IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A174094
v.
JOSEPH KENT PUTALLEZ, (Sonoma County Super. Ct.
No. 23CR03127)
Defendant and Appellant.

Pursuant to a negotiated disposition, defendant Joseph Kent Putallez
entered a no contest plea to theft of an elder or dependent adult by a
caregiver, and the trial court placed him on two years’ formal probation.
Defendant’s sole claim on appeal is that one of the probation conditions
impermissibly delegates judicial authority to nonjudicial officers. Finding no
error, we affirm.
FACTS AND PROCEDURAL HISTORY
The Sonoma County District Attorney charged defendant with felony
theft of a dependent adult (Pen. Code, § 368, subd. (d); count 1), felony theft
of a dependent adult by a caretaker (id., § 368, subd. (e); count 2), and grand
theft of personal property (id., § 487, subd. (a); count 3).
Defendant represented himself. The parties reached a plea agreement,
under which defendant pleaded no contest to count 2 in exchange for
dismissal of the remaining charges, dismissal of charges in two other

1
criminal matters, 24 months of formal probation, and a five-year protective
order.
A “Sonoma County Felony Presentence Report” (probation report)
documented that, following a recent assessment pursuant to section 1368,
defendant received a psychiatric diagnosis of “ ‘ “Other Specified Personality
Disorder with Narcissistic and Paranoid Traits.” ’ ” It was also noted that
defendant had “[l]ikely substance abuse issues.” (Italics omitted.) The
probation report recommended, among other things, that defendant
participate in “programs of assistance or counselling, drugs, cognitive
behavioral, as directed by the Probation Officer.”
At the sentencing hearing, the trial court suspended imposition of
sentence and placed defendant on 24 months of formal probation with terms
including that he was “to participate [in] and complete programs of
assistance and counselling as directed by probation, specifically involving
drug, psychological or psychiatric and cognitive behavioral therapies.”
Regarding this probation condition, the court addressed defendant, “And, Mr.
Putallez, the reason I list those is those are specific areas that I believe
there’s a potential connection between you and help that probation may be
able to provide you.” Defendant responded, “I am in assistance with them
and—.” The court said, “Very good,” and continued describing terms of
probation, then ordered restitution and fees, checking with defendant that he
“would be able to afford those fines and fees.”
DISCUSSION
Defendant contends the probation condition that he “participate [in]
and complete programs of assistance and counselling as directed by
probation, specifically involving drug, psychological or psychiatric and

2
cognitive behavioral therapies” impermissibly delegates judicial authority to
nonjudicial officers.
As a preliminary matter, we note that defendant did not object to this
probation condition with the trial court. Accordingly, we consider his
contention only to the extent he claims a facial constitutional violation. (See
In re Sheena K. (2007) 40 Cal.4th 875, 888–889 [appellate claim that a
probation condition was unconstitutionally vague and overbroad was not
forfeited by failure to object below where the facial challenge was “a pure
question of law”].)1
A trial court has broad discretion to set conditions of probation “as it
may determine are fitting and proper to the end that justice may be done . . .
and generally and specifically for the reformation and rehabilitation of the
probationer.” (Pen. Code, § 1203.1, subd. (j); People v. Penoli (1996) 46
Cal.App.4th 298, 302 (Penoli).)
“[A] court may dictate the basic policy of a condition of probation,
leaving specification of details to the probation officer.” (In re Victor L. (2010)
182 Cal.App.4th 902, 919.) “However, the court’s order cannot be entirely
open-ended.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

1 We note here that we are not persuaded by the Attorney General’s

argument that defendant’s appellate claim is “an attack on the requirement
that he undergo drug treatment at the probation department’s discretion—
and thus [an attack] on the validity of his plea,” which would require a
certificate of probable cause. The written plea agreement provided for
“inpatient/outpatient treatment for drugs as directed by probation.” But the
challenged probation condition is broader than this agreed-to term. The trial
court ordered categories of treatment in addition to drug treatment, that is,
“psychological or psychiatric and cognitive behavioral therapies” to address
defendant’s mental health issues. Because the challenged probation
condition was not an express term of the parties’ negotiated disposition, we
do not find that defendant’s appeal requires a certificate of probable cause.

3
(O’Neil).) This is because, “[u]nder the separation of powers doctrine (Cal.
Const., art. III, § 3), judicial powers may not be delegated to nonjudicial
officers.” (People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).) “[I]t is
the court’s duty to determine the nature of the requirements imposed on the
probationer,” although a “probation officer may properly specify the details
necessary to effectuate the court’s probation conditions.” (Ibid., italics
added.)
Defendant argues the probation condition at issue “delegates
unfettered and impermissibly [sic] judicial authority to the probation officer.”
We disagree. The trial court here properly determined “the nature of the
requirements imposed on the probationer” (Smith, supra, 79 Cal.App.5th at
p. 902), by specifying the areas the required treatment must address, “drug,
psychological or psychiatric, and cognitive behavioral.” The court explained
to defendant, “the reason I list those is those are specific areas that I believe
there’s a potential connection between you and help that probation may be
able to provide you.” This probation condition is not entirely open-ended. It
was within the court’s authority to leave the “details . . . necessary to
implement the terms of probation” to the probation officer. (O’Neil, supra,
165 Cal.App.4th at pp. 1358–1359.)
For his position, defendant relies on Smith, supra, 79 Cal.App.5th 897,
but his reliance is misplaced. The challenged condition in Smith required the
probationer “ ‘to participate in any treatment/therapy/counseling program,
including residential, as directed by the probation officer.’ ” (Id. at p. 902,
italics added.) The Court of Appeal concluded that delegating to the
probation officer the discretion to decide whether to require a residential
program was an improper delegation of judicial authority because a
residential program—in contrast to outpatient treatment—may require

4
confinement, separation from family and friends, and inability to maintain a
job. “Given the significant liberty interests at stake, a court—not a probation
officer—must make the decision to require a defendant to attend residential
treatment.” (Id. at p. 903.)
The probation condition in this case has no such infirmity. The
probation officer is not authorized to require residential treatment. The
probation officer is tasked with selecting appropriate programs “involving
drug, psychological or psychiatric and cognitive behavioral therapies.” This
is not problematic. “The trial court is poorly equipped to micromanage
selection of a program, both because it lacks the ability to remain apprised of
currently available programs and, more fundamentally, because entry into a
particular program may depend on mercurial questions of timing and
availability.” (Penoli, supra, 46 Cal.App.4th at p. 308.)
In short, we conclude the trial court, in ordering the challenged
probation condition, properly “dictate[d] the basic policy” of the condition,
“leaving specification of details to the probation officer.” (In re Victor L.,
supra, 182 Cal.App.4th at p. 919.)
DISPOSITION
The judgment is affirmed.

5
 _________________________
Miller, J.

