Filed 7/28/26 Botiach v. City of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
IONATAN BOTIACH, B345654
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 24STCV20474)
CITY OF LOS ANGELES, et
al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Virginia Keeney, Judge. Affirmed, in
part, and reversed and remanded, in part.
Ionatan Botiach, self-represented litigant, for Plaintiff and
Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, Kathleen A. Kenealy, Chief Assistant City
Attorney, Shaun Dabby Jacobs, Assistant City Attorney, and
Brian Cheng, Deputy City Attorney, for Defendant and
Respondent City of Los Angeles.
Friedman & Chapman, Christofer R. Chapman, for
Defendants and Respondents Greek Lopez, Melissa Lopez, and
Esperanza Salinas Banos.
________________________
I. INTRODUCTION
Plaintiff Ionatan Botiach appeals from two trial court
orders, one sustaining without leave to amend the demurrer of
the City of Los Angeles (the City) and the other granting the
individual defendants’1 special motion to strike under the anti-
SLAPP statute (Code Civ. Proc., § 425.16 (section 425.16)2).
We affirm the demurrer ruling because plaintiff failed to
plead compliance with the claim filing requirements of the
Government Claims Act (Claims Act).3 But we reverse, in part,
1 The individual defendants are Esperanza Salinas (Salinas)
and her two adult children, Greek and Melissa Lopez. We will
refer to them collectively as the “individual defendants.” When
necessary for clarity, the Lopez siblings will be referred to by
their first names.
2 Section 425.16 is commonly referred to as the anti-SLAPP
statute. “SLAPP is an acronym for ‘strategic lawsuit against
participation.’” (Jarrows Formula, Inc. v. LaMarche (2003) 31
Cal.4th 728, 732, fn. 1.)
3 Government Code section 810, et seq.; formerly the Tort
Claims Act. “Under the Government Claims Act, a person may
not sue a public entity for personal injury unless he or she
2
the order granting the special motion to strike because plaintiff
demonstrated that two of his causes of action had minimal merit.
II. BACKGROUND
A. Complaint
On August 14, 2024, plaintiff filed the complaint in this
action asserting six causes of action for (1) antisemitism, racism,
violation of constitutional rights, false arrest, malicious
prosecution (against all defendants); (2) defamation (against all
defendants); (3) “severe emotional distress” (against all
defendants); (4) civil conspiracy, fraud, unjust enrichment
(against the individual defendants); (5) declaratory relief (against
the City); and (6) punitive damages (against all defendants). In
support of his claims, plaintiff alleged the following facts
concerning his arrests and prosecutions by the City.
1. June 2019 Incident and Restraining Order
In June 2019, plaintiff agreed to allow Salinas4 to “use his
empty office as a nail shop,” but she then invited her two adult
presents a timely written claim for damages to the public entity.
([Gov. Code, ]§§ 911.2, subd. (a), 945.4.)” (Perez v. Golden Empire
Transit Dist. (2012) 209 Cal.App.4th 1228, 1233.)
4 As we explain below, Salinas filed a declaration in which
she testified that plaintiff was her ex-boyfriend, a fact which
plaintiff does not dispute.
3
children, Greek and Melissa, to “occupy the second unit of that
[property]5” without plaintiff’s permission.
In June 2021, plaintiff asked Greek and Melissa to leave
the property. On June 29, 2021, plaintiff heard voices inside the
property and, when he “asked who was there, Greek, who was
hiding inside, called [the] police, falsely claiming ‘domestic
violence[.]’”
Salinas applied for a domestic violence protective order
against plaintiff supported by her declaration in which she
claimed she was inside the house with her children during the
June 29 incident. Based on the individual defendants’ false
testimony, the trial court issued a three-year restraining order
against plaintiff (civil restraining order) in August 2021 which
the individual defendants then “used to live in the [p]roperty”
rent free.
2. Criminal Action, First Arrest, and Plea Deal
On August 24, 2021, three weeks after the civil restraining
order issued, plaintiff was walking by his house when he saw the
individual defendants driving their new car. When he stopped to
take their photo, they “called 911, falsely claiming that [p]laintiff
was violating the [civil restraining order].”
On April 27, 2022, plaintiff drove to the LA Fitness club on
La Cienega Boulevard for his nightly swim, his routine for the
past 25 years. On his way, he saw the individual defendants’ car
parked at 1801 South La Cienega Boulevard and decided to take
5 Plaintiff’s property was located at 5037 West Pico
Boulevard in Los Angeles (the property). Plaintiff’s home was
next to the property.
4
a photo of it, but Melissa “suddenly appeared” and called Salinas,
who was cleaning an office at that location, a block from
plaintiff’s club. Plaintiff did not speak to either defendant and
instead drove to his club, “unaware that [the individual
d]efendants [had] called 911.”
Two nights later, on April 29, 2022, plaintiff, while outside
his house, observed Greek and Melissa driving their car into the
alley that led to his house. Plaintiff told them they could not
park in the alley. In response, Greek called the police, who
responded and determined that plaintiff had done nothing wrong.
But Greek then called Salinas, “who rushed over and told the
officers” that two days prior, plaintiff came to “‘her place of
employment,’” located at 1801 South La Cienega Boulevard.
(Boldface omitted.) The police then arrested plaintiff.
Plaintiff was incarcerated at the Twin Towers facility. On
May 2, 2022, while still incarcerated, plaintiff, who suffered from
high blood pressure, fainted and was rushed to the hospital. On
May 4, 2022, plaintiff fainted again and was again rushed to the
hospital. The District Attorney dismissed all charges against
him, but the City Attorney then decided to prosecute him for
vandalism and violation of the protective order based on the June
and August incidents (vandalism case). He was finally released
on bail on May 6, 2022.
On May 31, 2022, plaintiff appeared for trial in the
vandalism case. Prior to trial, the City Attorney offered plaintiff
a plea deal, which plaintiff eventually accepted. The trial court
also entered a criminal protective order pursuant to Penal Code
section 136.26, subdivision (i)(1) that required plaintiff to stay at
6 All further statutory references are to the Penal Code
unless otherwise indicated.
