Opinion
B227155
11-03-2011
RICHARD CHASKIN et al., Plaintiffs and Respondents, v. ROBERT GENTINO et al., Defendants and Appellants.
Law Office of Robert Gentino, Robert Gentino; Margolis & Tisman and Mike Margolis for Defendant and Appellant Robert Gentino and Law Offices of Robert Gentino. No appearance for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC428862)
APPEAL from an order of the Superior Court of Los Angeles County, Michelle Rosenblatt, Judge. Reversed.
Law Office of Robert Gentino, Robert Gentino; Margolis & Tisman and Mike Margolis for Defendant and Appellant Robert Gentino and Law Offices of Robert Gentino.
No appearance for Plaintiffs and Respondents.
Attorneys Richard Chaskin, David Kyle, Andrew Krzemuski, and Robert Shtofman (unless specified, collectively "attorneys") sued attorney Robert Gentino for defamation based upon a statement he made to Shtofman's and Krzemuski's client. Gentino allegedly accused attorneys of criminal conspiracy in their prosecution of a premises liability lawsuit involving exposure to Legionella pneumophila, or Legionnaires' disease. The trial court denied Gentino's motion to strike attorneys' defamation claim under Code of Civil Procedure section 425.16, referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. In ruling on the motion, the trial court considered the client's unsigned declaration, which stated he heard the defamatory statements. This declaration was not signed under penalty of perjury and cannot be used as evidence to defeat a special motion to strike. Since attorneys have presented no evidence to establish that Gentino made defamatory statements, attorneys did not meet their burden to defeat the special motion to strike. Therefore, we reverse the trial court's order denying the anti-SLAPP motion.
Unless indicated, all further statutory references are to the Code of Civil Procedure.
BACKGROUND
Attorneys' first amended complaint, filed in propria persona, asserted claims against Gentino for defamation and malicious prosecution. As alleged, Gentino made the following statement to Steve Akopyan, a client of attorneys Shtofman and Krzemuski: "[A]ttorneys Richard M. Chaskin, David Kyle, Andrew Krzemuski and Robert Scott Shtofman were part of a criminal organization which included [attorneys], . . . the State Bar of California was investigating the aforementioned attorneys, . . . their licenses were going to be suspended by the State Bar of California, and . . . said attorneys would lose their licenses to practice law because of their criminal activities associated with a case involving [L]egionnaire[s'] disease, . . . Steve Akopyan should stay-away [sic] from attorneys Shtofman and Krzemuski, because Steve Akopyan would lose-out in the end, . . . [d]efendant Gentino hated Robert Scott Shtofman's guts and . . . Shtofman hated his guts, and . . . [d]efendant Gentino would see to it that Attorneys Kyle, Chaskin, Krzemuski and Shtofman would lose their licenses." (Capitalization omitted.)
The trial court granted the special motion to strike the malicious prosecution cause of action.
The following events led up to the defamation claim.
1. Gentino Sued Attorneys on Behalf of Attorneys' Former Clients
Attorneys represented employees of the Los Angeles County Department of Children and Family Services (DCFS) in premises liability lawsuits against the owners and other affiliates of the former DCFS headquarters for exposure to Legionnaires' disease. Gentino represented five of those DCFS employees in an action against attorneys over a dispute involving their agreement to pay attorneys' costs. Attorneys prevailed, and then attorneys sued Gentino.
2. Anti-SLAPP Motion
Gentino filed an anti-SLAPP motion, but did not succeed in dismissing the defamation claim. He stated in his declaration that the statements attributed to him were not accurate.
Gentino also attempted to establish that Shtofman was a limited public figure arising from three videos posted on YouTube discussing the Legionnaires' disease lawsuits.
3. Attorneys Submit Unsigned Declaration Repeating Defamation Allegations
Attorneys opposed the motion, and Shtofman submitted Akopyan's unsigned declaration. Akopyan's unsigned declaration repeated the allegations in the complaint related to Gentino's comments to him about attorneys.
Chaskin joined Shtofman's consolidated opposition to the motion on June 17, 2010, six days before Shtofman filed his brief and accompanying evidence. Kyle joined in the declarations of Krzemuski and Shtofman in opposition to the motion. Krzemuski joined in the consolidated opposition submitted by Shtofman, "especially in respect of [sic] the declarations of Steve Akopyan and Robert Scott Shtofman." Chaskin, Krzemuski, and Shtofman submitted declarations, but no one states he heard the defamatory statements. Although Gentino contends attorneys' joinder is improper, the resolution of this issue is not necessary to resolve this appeal.