WE CONCUR:

_________________________
Richman, Acting P. J.

_________________________
Desautels, J.

A174094, People v. Putallez

6
Trial Court: Superior Court of Sonoma County

Trial Judge: Hon. Paige Hein

Asya Ovsepyan, under appointment by the Court of Appeal, for Defendant
and Appellant

Rob Bonta, Attorney General; Charles C. Ragland, Chief Assistant Attorney
General; Jeffrey M. Laurence, Assistant Attorney General; Seth K. Schalit
and Matthew J. Eitelberg, Deputy Attorneys General, for Plaintiff and
Respondent

A174094, People v. Putallez

7


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ERIC DEBBANE et al.,
Plaintiffs and Respondents,
v. A172067
CITY AND COUNTY OF SAN
FRANCISCO et al., (San Francisco City & County
Super. Ct. No. CGC-23-604600)
Defendants and Appellants.

In 2022, San Francisco voters approved Proposition M to “tax” owners
of certain residential units in buildings with more than two units for any unit
kept “vacant” for more than 182 days, which need not be consecutive, during
a tax year. (S.F. City & County Sample Ballot and Voter Information Pamp.,
Gen. Elec. (Nov. 8, 2022) text of Prop. M, pp. 240–242 (hereafter
“Pamphlet”).) The stated purpose of the measure is to “disincentivize
prolonged vacancies, thereby increasing the number of housing units
available for occupancy.” (Id. at p. 241.)
Plaintiffs filed the instant action against the City and County of San
Francisco and two of its individual officers, challenging the proposition on
both statutory and constitutional grounds. They also named as real party in
interest, San Francisco’s Treasurer.1 Eventually, the parties filed cross-
motions for summary judgment. After full briefing and hearing, the trial

1 We collectively refer to defendants and real party as “the City.”

1
court granted plaintiffs’ motion, denied the City’s motion, and subsequently
entered judgment prohibiting the City and its officers and agents from
administering or enforcing Proposition M.
The City maintains the trial court erred in multiple respects. We
affirm.
BACKGROUND
Residential Vacancies in San Francisco
At the request of a former supervisor, the City’s Budget and Legislative
Analyst’s Office issued a report in January 2022 analyzing “the number of
residential vacancies in San Francisco, reasons for vacancies, comparison to
other cities, and policy options for addressing vacancies based on other
jurisdictions.” (S.F. Budget & Legis. Analyst’s Office, Policy Analysis Report:
Residential Vacancies in San Francisco (Jan. 31, 2022) p. 1 (“Report”).)
Based on census and survey data, the Report indicated that in 2019
there were “40,458 total housing units vacant in San Francisco, or
approximately ten percent of the City’s 406,399 housing units.” (Report,
supra, at p. 3.) This included 8,548 units being offered for rent and/or sale,
10,444 units rented or sold but not yet occupied, 8,565 units used part time or
occasionally throughout the year (e.g., “non-primary housing units” and
“timeshares”), and 12,991 other vacant units (e.g., units held vacant for
“personal or family reasons”). (Id., at p. 4.) The Report identified units sold
but not yet occupied as “the fastest growing segment of vacant housing in San
Francisco over five years through 2019.” (Ibid.)
The Report also identified various “policy interventions” used by
several cities to address residential vacancies, including a “vacancy tax” to
“discourage extended vacancies based on discretionary choices by owners for
financial or other reasons that have a social cost to the City and further

2
constrain housing supply.” (Report, supra, at pp. 27, 46.) The Report pointed
out a vacancy tax on residential units would require voter approval under the
California Constitution. (Id., at p. 43; see California Cannabis Coalition v.
City of Upland (2017) 3 Cal.5th 924, 936 (Cannabis Coalition) [“Article XIII C
[of the California Constitution] was added by Proposition 218, an initiative
constitutional amendment adopted at the 1996 general election” and provides
“ ‘[n]o local government may impose, extend, or increase any general tax
unless and until that tax is submitted to the electorate and approved by a
majority vote.’ ”].)
Proposition M
Proposition M was submitted to San Francisco voters at the November
2022 general election pursuant to the initiative process. (Pamphlet, supra,
p. 171.) The proposition sought to add sections 2950 through 2963 as article
29A of the San Francisco Business and Tax Regulations Code.2 The proposed
new article was titled the “Empty Homes Tax Ordinance” (some
capitalization omitted) and the proposed “tax” was denominated the “ ‘Empty
Homes Tax.’ ” (Pamphlet, p. 241, italics omitted.) The measure passed by a
54.51 percent majority vote. (Cal. State University, Sacramento Institute for
Social Research & The Center for Cal. Studies: Cal. County, City, and School
District Election Outcomes: Candidate and Ballot Measures 2022 Elections,
table 1.1, p. 10; election-results/2022/county.pdf> [as of Aug. 19, 2026].)
Section 2951, subdivision (a) begins by characterizing residential
vacancies as an “ongoing concern in San Francisco,” citing the Report’s

2 All further citations to “sections” are to those in article 29A of the
San Francisco Business and Tax Regulations Code unless otherwise
indicated.

3
finding that approximately 40,500 units were vacant in 2019. Section 2951,
subdivision (e) sets forth the purpose of Proposition M—“to disincentivize
prolonged vacancies, thereby increasing the number of housing units
available for occupancy, while also raising funds for rent subsidies and
affordable housing.”
Section 2952 defines certain terms as used in Proposition M. The term
“ ‘Residential Unit’ ” is broadly defined as “a house, an apartment, a mobile
home, a group of rooms, or a single room that is designed as separate living
quarters, other than units occupied or intended for occupancy primarily by
travelers, vacationers, or other transient occupants.” (§ 2952.) The term
“ ‘Vacant’ ” is defined as “unoccupied, uninhabited, or unused for more than
182 days, whether consecutive or nonconsecutive, in a tax year.” (Ibid.)
Section 2953 imposes “an annual Empty Homes Tax on each person
that owns a Residential Unit for keeping that Residential Unit Vacant,”
(§ 2953, subd. (a)) and identifies a tiered rate based on square footage of the
unit that increases over time. For the first tax year the Empty Homes Tax is
in effect, the rate for each residential unit is $2,500 (with square footage less
than 1,000), $3,500 (with square footage from 1,000 to 2,000), or $5,000 (with
square footage greater than 2,000). (Id., subd. (b).) If the unit continues to
be “Vacant” through the following tax year, the rate increases for each square
footage tier to $5,000, $7,000, and $10,000, respectively. (Id., subd. (d).) And
if that vacancy continues through a third tax year, the rate again increases
for each tier to $10,000, $14,000, and $20,000, respectively. (Id., subd. (g).)
These rates are also subject to an annual adjustment for inflation. (Id.,
subd. (h).)
Some residential units are expressly exempted from the Empty Homes
Tax. Section 2951, subdivision (c), for example, states the “[t]ax is limited to