5
least 10 feet away from Salinas (criminal protective order), but
did not apply to Greek or Melissa.
3. August 18, 2023, Arrest and Charges
Beginning on June 28, 2022, and continuing through May
2023, the individual defendants repeatedly called “911 for no
reason other than to harass [p]laintiff,” including when he was
swimming at his LA Fitness club. Plaintiff was “repeatedly
detained for hours, and released only after it was determined by
the officers that he was doing nothing other than walking by his
house.” On one occasion in late May or early June 2023,
defendant was swimming at his club when Salinas came in after
him. She called Greek, who called the police, and defendant was
taken in handcuffs to the police station, but then released at 2:00
a.m. with no charges.
On June 29, 2023, plaintiff filed a motion to rescind the
civil restraining order with a hearing set for August 18, 2023.
Plaintiff appeared on that date for the hearing, but the trial court
continued it to the following week.
On the evening of August 18, 2023, plaintiff went
swimming at his club but as he was leaving, police officers
arrived and told him Salinas had seen him in the pool from a
vantage point 150 yards away. She was “‘adamant’ he must be
arrested.” Salinas came to the club because she knew plaintiff’s
daily routine, which included a nightly swim. She remained
there, lying “in ambush” and hoping to get plaintiff arrested.
Because the responding officers were uncertain of how to proceed,
they called their supervisor, Sergeant Perez, who arrived and
“ordered [p]laintiff arrested—without even talking to him[.]”
6
(Underscoring omitted.) Plaintiff was arrested with his bail set
at $20,000.
On August 22, 2023, the City Attorney “filed three felony
charges” (boldface omitted) against plaintiff. When plaintiff
appeared to answer the charges, the trial court advised him that
the sentence on each count was one year, and the prosecutor
offered a plea deal. Plaintiff, however, refused the deal and the
court’s offer to continue the trial.
On August 29, 2023, after his family posted bail, plaintiff
was released. That same day, he requested discovery from
Deputy City Attorney Andre Castellanos. Castellanos responded
by providing body worn camera videos of plaintiff’s second arrest.
On August 31, 2023, plaintiff replied by reminding Castellanos of
plaintiff’s other discovery demands and requesting further
information. When Castellanos did not respond, the trial court
ordered a response in writing.
On September 13, 2023, Deputy City Attorney Castellanos
sent plaintiff an email in which he advised that, based on his
review of the evidence, the City had decided to move to dismiss
the case. Castellanos also advised plaintiff that he had “spoke[n]
to the victim” and wished to put plaintiff “on notice that both
protected people, [Salinas] and Greek, work at LA Fitness. If you
go to that location you may be arrested and charged for violating
the civil restraining order … .” Plaintiff responded that same
night, insisting that the case should not be dismissed and
demanding a jury trial. The next day, at the continued court
hearing, Castellanos informed the trial court that the City would
dismiss the charges.
7
B. Demurrer Proceedings
1. Demurrer
On October 18, 2024, the City filed a demurrer to the
complaint, arguing that (1) plaintiff failed to comply with the
Claims Act; (2) the City and its individual prosecutors were
immune from the malicious prosecution and defamation claims;
(3) plaintiff’s claims were barred by the applicable statutes of
limitations; (4) the City could not be held liable for punitive
damages; (5) because plaintiff was convicted of disturbing the
peace in the vandalism case, the City could not be liable for
maliciously prosecuting that claim; and (6) because the trial court
in the vandalism case had issued a valid arrest warrant, the City
could not be liable for false arrest as to the April 29, 2022, arrest.
The City supported its demurrer with a request for judicial
notice of the trial court docket for the vandalism case, number
1CJ03589, which reflected the following facts. On November 16,
2021, based on an incident that occurred on June 29, 2021, the
Los Angeles City Attorney filed a complaint charging defendant
with two misdemeanors—vandalism in violation of section 594,
subdivision (a) and violation of a protective order under section
273.6, subdivision (a).
At the December 7, 2021, arraignment, defendant failed to
appear and a warrant for his arrest was issued setting bail at
$25,000.
On May 4, 2022, plaintiff, who was then in custody based
on the warrant, was scheduled to appear for further proceedings
in the vandalism case, but because he was a miss out, the trial
court continued the matter for arraignment to the next day and
issued a remand order.
8
On May 5, 2022, plaintiff appeared for arraignment,
pleaded not guilty on both counts, and the trial court ordered him
released on his own recognizance.
On May 31, 2022, based on a plea agreement, the
prosecution moved to amend the complaint against defendant to
add count 3, disturbing the peace in violation of section 415.
Plaintiff pleaded no contest to count 3, and the trial court found
him guilty and dismissed counts 1 and 2 in the interest of justice
pursuant to section 1385.
2. Plaintiff’s Opposition
Plaintiff filed an opposition to the demurrer that began by
requesting a continuance of the hearing based on the City’s
allegedly evasive or incomplete discovery responses. Plaintiff
next argued that (1) he complied with the Claims Act by filing a
late claim against the City which was rejected, a fact the City
was concealing by its evasive discovery responses, and the City
“had substantive knowledge about [p]laintiff’s claims [from his
prior action against it], and it should be estopped from denying
his right to sue” (underscoring omitted); (2) the City and its
employees did not have absolute immunity from suit; and (3) the
City was misleading the trial court by asserting that plaintiff’s
April 2022 arrest was made pursuant to a valid warrant.
In support of his opposition, plaintiff filed a declaration7
stating the following facts. Plaintiff had earlier filed a complaint
against the City, case number 23STCV27860, that was then
7 Plaintiff’s declaration in support of his opposition to the
demurrer did not attach any exhibits and he did not file a request
for judicial notice in support of his opposition.
9
consolidated with his previous action against the individual
defendants, case number 22STCV22239. In that consolidated
action, the City propounded extensive written discovery, to which
plaintiff responded, but the City did not raise any issue about the
Claims Act. The City also offered to settle but stated that it first
needed to depose the individual defendants to be “better informed
about the settlement amount.”
