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DiMarco v. Singer

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 14, 2012
B224360 (Cal. Ct. App. Feb. 14, 2012)

Opinion

B224360

02-14-2012

FRANK DIMARCO, Plaintiff and Appellant, v. DEBORAH SINGER, Defendant and Respondent.

Darold M. Shirwo for Plaintiff and Appellant. Enterprise Counsel Group, Benjamin P. Pugh and James S. Azadian for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC426075)

APPEAL from an order of the Superior Court of Los Angeles County, Rita Miller, Judge. Affirmed.

Darold M. Shirwo for Plaintiff and Appellant.

Enterprise Counsel Group, Benjamin P. Pugh and James S. Azadian for Defendant and Respondent.

Plaintiff and appellant Frank DiMarco (DiMarco) appeals an order granting defendant and respondent Deborah Singer's (Singer) special motion to strike his complaint pursuant to the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)

All statutory references are to the Code of Civil Procedure, unless otherwise specified.

On our de novo review, we conclude DiMarco's action was subject to a special motion to strike because it arose from protected activity by Singer. We further conclude DiMarco failed to establish a probability of prevailing on the merits. Therefore, the order granting the special motion to strike is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

DiMarco and Singer were married in 2004. In 2006, Singer filed for divorce, leading to a protracted and contentious dissolution proceeding and other litigation.

On January 24, 2007, DiMarco was arrested for physically attacking Singer at her Calabasas home. Singer obtained a CLETS domestic violence criminal protective order. On July 22, 2008, DiMarco pled nolo contendre to a violation of Penal Code section 415, was ordered to complete a 52-week domestic violence class and was placed on 36-months probation.

On September 26, 2008, DiMarco was found in violation of his probation, and was ordered to surrender and serve 60 days in county jail.

DiMarco subsequently was sentenced to 90 days in jail for another probation violation and was released on October 10, 2009.

1. The instant litigation.

a. DiMarco's complaint.

On November 16, 2009, DiMarco filed suit against Singer and Jonathan Grayson (Grayson) (not a party to this appeal) alleging in pertinent part: On August 13, 2009, Singer and Grayson threatened DiMarco's girlfriend, Catherine Sanderson (Sanderson), with personal harm if she testified as a witness for DiMarco in a criminal action pending against him in the Los Angeles Superior Court. Further, Singer and Grayson published and distributed to Sanderson a document containing false statements about DiMarco in order to dissuade her from testifying on DiMarco's behalf. Said document, which was attached to the complaint as exhibit 1, was a six-page outline captioned "Background Information for Frank V. DiMarco" and set forth, inter alia, DiMarco's prior criminal convictions, civil orders and judgments against him, his alleged theft of funds from a bank account, his refusal to pay child support, and his use of multiple social security numbers, aliases and addresses. Singer and Grayson also allegedly distributed the outline to friends, relatives, neighbors and business associates for the purpose of libeling DiMarco.

Further, Singer and Grayson allegedly filed a false criminal complaint against DiMarco alleging he violated a restraining order for the purpose of interfering with his paternal relationship with his daughter, interfering with his prospective business opportunities, and to cause his incarceration.

Based on the above, DiMarco pled causes of action for libel, intentional infliction of emotional distress, invasion of privacy, interference with business opportunity, and sought damages as well as injunctive relief.

b. Singer's special motion to strike.

Two months after DiMarco filed suit, Singer filed a special motion to strike the complaint in its entirety pursuant to section 425.16. Singer asserted the complaint was subject to a special motion to strike because it arose from acts on her part in connection with her right of petition or free speech, in that reporting violations of restraining orders and appearing at superior court to testify are protected petitioning activities. Further, DiMarco could not prevail on his complaint in that: injunction is not a cause of action but merely a remedy; truth is an absolute defense to defamation; and the claims for defamation, intentional infliction of emotional distress, invasion of privacy and interference with business opportunity were barred by the litigation privilege (Civ. Code, § 47, subd. (b).).