4
buildings with more than two residential units because such buildings are
more likely to include one or more units held vacant by choice and are more
likely to include multiple vacancies.” Section 2952 excludes units in a
“currently operational nursing home” or “residential care facility” from the
definition of a “ ‘Residential Unit.’ ” And section 2953, subdivision (j)
identifies various time periods that are to be “disregarded” in calculating
whether a residential unit has been kept “Vacant” for more than 182 days.
These include certain periods of repair, rehabilitation, construction, as well
as certain leases of the unit. (§ 2952.)
Section 2952 defines “ ‘Lease Period’ ” as a period during which a
residential unit is leased “to one or more tenants under a bona fide lease
intended for occupancy, but not including any lease or rental of that
Residential Unit to anyone in the Owner’s Group or to travelers, vacationers,
or other transient occupants.” The term “ ‘Owner’s Group’ ” is defined to
include “any Related Person or Affiliate of the owner or any current or former
co-owner,” and “ ‘Related Person’ ” is defined as “a spouse, domestic partner,
child, parent, or sibling.” (§ 2952.) In other words, the “ ‘Lease Period’ ”
exclusion in Proposition M does not include leases or rentals to these family
members.
Section 2955, subdivision (a) states: “For only so long as and to the
extent that the City is prohibited from imposing the Empty Homes Tax, any
person upon whom the City is prohibited under the Constitution or laws of
the State of California or the Constitution or laws of the United States from
imposing the Empty Homes Tax shall be exempt from the Empty Homes
Tax.” And section 2963 states: “No section, clause, part, or provision of this
[a]rticle 29A shall be construed as requiring the payment of any tax that

5
would be in violation of the Constitution or laws of the United States or of the
Constitution or laws of the State of California.”
Section 2958 directs proceeds from the Empty Homes Tax to San
Francisco’s Housing Activation Fund to be used for rental subsidies for older
individuals and low-income households, as well as to acquire and rehabilitate
certain buildings for affordable housing. (§ 2952, subds. (a), (c)(1)(A)–(B).)
San Francisco voters were provided ballot materials for the November
2022 general election that included arguments in favor of and against
Proposition M, as well as a statement from the then City Controller.
Proponents argued: “Prop M isn’t about taxing those who call San Francisco
home. It’s about tackling the large, corporate landlords keeping units vacant,
and those wealthy individuals who purchase units but don’t use them. [¶] In
the first year alone, it is expected that 4,500 new units will return on the
market— more than our annual goals— with no increase in taxes, no
construction time, no multi-million dollar price tag, and no waiting.”
(Pamphlet, supra, argument in favor of Prop. M, p. 171.) Opponents argued
Proposition M was based on “overstated statistics that manipulate the
perceived number of vacancies citywide,” and would sweep up “small property
owners and intergenerational households, not corporate landlords.” (Id.,
argument against Prop. M, p. 173.) Proponents responded: “We hope no one
pays this tax. We want every vacant unit filled with people who need
homes.” (Id., rebuttal to argument against Prop. M, p. 173.)
The then City Controller opined the proposed ordinance “could result in
additional revenue to the City exceeding $20 million annually,” but “if the tax
achieves its stated purpose of reducing the number of residential vacancies, it
will result in lower revenue.” (Pamphlet, supra, statement on Prop. M by
City Controller, p. 170.)

6
This Action
Named plaintiffs Eric and Andrew Debbane, Robert Friedland, Natasa
Zec, San Francisco Apartment Association, Small Property Owners of San
Francisco Institute, and San Francisco Association of Realtors filed the
instant action in February 2023. They asserted five causes of action in the
operative first amended complaint. The first alleged Proposition M is an
unconstitutional taking of property. (U.S. Const., 5th Amend.) The second
alleged the proposition is preempted by the Ellis Act. (Gov. Code, § 7060 et
seq.) The third and fourth causes of action alleged that, because Proposition
M’s lease period exclusion does not cover leases or rentals to a spouse,
domestic partner, child, parent, or sibling, it burdens a fundamental liberty
interest in familial relations protected by the due process clause (U.S. Const.,
14th Amend.; Cal. Const., art. I, § 7) and violates the equal protection clause.
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) The fifth alleged the
proposition violates the fundamental right to privacy under the California
Constitution. (Cal. Const., art. I, § 1.)
Summary Judgment Motions
Plaintiffs subsequently moved for summary judgment. In support of
the motion, Eric Debbane submitted a declaration stating he and his brother
Andrew co-own several residential buildings in San Francisco, including a
five-unit building where they live with their partners. The declaration went
on to state the Debbane brothers have kept the other three units vacant for
their “own personal use” and “have no desire to share the property that we
own and live in with persons other than those already living on the property
with us.”
Robert Friedland submitted a declaration stating he owns a four-unit
building in San Francisco and lives in one of the units. He has kept the other
three units vacant because, as a 72-year-old retiree with “significant health

7
issues,” he “no longer wish[es] to bear the physical and mental burdens of
being a landlord.” Friedland further averred Proposition M would effectively
evict him from his home, as his remaining sources of income (Social Security
and “some modest savings”) would be insufficient to cover the Empty Homes
Tax on the three units, in addition to his other living expenses.
Natasa Zec submitted a declaration stating she owns a “micro-
condominium” in both San Francisco and Boston for her personal use. She
splits time between the two cities, and in 2022, spent 126 days in San
Francisco and more than 183 days in Boston, and wishes to maintain a
similar division of time in future years. The ability to continue to travel is “of
great importance” to her and owning both units is the “most cost-effective
means of being able to pursue that course of action.” Zec further averred she
has no interest in renting out her San Francisco unit because she has had
negative experiences in the past with “extremely difficult tenants,” resulting
in damage to her property. She values the privacy of her home and has “no
desire to share it part-time with other people.” Proposition M would
effectively evict her from her home because she cannot afford to pay the
Empty Homes Tax.
The City also moved for summary judgment. It maintained the named
plaintiffs lack taxpayer standing under Code of Civil Procedure section 526a
to challenge Proposition M, and even if they have standing, each of their five
causes of action fails as a matter of law.
After full briefing and hearing, the trial court granted the plaintiffs’
motion and denied the City’s motion.

8
 The court first concluded plaintiffs have standing to bring the action.3
It then concluded Proposition M violates the Takings Clause of the Fifth
Amendment (first cause of action), is preempted by the Ellis Act (second
cause of action), violates “property-owners’ fundamental liberty interests in
familial living arrangements, protected by the due process and equal
protection clauses insofar as it taxes (actually, penalizes) units that are
rented to family members of the owner while exempting units that are leased
to strangers” (third and fourth causes of action); and “violates property-
owners’ constitutional right to privacy under the California Constitution,
insofar as it seeks to compel them to share the property on which they reside
with others, against their will” (fifth cause of action).
Judgment for plaintiffs followed, prohibiting the City and its officers,
agents, employees, service providers, and all others acting by, through, or in
concert therewith, from administering or enforcing Proposition M.4
DISCUSSION
Standard of Review
“ ‘A trial court properly grants a motion for summary judgment where
“all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

3 The City does not challenge this ruling on appeal and has therefore
waived the issue. (Cal. Rules of Court, rule 8.883(a)(1)(A); see Telish v. State
Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 (Telish) [“An
appellant’s failure to raise an argument in the opening brief waives the issue
on appeal.”].)
4 During the pendency of this appeal, the San Francisco Board of
Supervisors passed Ordinance No. 41-25, amending portions of Proposition M
to suspend the Empty Homes Tax pending a final decision in this action.