According to plaintiff, he “filed a claim on the [C]ity, which
was rejected as late.” Plaintiff “then immediately wrote the
[C]ity that, due to [his] severe medical situation, [he] should be
entitled to … relief from the deadline—which [plaintiff] denied,
because of the proceedings in case [number] 23STCV27860.” “As
to his request for late filing[,] the [C]ity claim[ed] that [it ‘did] not
have sufficient information’… [.]” In his “request to [the City to]
admit [the] genuineness of 116 documents, [plaintiff] attached a
copy of all those [claim-related] documents, but the [C]ity only
acknowledged their letter to [him], that [his] claim was late ... [.]”
3. City’s Reply
In its reply, the City opposed plaintiff’s request to continue
and argued that additional discovery was not relevant to the
limited issues raised by the demurrer.
On the Claims Act issue, the City reiterated that plaintiff
had failed to plead compliance with the Act and, in the event the
trial court granted plaintiff leave to amend to cure that pleading
defect, requested that he be ordered to attach to his amended
pleading the documents showing compliance with the Act.
10
C. Anti-SLAPP Proceedings
1. Motion and Evidence
On November 1, 2024, the individual defendants filed their
anti-SLAPP motion. They argued that plaintiff’s claims were
based on their statements “made in the [request for the civil
restraining order], pleadings in [an unlawful detainer action filed
against them by plaintiff’s family business], reports to the police
about [plaintiff’s] repeated violations of the [civil restraining
order], or the filing of [their] habitability lawsuit against Shlomo
Botach.” According to the individual defendants, all of that
activity constituted protected speech or petitioning activity under
the anti-SLAPP statute.
The individual defendants also argued that plaintiff could
not prevail on his claims based on conduct that pre-dated
August 13, 2022, because (1) the ruling on the anti-SLAPP
motion in plaintiff’s first case against the individual defendants
had determined that all alleged activity that occurred before
June 28, 2022, had been determined to be protected activity;
(2) the prior ruling collaterally estopped plaintiff from pursuing
claims based on conduct that preceded June 28, 2022; and
(3) claims based on conduct that occurred prior to August 13,
2022, were barred by the statute of limitations.
The individual defendants also argued that any claims
based on conduct that occurred after the first anti-SLAPP ruling
were barred because “the police reports that [led] to [plaintiff’s]
arrest on … August 18, 2023[,] and [the individual d]efendants[’]
filing their civil habitability case in December 2023 [were] clearly
protected activities under [s]ection 425.16.”
11
Finally, the individual defendants argued that plaintiff
could not show a probability of prevailing on the merits because
his claims were based on the individual defendants’ “statements
to the police and court filings” which were privileged under Civil
Code section 47, subdivision (b).
In her declaration8 in support of the anti-SLAPP motion,
Salinas testified that plaintiff was her ex-boyfriend. They lived
together for five years but she moved out of his apartment in
June 2021. She had two children from a previous relationship
who currently lived with her at a property which was owned by
plaintiff’s family business. Because no certificate of occupancy
for a residential dwelling unit at the property address had been
issued, her apartment was an illegal unit for which rent could not
be charged.
On June 29, 2021, at around 2:00 a.m., Salinas was at her
apartment watching television with Melissa in the living room
and Greek was in his bedroom. Plaintiff had been texting and
calling Salinas for several days saying he wanted to talk. But she
repeatedly told him she did not want to speak with him and said
she was in the hospital so that he would not come to their
apartment. Plaintiff, however, discovered that Salinas was not in
the hospital and came to their apartment unannounced.
Plaintiff kicked and banged on the front door and
demanded that they allow him to enter. When the individual
8 In support of the special motion to strike, the individual
defendants submitted a request for judicial notice which
contained certain exhibits, including Salinas’s declaration from
plaintiff’s prior action against them. These facts are taken from
that declaration. Salinas also filed a declaration in this action
which, among other things, authenticated her declaration in the
prior action.
12
defendants refused to open the door, plaintiff went to the side
window and shattered it. He then screamed, “‘I’m going to kick
you guys out of the house! Where is your mom? Your mom needs
mental health help. Come out to talk to me and if you don’t, the
three of you will be a problem.’”
Greek recorded the incident on his phone. Salinas “was
terrified and hid behind the couch.” She stayed quiet “out of fear
[plaintiff] would come in and hurt [her] and [her] children.”
When Melissa called the police, plaintiff overheard the call
and began walking down the stairs. Salinas believed plaintiff
left, but he was hiding at the bottom of the stairs listening to her
talk to her children. He then ran back up the stairs and said, “‘If
your mom doesn’t come out, there will be a problem. Something
will happen to your mom tomorrow!’” Salinas told Greek not to
open the door because she did not know what plaintiff would do.
They waited inside the apartment for the police to arrive. They
could see plaintiff outside taking photos of the apartment and
their car. When plaintiff heard police sirens, he fled.
The police arrived, took Salinas’s statement, and called a
judge who issued an emergency protection order that expired on
July 6, 2021. The police also gave Salinas a copy of an
investigative report and recommended that she obtain a
temporary restraining order.
On July 9, 2021, Salinas obtained a temporary restraining
order in case number 21STRO03448. And, after a hearing on
August 2, 2021, the trial court issued the civil restraining order
against plaintiff.
On August 27, 2021, plaintiff’s family filed an unlawful
detainer action in case number 21STUD02127, seeking
possession of the property. Because the individual defendants
13
were not named in the complaint, Greek intervened by filing a
“prejudgment claim of right to possession.”
Following the entry of the civil restraining order, Salinas
and her children called the police on several occasions due to
plaintiff’s repeated violations of it, including on April 27, 2022,
April 30, 2022, and June 28, 2022.
In June and July 2023, Salinas and her children also
“contacted the police on more than one occasion because [they]
observed [plaintiff] was in violation of the [civil restraining
order].”
According to Salinas, she had never made false statements
to the police or in any of the restraining order documents that she
filed against plaintiff.
The individual defendants’ anti-SLAPP motion included a
request for judicial notice that contained copies of other
complaints filed by the parties, or related parties, and subsequent
filings from those actions discussed below, as well as Salinas’s
July 8, 2021, request for the civil restraining order, the August 2,
2021, civil restraining order, and the May 31, 2022, criminal
restraining order.
