Filed 8/11/26 Nofal v. Abdel-Salam CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HISHAM NOFAL,

Plaintiff and Appellant, G065800

v. (Super. Ct. No. 30-2024-
01444115)
GABY H. ABDEL-SALAM,
OPINION
Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County,
Sandy N. Leal, Judge. Affirmed.
Hisham Nofal, in pro. per., for Plaintiff and Appellant.
Law Offices of Soheila Azizi, Soheila Azizi and Joshua
Edmondson for Defendant and Respondent.
 Plaintiff Hisham Nofal filed a complaint alleging his former
spouse, defendant Gaby H. Abdel-Salam, violated criminal statutes by
falsifying evidence during their dissolution proceedings. Abdel-Salam filed a
special motion to strike under the anti-SLAPP statute, Code of Civil
Procedure section 425.16.1 The trial court granted the motion, dismissed the
action, and awarded Abdel-Salam attorney fees and costs.
Nofal contends the judgment should be reversed because he
conclusively demonstrated Abdel-Salam’s conduct was unprotected illegal
activity. He further argues the conduct was subject to the dissolution
exception to the litigation privilege. We reject these arguments and affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
COMPLAINT
In his complaint, Nofal alleged Abdel-Salam perpetrated a “long-
running scheme to defraud” the family law court during the parties’
dissolution proceedings. The scheme concerned an offshore bank account
Abdel-Salam initially concealed and later claimed as separate property funds
from the sale of inherited land. Abdel-Salam produced documents relating to
the account, but they did not support her claim. Nofal searched Egyptian
court records and learned one of Abdel-Salam’s documents, a putative civil
judgment from Egyptian court proceedings involving the parties, was forged.

1 SLAPP is an acronym for “strategic lawsuits against public

participation.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133,
139.) All undesignated statutory references are to the Code of Civil
Procedure.

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The family law court nevertheless denied Nofal his community share of the
account. Nofal suffered monetary damages and emotional harm.
Nofal asserted five causes of action against Abdel-Salam, all
pursuant to the Penal Code. The causes of action were (1) falsifying signature
of another person (Pen. Code, § 470, subd. (a)); (2) falsification of legal
instrument (Pen. Code, § 470, subd. (c)); (3) falsification of preliminary sale
contract of property (Pen. Code, § 470, subd. (d)); (4) falsification of evidence
(Pen. Code, § 132); and (5) “filing offer of forged instrument in public office”
(sic) (Pen. Code, § 115, subd. (a)). Nofal sought $149,000 in compensatory
damages, restitution, punitive damages, and recovery of litigation expenses.
II.
SPECIAL MOTION TO STRIKE
A. Motion
Abdel-Salam moved to strike Nofal’s complaint under section
425.16. She argued Nofal’s claims arose from protected activity, because they
concerned statements made in a judicial proceeding. (§ 425.16, subd. (e)(1).)
She further argued the statements challenged in the complaint were made
during litigation and therefore absolutely privileged under Civil Code section
47, subdivision (b). Abdel-Salam requested attorney fees and costs totaling
$10,940. (See § 425.16, subd. (c)(1).)
B. Opposition
Nofal opposed the motion. He contended his claims did not arise
from protected activity, because Abdel-Salam had no constitutional right to
make fraudulent statements. Nofal further contended the statements fell
within the dissolution exception to the litigation privilege (Civ. Code, § 47,

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subd. (b)(1)), and he established a probability of prevailing on the merits.
Nofal requested attorney fees and costs.
C. Ruling
The trial court granted the motion in a written ruling. Applying
the standard two-step analytical framework, the court first found Abdel-
Salam met her initial burden of showing Nofal’s claims arose from protected
activity. At the second step, the court found Nofal could not prevail on his
claims because he had no private right of action to enforce the Penal Code.
The court additionally found the conduct was protected by the litigation
privilege, and was not subject to the dissolution exception. The court awarded
Abdel-Salam $7,440 in attorney fees and costs. It subsequently entered
judgment dismissing the complaint with prejudice.
DISCUSSION
I.
LEGAL FRAMEWORK AND STANDARD OF REVIEW
The anti-SLAPP statute is designed to shield defendants from
“meritless lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 883–884.) “To that end, the statute authorizes a special
motion to strike claims ‘arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public
issue.’” (Id. at p. 884 [quoting § 425.16, subd. (b)(1)].)
Courts evaluate anti-SLAPP motions using a two-step burden-
shifting process. At the first step, the moving defendant must establish the
challenged allegation or claim arises from petitioning or speech activity
protected by the statute. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral);