9
 A plaintiff moving for summary judgment bears the initial burden of
“showing that there is no defense to a cause of action” and meets that burden
if it “has proved each element of the cause of action entitling [it] to judgment
on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff
does so, the burden shifts to the defendant to “set forth the specific facts
showing that a triable issue of material fact exists as to the cause of action or
a defense thereto.” (Ibid.)
Our review of a judgment entered after the grant of a motion for
summary judgment is de novo. (Hampton v. County of San Diego, supra,
62 Cal.4th at p. 347.) “ ‘ “We liberally construe the evidence in support of the
party opposing summary judgment and resolve any doubts concerning the
evidence in favor of that party.” ’ ” (Ibid.) The appellant, however, still “has
the burden of showing error, even if [it] did not bear the burden in the trial
court.” (Claudio v. Regents of the University of California (2005)
134 Cal.App.4th 224, 230.)
The Ellis Act Preempts the Empty Homes Tax
We consider first plaintiffs’ claim that Proposition M is preempted by
the Ellis Act in accordance with “ ‘the familiar principle that we should
address and resolve statutory issues prior to, and if possible, instead of,
constitutional questions [citation], and that “we do not reach constitutional
questions unless absolutely required to do so to dispose of the matter before
us.” ’ ” (Levy v. City and County of San Francisco (2025) 114 Cal.App.5th 997,
1012, quoting Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th
1245, 1275, fn. 31; see Coyne v. City and County of San Francisco (2017)
9 Cal.App.5th 1215, 1235 (Coyne) [“ ‘[c]onstitutional issues will be resolved
only if absolutely necessary and not if the case can be decided on any other
ground’ ”].)

10
 The Ellis Act provides, with certain exceptions not relevant here, that
no statute, ordinance, regulation, or administrative action shall “compel the
owner of any residential real property to offer, or to continue to offer,
accommodations in the property for rent or lease. . . .” (Gov. Code, § 7060,
subd. (a); see generally San Francisco Apartment Assn. v. City and County of
San Francisco (2016) 3 Cal.App.5th 463, 477 (San Francisco Apartment
Assn.) [“ ‘ “The legislative history of the Act consistently demonstrates the
purpose of the Act is to allow landlords who comply with its terms to go out of
the residential rental business by evicting their tenants and withdrawing all
units from the market, even if the landlords could make a fair return, the
property is habitable, and the landlords lack approval for future use of the
land.” ’ ”] Quoting Los Angeles Lincoln Place Investors, Ltd. v. City of Los
Angeles (1997) 54 Cal.App.4th 53, 61.)
The Act does not, however, “[d]iminish[] . . . any power which currently
exists or which may hereafter exist in any public entity to grant or deny any
entitlement to the use of real property, including, but not limited to,
planning, zoning, and subdivision map approvals.” (Gov. Code, § 7060.1,
subd. (b); San Francisco Apartment Assn., supra, 3 Cal.App.5th at p. 478.)
Nor does it “ ‘[i]nterfere with local governmental authority over land use,’
‘[p]reempt local . . . land use regulations, procedures, or controls that govern
the demolition and redevelopment of residential property,’ or ‘[o]verride
procedural protections designed to prevent abuse of the right to evict
tenants.’ (Gov. Code, § 7060.7, subds. (a)–(c).) . . . ‘[I]t “completely occupies
the field of substantive eviction controls over landlords who wish to
withdraw” all units from the residential rental market.’ ” (San Francisco
Apartment Assn., at p. 478, quoting Johnson v. City and County of San
Francisco (2006) 137 Cal.App.4th 7, 14.)

11
 The City maintains the trial court erred in two respects in ruling
Proposition M contravenes and is preempted by this state law.
Home Rule Powers Do Not Override Conflicting State Law
The City first asserts Proposition M is a local tax measure which it was
entitled to enact pursuant to its “home rule powers” under article XI, section
5 of the California Constitution. Article XI, section 5, subdivision (a) of the
California Constitution provides: “It shall be competent in any city charter to
provide that the city governed thereunder may make and enforce all
ordinances and regulations in respect to municipal affairs, subject only to the
restrictions and limitations provided in their several charters and in respect
to other matters they shall be subject to general laws.” Home rule powers
include “the power to tax for local purposes.” (City and County of San
Francisco v. Regents of University of California (2019) 7 Cal.5th 536, 545
(Regents).)
Assuming Proposition M is properly characterized as a tax, as the City
maintains, rather than a penalty as plaintiffs assert—an issue we need not
and do not decide5—we agree with the City that the measure concerns
“municipal affairs” and thus is within the ambit of the City’s home rule
powers. But the fact that a local law concerns local affairs does not, in and of
itself, insulate that law from conflicting directives of state law. (See Regents,

5 We note, however, that Proposition M was not presented to San
Francisco voters as a revenue-raising measure, but rather as a means to
dissuade residential property owners from choosing not to enter, or to remain
out of, the residential rental business. The proponents of the measure flatly
stated, for example, that their “hope” was that “no one pays this tax”—what
they “want[ed]” was “every vacant unit filled with people who need homes.”
(Pamphlet, supra, rebuttal to argument against Prop. M, p. 173.) The City
Controller similarly observed that as Proposition M’s stated purpose—
putting tenants in vacant residential units—was achieved, any tax revenue
from the measure would decline. (Id., at p. 170.)

12
supra, 7 Cal.5th at p. 550, fn. 4 [“a charter city tax—like a charter city
regulation—may be preempted by a state statute in appropriate
circumstances”].) In other words, concluding that a municipal enactment
concerns municipal affairs is only the first step in determining whether the
enactment survives a preemption challenge.
As our high court explained in California Fed. Savings & Loan Assn. v.
City of Los Angeles (1991) 54 Cal.3d 1 (California Fed. Savings), in
determining whether a local law falling within the bounds of a charter city’s
home rule powers is preempted by state law, a court must first determine
whether the ordinance at issue regulates an activity that can be
characterized as a “ ‘municipal affair’ ” and then whether it presents an
“actual conflict” with state law. (Id. at p. 16.) If so, the court must next
determine whether the state law addresses a matter of “statewide concern,”
is “reasonably related” to the resolution of that concern, and is “narrowly
tailored” to avoid unnecessary interference in local governance. (Id. at pp. 17,
24.) If the state law at issue meets these requirements, it prevails over the
challenged local law.6
Proposition M and the Ellis Act Are in “Actual Conflict”
As we have recited, Proposition M imposes a significant tax on owners
of certain residential units (in buildings with more than two residential
units) for any unit that is not occupied, inhabited, or used for more than 182
days in a tax year. As we have also recited, the Ellis Act provides that no

6 We note that, as used in the context of legislative enactments by
home rule municipalities, the “preemption” analysis is slightly different than
that in other preemption contexts, and it is perhaps more appropriately
termed an inquiry into whether state law “supersedes” the local law. (AIDS
Healthcare Foundation v. Bonta (2024) 101 Cal.App.5th 73, 82.) However,
because relevant authority consistently uses the term “preemption” (see, post,
at pp. 14–15), we do so here.