2. Plaintiff’s Opposition and Evidence
In his opposition, plaintiff argued that Salinas’s declaration
from the previous action was limited to events surrounding his
first arrest and was therefore irrelevant to his “main” claims,
which were based on the August 18, 2023, arrest. He also argued
that the individual defendants’ res judicata defense based on the
anti-SLAPP ruling in the previous action was meritless because
that action was not final and he intended to appeal from the anti-
SLAPP ruling. And he argued his evidence showed that the
14
individual defendants’ reports to the police were false and
malicious and therefore not protected activity.
In his declaration in support of his opposition to the anti-
SLAPP motion, plaintiff stated that his “acquittals in the two
criminal cases filed against [him] prove[d] that [the individual
d]efendants [had] abused the right to call the police. Their sole
aim was … to keep on living free in two properties that they [had]
taken over, without ever paying rent, or utilities.”9
As to the August 18, 2023, incident that led to his second
arrest, plaintiff testified that he went swimming that evening at
his LA Fitness club and was detained by police officers as he was
leaving the club. They had been called by Salinas, who was not
at the club when she called the police, but falsely told the police
that plaintiff had violated a protective order by coming to “‘her
place of employment.’” The police officers told defendant that
they were aware of his earlier arrest in June, but did not know
what to do because Salinas was “‘adamant to get [him]
arrested[.]’” He was then “arrested for [five] days[] because the
biased police [S]ergeant … Lopez decided to believe [the
individual d]efendants … .” He also testified that “to this day [he
has] nightmares, [and he gets] scared when [he] see[s] a police
car.”
9 Although plaintiff references his “acquittals,” the exhibits
attached to his declaration as well as the record before the trial
court on the demurrer, demonstrate that in May 2021, plaintiff
was convicted of one count and the prosecution dismissed the
other two. Further, the record includes no reference to any
charges being filed or dismissed following his August 18, 2023,
arrest. The complaint, however, alleged that the City Attorney
dismissed the charges pending against plaintiff.
15
According to plaintiff, the “main allegation in [his]
complaint [was] that [individual d]efendants repeatedly lie[d] to
the police, and that on [August 18, 2023,] they audaciously
disregarded [the trial court’s] order and warning to them[] that
they must not harass [him] when [he was swimming at his club].
This major allegation … [had] no reference in [individual
d]efendants[’] motion, therefore their motion should be dismissed
… .”
Plaintiff attached to his declaration five documents. The
first was a police crime report for the April 30, 2022, incident
noting that the responding officers’ “investigation revealed
neither party intentionally violated the restraining order [on
April 30, 2022,] due to sharing a common area.” The report went
on to note that “[t]he victim then provided a report … that was
taken on April 28, 2022[,] for violation of a protective order.
According to the victim, on April 27, 2022[,] at approximately
2200 hours the suspect showed up outside of the victim’s work
located at 1801 [South La Cienega Boulevard] in violation of the
court order. [¶] Officer[s] verified the restraining order was
valid. The victim directed officers to the suspect and positively
identified the suspect … . [¶] Officer[s] detained the suspect
without incident. The suspect made [a] spontaneous [admission]
that he saw the victim on April 27, 2022. He stated he was just
going to the LA Fitness located at 1833 [South La Cienega] when
he observed the victim. The suspect believe[d] he was set up by
the victim and the victim’s children, due to the victim wanting
money.”
The second document was a May 24, 2022, letter to plaintiff
from the City Attorney’s office stating, “After review, our office
declined to file criminal charges. However, the case can be re-
16
opened and filed any time prior to the expiration of the applicable
statute of limitations.”
The third document was the trial court’s criminal case
summary for case number “LAC1CJ03589” filed on November 16,
2021, indicating that on May 31, 2022, the trial court dismissed
the two charged counts for violation of sections 594, subdivision
(a) and 273.6, subdivision (a), but found plaintiff guilty on the
lesser offense of violating section 415.
The fourth document was a copy of the criminal protective
order issued by the trial court on May 31, 2022, requiring
plaintiff to stay at least 10 feet away from Salinas.
The fifth document was a copy of an email exchange
between plaintiff and Deputy City Attorney Ethan Greene on
June 8, 9, and 29, 2022. During that exchange, plaintiff
reminded Greene that “[t]he judge asked you to call [Greek] and
put him on notice that (1) he is no longer in the [restraining
order]; (2) I can walk by ‘their’ house; and (3) I can go swimming
even if they are there. You told me you told him all that. Please
do that again.” Greene responded, “I have informed [Salinas] and
Greek of what the judge asked me to explain. They were sent a
copy of the restraining order from our case. So were the police.
At this point, the criminal case is concluded and my role in the
matter has ceased.”
3. Individual Defendants’ Reply
In their reply, the individual defendants argued that the
trial court in the previous action against them had granted their
special motion to strike all claims in the complaint that pre-dated
June 22, 2022, and plaintiff therefore was barred from
relitigating them in this action. They also argued that any
17
claims based on conduct that occurred prior to August 13, 2022,
were time-barred. And, they maintained that all the alleged
claims that post-dated August 13, 2022, were based on protected
activity and plaintiff could not show a probability of success on
them because they were barred as a matter of law by the
litigation privilege in Civil Code section 47, subdivision (b).
D. Hearing On Demurrer and Anti-SLAPP Motion
On February 25, 2025, the trial court held a hearing on the
City’s demurrer and the individual defendants’ anti-SLAPP
motion and then took each matter under submission. The next
day, it issued an order sustaining the demurrer without leave to
amend and granting the anti-SLAPP motion to the entire
complaint.
1. Demurrer
On the issue of compliance with the Claims Act, the trial
court explained that “[plaintiff] argues that he served a claim on
the City pursuant to the [Claims Act], but it was rejected as late
and his request to file the notice late was also denied.” The court
concluded that, although his attempt to file the claim “could
constitute substantial compliance,” plaintiff failed to offer any
support for that statement.
The trial court also ruled that all of plaintiff’s claims based
on his first arrest were barred by the statute of limitations, but
that claims based on his second arrest on August 18, 2023, were
not time barred.
