Rahbar v. Batoon
Filed 1/31/14 Rahbar v. Batoon CA1/1
OFFICIAL REPORTS
California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
GELAREH RAHBAR,
Plaintiff and
Appellant,
v.
JENNIFER BATOON,
Defendant and
Respondent.
A136463
(
Super. Ct. No.
CGC-11-515742)
Plaintiff and appellant Gelareh Rahbar,
DDS., appeals from an order by the trial
court granting defendant and respondent Jennifer Batoon’s special
section 425.16 of the Code of Civil
Procedure (anti-SLAPP motion).
name="_ftnref1" title="">[1] We affirm.
Facts and Procedural Background
Rahbar
is a dentist who provided a course of
Batoon. Subsequently, Batoon wrote a
negative review about the treatment provided by Rahbar on an Internet consumer
Web site called “Yelp.†This appeal
involves the third legal proceeding Rahbar has brought against Batoon arising
from her negative Yelp review of Rahbar’s
In September 2009, Rahbar sued
Batoon for defamation and invasion of privacy based on the Yelp review, as well
as breach of contract based on an
alleged outstanding balance for dental services provided (complaint #1). Batoon filed an anti-SLAPP motion. The court granted the motion and denied
reconsideration. In July 2010, the court
entered judgment in favor of Batoon in the amount $43,035 in attorney fees for
prevailing on the anti-SLAPP motion, offset by $454 in settlement of the
contract claim. Rahbar did not appeal. (Rahbar
v. Batoon (Oct. 16, 2012, A132294) [nonpub.
opn.].)
Just one month later, on August 20, 2010, Rahbar filed another lawsuit against Batoon based on the Yelp
review (complaint #2). Batoon advised
she would file an anti-SLAPP motion in this second lawsuit if Rahbar did not
dismiss the suit. No dismissal was filed
and Batoon filed an anti-SLAPP motion.
With the anti-SLAPP motion pending, Rahbar filed a request for dismissal
without prejudice, but did not oppose the anti-SLAPP motion. Thereafter, the trial court denied the
anti-SLAPP motion as moot; however, the court invited Batoon to move for
attorney fees because Rahbar’s complaint was a SLAPP suit. Rahbar then sought reconsideration, and for
the first time challenged the anti-SLAPP motion as foreclosed by dismissal of
the complaint. Rahbar also opposed
Batoon’s motion for attorney fees on the grounds Batoon had not been served
with the complaint and her anti-SLAPP motion was, therefore, void. After a hearing on the motions for
reconsideration and attorney fees, the trial court denied Rahbar relief and
entered judgment in favor of Batoon in the amount of $12,825.34. On appeal, we affirmed the judgment and
awarded costs to Batoon. (
On November 8, 2011, Rahbar initiated the third in this trilogy of legal proceedings by
filing the current verified complaint for equitable relief to vacate judgments
obtained by extrinsic mistake and/or extrinsic fraud on behalf of herself and
Rahbar Dentistry PC, a California Professional Corporation. The complaint includes a “Factual History of
the Dispute Between the Parties,†detailing the nature of the dental services Rahbar
provided to Batoon, the latter’s failure to pay the outstanding balance on the
treatment provided, Rahbar’s referral of the outstanding balance to a debt
collection agency, Batoon’s review on Yelp, and alleging Batoon published the
Yelp review knowing the statements made therein were false and said statements
were made “maliciously and with the intent to vex and annoy Rahbar and to cause
her damage in her business and her reputation.â€
The complaint also sets forth a
“Factual History of the Litigation Resulting from the Yelp Review by Batoonâ€
containing the following allegations:
The court granted Batoon’s anti-SLAPP motion on complaint #1 on grounds
that the defamation claim was filed 13 days after the statute of limitations had
expired, without “explicitly stat[ing] on the record or in the ensuing order
that it had conducted the two-prong analysis required by Code of Civil
Procedure section 425.16.†Batoon filed
an opposition to Rahbar’s motion for reconsideration, including a declaration that
during the relevant time period she had been out of state for a total of 11
days, six days of which were business-related travel.
motion for reconsideration of the court’s anti-SLAPP ruling on complaint #1 in
November 2009, he did not know, and Rahbar did not discover until much later,
that Batoon had been out of state for 13 days or more prior to the filing of
complaint #1, thereby tolling the statute of limitations for that period of
time. Complaint #2 was filed by Rahbar’s
prior counsel without her knowledge or consent. Batoon filed an anti-SLAPP motion in response
to complaint #2 without “having either been served with the complaint or having
made any other appearance allowed by law.†In denying reconsideration on its ruling that complaint
#2 was subject to the provisions of section 425.16 for purposes of awarding
attorneys fees, the trial court impliedly “accepted Batoon’s res judicata
argument . . . since the court referred to complaint #2 as a
repetitive SLAPP action.â€
Based on the these “factual†allegations
and other assertions, the complaint states four causes of action and prays the
court vacate the orders on the anti-SLAPP motions and motions for reconsideration
entered with respect to complaints #1 and #2.