Singer's supporting declaration stated: Exhibit 1 to the complaint was the outline that she prepared to address the Malibu superior court as well as the family court. Each item in the outline was taken from a court record, judgment or transcript, or from DiMarco directly. DiMarco failed to specify which statements in the outline were false. Singer denied giving a copy of the outline to Sanderson or to any third parties listed in the complaint. She prepared said outline in order to be able to present her point of view to the court at the hearing on DiMarco's probation violation, which was protected activity by her.

c. DiMarco's opposition.

DiMarco contended the outline generated by Singer "was solely intended as notes for a presentation to the court as they would impact the court's sentencing of [DiMarco] and nothing more - no 'public issue'; and ergo no applicability of [section 425.16]."

With respect to the second prong of section 425.16, DiMarco argued the outline was not shielded by the litigation privilege in that the outline was not introduced into evidence at the sentencing hearing, nor was it used in any other criminal or civil proceeding. Rather, the outline was distributed to DiMarco's friends, relatives and neighbors. Further, the outline was used to intimidate a witness, Sanderson, from testifying on DiMarco's behalf. DiMarco also asserted the various statements in the outline were false.

We note statements to nonparticipants, who have no connection to a case, are not protected by the litigation privilege, and thus are actionable unless privileged on some other basis. (Silberg v. Anderson (1990) 50 Cal.3d 205, 219; Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1143.)

In fact, Sanderson was not deterred. Sanderson, a new girlfriend who had known DiMarco for one month, testified at the August 12, 2009 hearing as a defense witness.

d. Trial court's ruling.

On April 27, 2010, the trial court heard and granted Singer's special motion to strike on the ground the entire action was barred by the litigation privilege.

The April 27, 2010 order also provides Singer "may bring a noticed motion for attorney fees." However, the issue of attorney fees is not before this court.

On May 10, 2010, DiMarco filed a timely notice of appeal from the April 27, 2010 order granting Singer's special motion to strike.

An order granting a special motion to strike is appealable. (§ 425.16, subd. (i).)
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CONTENTIONS

DiMarco contends: the trial court failed to conduct the required two-prong analysis; the litigation privilege is inapplicable; he met his burden to show he is capable of prevailing on his claims; he has viable causes of action for libel, intentional infliction of emotional distress, invasion of privacy and interference with business opportunity.

DISCUSSION

1. General principles re a special motion to strike.

a. Overview.

As the Supreme Court reiterated in Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12 (Simpson), a Strategic Lawsuit Against Public Participation, or SLAPP, "is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. ' "While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right." ' (Castillo v. Pacheco (2007) 150 Cal.App.4th 242, 249-250, quoting Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended May 12, 1997, pp. 1-2.)" (Simpson, supra, at p. 21.)

In 1992, "out of concern over 'a disturbing increase' in these types of lawsuits, the Legislature enacted section 425.16, the anti-SLAPP statute. (§ 425.16, subd. (a).) The statute authorized the filing of a special motion to strike to expedite the early dismissal of these unmeritorious claims. (§ 425.16, subds. (b)(1), (f).) To encourage 'continued participation in matters of public significance' and to ensure 'that this participation should not be chilled through abuse of the judicial process,' the Legislature expressly provided that the anti-SLAPP statute 'shall be construed broadly.' (§ 425.16, subd. (a).)" (Simpson, supra, 49 Cal.4th at p. 21.)

A special motion to strike "involves a two-step process. First, the defendant must make a prima facie showing that the plaintiff's 'cause of action . . . aris[es] from' an act by the defendant 'in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue.' [Fn. omitted.] (§ 425.16, subd. (b)(1).) If a defendant meets this threshold showing, the cause of action shall be stricken unless the plaintiff can establish 'a probability that the plaintiff will prevail on the claim.' " (Simpson, supra, 49 Cal.4th at p. 21.)

b. Determining the applicability of the anti-SLAPP statute to a plaintiff's claim.

In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendant's (Singer's) act underlying the plaintiff's (DiMarco's) cause of action itself was an act by the defendant in furtherance of her right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The "principal thrust or gravamen" of the claim determines whether section 425.16 applies. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; accord Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319.)