Finally, the trial court concluded that each of plaintiff’s
remaining claims failed to state a cause of action.
18
2. Anti-SLAPP Motion
On the first prong of its analysis of the special motion to
strike, the trial court found that “the allegations in the complaint
arise from protected activity. The activity of initiating and
maintaining requests for domestic violence restraining orders is
protected under the anti-SLAPP statute. (See [S.A. v. Maiden]
(2014) 229 Cal.App.4th 27, 35.) Further, ‘the making of allegedly
false police reports also can be protected petitioning activity
under the first prong of the anti-SLAPP statute if the falsity of
the report is controverted.’ ([Kenne v. Stennis] (2014) 230
Cal.App.4th 953, 966 [(Kenne)].)”
On the second prong, the trial court concluded that plaintiff
had “failed to demonstrate probability of success for any of his
causes of action and [had] fail[ed] to address [the individual
defendants’] argument that the causes of action are barred by the
litigation privilege.” According to the court, “statements made in
seeking or maintaining a restraining order and calling the police
constitute a writing or communication that has a direct relation
to a judicial proceeding by a litigant authorized by law to achieve
the objectives of the litigation and has a logical relation to the
action. [Plaintiff] fails to cite any opposing authority or
otherwise present any arguments refuting the applicability of
litigation privilege. [¶] Furthermore, [plaintiff] has provided no
admissible evidence to demonstrate probability of success on the
merits for any of his causes of action, nor has he provided any
argument concerning the merits of each cause of action. [His]
conclusory statements are insufficient.”
The trial court therefore granted the anti-SLAPP motion.
19
III. DISCUSSION
A. Demurrer
On the demurrer ruling, plaintiff contends the trial court
erred by (1) refusing to continue the matter to allow for discovery;
(2) ignoring his evidence of a late-filed claim; (3) accepting false
evidence that he was arrested pursuant to a warrant; and
(4) ignoring the requirements of the Bane Act.10
1. Standard of Review
We review a trial court’s ruling on a demurrer de novo.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “In reviewing the
sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as
admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.]
We also consider matters which may be judicially noticed.’
[Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context. [Citation.]” (Ibid.)
10 The Tom Bane Civil Rights Act (Civ. Code, § 52.1 et seq.).
“Any arrest without probable cause involves coercion, and where
accompanied by evidence of specific intent to violate the
arrestee’s Fourth Amendment rights, such an arrest may provide
the basis for a Bane Act claim.” (Schmid v. City and County of
San Francisco (2021) 60 Cal.App.5th 470, 483.)
20
2. Claims Act
“Before suing a public entity, the plaintiff must present a
timely written claim for damages to the entity. (Gov. Code,
§ 911.2; State of California v. Superior Court (Bodde) (2004) 32
Cal.4th 1234, 1239 (Bodde); [citation].) … [¶] Timely claim
presentation is not merely a procedural requirement, but is, as
this court long ago concluded, ‘“‘a condition precedent to
plaintiff’s maintaining an action against defendant’”’ (Bodde,
supra, 32 Cal.4th at p. 1240, quoting Williams v. Horvath (1976)
16 Cal.3d 834, 842), and thus an element of the plaintiff’s cause
of action. (Bodde, supra, [32 Cal.4th] at p. 1240.) Complaints
that do not allege facts demonstrating either that a claim was
timely presented or that compliance with the claims statute is
excused are subject to a general demurrer for not stating facts
sufficient to constitute a cause of action. (Bodde, supra, [32
Cal.4th] at p. 1245.)” (Shirk v. Vista Unified School Dist. (2007)
42 Cal.4th 201, 208–209.) “A claim relating to a cause of action
… for injury to person … shall be presented ... not later than six
months after the accrual of the cause of action.” (Gov. Code,
§ 911.2, subd. (a).)
3. Analysis
Plaintiff does not dispute that his complaint did not allege
he timely filed a claim with the City, as required by the Claims
Act. Indeed, he concedes that he did not timely file a claim but
contends that he provided an explanation for his late-filed claim,
without reciting the date on which he filed the purported late
claim. He also contends that because of his prior litigation, the
City “had substantive knowledge about [his] claims and [was]
21
therefore estopped from denying [his] right to sue the [C]ity for
the trauma [it] had caused [him] on [August 18, 2023.]” (Boldface
omitted.)
As to the conclusory assertion in his opposition declaration
that he filed a late claim with a valid medical excuse for his
delay, plaintiff did not request leave to amend his complaint to
include that allegation and he did not request judicial notice of
any documents from which the trial court could have inferred on
demurrer that a late claim had been filed and that it should have
been accepted by the City. The bare assertion in his opposition
declaration that he filed a late claim, without specifying the date
it was filed or the date upon which the City rejected it, was
insufficient to cure the pleading defect in his complaint.
As to plaintiff’s contention that the City should be estopped
from arguing that his causes of action for damages were barred
by the Claims Act, he does not provide any analysis for his
contention. His failure to explain his position or provide
authority for it waives the point on appeal. (Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Although plaintiff’s claim for declaratory relief is not
barred by the Claims Act, he does not raise any argument as to
why that claim survives demurrer. The trial court concluded that
plaintiff’s request for declaratory relief did not seek any relief
that would be available under that equitable remedy.
Code of Civil Procedure section 1060 authorizes declaratory
relief for an “actual controversy” relating to the rights of parties.
It is designed to operate prospectively to declare future rights—
not to provide redress for past wrongs. (Babb v. Superior Court
(1971) 3 Cal.3d 841, 848; Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 909 [“[T]he remedy is to be used in
22
the interests of preventive justice, to declare rights rather than
execute them”].) “‘The “actual controversy” language in Code of
Civil Procedure section 1060 encompasses a probable future
controversy relating to the legal rights and duties of the parties.
[Citation.]’ [Citation.] It does not embrace controversies that are
‘conjectural, anticipated to occur in the future, or an attempt to
obtain an advisory opinion from the court.’ [Citation.] Thus,
while a party may seek declaratory judgment before an actual
invasion of rights has occurred, it must still demonstrate that the
controversy is justiciable. [Citation.] And to be justiciable, the
controversy must be ripe. [Citation.]” (Wilson & Wilson v. City
Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.)