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§ 425.16, subds. (b)(1), (e).) If the defendant makes this initial showing, “the
burden shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success.” (Baral, supra, at p. 384.) “‘[C]laims
with the requisite minimal merit may proceed.’” (Id. at p. 385 [quoting
Navellier v. Sletten (2002) 29 Cal.4th 82, 94].)
We review the grant of an anti-SLAPP motion de novo. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
We apply our independent judgment to both steps of the analysis: whether
the claims arise from protected activity and whether the plaintiff has shown
a probability of prevailing on the merits. (Balla v. Hall (2021) 59 Cal.App.5th
652, 671.) As in all appeals, the appellant bears the burden of demonstrating
error. (Ibid.)
II.
STEP ONE: PROTECTED ACTIVITY
A claim is subject to an anti-SLAPP motion only if it “aris[es]
from” protected activity. (§ 425.16, subd. (b)(1).) Statements made in a
judicial proceeding or in connection with an issue under consideration by a
judicial body generally are considered protected activity. (§ 425.16, subd.
(e)(1)–(2).) Nofal acknowledges his claims arise from statements made in a
judicial proceeding, but contends those statements are not protected because
it is illegal to file a false instrument in court.
“Unlawful or criminal activities do not qualify as protected
speech or petition activities under the anti-SLAPP statute.” (Dwight R. v.
Christy B. (2013) 212 Cal.App.4th 697, 711; see Flatley v. Mauro (2006) 39
Cal.4th 299, 324.) This “exception for illegal activity is very narrow and
applies only in undisputed cases of illegality.” (Zucchet v. Galardi (2014) 229
Cal.App.4th 1466, 1478.) “[C]onduct must be illegal as a matter of law to

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defeat a defendant’s showing of protected activity. The defendant must
concede the point, or the evidence [must] conclusively demonstrate it, for a
claim of illegality to defeat an anti-SLAPP motion at the first step.” (City of
Montebello v. Vasquez (2016) 1 Cal.5th 409, 424, original italics.) “If . . . a
factual dispute exists about the legitimacy of the defendant’s conduct, it
cannot be resolved within the first step but must be raised by the plaintiff in
connection with the plaintiff’s burden to show a probability of prevailing on
the merits.” (Flatley, supra, at p. 316.)
There is a factual dispute about the legitimacy of Abdel-Salam’s
conduct here. Abdel-Salam did not concede she forged the Egyptian judgment
or otherwise engaged in illegal conduct. Instead, she submitted a declaration
stating she did not “forge, alter, or falsify any document related to the
dissolution proceedings.” Nofal countered the judgment and declaration with
a search record from the Egyptian Ministry of Justice, which he claimed
“confirms the Egyptian Judgment is a forged document.” He argues on appeal
the search record is self-authenticating and admissible, and its contents
conclusively demonstrate the non-existence of Egyptian legal proceedings
involving the parties.
The search record does not demonstrate the falsity of the
judgment as a matter of law. It provides minimal information about the
search request and parameters, and no information about the search logic or
process. There are also several discrepancies between the parties’ documents,
which bear similar stamps and watermarks of putative authenticity. For
instance, the names on the judgment, “Hisham Mahmoud Mohamed El Sayed
Nofal” and “Gaby Hamdi Abdel-Hamid Abdel-Salam,” do not precisely match
the names in the search record, “Hisham Mahmoud Mohamed” and “Gaby
Hamdi Abdel Hamid.” The names of the courts also differ between the

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records. The judgment states it was issued by the “New Cairo Court of First
Instance,” while the search record mentions the “New Cairo Primary Court”
and “Civil General Index of the New Cairo Court.” Nofal’s appellate brief
described the parameters he provided to the Egyptian Ministry of Justice.
The unsupported assertions in Nofal’s appellate briefing about the search
mechanics and inconsequential nature of the discrepancies are not evidence
and were not presented to the trial court.
On the record before us, there is no definitive basis from which to
conclude Abdel-Salam’s challenged activity was illegal. The trial court
correctly determined Nofal’s claims arise from protected activity.
III.
STEP TWO: PROBABILITY OF PREVAILING ON THE MERITS
At step two of the anti-SLAPP analysis, the burden shifts to the
plaintiff to demonstrate a probability of prevailing on the merits. The
plaintiff carries this burden by establishing each challenged claim is legally
sufficient and supported by a prima facie factual showing. (Taus v. Loftus
(2007) 40 Cal.4th 683, 713–714; Baral, supra, 1 Cal.5th at pp. 384–385.) The
court considers the pleadings and evidentiary submissions of both parties
(§ 425.16, subd. (b)(2)), but does not weigh the evidence or resolve factual
conflicts. (Baral, supra, at p. 384.) “It accepts the plaintiff’s evidence as true,
and evaluates the defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law.” (Id. at p. 385.)
The trial court found Nofal’s claims were not legally sufficient
because there is no private right of action under the Penal Code and Abdel-
Salam’s alleged misconduct was protected by the litigation privilege. We
agree.