As used in section 425.16, " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' 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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)

c. Standard of appellate review.

Review "of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

2. First prong: Singer made a prima facie showing DiMarco's claims arose from protected activity by her.

Singer's papers showed: she was the victim of DiMarco's violation of the domestic violence restraining order. On August 11 and 12, 2009, she was present in the superior court in Malibu at the request of the District Attorney. She was aware she likely would be called to address the court, and therefore she prepared the outline, which was based on portions of the trial brief in the dissolution action.

DiMarco's opening brief on appeal acknowledges Singer compiled the outline as an aid to her participation at the probation violation hearing. DiMarco's appellate brief states, "the court can see that [Singer] generated the . . . 'outline', solely and exclusively to guide her in her statements to the Malibu court (Judge Mira) about the sentencing of [DiMarco] in case 8MB01204 . . . . [¶] It is clear from [Singer's] words that the 'outline' was solely intended as notes for a presentation to the court to impact the court's sentencing of [DiMarco]."

Thus, it is undisputed Singer compiled the outline and brought it to court to help her participate in the hearing on DiMarco's probation violation.

Accordingly, Singer made a sufficient showing that DiMarco's claims against her arose from her participating as a victim at DiMarco's sentencing hearing, which was protected activity in furtherance of Singer's rights of petition and free speech.

3. Second prong: DiMarco failed to show a probability of prevailing on any of his claims; therefore, trial court properly granted Singer's special motion to strike.

To the extent the allegedly defamatory outline was disseminated to third parties, such as DiMarco's friends and neighbors, the litigation privilege is inapplicable. (Rothman v. Jackson, supra, 49 Cal.App.4th at p. 1143.) However, based on our de novo review, we conclude the trial court's decision granting the special motion to strike is correct in result. Therefore, the order must be affirmed, irrespective of the trial court's rationale. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)

a. First cause of action: libel.

We begin with the principle that "[a]s in other jurisdictions, California law permits the defense of substantial truth and would absolve a defendant even if she cannot 'justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.' " (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 516-517 (Masson).) "Minor inaccuracies do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified.' " (Id. at p. 517.)

(1) Conviction of domestic violence.

DiMarco contends Singer's outline falsely stated he had been convicted on a charge of domestic violence.

The superior court records, which were before the trial court by way of Singer's request for judicial notice filed concurrently with her special motion to strike, showed the following: In case No. 7MB00507, in February 2007, DiMarco was charged with one count of violating Penal Code section 243, subdivision (e)(1) and a criminal protective order was issued. DiMarco later violated that protective order, his $20,000 bail was revoked and bail was set at $50,000. In that case, DiMarco ultimately pled nolo contendre to one count of violating Penal Code section 415, was convicted, was required to complete a 52-week domestic violence treatment program and was ordered to pay $400 to the domestic violence fund pursuant to Penal Code section 1203.097.

On this record, the gist of Singer's statement that DiMarco had been convicted of domestic violence was true.

(2) Fraud judgment.

DiMarco contends the outline was false in that there was no fraud judgment entered against him. The undisputed evidence is to the contrary.

The superior court records, which were before the trial court by way of Singer's request for judicial notice filed concurrently with her special motion to strike, showed the following: On January 2, 2009, the trial court (Hon. Terry Friedman) entered a stipulated judgment in favor of David Berman and against DiMarco and his entities in the total sum of $3,950,000. The stipulated judgment provided "Berman shall recover from DiMarco, Spar CMD and Spar, Inc. jointly and severally, damages for fraud and disgorgement" in the sum of $2,210,000, and an additional $1.6 million from DiMarco and his entities "by reason of the false and/or fraudulent representations knowingly made to Berman by DiMarco and the Spar Cross-Defendants to induce Berman to enter into the September 9, 2004 Construction Contract with Spar CMD." (Italics added.)

(3) Other statements in the outline which DiMarco did not dispute.

