications are "absolutely immune from tort liability." (Rubin v. Green, supra, 4 Cal.4th at p. 1193.) Sobayo's claim was properly dismissed for his inability to overcome a privilege, just as have the claims of many other plaintiffs who lost SLAPP motions because of such inability. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 275; Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1162; Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 689-690.)
Sobayo's libel claim fails for the additional reason that he has not shown—indeed, not even attempted to show—the requisite damages. " 'Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. . . .' " (Babcock v. McClatchy Newspapers (1947) 82 Cal.App.2d 528, 539.) That applies to Sobayo's claim here.
Paragraph eight of Sobayo's complaint attempts to explain how the e-mail is libelous. In his words, "because it suggests that Mr. Sobayo, a heterosexual married male, has a boyfriend and therefore, is a secret homosexual." (Italics added.) Assuming without deciding that this is defamatory, the reader of the e-mail would have to assume that Sobayo is heterosexual in order to understand the purported libelous nature of the statement. Put otherwise, the defamatory character is not apparent on the face of the e-mail, and requires an explanation of the surrounding circumstances to make its meaning clear. As such, it is not libelous per se and is not actionable without pleading and proof of special damages.
Abuse of Process
"To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner." (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.) In support of his abuse of process claim, Sobayo alleged that Leydiker and Sosa dismissed and refiled the unlawful detainer action to "gain a tactical advantage" and in an "attempt to get a default judgment." Sobayo also alleged that Leydiker sent Sobayo 21 harassing and annoying e-mails.
Sobayo's opposition to the anti-SLAPP motion below, and his brief here, is devoid of any argument regarding the probability of prevailing on this claim. He fails to present any argument or legal authority. So, in the words of the leading appellate commentator: "When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. [People v. Stanley (1995) 10 [Cal.]4th 764, 793; Salas v. California Dept. of Transp. (2011) 198 [Cal.App.]4th 1058, 1074; see EnPalm, LLC v. Teitler Family Trust (2008) 162 [Cal.App.]4th 770, 775—issue deemed waived where appellants failed to support claim by argument, discussion, analysis or citation to record, or to include any trial proceedings in appellate record; Stoll v. Shuff (1994) 22 [Cal.App.]4th 22, 25, 27—alleged error never discussed in body of opening brief 'not a serious effort to raise the issue on appeal' and thus waived]." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:17.1, p. 8-6.)
Unlawful Debt Collection
Sobayo's third cause of action alleges violations of Civil Code section 1788.11, subdivisions (d) and (e), part of the Rosenthal Fair Debt Collection Practices Act. (See Civil Code § 1788.)
To begin with, the Rosenthal Act only applies to debt collectors attempting to collect a debt arising from a consumer transaction. (See Civil Code § 1788.13 ["No debt collector shall collect . . . a consumer debt by . . . ."].) Civil Code section 1788.2, subdivision (e) defines a " 'consumer credit transaction' " as "a transaction between a natural person and another person in which property, services or money is acquired on credit by that natural person." And Civil Code section 1788.2, subdivision (f) defines " 'consumer debt' " as "money, . . . due or owing . . . by reason of a consumer credit transaction." This has no application here, where the Ninth Circuit Court of Appeals ordered Sobayo to pay Sosa attorney's fees for filing a frivolous appeal. This was not a consumer debt. There was no consumer transaction.
Nor are Sosa or Leydiker debt collectors. Civil Code section 1788.2, subdivision (c) defines a " 'debt collector' " as "any person who, in the ordinary course of business, regularly, on behalf of himself or others, engages in debt collection. The term includes any person who composes and sells, or offers to compose and sell, forms, letters, and other collection media used or intended to be used for debt collection." It does not include an attorney, here, Leydiker, who is expressly excluded from liability pursuant to Civil Code section 1788.2, subdivision (c), which provides that "[t]he term 'debt collector' " "does not include an attorney or counselor at law." Sosa is also excluded from liability because she was a landlord attempting to collect her attorney's fees from her deadbeat tenant. Her ordinary course of business was that of a landlord, not as a debt collector. Superimposed on all that is that Sobayo's opposition is utterly silent as to the probability of prevailing on his claim for unlawful debt collection.
The fourth cause of action, for intentional infliction of emotional distress, is as noted based on the prior three causes of action. Since they fail, necessarily the emotional distress claim fails with them. Likewise because such a claim requires several things missing here. First, the complained of conduct must be outrageous, that is, beyond all bounds of reasonable decency. (Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593; Rest.2d Torts, § 46, com. d, pp. 72-73 ["no occasion for the law to intervene in every case where some one's feelings are hurt"].) Second, the conduct must result in severe emotional distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) And third, the tort calls for intentional, or at least reckless, conduct. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 453, p. 672.) None of these is evidenced here.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal and to all other attorney fees to which they are entitled under Code of Civil Procedure section 425.16.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.