Filed 9/29/26 Peterson v. Mojdehi CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KIM PETERSON et al., D085286
Plaintiffs and Respondents, (Super. Ct. No. 37-2020-
00024427-CU-PN-CTL)
v.
ALI MOJDEHI,
Defendant and Appellant;
BARNES & THORNBURG, LLP,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Marcella O. McLaughlin, Judge. Affirmed in part and reversed in part with
directions.
Caldarelli Hejmanowski Page & Leer, William J. Caldarelli;
Marisa Janine-Page Appeals & Litigation and Marisa Janine-Page for
Defendant and Appellant Ali Mojdehi.
Lewis Kohn & Walker and Brett M. Weaver; Law Offices of
Vatche Chorbajian and Vatche Chorbajian for Plaintiff and Respondent
Kim Peterson.
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Halpern May Ybarra Gelberg, Joseph J. Ybarra, and Dean B. Shaffer
for Defendant and Respondent Barnes & Thornburg, LLP.
Ali Mojdehi appeals the trial court’s order under the anti-SLAPP
statute (Code Civ. Proc.,1 § 425.16) granting in part and denying in part his
special motion to strike claims asserted by Kim Peterson and Kim Funding,
LLC (Kim Funding) (collectively, plaintiffs). The trial court granted
Mojdehi’s SLAPP motion as to plaintiffs’ claim for tortious interference with
economic advantage but denied it as to their claim for defamation. Mojdehi
contends that while the court correctly found plaintiffs’ defamation claim
arises from protected activity under the anti-SLAPP statute, the court erred
in finding that plaintiffs showed a probability of succeeding on their claim.
Although plaintiffs disagree with the court’s conclusion that their defamation
claim arises from protected activity, they argue that the court reached the
right result because their claim has at least minimal merit.2
We conclude that plaintiffs have forfeited their argument that their
defamation claim does not arise from protected activity by failing to contest
the rationale for the trial court’s ruling under section 425.16, subdivision
(e)(2). Even if they had not forfeited their argument, we discern no error in
the trial court’s finding that the allegedly defamatory statements were
protected activity under subdivision (e)(2) because they were made in
connection with anticipated litigation. We further conclude that plaintiffs
failed to meet their burden of establishing a probability of success on their
1 Undesignated statutory references are to the Code of Civil Procedure.
2 Plaintiffs also filed a notice of cross-appeal, but we dismissed the cross-
appeal at their request.
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defamation claim because it is barred by the litigation privilege (Civ. Code,
§ 47, subd. (b)). Accordingly, we affirm in part and reverse in part the trial
court’s order and remand the matter with directions. We need not and do not
resolve the other issues raised on appeal.3
FACTUAL AND PROCEDURAL BACKGROUND4
We repeat some of the facts summarized in our prior opinion affirming
in part and reversing in part an order denying Mojdehi’s anti-SLAPP motion
as to plaintiffs’ claims for professional negligence and breach of fiduciary
duty. (See Peterson, et al., v. Mojdehi, et al. (Sept. 27, 2022, D078461)
[nonpub. opn.].)
A. The Ponzi Scheme
Peterson and Mojdehi became friends in 2006 when they served
together on their children’s school board. From 2012 through 2014, while
Mojdehi was a partner at the law firm of Cooley LLP, Peterson hired Mojdehi
to represent him and his companies in bankruptcy matters.
In 2014, Peterson formed and managed Kim Funding LLC (Kim
Funding) to provide capital to a lending platform for liquor license applicants.
Between December 2015 and July 2019, two companies owned or managed by
members of Mojdehi’s family, L’Audace, LLC (L’Audace), and ABPS, LLC
3 We deny Mojdehi’s request for judicial notice of various documents from
other proceedings and news articles, as they are not relevant or necessary to
resolve this appeal. (Save Lafayette Trees v. East Bay Regional Park Dist.
(2021) 66 Cal.App.5th 21, 29, fn. 2.)
4 The statement of facts in plaintiffs’ respondents’ brief contains no
citations to the record in violation of California Rule of Court 8.204(a)(1)(C).