DiMarco has focused on a number of discrete statements in the outline, but he did not dispute other statements by Singer which tended to show DiMarco's moral turpitude.

Singer's outline stated, inter alia: Since 2008, DiMarco had stolen over $45,000 from a trust account at Bank of America by making 135 unauthorized electronic payments from that account.

DiMarco's declaration in opposition to the special motion to strike did not dispute that assertion by Singer.

Singer's outline also stated DiMarco had used multiple social security numbers. Further, DiMarco's adult son, Nicolas DiMarco, filed a declaration in support of Singer's special motion to strike, wherein Nicolas stated that since 1990 his father had been using his social security number to obtain credit.

DiMarco's declaration in opposition to the special motion to strike did not deny his use of multiple social security numbers.

Having compared the statements in Singer's outline with the rebuttal contained in paragraph 16 of DiMarco's opposing declaration, it is clear DiMarco did not bother to deny most of Singer's assertions. Instead, DiMarco has sought to "nitpick" the outline by focusing, inter alia, on the lack of documentary support for certain statements therein by Singer. We conclude DiMarco is incapable of prevailing on his cause of action for libel because the gist or "sting" of the outline was substantially true. (Masson, supra, 501 U.S. at p. 517.)

b. Second cause of action: intentional infliction of emotional distress.

DiMarco's cause of action for intentional infliction of emotional distress was based on Singer's allegedly outrageous conduct, as pled in the libel claim. Because DiMarco is incapable of prevailing on the libel claim, the intentional infliction of emotional distress likewise must fail.

c. Third cause of action: injunction.

Injunctive relief is merely a remedy for a proven cause of action - it is not a cause of action. (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Therefore, DiMarco's purported third cause of action for injunctive relief failed to state a cause of action.

d. Fourth cause of action: invasion of privacy.

"Our courts have dealt with four distinct factual settings under the heading of invasion of privacy. As identified by the late Dean Prosser, those four types of cases are: (1) intrusion upon one's physical solitude or seclusion; (2) public disclosure of private facts; (3) false light in the public eye; and (4) appropriation. [Citations.]" (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808.)

DiMarco's fourth cause of action incorporated his earlier factual allegations and pled: "26. The aforesaid conduct was, and is, highly offensive to any reasonable person and specifically all the persons/individuals to whom the letter was distributed. [¶] 27. The Plaintiff has suffered damages that are legally and proximately caused by Defendants' conduct in publishing and distributing the said defamatory document . . . ." (Italics added.) In addition to compensatory damages, DiMarco sought punitive damages of $5 million on said cause of action.

In other words, DiMarco's fourth cause of action merely pled that Singer's distribution of the defamatory outline was offensive and injurious. These allegations failed to state a cause of action for invasion of privacy.

Assuming arguendo DiMarco sought to plead that Singer's defamatory publication depicted him in a false light in the public eye, the resolution of the defamation claim disposes of this claim as well.

e. Fifth cause of action: interference with business opportunity.

DiMarco's fifth cause of action pled that Singer engaged in the alleged conduct "for the purpose of interfering with any ongoing and/or prospective business opportunities that [DiMarco] had, or could have had . . . ."

In resisting the special motion to strike, DiMarco made no attempt to show any existing contract or potential business opportunity that was impacted by Singer's activity.

Further, the record reflects DiMarco's inability to work is due to the revocation of his license by the Contractors State License Board. Therefore, DiMarco cannot attribute his inability to work to Singer. We conclude DiMarco cannot prevail on his cause of action against Singer for interference with business opportunity.

DISPOSITION

The April 27, 2010 order granting Singer's special motion to strike is affirmed. Singer shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. KITCHING, J.


Summaries of

DiMarco v. Singer

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 14, 2012
B224360 (Cal. Ct. App. Feb. 14, 2012)
Case details for

DiMarco v. Singer

Case Details

Full title:FRANK DIMARCO, Plaintiff and Appellant, v. DEBORAH SINGER, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Feb 14, 2012

Citations

B224360 (Cal. Ct. App. Feb. 14, 2012)