13
local ordinance shall “compel the owner of any residential real property to
offer, or to continue to offer, accommodations in the property for rent or
lease.” (Gov. Code, § 7060, subd. (a).) Despite the apparent tension between
the directives of Proposition M and the prohibitions of the Ellis Act, the City
maintains there is no “actual conflict” between the two.
A conflict between a local law and state law exists if the local law
“ ‘ “ ‘duplicates, contradicts, or enters an area fully occupied by general law,
either expressly or by legislative implication.’ ” ’ ” (Sherwin-Williams Co. v.
City of Los Angeles (1993) 4 Cal.4th 893, 897; San Francisco Apartment Assn.,
supra, 3 Cal.App.5th at p. 475.) “[L]ocal legislation is ‘contradictory’ to
general law when it is inimical thereto.” (Sherman-Williams, at p. 898; San
Francisco Apartment Assn., at p. 475.) In determining whether that is the
case, California courts have applied the “prohibitive price” standard. (Coyne,
supra, 9 Cal.App.5th at p. 1226 [concluding “prohibitive price standard” is the
appropriate standard to determine whether San Francisco ordinances conflict
with Ellis Act].)
In Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d
1072 (Bullock), for example, a hotel owner challenged a local ordinance
conditioning issuance of a permit to convert residential hotel units on either
furnishing the units or “making a substantial ‘in lieu’ payment to a fund
maintained by the City.” (Id. at p. 1099.) The appellate court concluded the
ordinance was preempted because it impermissibly conditioned the owners’
right to depart the business of renting residential hotel units on compliance
with requirements not found in the Ellis Act. (Bullock, at pp. 1100–1101.)
“The Ellis Act does not,” said the court, “permit the City to condition
plaintiff’s department upon the payment of ransom.” (Bullock, at p. 1101.)
Rather than recognize the right of the owner under the Ellis Act to “ ‘ “just

14
simply go out of that business,” ’ ” the ordinance “is attempting to ‘impose[] a
prohibitive price on the exercise of th[at] right under the Act.’ ” (Bullock, at
p. 1101.)
In Reidy v. City and County of San Francisco (2004) 123 Cal.App.4th
580 (Reidy), a residential hotel owner challenged a local ordinance making it
unlawful to eliminate, demolish, or change the use of residential hotel units
without a permit. (Id. at p. 589.) The appellate court ruled the ordinance
was preempted because it “effectively conditioned” the right of a hotel owner
to go out of the rental business on compliance with requirements not found in
the applicable version of the Ellis Act. (Reidy, at p. 593.)
And in Coyne, supra, 9 Cal.App.5th at page 1218, property owners
challenged an ordinance that increased relocation assistance payments owed
to tenants under the Ellis Act. The appellate court again ruled the ordinance
was preempted because the relocation payment provisions placed conditions
on the right to go out of business not found in the Ellis Act. (Coyne, at
p. 1227.) The ordinance was, in short, “a form of ransom” that interfered
with this right and therefore imposed “a prohibitive price on the ability of
landlords to exercise their rights under the Ellis Act.” (Coyne, at p. 1230.) In
so ruling, the court made clear the ordinance was a “categorical
infringement[]” of the owners’ Ellis Act rights and declined to consider what
particular payment threshold imposed a “prohibitive price,” as there was “no
set of circumstances under which we view this type of payout obligation as
valid.” (Coyne, at p. 1232.)
Bullock, Reidy, and Coyne collectively instruct that local ordinances
like Proposition M that place conditions on a residential property owner’s
right to not offer their property for rent are preempted if those conditions are
not required by the Ellis Act.

15
 The City does not suggest Proposition M imposes any condition that is
remotely within the contemplation of the Ellis Act. Instead, it argues
Bullock, Reidy, and Coyne are distinguishable because they addressed a
residential property owner’s right under the Ellis Act to exit the rental
market, whereas Proposition M focuses on placing residential units into the
rental market, or returning such units to the rental market.
To begin with, the Ellis Act, by its plain language, protects both the
right not to “offer” accommodations for rent—i.e., the right not to enter the
rental market—as well as the right not to “continue to offer” accommodations
for rent—i.e., the right to exit the rental market. (Gov. Code, § 7060,
subd. (a).)
Further, there is no material difference between the “absolute right to
exit the residential rental business” (San Francisco Apartment Assn., supra,
3 Cal.App.5th at p. 477, italics added) discussed in Bullock, Reidy, and Coyne,
and the right not to enter or reenter the residential rental business asserted
here. In fact, one could say the right at issue here is a residential property
owner’s right to remain exited from the rental market. Otherwise, as the City
apparently sees it, while a property owner, indeed, has the right to exit the
residential rental business, they have no correlative right to remain out of
that business and can be pressured back into it on pain of significant
taxation. This circularity in reasoning is a patently unreasonable reading of
the Ellis Act. (See San Francisco Apartment Assn., at p. 480 [explaining
decade-long “ban on applying for merger approval beg[an] to run when the
landlord exit[ed] the residential rental business rather than before the
landlord exit[ed] the business[,] [did] not make this ban any less of a penalty
triggered by the landlord’s exercise of Ellis Act rights”].)

16
 The City further argues Bullock, Reidy, and Coyne are not persuasive,
in any event, because Proposition M assertedly does not impose a “prohibitive
price” on a residential property owner’s exercise of Ellis Act rights. This is so,
says the City, because the owner still has “choices”—they can use but not
reside on the property, they can reside on the property, or they can choose not
to use or reside on the property and pay the Empty Homes Tax.
With respect to the first supposed choice, the City posits residential
property owners who would otherwise be subject to Proposition M can avoid
the tax by using their residential units, not as a place they or anyone else
resides, but as an office, personal gym, or private art studio. The City did not
advance this argument in the trial court and has therefore forfeited the issue.
(See Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 [“It is
well settled that the failure to raise an issue in the trial court typically
forfeits on appeal any claim of error based on that issue.”].) But even if it
were preserved, it is not supported by the language of Proposition M, the
Report that prompted it, or the ballot materials submitted to the voters.
In support of its proffered construction, the City points to Proposition
M’s definition of a “ ‘Vacant’ ” residential unit as one “unoccupied,
uninhabited, or unused, for more than 182 days, whether consecutive or
nonconsecutive, in a tax year.” (§ 2952, italics added.)
When construing a local ordinance enacted by initiative, general rules
of construction apply and our primary concern is giving effect to the intent of
the voters. (Cannabis Coalition, supra, 3 Cal.5th at p. 933; Lesher
Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540–542.)
We begin with the plain language of the measure, “ascribing to words their
ordinary meaning, while taking account of related provisions and the
structure of the relevant statutory and constitutional scheme.” (Cannabis

17
Coalition, at p. 933.) Where possible, we avoid literalism that would result in
absurd or arbitrary results. (Commission on Peace Officer Standards &
Training v. Superior Court (2007) 42 Cal.4th 278, 290.)
As a preliminary matter, the City seems to suggest our consideration of
its proffered reading of Proposition M is confined to examining its text, as
plaintiffs have advanced “facial challenges” to the measure’s lawfulness.
That is not the case. In considering a facial challenge to a local or state law,
we are not precluded from employing any of the rules of construction that
may be appropriate, including those that may be brought to bear when some
ambiguity inheres in the language of the challenged measure. (See
California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 257–
261 [examining full constitutional and statutory context, including ballot
materials and legislative history of pertinent provisions, in addressing facial
challenge to statutes curtailing redevelopment agencies].)
As the City points out, Proposition M does, indeed, define “ ‘Vacant’ ” to
mean “unoccupied, uninhabited, or unused.” (§ 2952.) It does not, however,
provide any definition of the salient terms “unoccupied,” “uninhabited,” or
“unused.” We also agree, as the City urges, that under the rules of statutory
construction, we must presume these three different terms have different
meanings. (See In re A.T. (2025) 110 Cal.App.5th 722, 733 [where different
words “appeared in the same statute, we presumed they had different
meanings”].)
But even assuming these terms have different meanings, it is not at all
clear what each means. And it certainly is not clear that the term “unused”
permits the owner of a residential property to not reside there but
nevertheless avoid paying the Empty Homes Tax if they use the property for
a nonresidential purpose, which the City suggests could be office space, a