We therefore do not rely on plaintiffs’ statement of facts in our analysis. (See
Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
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(ABPS), loaned a total of over $8 million to Kim Funding for investment in
the liquor license lending platform. Peterson personally guaranteed the
loans.
Mojdehi left Cooley LLP and joined Barnes & Thornburg LLP (Barnes
& Thornburg) in April 2018. Between August 2018 and June 2019, Mojdehi
personally loaned a total of $475,000 from a retirement account to Kim
Funding for investment in the liquor license lending platform. Mojdehi
agreed to increase the amount of his loan by $150,000 in June 2019.
In August 2019, Mojdehi learned that the liquor license lending
platform was a Ponzi scheme and that its founder, Gina Champion-Cain,
had been charged with securities fraud. The Securities and Exchange
Commission froze all platform assets and ordered a receiver to conduct an
accounting. In September 2019, L’Audace, ABPS, and other entities that had
loaned money to Kim Funding for investment in the lending platform filed
involuntary petitions against Peterson and Kim Funding in the United States
Bankruptcy Court for the Southern District of California. Mojdehi and
Barnes & Thornburg represented the petitioners. Peterson, Kim Funding,
and the petitioning investors later filed joint motions with the bankruptcy
court to dismiss the petitions in February 2020.
Meanwhile in December 2019, Peterson and Kim Funding joined two
other entities in suing Chicago Title Company (Chicago Title), the escrow
company that held the lending platform’s loan funds, for fraud, negligence,
and other claims. (Kim Funding, LLC, et al. v. Chicago Title Company, et al.
(San Diego Super. Ct., 2019, No. 37-2019-00066633-CU-FR-CTL (Chicago
Title Action)).) In February 2020, Payson Stevens, another investor in the
Ponzi scheme, participated in a call with Mojdehi and Mojdehi’s son, Cyrus
Mojdehi. Stevens was not a party to the Chicago Title Action at the time.
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During the call, Mojdehi and his son tried to persuade Stevens to join a
lawsuit against Chicago Title and Peterson that some of the Kim Funding
investors, including L’Audace and ABPS, planned to bring. That suit, which
was filed a month later in March 2020, named Chicago Title, Peterson, and
others as defendants. (Levin et al. v. Chicago Title Company, et al. (San
Diego County Super. Ct., 2020, No. 37-2020-00016983-CU-MC-CTL (Levin
Action)).) Stevens later decided to join as a plaintiff in the Chicago Title
Action.
B. Mojdehi’s First Anti-SLAPP Motion
In July 2020, plaintiffs sued Mojdehi and Barnes & Thornburg for
professional negligence and breach of fiduciary duty. Plaintiffs alleged,
among other things, that Mojdehi attacked Peterson’s character and
reputation in his telephone calls with Stevens. Mojdehi and Barnes &
Thornburg filed an anti-SLAPP motion against the entire complaint, which
the trial court denied after finding that Mojdehi did not meet his burden to
show the complaint arose from protected activity. (Code Civ. Proc., § 425.16.)
Mojdehi appealed, and we remanded the matter to the trial court with
directions to enter a new order granting Mojdehi’s anti-SLAPP motion in
part as to the alleged malicious filing of frivolous involuntary bankruptcy
petitions, and otherwise denying the motion. (See Peterson, et al., v. Mojdehi,
et al., supra, D078461.)
C. Mojdehi’s Second Anti-SLAPP Motion
Following remittitur to the trial court, in March 2024 plaintiffs filed
an amended complaint adding causes of action for defamation and tortious
interference with prospective economic advantage. In this complaint,
plaintiffs allege that in his conversations with Stevens, Mojdehi “knowingly
and falsely accused Peterson of being associated with or complicit in Cain’s
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fraud.” (Boldface and italics omitted.) Plaintiffs further allege that Mojdehi
“was and/or is an officer of L’Audace LLC and/or APBS, may have contributed
money to either or both, . . . and formerly represented L’Audace.” Lastly,
plaintiffs allege Mojdehi had a financial interest in ABPS.