Here, plaintiff sought a declaration requiring the City to:
“review its regulations which hinder the ability of real estate
owners to evict squatters;” “issue orders to the police, forbidding
immediate handcuffing and detainment of men accused of
[restraining order violations;]” “review its regulations to make
sure prosecutors have clear factual basis before filing criminal
charges, and that their decisions are supervised;” “scold[ ]” the
individual defendants; update the status of restraining orders in
police systems; and review Sergeant Perez and Deputy City
Attorney Castellanos’s conduct and fire them. Plaintiff also
sought to “offer his deep appreciation” to one of the trial judges
and two police sergeants.” Because plaintiff’s declaratory relief
cause of action seeks relief in the nature of a mandatory
injunction to remedy allegations of past wrongs, and not a
declaration of rights with respect to an actual controversy to
avoid a probable future controversy, the court did not err in
sustaining the demurrer to that claim.
23
Finally, plaintiff argues that the trial court violated his
right to a fair trial by refusing to continue the demurrer hearing
so he could compel discovery from the City that it had refused to
provide. The discovery plaintiff references, as reflected in his
correspondence with the City, concerned the arrest warrant and
the issue of probable cause for his arrest. It did not relate to the
late-filed claim and, even assuming plaintiff had propounded
such discovery, plaintiff does not assert that, without responses
to that discovery, he lacked access to a copy of his own late claim
or the City’s response. Because the trial court’s consideration of
the demurrer was limited to the well-pleaded allegations of the
complaint and any documents of which the court took judicial
notice, the court did not abuse its discretion by denying the
continuance on the ground that the requested discovery was not
relevant to its determination of the demurrer.
B. Anti-SLAPP Motion
On the anti-SLAPP motion, plaintiff contends (1) the
individual defendants’ arguments and supporting evidence
ignored “the main part of [his] complaint”—the evidence of his
false arrest on August 18, 2023, based on the individual
defendants’ misrepresentations—which therefore “rendered their
motion baseless;” and (2) his verified complaint, opposition
declaration, and exhibits constituted the necessary prima facie
support for his claims.
1. Anti-SLAPP Procedure
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
24
arises from activity protected by section 425.16. [Citation.]”
Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The court
considers the elements of the claim and the acts of the defendant
satisfying those elements that form the basis for liability. (Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).)
“The defendant’s burden is to identify what acts each challenged
claim rests on and to show how those acts are protected under a
statutorily defined category of protected activity. [Citation.]”
(Ibid.; see Baral, supra, 1 Cal.5th at p. 396 [“At the first step, the
moving defendant bears the burden of identifying all allegations
of protected activity, and the claims for relief supported by
them”].)
“If the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success.” (Baral, supra, 1 Cal.5th at
p. 384.) “To succeed in opposing a special motion to strike, the
nonmoving party must ‘demonstrate both that the claim is legally
sufficient and that there is sufficient evidence to establish a
prima facie case with respect to the claim.’ [Citation.] ‘[C]laims
with the requisite minimal merit may proceed.’ [Citation.] The
moving party prevails by ‘defeat[ing]’ the ‘claim as a matter of
law’ [citation] in ‘a summary-judgment-like procedure’ [citation].”
(Olson v. Doe (2022) 12 Cal.5th 669, 679.) “As to the second step,
a plaintiff seeking to demonstrate the merit of the claim ‘may not
rely solely on its complaint, even if verified; instead, its proof
must be made upon competent admissible evidence.’” (Monster
Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (Monster
Energy Co.).) We review the trial court’s order de novo.
(Sweetwater Union High School Dist. v. Gilbane Building
Company (2019) 6 Cal.5th 931, 940.)
25
2. Prong One: Protected Activity
On appeal, plaintiff limits his arguments concerning
protected activity to the facts and circumstances of his second
arrest on August 18, 2023. As to his allegations concerning
events that occurred prior to that arrest, including the petition
for the civil restraining order and his first arrest, he now
maintains that they should be considered “incidental” under
Baral, supra, 1 Cal.5th 216 and were included in his complaint
merely to provide context to the individual defendants’ actionable
conduct with respect to his second arrest. We therefore confine
our analysis of whether his claims arose from protected activity
to the allegations describing his August 18, 2023, arrest.
According to plaintiff, the individual defendants’ actionable
conduct in relation to the second arrest consisted of two false
statements Salinas made to police at the LA Fitness club on
August 18, 2023: (1) she had obtained a valid and enforceable
protective order against plaintiff preventing him harassing the
individual defendants, including at their place of employment;
and (2) she and Greek were employed at the LA Fitness club.11
As to those statements, he argues that Salinas’s opposition
declaration did not provide sufficient facts to controvert his
verified allegations that the statements were false.
11 In his opening brief, plaintiff contends that the individual
defendants “told the cops that there [was] a restraining order
that forbids [him] from coming to their place of employment, and
they are employees of that club. [¶] Salinas lied! Maliciously!”
(Boldface and capitalization omitted.) Plaintiff’s declaration,
however, supports only a finding that Salinas called and spoke to
the police.
26
Salinas’s alleged wrongful conduct in making a police
report is protected activity under section 425.16, subdivision
(e)(1). (Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.)
Further, allegations that a defendant made a false statement to
the police are not excluded from anti-SLAPP protection, as a
matter of law, under Flatley v. Mauro (2006) 39 Cal.4th 299, 321,
unless the falsity of the report is uncontroverted. (Kenne, supra,
230 Cal.App.4th at p. 967.)
Here, plaintiff’s allegation that Salinas made false
statements to police on August 23, 2023, were controverted by
Salinas’s declaration in support of the anti-SLAPP motion. In
paragraph 2 of that declaration, she stated, “I have never made
false statements to the police regarding my observations that
[plaintiff] was in violation of the [civil restraining order] that I
obtained against him.” Accordingly, the individual defendants
met their first prong burden to demonstrate that plaintiff’s
allegation regarding the August 18, 2023, police report arose
from protected activity within the meaning of the first prong of
the anti-SLAPP statute.