18
gym, or art studio. At best, the City has posited an arguable construction of
the language and thus has identified an ambiguity as to the meaning of the
term. We therefore proceed to “consider extrinsic sources, such as an
initiative’s ballot materials” to resolve this supposed ambiguity. (Cannabis
Coalition, supra, 3 Cal.5th at p. 934.)
The Report prepared prior to the drafting of Proposition M, which is
cited in the text of the measure and was cited in the ballot arguments in
support of it, evidences the origin of, and the distinction between, the terms
“unoccupied, uninhabited, or unused.” (Pamphlet, supra, text of Prop. M,
p. 241; Id., argument in favor of Prop. M and rebuttal, p. 172.) As we have
discussed, the Report grouped the 40,000-plus residential vacancies it
identified from data into specific subcategories. (Report, supra, at p. 4.) One
category included unoccupied units: units that had been rented or sold but
were not yet occupied by the renter or owner. (Ibid.) Another category
included uninhabited units: units that had been kept vacant for some other
reason, including “personal or family reasons.” (Ibid.) And a third category
included unused units: units “used or intended for use part time or occasional
use throughout the year,” such as units “used seasonally or recreationally”
like “second or non-primary housing units, and timeshares.” 7 (Ibid.)
The ballot arguments utilized this same terminology. Proponents, for
example, argued Proposition M would target owners with unused units:
“those wealthy individuals who purchase units but don’t use them.”
(Pamphlet, supra, argument in favor of Prop. M, p. 172.) They made specific

7 At oral argument, the City argued the Report is irrelevant because it
was not among the materials placed before the voters. However, Measure M
was a City drafted initiative that followed in the wake of the City drafted
Report. Thus, the Report provides contextual background to the language of
the measure.

19
mention of “corporate landlords” who were assertedly “holding units vacant,
waiting to flip them for profit years down the road.” (Id., rebuttal to
argument against Prop. M, p. 173.) Opponents, in turn, maintained the
proposition would impact “small property owners and intergenerational
households, not corporate landlords.” (Id., argument against Prop. M,
p. 173.) Proponents disputed this and asserted, “We want every vacant unit
filled with people who need homes.” (Id., rebuttal to argument against Prop.
M, p. 173.)
The Report and the ballot materials, thus, indicate the phrase
“unoccupied, uninhabited, or unused” refers to residential units that are not
occupied as a residence, not inhabited by a resident, or not used as a
residence for more than half a year. Indeed, this is the only reading that
aligns with the stated purpose of Proposition M—“to disincentivize prolonged
vacancies, thereby increasing the number of housing units available for
occupancy” (§ 2951, subd. (e), italics added)—as well as the name and
descriptor of the tax—“an annual Empty Homes Tax on each person that
owns a Residential Unit for keeping that Residential Unit Vacant.” (§ 2953,
subd. (a), italics added.)
In short, there is not the slightest suggestion in either the language of
Proposition M—or the Report that preceded it, or the voter materials for and
against it—that the Empty Homes Tax does not apply to the owner of a
residential property who chooses not to reside thereon if, for example, they
festoon the walls of their property with personal photographs and call it their
personal photo gallery, or roll out a yoga mat on the living room floor and
pronounce the property a personal workout studio. To the contrary, such a
construction is squarely at odds with the intent of the proposition—to require

20
owners of residential properties, on pain of significant taxation, to put such
properties to residential use and keep them in such use.
Furthermore, the City’s assertion that making nonresidential use of a
residential property is a choice an owner can legitimately make to avoid the
Empty Homes Tax is at odds with the uses of a “Residential Unit” allowed
under San Francisco’s Planning Code. San Francisco Planning Code section
102 provides that the “Principal” permitted use of a “Residential Unit” (or
“Dwelling Unit”) is “Residential Use,” defined to “provide housing for San
Francisco residents.” While the owner of a “Residential Unit” may also
engage in “Accessory Use,” like a home office, such use is limited to a “related
minor Use that is either necessary to the operation or enjoyment of a lawful
Principal Use or Conditional use, or appropriate, incidental, and subordinate
to any such use. . . .” (S.F. Planning Code, § 102; see S.F. Planning, General
Planning Information: Accessory Uses for Dwellings (Apr. 2015), p. 2
(“Planning Information”) [identifying home offices and studios as accessory
uses under the Planning Code].) Accessory uses are permitted, in other
words, “so long as the principal use of the residence remains as a dwelling.”8
(Planning Information, at p. 1.)
In short, using a residential unit for nonresidential use, as the City
suggests an owner can do to avoid the Empty Homes Tax, runs afoul of the
San Francisco Planning Code. The voters cannot, of course, be presumed to
have had any such intent with respect to Proposition M, as they are “deemed

8 Contrary to its assertion at oral argument, the City’s “other uses”
argument is not bolstered by the fact the Planning Code does not
comprehensively define “accessory uses.” Rather, the inherent difficulty the
City faces is the Code’s directive that accessory uses are permitted only “so
long as the principal use of the residence remains as a dwelling.” (Planning
Information, at p. 1, italics added.)

21
to be aware of laws in effect at the time they enact new laws and are
conclusively presumed to have enacted the new laws in light of existing laws
having direct bearing upon them.” (Williams v. County of San Joaquin
(1990) 225 Cal.App.3d 1326, 1332.)
The second choice the City claims is open to residential property
owners under Proposition M—choosing to reside on their property—is a slight
of hand. There is no issue as to residential property owners who reside on
their residential property. Rather, the issue is whether the Ellis Act
precludes a municipality from requiring the owner of a residential property
who does not reside on their property for at least half of a tax year, to rent
out the property for residential use, or incur a sizable tax if they do not do so.
The answer is dictated by the “prohibitive price” standard. (Coyne,
supra, 9 Cal.App.5th at p. 1226.) As we have discussed, this standard
precludes a public entity from imposing “an inevitable and undue burden (to
wit, a ‘prohibitive price’)” on the exercise of rights protected under the Ellis
Act. (San Francisco Apartment Assn., supra, 3 Cal.App.5th at p. 482; Coyne,
at p. 1231 [“A property owner’s lawful decision to withdraw from the rental
market may not be frustrated by burdensome monetary exactions from the
owners to fund the City’s policy goals.”].) And those rights, as we have
discussed, include the right not to “offer,” as well as the right not to “continue
to offer,” residential property for rent or lease. (Gov. Code, § 7060, subd. (a),
italics added.)
As for the third supposed choice available to the owner of a residential
property—not residing on or using the property and paying the Empty Homes
Tax—the City, citing to Pieri v. City and County Of San Francisco (2006)
137 Cal.App.4th 886 (Pieri), contends Proposition M imposes only a “modest
tax” and not a “prohibitive price.” However, Pieri is readily distinguishable.

