Opinion
B316395
03-26-2024
VIPULKUMAR PATEL, Plaintiff and Respondent, v. GOVIND VAGHASHIA, Defendant and Appellant.
Lal Harris & Edwards Law Group, Hari S. Lal, Thomas L.D. Edwards, and Jack Rippy for Defendant and Appellant. Mandeep S. Rupal and Alexander W. Richter for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. EC064357, David A. Rosen, Judge.
Lal Harris & Edwards Law Group, Hari S. Lal, Thomas L.D. Edwards, and Jack Rippy for Defendant and Appellant.
Mandeep S. Rupal and Alexander W. Richter for Plaintiff and Respondent.
BAKER, Acting P. J.
Pursuant to the anti-SLAPP statute (Code Civ. Proc.,§ 425.16), defendant and appellant Govind Vaghashia (defendant) moved to strike harassment and retaliation causes of action brought against him by a former employee, plaintiff and respondent Vipulkumar Patel (plaintiff). Plaintiff's causes of action arise from defendant's instructions to a current employee to file an allegedly false police report against plaintiff on the same day that plaintiff filed suit against defendant. The trial court denied defendant's anti-SLAPP motion, and we consider whether the challenged cause of action arises from defendant's exercise of his constitutional right of petition-in the form of directing the filing of a police report.
Undesignated statutory references that follow are to the Code of Civil Procedure.
I. BACKGROUND
A. Plaintiff's Claims Against Defendant
In 2005, defendant hired plaintiff to work as a front desk clerk for a motel he owned and operated: the Quality Inn - Burbank. Shortly thereafter, defendant promoted plaintiff to the position of nonresident manager. Plaintiff alleges he never received uninterrupted meal or rest breaks or overtime pay while working for defendant at the motel. In February 2014, plaintiff left defendant's employ.
After plaintiff ceased working at the motel, he entered into discussions with defendant about filing a potential lawsuit alleging wage and hour claims. These discussions proved fruitless and plaintiff filed suit against defendant in August 2015, alleging wage and hour violations.
In addition to defendant, plaintiff sued the owner of a motel in a different city where he had also worked alleging similar misconduct.
On the same day plaintiff sued defendant, Rakesh Kothari (Kothari), who was hired by defendant as plaintiff's replacement, and Mita Vaghashia (Vaghashia), who is a "part owner" of the motel, reported plaintiff to the police. Kothari, who described himself to the police as the motel's accountant, stated that during an audit of the motel's finances he discovered certain daily reports from February 2011 to January 2014 were missing, as were some employee records. In addition to the missing records, Vaghashia told police that Kothari's audit revealed "a large amount of money was unaccounted for." Kothari and Vaghashia told the police they believed plaintiff stole the unaccounted-for funds.
Kothari was deposed in connection with plaintiff's lawsuit. After the deposition, plaintiff filed an unverified second amended complaint (the operative pleading), which asserts two additional claims (the ninth and tenth causes of action)-both of which are based on the purportedly fraudulent police report. The operative complaint alleges that, at deposition, Kothari testified he was not personally aware of any missing documents at the time he made his report to the police and that he made the report at defendant's direction. The operative complaint further alleges defendant instructed Kothari to report plaintiff to the police so as to "frustrate" plaintiff's lawsuit. The ninth cause of action avers that defendant, "by directing Mr. Kothari to file a fraudulent police report against [plaintiff] in response to [plaintiff] filing this Complaint, is guilty of harassment and retaliation." The tenth cause of action avers that defendant and others, "by instructing Mr. Kothari to file a fraudulent police report and by offering false testimony to the police in support of said report, have been part of the conspiracy to commit an abuse of process and did commit an abuse of process against [plaintiff]."
B. Defendant's Anti-SLAPP Motion
Defendant, pursuant to the anti-SLAPP statute, filed a special motion to strike plaintiff's ninth and tenth causes of action. Defendant argued that both causes of action were premised on protected petitioning activity-making a police report-and covered by the litigation privilege, which made it impossible for plaintiff to succeed on the merits of either of his two new causes of action.
Defendant supported his anti-SLAPP motion with a declaration asserting that after plaintiff stopped working for the motel he was notified by Kothari and Vaghashia of several boxes of missing motel records. Defendant declared further that, "on behalf of" the motel he owned, Kothari and Vaghashia reported plaintiff's suspected involvement in the missing records to the police. (Attached to defendant's declaration was a copy of the report the police prepared in connection with Kothari and Vaghashia's claimed allegations of malfeasance.) Defendant disputed in conclusory terms plaintiff's allegations that the police report was false.