The trial court credited Akopyan's unsigned declaration, and held the attorneys' opposition presented sufficient evidence to defeat the special motion to strike the defamation claim. Gentino appealed the trial court's order denying the motion.
Attorneys did not file a respondent's brief. We therefore "decide the appeal on the record [and on] the opening brief . . . by the appellant." (Cal. Rules of Court, rule 8.220(a)(2); see also D.H. Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 763.)
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DISCUSSION
1. Anti-SLAPP Statutory Provisions
There is a two-step process for evaluating special motions to strike brought pursuant to section 425.16, subdivision (b)(1). " '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 such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Taus v. Loftus (2007) 40 Cal.4th 683, 712.)
The first step in the anti-SLAPP analysis is not at issue here.
Our focus is on the second step of the anti-SLAPP analysis, that is, whether attorneys have shown a probability of prevailing on their defamation claim. To satisfy this step, attorneys " '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.' [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
In deciding whether attorneys demonstrated a probability of prevailing on the merits, the trial court considers the pleadings and evidentiary submissions of both parties, but does not weigh the credibility or comparative probative strength of the competing evidence. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) If attorneys have substantiated a legally tenable claim through a facially sufficient evidentiary showing, and Gentino's contrary showing does not defeat attorneys' showing as a matter of law, the motion to strike must be denied. (Ibid.)
We review de novo the legal question of whether attorneys have established a probability of prevailing on their defamation claim. We employ the same analysis as the trial court did in determining whether the anti-SLAPP motion should have been granted. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1651-1652.)
2. The Unsigned Declaration Is Not Sufficient Evidence to Establish the Publication of a Defamatory Statement
As noted, an opposition to an anti-SLAPP motion must be supported by admissible evidence. (Taus v. Loftus, supra, 40 Cal.4th at p. 714.) "An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. . . . Such evidence must be admissible." (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) To make that showing, attorneys cannot rely on unverified pleadings and the allegations in the complaint. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568.)
To determine if there is a reasonable probability attorneys will prevail, we look to the elements of the defamation claim, which include: (1) a publication by Gentino that is (2) false, defamatory, and unprivileged, and (3) has a tendency to injure or causes special damage. (Taus v. Loftus, supra, 40 Cal.4th at p. 720.) Attorneys have not presented any evidence of a publication.
Here, we are concerned with whether Akopyan's unsigned declaration is valid and admissible evidence to establish publication. Although hearsay, declarations are the accepted form of evidence in motion proceedings. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609 (Kulshrestha).) Declarations may be used as competent evidence to support and oppose a special motion to strike. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.) These declarations, however, must follow the form of section 2015.5. (Kulshrestha, supra, at pp. 610-611.)
Section 2015.5 permits a person to prove a matter "by the unsworn . . . declaration . . . in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and . . . if executed within this state, states the date and place of execution . . . ." The purpose of permitting "declaration[s] under penalty of perjury, in lieu of . . . sworn statement[s], is to help ensure that declarations contain a truthful factual representation and are made in good faith." (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1223.) A valid declaration must be in such form that the criminal sanction of perjury might apply where the material facts declared to be true, are not true. (See Kulshrestha, supra, 33 Cal.4th at pp. 615-618.)
A declaration that is not signed under penalty of perjury materially deviates from the mandated form in section 2015.5. (Kulshrestha, supra, 33 Cal.4th at pp. 611-612.) In Kulshrestha, the California Supreme Court rejected substantial compliance with section 2015.5, and the court concluded that an out-of-state declaration, which was not signed "under the laws of the State of California" could not be used as evidence because it was not in the form prescribed by section 2015.5. (Kulshrestha, at pp. 615-618.) As Kulshrestha court reasoned, the section 2015.5 requirements are not optional. (Kulshrestha, at pp. 610-611.)
Akopyan's declaration is missing two essential requirements of a valid declaration under section 2015.5 because it is not signed by him under penalty of perjury. Akopyan was the only witness who heard the allegedly defamatory statements. Since our assessment looks to the evidence as if it were presented at trial, we view the unsigned declaration as Akopyan's absence as a witness at trial. Since Akopyan's declaration is inadmissible as evidence, the unverified pleadings are insufficient to meet attorneys' burden to show publication of a defamatory statement. Thus, attorneys cannot establish an essential element of their defamation claim and have not met their burden to avoid dismissal under section 425.16. Accordingly, the trial court erred in denying the special motion to strike.
DISPOSITION
We reverse the order denying the special motion to strike the defamation claim pursuant to section 425.16. We remand this matter to the trial court to enter an order granting the special motion to strike and to enter an order of dismissal. Gentino shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.