Mojdehi and Barnes & Thornburg filed another anti-SLAPP motion in
April 2024 arguing that both the defamation and tortious interference claims
are based on protected speech and implicate the litigation privilege, among
other things. The trial court first found that Mojdehi’s alleged statements
to Stevens were made in connection with the Levin Action and constituted
protected activity. The court then concluded that plaintiffs showed a
probability of prevailing on their defamation claim, but not their tortious
interference claim. The court therefore dismissed the tortious interference
claim, but otherwise denied Mojdehi’s motion to strike.
DISCUSSION
Mojdehi asks us to reverse the trial court’s order denying his anti-
SLAPP motion as to the defamation claim, arguing that while the court
correctly found the claim arises from protected activity, the court erred in
finding that plaintiffs showed a probability of succeeding on its claims
because: (1) plaintiffs failed to plead their claim with legal sufficiency or
provide competent evidence to substantiate the claim; (2) evidence shows
Mojdehi’s statements were substantially true or non-actionable opinion;
and (3) Mojdehi’s statements are protected by the litigation privilege.
Plaintiffs argue in response that: (1) Mojdehi’s statements do not
concern a matter of public interest under section 425.16, subdivision (e)(4);
(2) their defamation claim was sufficiently pled and supported by competent
evidence; (3) the statements did not constitute a non-actionable opinion; and
(4) the litigation privilege does not apply to Mojdehi’s statements.
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We conclude that by only presenting argument regarding section
425.16, subdivision (e)(4), plaintiffs have forfeited any argument that their
claim does not arise from protected activity under section 425.16, subdivision
(e)(2), as the trial court ruled. Notwithstanding the forfeiture, we discern no
error in the trial court’s finding that the allegedly defamatory statement
was protected activity because it was made in connection with anticipated
litigation. We further conclude that because the litigation privilege applies
to Mojdehi’s allegedly defamatory statements, plaintiffs cannot meet their
burden of establishing a probability of success on their claim. Accordingly,
we affirm in part and reverse in part the court’s order and remand the matter
with directions. We need not and do not resolve the other issues raised on
appeal.
A. Statutory Framework
The anti-SLAPP statute provides in relevant part that “[a] cause of
action against a person arising from any act of that person in furtherance of
the person’s right of petition or free speech . . . in connection with a public
issue shall be subject to a special motion to strike [anti-SLAPP motion],
unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16, subd.
(b)(1).) Ruling on an anti-SLAPP motion typically involves two steps. First,
defendants moving to strike a cause of action must show the act underlying
the claim falls within one of the four categories of protected activity listed in
section 425.16, subdivision (e). (Baral v. Schnitt (2016) 1 Cal.5th 376, 396
(Baral); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
66; Bowen v. Lin (2022) 80 Cal.App.5th 155, 160 (Bowen).)
Those four categories include: “(1) any written or oral statement or
writing made before a legislative, executive, or judicial proceeding, or any
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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)(1)–(4).)
The first two categories in subdivision (e) pertain to statements or
writings made before or in connection with an official proceeding. (§ 425.16,
subd. (e)(1), (2).) The latter two categories both require a specific showing
that the alleged action concerns a matter of public interest (id., subd. (e)(3),
(4)), while the first two categories require that the alleged action involve an
official proceeding. (Id., subd. (e)(1), (2); see Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1117–1118.)
If defendants make a sufficient showing under the first prong of the
anti-SLAPP analysis, the burden shifts to plaintiffs to show the targeted
causes of action are legally sufficient and supported by evidence that, if
credited, would sustain a judgment for plaintiffs. (Baral, supra, 1 Cal.5th at
pp. 384, 396; Bowen, supra, 80 Cal.App.5th at p. 160.) “Only a cause of action
that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and lacks even minimal merit—is a SLAPP,
subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 89; accord, Bowen, at p. 160.) We apply de novo review to the
trial court’s decision on both prongs. (Geiser v. Kuhns (2022) 13 Cal.5th 1238,
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1250; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 796; Starr v.
Ashbrook (2023) 87 Cal.App.5th 999, 1018.)