22
 In that case, property owners challenged an ordinance requiring
owners to provide relocation assistance payments between $4,500 and
$13,500 to exit the rental market. (Pieri, supra, 137 Cal.App.4th at p. 889.)
The appellate court concluded the ordinance did not conflict with the Ellis Act
because the Act expressly states it does not diminish the power of public
entities “to mitigate any adverse impact persons displaced by reason of the
withdrawal from rent or lease of any accommodations.” (Pieri, at p. 892,
citing Gov. Code, § 7060.1.) The court then determined the mitigation scale
in question was not “necessarily beyond that contemplated by the
Legislature.” (Pieri, at p. 894.) The instant case, in contrast, does not involve
a mitigation ordinance expressly permitted by the Ellis Act. Indeed, as we
have discussed, no language of the Act expressly authorizes a local measure
remotely similar to Proposition M.
In San Francisco Apartment Assn., the Court of Appeal rejected an
“alternatives” argument similar to the one the City advances here. In that
case, the defendants argued there was no conflict between the Ellis Act and
an ordinance imposing a 10-year waiting period on a residential hotel owner’s
ability to merge units withdrawn from the rental market, because the owner
“remain[ed] free to exit the rental market and to use his or her property in
any number of authorized ways” and was subject to the waiting period only
“if the landlord intend[ed] to merge the withdrawn unit with another.” (San
Francisco Apartment Assn., supra, 3 Cal.App.5th at p. 481.) The court agreed
with the plaintiffs, however, that residential hotel owners could not be put to
such a choice and the ordinance imposed a “ ‘prohibitive price on the exercise
of’ ” their rights under the Ellis Act to go out of the residential rental
business. (San Francisco Apartment Assn., at p. 481; see Coyne, supra,
9 Cal.App.5th at p. 1232 [concluding, without regard to actual amounts, that

23
requirement to pay relocation expenses was a “categorical infringement[]” of,
and thus a “prohibitive price” imposed on, owners’ Ellis Act rights, stating
there was “no set of circumstances under which we view this type of payout
obligation as valid”].9)
Proposition M is Preempted by the Ellis Act
Having addressed and rejected the City’s arguments that there is no
“actual conflict” between Proposition M and the Ellis Act, we turn to the
additional factors California Fed. Savings instructs must be examined to
determine whether a conflicting state law, such as the Ellis Act, overrides, or
preempts, a local law, such as Proposition M, enacted pursuant to the
municipality’s home rule powers. (California Fed. Savings, supra, 54 Cal.3d
at pp. 17, 24.) Notably, the City makes no argument that these additional
factors are not present, and we readily conclude that they are.
The Ellis Act was passed in the wake of our Supreme Court’s decision
in Nash v. City of Santa Monica (1984) 37 Cal.3d 97, 99, 109, upholding a city

9 At oral argument, the City advanced a different “other uses”
argument—that assuming Measure M to be a “tax” means the measure
cannot be viewed as “compelling” a property owner to remain in the
residential rental market, citing National Federation of Independent Business
v. Sebelius (2012) 567 U.S. 519. The City did not advance this argument
either in the trial court or in its opening brief on appeal and therefore has
both forfeited and waived it; rather, it cited the Supreme Court’s now decade-
old opinion for the first time in its appellant’s reply brief and then only in
connection with a different argument pertaining to the constitutionality of
the Measure. (See Bitner v. Department of Corrections & Rehabilitation
(2023) 87 Cal.App.5th 1048, 1065 [“Having failed to raise or develop this
issue in the trial court, plaintiffs cannot raise the issue for the first time on
appeal.”]; Telish, supra, 234 Cal.App.4th at p. 1487, fn. 4 [failure to raise
issue in opening brief waives issue on appeal].) In any case, the high court’s
fractured opinion in Sebelius has no bearing on the application of the Ellis
Act and does not undermine in any respect the Bullock, Reidy, and Coyne
cases.

24
charter provision prohibiting the removal of rental units from the market by
conversion or demolition without a permit. Under the “apparent impression”
that the court had “denied the existence of a ‘ “fundamental right” to cease
doing business as a landlord,’ ” the Legislature passed the Ellis Act to
“alleviate the plight of landlords.” (Bullock, supra, 221 Cal.App.3d at
p. 1096.) It is therefore “self-evident” from the language of the Act that the
Legislature intended to prevent owners from being compelled to rent their
residential property by the actions of public entities. (City of Santa Monica v.
Yarmark (1988) 203 Cal.App.3d 153, 166 (Yarmark).) Thus, the Ellis Act
both addresses a matter of “statewide concern” and is reasonably related to
the resolution of that concern. (California Fed. Savings, supra, 54 Cal.3d at
pp. 17, 24.)
The Ellis Act is also “narrowly tailored” (California Fed. Savings,
supra, 54 Cal.3d at p. 24) to avoid unnecessary interference in local
governance by containing “explicit boundaries, leaving areas for local control
in a fashion consistent with its terms.” (Yarmark, supra, 203 Cal.App.3d at
p. 167.) For example, the Act “bears no effect on a public entity’s power
under law to enforce residential rental or lease contracts, regulate[] land use
through planning, zoning, and subdivision map approvals, or mitigate any
adverse impact on displaced tenants of residential hotels or other
accommodations.” (Yarmark, at p. 167, fn. omitted, citing Gov. Code,
§ 7060.1.)
We therefore conclude, for all the reasons we have discussed, that
Proposition M is preempted by the Ellis Act. This conclusion dictates that
the judgment in favor of the plaintiffs must be affirmed, and we therefore
need not, and do not, reach the additional grounds, including the
constitutional grounds, on which the trial court granted summary judgment.

25
(See Clarke v. Yu (2026) 119 Cal.App.5th 199, 209 [having affirmed summary
judgment on one ground, court “d[id] not need to reach the other grounds
raised by the parties”]; Coyne, supra, 9 Cal.App.5th at p. 1235 [given
conclusion that city ordinance was invalid under Ellis Act, court had no need
to reach, and did not reach, other issues raised by the parties, including
constitutional issues].)10
DISPOSITION
The judgment is AFFIRMED. Plaintiffs are entitled to costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1)–(2).)

10 We deny as unnecessary plaintiffs’ motion to strike a portion of
City’s reply brief or for leave to file a surreply related to these additional
grounds. (New Livable California v. Association of Bay Area Governments
(2020) 59 Cal.App.5th 709, 717, fn. 7.)

26
 _________________________
Banke, Acting P. J.

We concur:

_________________________
Langhorne Wilson, J.

_________________________
Smiley, J.

A172067, Debbane v. City & County of SF

27
Trial Court: San Franisco City & County Superior Court

Trial Judge: Hon. Charles F. Haines

Counsel:

Nielsen Merksamer, LLP, Christopher Skinnell and Hilary Gibson, for
Plaintiff and Respondent.

Pacific Legal Foundation, Jonathan Houghton and Jeremy Brennan Talcot;
Berkeley Property Owners Association, Clifford E. Fried, as Amicus Curiae
on behalf of Plaintiff and Respondent.