3. Prong Two: Probability of Success
As explained, on appeal, plaintiff has limited the alleged
conduct on which his claims are based to the facts and
circumstances surrounding his second arrest on August 18, 2023,
and, specifically, to the two false statements Salinas allegedly
made to police at the LA Fitness club advising responding officers
that she had a valid protective order prohibiting defendant from
harassing her—including at her place of employment—and that
she was employed at the club. We therefore independently
review the record to determine whether plaintiff satisfied his
27
prima facie burden under the second prong of the anti-SLAPP
procedure in light of the evidence produced as to those two
statements.
a. Litigation privilege
The individual defendants contend that plaintiff cannot
demonstrate his claims have minimal merit because each is
barred by the litigation privilege set forth at Civil Code section
47, subdivision (b), which, according to the individual defendants,
is an “‘absolute’” privilege that “‘even covers false and malicious
statements.’” We disagree.
“‘The privilege in [Civil Code] section 47[, subdivision (b)] is
“relevant to the second step in the anti-SLAPP analysis in that it
may present a substantive defense plaintiff must overcome to
demonstrate a probability of prevailing. [Citations.]” [Citation.]’
[Citation.] [¶] The Supreme Court has stated, ‘The litigation
privilege, codified at Civil Code section 47, subdivision (b),
provides that a “publication or broadcast” made as part of a
“judicial proceeding” is privileged. … [Citation.] “The usual
formulation is that the privilege applies to any communication
(1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that [has] some connection or logical
relation to the action.” [Citation.] The privilege “is not limited to
statements made during a trial or other proceedings, but may
extend to steps taken prior thereto, or afterwards.” [Citation.]’
[Citation.]” (Kenne, supra, 230 Cal.App.4th at pp. 963–964.)
Section 47, subdivision (b)(5), which became effective in
2021, provides: “This subdivision does not make privileged any
communication between a person and a law enforcement agency
28
in which the person makes a false report that another person has
committed, or is in the act of committing, a criminal act or is
engaged in an activity requiring law enforcement intervention,
knowing that the report is false, or with reckless disregard for the
truth or falsity of the report.” Thus, by its express terms,
subdivision (b)(5) carves out from the litigation privilege
knowingly false or recklessly made police reports.
In his declaration in opposition to the motion to strike,
plaintiff testified that he had been a member of his club for 25
years and swam there nightly. He also submitted: (1) his email
asking Deputy City Attorney Greene to call Greek and advise
him that plaintiff was permitted to swim at his club even if the
individual defendants were “there;” and (2) Greene’s response
that he “informed [Salinas] and Greek of what the judge asked
[him] to explain” and provided them with a copy of the criminal
protective order. Plaintiff also testified that Salinas was
employed at an office building one block from plaintiff’s club and
that she was not an employee of the LA Fitness club. Further,
one of plaintiff’s exhibits, a police report from April 22, 2022,
stated that Salinas reported working at 1801 South La Cienega
Boulevard and that plaintiff’s club was located at 1833 South La
Cienega Boulevard. Finally, plaintiff testified that he was
arrested at his club for being present at Salinas’s place of
employment and that the arresting officer advised him that
Salinas was adamant that he be arrested for that violation of the
protective order.
Plaintiff’s evidence supported an inference that on
August 18, 2023, Salinas knew from the City Attorney’s advice
that plaintiff was allowed to swim at his club notwithstanding
the original civil restraining order. It also supported an inference
29
that Salinas was not an employee of the club on August 18, 2023,
which plaintiff would have known based on his 25 years of
membership at the club, his prior dating relationship with
Salinas, and his knowledge that Salinas worked at a different
location near the club. Based on that evidence, a reasonable
person could have inferred that Salinas’s purported statements to
the police that she had a valid restraining order against plaintiff
that prohibited him from harassing her at her place of
employment and that she was employed at the club that night
were knowingly false.
In response to plaintiff’s evidence, Salinas submitted a
declaration that did not mention her understanding of the terms
of the protective order in place as of August 18, 2023, or confirm
that she was an employee of the club and was working there on
the night of plaintiff’s arrest. Instead, Salinas declared generally
that she had never made false statements “to the police regarding
[her] observations that [plaintiff] was in violation of the [civil
restraining order] that [she had] obtained against him.” On this
record, we conclude that plaintiff met his low burden to
demonstrate that the litigation privilege did not bar his claims
based on his August 18, 2023, arrest. (Monster Energy Co.,
supra, 7 Cal.5th at p. 793 [“[A] plaintiff’s burden at the second
anti-SLAPP step is a low one, requiring only a showing that a
cause of action has at least ‘minimal merit within the meaning of
the anti-SLAPP statute’”].) We therefore next consider whether
plaintiff submitted sufficient evidence to demonstrate that each
of his claims had minimal merit.
30
b. Malicious Prosecution
Plaintiff’s first cause of action was for alleged
“antisemitism; racism; violation of constitutional rights; false
arrest; malicious prosecution” (boldface and capitalization
omitted). The allegations regarding all but the malicious
prosecution claim were based on the conduct of City employees
and therefore not directed at any conduct by the individual
defendants. Further, given plaintiff’s contention on appeal that
his claims are premised entirely on Salinas’s false August 18,
2023, statements to the police, we do not consider whether
plaintiff could demonstrate a probability of prevailing on any
claims based on other conduct or against the other two individual
defendants.
“The tort [of malicious prosecution] consists of three
elements. The underlying action must have been: (i) initiated or
maintained by, or at the direction of, the defendant, and pursued
to a legal termination in favor of the malicious prosecution
plaintiff; (ii) initiated or maintained without probable cause; and
(iii) initiated or maintained with malice.” (Parrish v. Latham &
Watkins (2017) 3 Cal.5th 767, 775.) Termination in favor of the
plaintiff is an essential element of the tort of malicious
prosecution, and the requirement is strictly enforced. (Cox v.
Griffin (2019) 34 Cal.App.5th 440, 450.) “The core concept is that
the termination must reflect on the merits of the prior action.”
(Ibid.) “‘The theory underlying the requirement of favorable
termination is that it tends to indicate the innocence of the
accused, and coupled with the other elements of lack of probable
cause and malice, establishes the tort [of malicious prosecution].’”
(Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341.)
31
Here, plaintiff did not submit any evidence to demonstrate
that the City Attorney or any prosecuting agency dismissed any
charges filed against plaintiff following his August 18, 2023,
arrest, much less that the dismissal was based on a finding that
plaintiff was innocent of the charges. (See Jaffe v. Stone (1941)
18 Cal.2d 146, 150 [a dismissal of criminal proceedings, for any
reason “not inconsistent with [plaintiff’s] guilt … does not
constitute a favorable termination”].) Accordingly, plaintiff did
not demonstrate that he had a probability of prevailing on his
first cause of action for malicious prosecution. Although plaintiff
alleged in his complaint that Deputy City Attorney Castellanos
sent him an email on September 13, 2023, advising him that he
would move to have the charges dismissed, plaintiff may not rely
solely on the allegations in his complaint to meet his second
prong burden. (Monster Energy Co., supra, 7 Cal.5th at p. 788.)
In any event, even if plaintiff had submitted a declaration
attesting to this exchange, plaintiff could not demonstrate that
the dismissal was based on a finding that plaintiff was innocent
of the charges.12
c. Defamation
The elements of defamation include: “‘“(a) a publication
that is (b) false, (c) defamatory, and (d) unprivileged, and that (e)
has a natural tendency to injure or that causes special damage.”
[Citation.]’ (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)[Footnote
12 As we note above, despite plaintiff’s reference to “two
acquittals,” the complaint and the record on appeal do not
support a finding that plaintiff was acquitted of any charges
following his two arrests.
32
omitted.] ‘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. Publication need not be to the “public” at large;
communication to a single individual is sufficient.’ (Smith v.
Maldonado (1999) 72 Cal.App.4th 637, 645 (Smith).)” (Sanchez v.
Bezos (2022) 80 Cal.App.5th 750, 763.)
Plaintiff submitted evidence that on August 18, 2023,
Salinas made a false statement to a third party, the police. He
also submitted evidence that the statement was false, that is,
Salinas falsely stated she worked at plaintiff’s club and that
plaintiff violated the civil protective order by visiting that club.
For the reasons we explain above in our discussion of the
inapplicability of the litigation privilege, we conclude plaintiff
submitted sufficient evidence to make a prima facie showing that
the statements were not subject to the Civil Code section 47
litigation privilege. Finally, because the statements falsely
alleged that plaintiff had committed a crime, they constituted
slander per se and relieved plaintiff from the burden of providing
any additional proof of damages. (Civil Code, § 46; Regalia v. The
Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) Plaintiff
therefore demonstrated that his defamation claim against
Salinas had minimal merit and the trial court erred when it
struck that claim.
d. Emotional Distress
Plaintiff alleged a cause of action entitled “severe emotional
distress” which we construe as a claim for intentional infliction of
emotional distress. “The elements of a cause of action for
intentional infliction of emotional distress are: ‘“(1) outrageous
33
conduct by the defendant, (2) intention to cause or reckless
disregard of the probability of causing emotional distress,
(3) severe emotional suffering and (4) actual and proximate
causation of the emotional distress.”’” (Wong v. Jing (2010) 189
Cal.App.4th 1354, 1376.)
On this record, we conclude that plaintiff’s evidence
demonstrating that Salinas came to plaintiff’s LA Fitness club on
August 18, 2023, as she had done in the past, to entrap him by
making a knowingly false statement to the police that he had
violated the terms of a protective order was sufficient to
demonstrate that Salinas engaged in “outrageous conduct.”
(Begier v. Strom (1996) 46 Cal.App.4th 877, 884.) Further,
plaintiff alleged in his declaration that, as a result of Salinas’s
statement, he was “arrested for [five] days,” and that “to this day,
[he has] nightmares … and get[s] scared when [he] see[s] a police
car.” On this record, we conclude that plaintiff demonstrated
that his infliction of emotional distress claim against Salinas had
minimal merit.
e. Conspiracy, Fraud, Undue Enrichment
Plaintiff’s allegations regarding his cause of action for
conspiracy, fraud, and undue enrichment state that the
individual defendants conspired to take over plaintiff’s real estate
and avoid paying him rent. Although plaintiff alleged in this
cause of action that the individual defendants called 911
“whenever they saw [p]laintiff walking by his house,” he did not
testify that Salinas’s August 18, 2023, report was an act in
furtherance of the conspiracy or fraud. Given plaintiff’s
concession that his claims were premised on and limited to
34
Salinas’s August 18, 2023, conduct, we need not discuss whether
plaintiff demonstrated the minimal merits of this claim and
therefore affirm the trial court’s order striking this claim.
f. Punitive damages
“In California, it is settled there is no separate cause of
action for punitive damages. [Citation.] Instead, a claim for
punitive damages is merely an additional remedy that is
dependent on a viable cause of action for an underlying tort”].)
(569 East County Boulevard, LLC v. Backcountry Against the
Dump, Inc. (2016) 6 Cal.App.5th 426, 429, fn. 3.) Although styled
as a cause of action, plaintiff’s claim for punitive damages is more
properly construed as a prayer for relief. And, given that we
have concluded two of his tort claims, defamation and intentional
infliction of emotional distress, survive the anti-SLAPP motion,
we reverse the trial court’s order striking that prayer for relief.
(See Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1137 [“A punitive damage claim depends upon
a viable claim for compensatory damages for its vitality.
[Citation.] Here, because plaintiffs are permitted to amend their
complaint to state claims for intentional torts upon which a claim
for punitive damages may be based, the trial court erred in
striking plaintiffs’ prayer for punitive damages”].)
35
IV. DISPOSITION
The order sustaining the City’s demurrer without leave to
amend is affirmed. The order granting the individual defendants’
anti-SLAPP motion is reversed, in part, and remanded to the
trial court for further proceedings on plaintiff’s defamation and
“severe emotional distress” causes of action against defendant
Salinas only. The City is entitled to its costs on appeal. In the
interest of justice, no costs are awarded to plaintiff or the
individual defendants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
HOFFSTADT, P. J.
KUMAR, J.*
* Retired judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
36