B. Analysis
In ruling on Mojdehi’s anti-SLAPP motion, the trial court first found
that Mojdehi’s alleged defamatory statements to Stevens about Peterson’s
involvement in the Ponzi scheme were made in connection with the Levin
Action and constituted protected activity under section 425.16, subdivision
(e)(2). The court explained that subdivision (e)(2) protects written or oral
statements “made in connection with an issue under consideration or review
by a legislative, executive, or judicial body.” (§ 425.16, subd. (e)(2).) It
then found that Mojdehi’s communications were made in connection with
anticipated litigation because according to the complaint, Mojdehi’s purpose
in making the statements was to enable or encourage Stevens to join the
Levin Action.
Plaintiffs’ opening brief does not address the trial court’s application
of section 425.16, subdivision (e)(2). Rather, plaintiffs only address section
425.16, subdivision (e)(4), which has to do with speech “in connection with
a public issue or an issue of public interest.” Because plaintiffs have not
developed any argument regarding subdivision (e)(2), we consider the
argument forfeited. (Meridian Financial Services, Inc. v. Phan (2021) 67
Cal.App.5th 657, 684 [a reviewing court “is not required to develop the
parties’ arguments or search the record for supporting evidence and may
instead treat arguments that are not developed or supported by adequate
citations to the record as waived”]; Golden Door Properties, LLC v. County
of San Diego (2020) 50 Cal.App.5th 467, 554–555 [even applying de novo
standard of review, review is limited to issues which have been adequately
raised and supported in the opening brief].)
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Even if plaintiffs had preserved the argument, we conclude there
would be no grounds for reversal under section 425.16, subdivision (e)(2).
The complaint alleges that Mojdehi wanted Stevens to fire his counsel
and join a lawsuit Mojdehi had also filed against Chicago Title, and “he
disparaged Peterson in his efforts to do so.” The complaint further alleges
that those statements to Stevens in which Mojdehi “accused Peterson of
being associated with or complicit in Cain’s fraud” formed the basis for the
defamation claim. “A statement has a sufficient ‘connection’ with anticipated
litigation if the person making the statement is engaged in a serious effort to
encourage or counsel litigation by another.” (Bel Air Internet, LLC v. Morales
(2018) 20 Cal.App.5th 924, 943.) This includes a non-party’s attempt to
encourage someone to pursue a particular litigation strategy. (Ibid.; see
Bowen, supra, 80 Cal.App.5th at p. 162 [a son’s statements encouraging his
parents to fire their attorney “were not tangential” to litigation]; see also
Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 486 [attorney
telling represented litigants to fire their attorney and hire him instead was
protected activity because it involved communications about a pending case].)
Here, the complaint makes clear that Mojdehi’s alleged statements were
made in connection with pending and anticipated litigation. When Mojdehi
talked to Stevens in February 2020, plaintiffs had already filed the Chicago
Title Action and the Levin Action was on the verge of being filed. Considering
the context and substance of Mojdehi’s allegedly defamatory statements, the
trial court correctly ruled that they constitute protected activity under section
425.16, subdivision (e)(2).
Because Mojdehi has made a sufficient showing under the first prong of
the anti-SLAPP analysis, we next consider whether plaintiffs can meet their
burden of showing that their defamation claim, if credited, would sustain a
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judgment in their favor. (Bowen, supra, 80 Cal.App.5th at pp. 160–161.) We
conclude that plaintiffs’ claim must fail because it is barred by the litigation
privilege.
Civil Code section 47 bars civil actions for damages based on
communications in any judicial proceeding, absent certain inapplicable
statutory exceptions. (See Hagberg v. California Federal Bank (2004) 32
Cal.4th 350, 360 (Hagberg); Daniels v. Robbins (2010) 182 Cal.App.4th 204,
216.) As the Supreme Court explained in Hagberg, the litigation privilege
has been given broad application in light of important policy considerations.