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A. No Private Right of Action
“[T]he issues to be determined in an anti-SLAPP motion are
framed by the pleadings.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020)
46 Cal.App.5th 869, 883.) The complaint here unambiguously frames this as
a criminal matter, asserting five causes of action for violations of the Penal
Code and seeking “conviction[s] for forgery” in addition to damages.
An alleged violation of a criminal statute does not necessarily
give rise to a private cause of action by a private citizen. (Lu v. Hawaiian
Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.) “Instead, whether a party
has a right to sue depends on whether the Legislature has ‘manifested an
intent to create such a private cause of action’ under the statute.” (Ibid.
[quoting Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d
287, 305].) “Such legislative intent, if any, is revealed through the language
of the statute and its legislative history.” (Lu, supra, at p. 596.) “If we
determine the Legislature expressed no intent on the matter either way,
directly or impliedly, there is no private right of action.” (Animal Legal
Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 142.)
None of the three criminal statutes cited in Nofal’s complaint
contains language suggesting the intent to create a private right of action.
(See Pen. Code, §§ 115, 132, 470.) To the contrary, Penal Code section 115
makes several references to a “prosecuting agency,” and defines that term to
mean “a city attorney, a district attorney, the Attorney General, or other
state or local agency actively prosecuting a case under this section.” (Pen.
Code, § 115, subd. (g).) Nofal also has not pointed to anything in the
legislative history of these statutes indicative of a private right of action, and
this court has not located any. “[W]hen neither the language nor the history
of a statute indicates an intent to create a new private right to sue, a party

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contending for judicial recognition of such a right bears a heavy, perhaps
insurmountable, burden of persuasion.” (Crusader Ins. Co. v. Scottsdale
Insurance Co. (1997) 54 Cal.App.4th 121, 133.) Nofal has not carried that
burden. Absent a private right of action, Nofal cannot show a probability of
prevailing on his claims.
B. Litigation Privilege
Even if there were a private right of action, the litigation
privilege independently bars Nofal’s claims. The purpose of the litigation
privilege, codified in Civil Code section 47, is to protect litigants and
witnesses from tort actions arising from their use of the courts. (Bonni v. St.
Joseph Health System (2022) 83 Cal.App.5th 288, 300.) To achieve this
purpose, Civil Code section 47, subdivision (b) confers an absolute privilege to
communications made as part of a judicial or quasi-judicial proceeding. (Klem
v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 613.) “‘“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.”’” (Ibid.) When the privilege applies, it “is
absolute and precludes all tort theories of recovery except malicious
prosecution.” (Bonni, supra, at p. 306.) We construe the privilege broadly, and
resolve doubts in favor of its application. (Klem, supra, at p. 613.)
The elements of the litigation privilege are squarely met here.
Abdel-Salam, a litigant in judicial proceedings, produced the allegedly
fraudulent judgment to advance her position in the litigation. Nofal contends
the privilege nevertheless does not apply, because the allegedly fraudulent
judgment falls within an exception for statements made during marital
dissolution proceedings. We disagree.

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 The exception applies to an “allegation or averment contained in
any pleading or affidavit filed in an action for marital dissolution or legal
separation made of or concerning a person by or against whom no affirmative
relief is prayed in the action . . . .” (Civ. Code, § 47, subd. (b)(1).) The allegedly
fraudulent judgment was filed in an action for marital dissolution, but it was
filed by a person seeking affirmative relief, Abdel-Salam, and concerned
persons seeking affirmative relief, Abdel-Salam and Nofal. The absolute
litigation privilege therefore applies. Nofal accordingly cannot demonstrate a
probability of prevailing on his claims even if he is authorized to assert them.
DISPOSITION
The judgment is affirmed. Defendant Abdel-Salam shall recover
costs of appeal.

SERVINO, J.

WE CONCUR:

MOTOIKE, P. J.

SCHWARM, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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