The first cause of action seeks to vacate the judgment as to complaint
#1 for extrinsic mistake, in particular Rahbar’s belated discovery Batoon had
been out of state for a longer period than Batoon admitted in her declaration. The second cause of action seeks to vacate
the judgment as to complaint #2 for extrinsic mistake, in particular that the
court’s denial of Rahbar’s motion for reconsideration of the order granting
leave to seek attorney’s fees for the anti-SLAPP motion as to complaint #2 was
based on the res judicata effect of prior orders issued as to complaint #1, including
the ruling Rahbar had not presented sufficient evidence on tolling. The third cause of action seeks to vacate the
judgment as to complaint #1 based on extrinsic fraud, to wit, Batoon
intentionally and deliberately suppressed information she had been absent from
California for 13 or more days for tolling purposes. The fourth cause of action seeks to vacate
the judgment as to complaint #2 based on extrinsic fraud, to wit, Batoon’s
concealment of her absences from California for tolling purposes on complaint
#1 undermines the court’s application of res judicata to complaint #2.
Predictably, in response to the
current complaint Batoon filed the anti-SLAPP motion that is now the subject of
this appeal. In her motion, Batoon
argued Rahbar’s claims are subject to the anti-SLAPP law because the claims
arise from statements made in, or in connection with, judicial proceedings,
and, alternatively, because the claims arise from statements made in a public
forum regarding issues of public interest. Also, Batoon argued Rahbar could not establish
a probability of prevailing on the merits because complaint #1 was barred by
the statute of limitations, Rahbar failed to “plead around†the statute of
limitations defense, and her allegations of extrinsic mistake and fraud
regarding Batoon’s absences from the state for tolling purposes “misconstrued
the actual facts.†Furthermore, Batoon
argued the grounds alleged to vacate the judgments are examples of
fraud.
The trial court held a hearing on
the anti-SLAPP motion on May 16, 2012. On June 25, 2012,
the trial court entered an order granting Batoon’s anti-SLAPP motion, ruling
she “has satisfied her burden of showing that Plaintiffs’ claims arise from protected
activity, and Plaintiffs have failed to demonstrate a likelihood of success on
the merits.†This appeal followed.
Discussion
“Under the [anti-SLAPP] statute, the
court makes a two-step determination: First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) A defendant meets this burden by demonstrating
that the act underlying the plaintiff’s cause fits one of the categories
spelled out in section 425.16, subdivision (e) [citation]. If the court finds that such a showing has
been made, it must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim. [§ 425.16, subd. (b)(1).]†(Cabral
v. Martins (2009) 177 Cal.App.4th 471, 478 (Cabral) [internal case cites and quotation marks omitted]; see also
Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1056 (Rusheen) [under second
prong “ ‘[p]laintiff “must demonstrate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is credited.â€
[Citations.]’ [Citation.]â€].)
“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.â€
(Cabral, supra, 177
Cal.App.4th at p. 478 [internal case cites and quotation marks omitted].) We review de novo a trial court’s ruling on a
special motion to strike. (
In line with the two-step process
described above, we first examine whether Batoon “has made a threshold showing
that the challenged cause of action is one arising from protected activity . . .
by demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e).†(Cabral,
supra, 177 Cal.App.4th at p. 478.)
These categories of protected rights of petition and free speech
include: “(1) any written or oral
statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance
of the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.†(§ 425.16, subdivision
(e).)
Rahbar contends Batoon has failed to
make such a threshold showing because “the gravamen of the causes of action in
the verified complaint have nothing directly to do with protected speech or
petition.†This assertion is patently
meritless.
“ ‘A cause of action “arising
from†defendant’s litigation activity may appropriately be the subject of a
section 425.16 motion to strike.’ (
(1996) 42 Cal.App.4th 628, 648 [49 Cal.Rptr.2d 620], disapproved on other
grounds in Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) ‘Any act’ includes communicative conduct such
as the filing, funding, and prosecution of a civil action. (Ludwig
v. Superior Court (1995) 37 Cal.App.4th 8, 17–19 [43 Cal.Rptr.2d 350].) This includes qualifying acts committed by
attorneys in representing clients in litigation. (See, e.g., Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1086 [114 Cal.Rptr.2d
825]; Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1418–1420 [103 Cal.Rptr.2d 174].)†(Rusheen,
supra, 37 Cal.4th at p. 1056.)