(Hagberg, at pp. 361, 372.) Many cases have confirmed that Civil Code
section 47, subdivision (b) encompasses “not only testimony in court and
statements made in pleadings, but also statements made prior to the filing of
a lawsuit, whether in preparation for anticipated litigation or to investigate
the feasibility of filing a lawsuit.” (Hagberg, at p. 361.)
As noted, Mojdehi’s statements related to both a pending lawsuit
and an anticipated lawsuit. The trial court nonetheless reasoned that the
litigation privilege did not apply because Mojdehi was neither a party nor a
participant in the Levin Action. Although it is undisputed that Mojdehi was
not a party to the suit, we conclude that he was a participant for purposes of
applying the litigation privilege. Our Supreme Court has explained that the
“litigation privilege is meant to protect more than the parties to a lawsuit
from derivative suits that they might later bring against each other.” (Action
Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248.)
The court made clear that the privilege extends to nonparties including
witnesses, potential litigants, “and others.” (Ibid.)
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467
is instructive on how the privilege can extend to nonparties. In that case,
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a landlord’s employee was sued for threatening comments he made to tenants
about an ongoing dispute over the filing of an unlawful detainer. (Id. at
pp. 1480–1483.) The Court of Appeal found that the employee’s statements
were protected by the litigation privilege, even though he was not a party,
because the employee was the landlord’s representative and his statements
“were clearly connected to and made in anticipation of the eviction
action[.]” (Id. at p. 1489.)
Here, when Mojdehi made the alleged defamatory statements, he was
acting as a representative of Levin Action plaintiffs L’Audace and ABPS—
even if not formally, as their legal counsel. According to the complaint,
Mojdehi “was and/or is an officer of” those companies and “may have
contributed money to either or both[.]” Those companies were allegedly
owned and managed by members of Mojdehi’s family. Mojdehi had
represented the companies as their counsel in the involuntary bankruptcy
action, which itself bore a connection to the Levin Action. Moreover, Mojdehi
held a financial interest in ABPS and was himself an investor in the lending
platform, making him a potential witness and indirect victim of the Ponzi
scheme.
Plaintiffs cite Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296
(Wise) and other cases to argue that the litigation privilege does not cover
“nonparticipants” like Mojdehi. But those cases do not support plaintiffs’
position. In Wise, the Court of Appeal concluded that an employer could be
liable for disclosing its employee’s private medical information to her former
husband because the employer was not a participant in their separation
proceedings. (Wise, at p. 1304.) The employer had no logical connection or
representative role in the employee’s marital dissolution, nor did it have a
financial stake in the proceeding. Similarly, in Schoendorf v. U.D. Registry,
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Inc. (2002) 97 Cal.App.4th 227, the Court of Appeal held that a consumer
reporting agency’s communications about tenants were not privileged
because the agency merely made statements “about past litigation in which
they were not involved.” (Id. at pp. 242–243.) In these cases, courts
concluded that the entities attempting to assert the privilege were
insufficiently connected to the pending or anticipated litigation.
In contrast, Mojdehi was an attorney who had professional, familial,
and financial connections to the Levin Action and parties to the Levin Action.
Far from being a passive observer with no stake in the proceeding, Mojdehi
was a direct witness and participant in the events leading up to the suit’s
initiation, and his statements to Stevens reflect that involvement. The
litigation privilege is broad and “ ‘[a]ny doubt as to whether the privilege
applies is resolved in favor of applying it.’ ” (Greco v. Greco (2016) 2
Cal.App.5th 810, 826.) We therefore conclude that the litigation privilege
forecloses plaintiffs’ defamation claim against Mojdehi, which means
plaintiffs have failed to meet their burden under the second prong of the anti-
SLAPP statute for that claim.
DISPOSITION
The order granting in part and denying in part the anti-SLAPP motion
is affirmed in part and reversed in part. The matter is remanded to the trial
court with directions to vacate the order and enter a new order granting the
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anti-SLAPP motion as to plaintiffs’ defamation claim, as well as plaintiffs’
tortious interference claim. Mojdehi shall recover his costs on appeal.
BUCHANAN, J.
WE CONCUR:
MCCONNELL, P. J.
O’ROURKE, J.
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