Plaintiff opposed the anti-SLAPP motion. He argued defendant's speech and communicative conduct regarding the police report were not protected under the anti-SLAPP statute because defendant never spoke directly to the police; he only "effectuat[ed]" the intentional filing of a false police report by "fraudulently inducing" Kothari and Vaghashia to report the missing records to the police. Plaintiff maintained further that even if defendant's communications about the report were protected activity, the motion should be denied because it was probable he would prevail on the merits of his claims for two reasons: (1) Kothari's deposition testimony established the fraudulent nature of the police report and (2) the litigation privilege was inapplicable because defendant's statements were not made to the police, only to his employees.
Plaintiff attached excerpts from the transcript of Kothari's deposition to his opposition. In addition, he submitted a declaration in which he denied stealing or causing to be stolen any of the motel's records and briefly summarized Kothari's deposition testimony.
In reply, defendant disputed plaintiff's legal contentions about the scope of the protection afforded by the anti-SLAPP statute and the litigation privilege. In addition, defendant argued plaintiff failed to present admissible evidence establishing a probability of prevailing on the merits of his police report-related claims and submitted evidentiary objections to portions of plaintiff's declaration, including his summary of Kothari's deposition testimony.
C. The Trial Court Denies, in Part, the Anti-SLAPP Motion
The trial court held a hearing on defendant's anti-SLAPP motion in September 2021. After hearing argument, the court denied the motion as to the ninth cause of action, finding defendant's instructions to Kothari to report plaintiff to the police were unprotected activity under section 425.16 because plaintiff did not allege defendant spoke directly with the police. As to the tenth cause of action, however, the allegations of which went beyond those of the ninth to include allegedly false testimony by defendant to the police, the court concluded the complained-of conduct was protected petitioning activity. The court concluded further that because plaintiff did not authenticate the excerpts from the transcript of Kothari's deposition, he did not present admissible evidence showing the tenth cause of action had the requisite minimal merit to survive a special motion to strike. The court accordingly struck only the tenth cause of action and allowed the ninth cause of action to proceed.
II. DISCUSSION
The trial court's ruling on the tenth cause of action was correct (and is unchallenged on appeal), but the court erred by not striking the ninth cause of action for harassment and retaliation too. The protection afforded by the anti-SLAPP statute includes conduct made in anticipation of or preparatory to the commencement of litigation. Although defendant did not speak directly to the police, plaintiff alleges Kothari did so effectively as defendant's agent, which makes the alleged conduct protected activity under the anti-SLAPP statute. We will reverse the trial court's finding to the contrary and remand for that court to make a step-two anti-SLAPP ruling on the ninth cause of action in the first instance.
Defendant's opening brief relies heavily on an unreported appellate court decision. We have disregarded that reliance, which violates the California Rules of Court. (Cal. Rules of Court, rule 8.115; see also People v. Williams (2009) 176 Cal.App.4th 1521, 1529 ["[P]ersistent use of unpublished authority may be cause for sanctions. [Citation.] Counsel would be well served to heed this advice by a leading treatise writer: 'Do not, under any circumstances, cite to an unpublished or depublished opinion (or any unpublished part of a published opinion) . . . unless . . . one of the narrow exceptions to the noncitation rule applies . . . .' [Citation.]"].)
A. Defendant's Alleged Conduct in the Ninth Cause of Action Was Protected Activity Under the Anti-SLAPP Statute
"[A] special motion to strike under section 425.16 involves a two-step process. First, the moving defendant must make a prima facie showing 'that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech . . . .'" [Citation.]" (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.) If the defendant carries this burden, the plaintiff must then demonstrate its claims have at least "'minimal merit.'" (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) We review an order granting or denying an anti-SLAPP motion de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
1. The Anti-SLAPP statute and pre-litigation communications
A party filing an anti-SLAPP motion satisfies the first prong of the anti-SLAPP statute if he or she makes a prima facie showing that the plaintiff's cause of action "aris[es] from" an act the defendant performed in furtherance of the defendant's right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; accord, Park, supra, 2 Cal.5th at 1062 ["A claim arises from protected activity when that activity underlies or forms the basis for the claim"].) A defendant moving for protection under the anti-SLAPP statute is not required to prove its conduct is constitutionally protected as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 319.) Rather, at the first stage of anti-SLAPP analysis, "the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff's claims is statutorily protected." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 888.)