However you cut it, the causes of
action in the verified complaint at issue here “arise from†Batoon’s litigation
activity and associated communicative conduct in defending against Rahbar’s
prior two SLAPP suits, in particular Batoon’s assertion of a statute of
limitations defense to the defamation cause of action in complaint #1. Rahbar pressed a “tolling†argument against
application of the statute of limitations defense in her motion for
reconsideration of the court’s anti-SLAPP ruling on complaint #1, and Batoon successfully
rebutted Rahbar’s contentions by submitting a declaration detailing any
absences from the state relevant to the tolling issue.
against Rahbar’s SLAPP actions by raising the statute of limitations defense are
central to all four causes of action in the complaint. The first and third causes of action to
vacate the judgment as to complaint #1 based on extrinsic mistake and extrinsic
fraud are based on Batoon’s opposition to Rahbar’s contention the applicable
statute of limitations was tolled by Batoon’s out-of-state travels. Similarly, the second and fourth causes of
action to vacate the judgment as to complaint #2 based on extrinsic mistake and
extrinsic fraud are based on the res judicata effect of the court’s ruling in
favor of Batoon on Rahbar’s motion for reconsideration of the anti-SLAPP ruling
on complaint #1.
In sum, we conclude the causes of
action in the complaint at issue “arise from†protected litigation activity.
supra, 37 Cal.4th at p. 1056.)
Therefore, we must address the second prong of the anti-SLAPP analysis
to determine “whether [plaintiff] has established a reasonable probability that
[s]he would prevail on [her] claims.†(
478.)
Here, plaintiff cannot show a
reasonable probability of prevailing on her claims. In this regard, the first and third causes of
action attack the judgment entered on complaint #1 on grounds of extrinsic
mistake and extrinsic fraud, respectively.
“ ‘Extrinsic mistake is found
when . . . a mistake led a court to do what it never intended . . . .’
[Citations.]†(Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea)
[citing example of “referees’ use of wrong map†as an extrinsic mistake
“because ‘ “it is not a mistake of the law, or an inadvertent conclusion
as to what the law is, but a mistake or inadvertence in doing something not
intended to be done.†’ â€].) Rahbar
asserts her excusable failure to obtain the information concerning Batoon’s
actual absences from California amounts to extrinsic mistake.
We disagree. There was nothing
inadvertent about the trial court’s denial of Rahbar’s motion for
reconsideration of the anti-SLAPP ruling on complaint #1; rather, the court issued
a legal ruling based on full consideration of the evidence presented by the
parties, thus, Rahbar’s self-confessed failure to obtain further information
does not constitute extrinsic mistake under Rappleyea,
supra, 8 Cal.4th 975.
Similarly, Rahbar cannot show a
likelihood of prevailing on her third cause of action asserting extrinsic fraud
as grounds to vacate the judgment entered on complaint #1. Even if Batoon intentionally and deliberately
suppressed information she had been absent from California for 13
or more days for tolling purposes, as alleged by Rahbar, such action amounts to
intrinsic fraud, not extrinsic fraud, and, consequently, offers no basis to
vacate a final judgment. (
Court (1998) 18 Cal.4th 1, 10–11 [noting intrinsic fraud consists of fraud
during the course of the proceedings, such as false, concealed, or suppressed
evidence].)
Finally, in her second and fourth
causes of action, Rahbar seeks to vacate the judgment entered on complaint #2 on
grounds of extrinsic mistake and extrinsic fraud, specifically, (1) Rahbar did
not file an opposition to the anti-SLAPP motion on complaint #2 due to her “mistaken
but reasonable belief†that the anti-SLAPP motion would be dismissed because
she had dismissed the complaint before a hearing was held on the anti-SLAPP
motion; and (2) Batoon’s misrepresentations about her absences from the state
in complaint #1 mean the trial court’s conclusion, that its statute of
limitations ruling in complaint #1 was res judicata to complaint #2, was the
product of extrinsic fraud.
However, Rahbar cannot show a
likelihood of prevailing on these claims because they merely re-state issues
that we considered and rejected in Rahbar
v. Batoon, supra, A132294. In particular, we concluded that when a trial
court is “faced with a motion to strike and a subsequently dismissed complaintâ€
it should “do exactly what the trial court did below—deny the motion to strike
as moot, but retain jurisdiction to decide the merits for the purposes of
determining whether fees should be awarded.â€
(Rahbar v. Batoon, supra, A132294.) Further, we held that the trial court
correctly concluded the doctrine of res judicata barred complaint # 2, noting
that because the judgment as to complaint # 1 was final, Rahbar was precluded
“from bringing future cases based on this same scenario of events.†(Rahbar
v. Batoon, supra, A132294.)
In sum, upon de novo review, we
shall affirm the trial court’s anti-SLAPP ruling because Rahbar’s claims arise
from Batoon’s protected litigation activities and Rahbar has failed to
establish a reasonable probability that she would prevail on her claims.
Disposition
The trial court’s order granting
defendant’s special motion to strike is affirmed. Defendant is awarded her costs on appeal.
______________________
Dondero, J.
We concur:
______________________
Margulies, Acting P.J.
______________________
Banke, J.
name="_ftn1" title=""> [1]
Further statutory references are to the Code of Civil Procedure unless
otherwise noted.
name="_ftn2" title=""> [2]
On August 19,
2013, we granted Batoon’s motion for
judicial notice of the opinion in Rahbar
v. Batoon, supra, A132294, which followed Rahbar’s appeal from the second
legal proceeding she brought against Batoon based on the Yelp review, see