There are four categories of "protected activity" under the anti-SLAPP statute. The pertinent categories in this case cover any oral statement or writing "made before . . . a judicial proceeding" or "in connection with an issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subds. (e)(1) & (2).)
"The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. [Citation.] Indeed, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' [Citation.]" (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [anti-SLAPP statute protects "communicative conduct such as the filing, funding, and prosecution" of a legal action].)
Courts have specifically held that the filing of a police report is protected activity under the anti-SLAPP statute. (See, e.g., Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942 [ "The law is that communications to the police are within SLAPP"].) Our Supreme Court has also explained that the anti-SLAPP statute does not require a moving defendant to "demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public)." (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1116; accord, Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17-18 [the right of petition does not protect only "those persons formally addressing the governmental agency," but also persons who exercise their rights "by supporting the forceful activities of others"].)
2. Defendant's instruction to Kothari was protected activity
Defendant's ninth cause of action arises from defendant's conduct that prompted the making of the allegedly false police report, namely, defendant's claimed direction to Kothari to file a police report against plaintiff for the missing motel records. Because defendant's instructions were preparatory to litigation, they are protected activity under the anti-SLAPP statute. As our Supreme Court's opinion Briggs illustrates, the fact that the actual report to the police was ultimately made by someone other than defendant does not render his pre-filing instructions any less worthy of protection as petitioning activity. (Briggs, supra, 19 Cal.4th at 1115-1116.) Moreover, the pre-litigation communications at issue here, in contrast to Briggs, were not made by a third party to the dispute. Rather, they were made by defendant, the person who, as owner of the motel, was directly involved in the wage and hour quarrel with plaintiff.
Relying on Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, however, plaintiff argues a false police report is not in furtherance of a party's constitutional right of petition. Plaintiff's argument is based on a misreading of Lefebvre. The defendant in Lefebvre had falsely accused her ex-husband of crimes to gain advantage in her divorce proceeding. The husband was charged and tried, found not guilty by a jury, and found factually innocent by the court. He then sued his ex-wife for malicious prosecution among other causes of action, and the ex-wife responded with an anti-SLAPP motion. (Id. at 700-701.) The trial court in Lefebvre found that the record "'conclusively'" established that the ex-wife's statements to the police were "illegal activity" under Penal Code section 148.5, and, as such, not "protected activity" within the meaning of the anti-SLAPP statute. (Id. at 701.) The Court of Appeal affirmed because the ex-wife did "not contest that she submitted an illegal, false criminal report . . . ." (Id. at 705.)
Section 148.5 of the Penal Code makes it illegal for someone to make a knowingly false report of criminal activity to the police or other law enforcement-related agency or governmental body, such as a prosecutor, emergency response telephone operator, or grand jury. (Pen. Code, § 148.5, subds. (a)-(d).)
In reaching its decision, the court in Lefebvre relied on Flatley (Lefebvre, supra, 199 Cal.App.4th at 701, 704), which held that a defendant is precluded from using the anti-SLAPP statute to strike some or all of a plaintiff's claims if "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Flatley, supra, 39 Cal.4th at 320.) Thus, if "a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Flatley, supra, at 316.)
Here, in contrast to Lefebvre, a factual dispute exists about the legality of defendant's conduct. Defendant did not concede the police report was false. In fact, he declared the opposite. In addition, the admitted evidence presented in opposition to the motion did not conclusively establish the police report's falsity. Because the excerpts from Kothari's deposition were deemed inadmissible due to a lack of authentication, the only admissible evidence supporting plaintiff's claims were the brief statements made in his declaration summarizing Kothari's deposition testimony. Under the standard set in Flatley and applied in Lefebvre, that evidence is not conclusive.
Because defendant cleared the prima facie bar for establishing plaintiff's ninth cause of action arose from protected activity, the trial court should have proceeded to the second step of the anti-SLAPP analysis and determined whether plaintiff established a probability of prevailing on the merits of the ninth cause of action. (Flatley, supra, 39 Cal.4th at 316.) Following customary procedure (see, e.g., Collier v. Harris (2015) 240 Cal.App.4th 41, 58), we remand so that the trial court may consider and resolve that question-one on which we now express no view.
DISPOSITION
The order granting in part and denying in part defendant's special motion to strike is vacated. The cause is remanded with directions to enter a new and different order that maintains the court's ruling granting the special motion to strike the tenth cause of action and that, consistent with the views expressed in this opinion, rules on whether the ninth cause of action must also be stricken. Defendant is awarded costs on appeal.
We concur: MOOR, J., LEE, J.[*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.