Thomas Lakritz, City Attorney, Edmund T. Wang, Deputy City Attorney, for
Defendant and Appellant.

28


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DAN SCHNEIDER, B343434

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24NNCV01328)
v.

WARNER BROS. DISCOVERY, INC.,
et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of
Los Angeles County, Ashfaq G. Chowdhury, Judge. Reversed.
Greenberg Traurig, Vincent H. Chieffo, Alex Linhardt;
Foley Hoag, Michael J. Grygiel, Kelly L. McNamee and Christina
N. Hernsdorf; Gibson Dunn & Crutcher, Theodore J. Boutrous,
Ilissa Samplin, Zachary C. Freund, and Connor S. Sullivan for
Defendants and Appellants.
Jassy Vick Carolan, Jean-Paul Jassy, Kevin Vick; Lisa
Zycherman, Mara Gassmann and Claudia Liss-Schultz for the
Reporters Committee for Freedom of the Press and the
International Documentary Association as Amici Curiae on
behalf of Defendants and Appellants.
Moser Legal and Jana M. Moser; Sullivan & Worcester and
Gerry Silver for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Plaintiff and respondent Dan Schneider is a television
producer, creator, and writer, who is associated with a number of
children’s television shows airing on the Nickelodeon network
from the late 1990’s and 2000’s, including All That, The Amanda
Show, Drake & Josh, and iCarly, among others. He is also one of
the primary subjects of the documentary Quiet on Set: The Dark
Side of Kids TV (Quiet on Set), a five-part documentary series
that explores the behind-the-scenes culture of some of Schneider’s
shows. Quiet on Set also details incidents of sexual abuse
perpetrated by Nickelodeon employees against child actors who
worked on these shows. Schneider argues that “through the use
of voiceovers, photos, videos, graphics, editing and production,”
Quiet on Set implies a false relationship between these subjects
and leads a reasonable viewer to inaccurately conclude that
Schneider “committed crimes of child sexual abuse.”
Schneider sued Defendants, who are parties that “variously
wrote, filmed, produced marketed, broadcast and streamed” Quiet
on Set and its trailer, for defamation.1 Defendants filed a special
motion to strike Schneider’s sole cause of action under

1 Defendants and appellants are Warner Brothers Discovery, Inc.,

Maxine Productions, Sony Productions, and individuals Mary
Robertson and Emma Schwartz (collectively, Defendants), who
“wrote, directed, produced and/or edited Quiet on Set and its
trailer.”

2
California’s statute combatting strategic lawsuits against public
policy (SLAPPs). (Code Civ. Proc., § 425.16, subd. (b).)2 The trial
court denied Defendants’ motion and Defendants timely
appealed.
We reverse, finding that Schneider has not demonstrated a
likelihood of success on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
Schneider’s complaint arises from Defendants’ creation and
distribution of the documentary Quiet on Set. The trailer,
advertising the documentary and teasing its contents, began
circulating online in February 2024. The trailer lasted
approximately two-and-a-half minutes. The documentary itself
was presented as five separate episodes; the first four were
released on March 17 and 18, 2024, and a fifth episode that, in
part, responded to the public’s reaction to the first four episodes,
aired on April 7, 2024. Each episode is around 42 minutes, and
the documentary has a total running time of around three hours
and 30 minutes.
Schneider argues that the totality of the editorial choices
made by Defendants imply that he sexually abused children who
worked on his television shows. His complaint identified several
excerpts from Quiet on Set and its trailer that he asserts
contribute to that inference. We will further discuss these
specific challenged excerpts, but the crux of Schneider’s
argument, as stated in his complaint, is that “the voiceovers and
graphics in Quiet on Set and its trailer, juxtaposed or edited with
the visual depictions, are purposefully and intentionally

2 All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

3
defamatory in that they falsely and repeatedly state or imply that
Schneider is a child sexual abuser and committed crimes in this
regard.”
Schneider’s Complaint and Defendants’ Anti-SLAPP
Motion to Strike
Schneider filed his complaint for defamation on May 1,
2024. On July 3, 2024, Defendants filed an anti-SLAPP motion
to strike the entirety of Schneider’s complaint. In support,
Defendants filed, among other things, time-stamped copies of the
trailer and episodes. Defendants argued that these works
constituted “ ‘conduct in furtherance of the exercise of . . . the
constitutional right of free speech in connection with a public
issue or an issue of public interest,’ ” and that Schneider’s
complaint was therefore subject to an anti-SLAPP motion to
strike, pursuant to section 425.16, subdivision (b)(1). They also
argued that Schneider could not demonstrate any probability of
success on the merits because the documentary and trailer were
not reasonably susceptible to a defamatory meaning. They
additionally asserted that Schneider had no evidence of actual
malice to establish that Defendants created the work with the
knowledge that it was susceptible to this defamatory
interpretation, as is required for a defamation case involving a
public figure. Finally, they argued that Schneider failed to
adequately plead special damages, and that this omission was
fatal to his complaint.
Schneider filed an opposition. He did not contest that the
complaint arose from activity protected by the anti-SLAPP
statute. Instead, he argued that his claim had sufficient merit to
prevail, and he detailed the specific elements of the documentary
and trailer that he argued implied a defamatory meaning. He

4
also asserted that his evidence was sufficient for a factfinder to
conclude that Defendants acted with actual malice in their
production choices. In response to Defendants’ claim that he
failed to sufficiently plead special damages, he contended that
this was not a requirement for his claim, but that he had done so,
nonetheless.
In support, Schneider submitted a declaration by John
Vaccaro, a partner at a public relations firm providing services to
Schneider. The Vaccaro declaration included copies of public
posts found on various online platforms, including comments
posted on the YouTube.com comment section of the trailer, and
others published on the social media platform X (formerly
Twitter). This declaration also included posts made under an
“apology video” that was created by Schneider and posted on his
own Facebook page, which responded to the first four Quiet on
Set episodes. Schneider relied on these posts as evidence that
average viewers did, in fact, infer from the documentary and
trailer that he had sexually abused children. Defendants filed
evidentiary objections to the Vaccaro declaration, which the trial
court overruled. Defendants also filed a reply in support of their
anti-SLAPP motion, supported by additional declarations.3

3 Schneider failed to submit a declaration expressly denying that

he had not sexually abused children on his television shows. In
light of this failure, Defendants argued that Schneider’s evidence
was inadequate because it did not include a declaration
“evidencing an essential element of his defamation claim—the
falsity of the alleged implication that he is a child molester.” The
trial court ultimately considered a conforming copy of Schneider’s
late-filed declaration in opposition to the anti-SLAPP motion.

5
 On November 22, 2024, the trial court denied Defendants’
motion to strike. The trial court recounted the arguments by
each side and set forth the two-step process for evaluating an
anti-SLAPP motion to strike. First, the moving defendant must
make a prima facie showing “ ‘ “that the act or acts of which the
plaintiff complains were taken ‘in furtherance of the [defendant]’s
right of petition or free speech . . . .’ ” [Citation.]’ [Citation.] If
the defendant carries this burden, the plaintiff must then
demonstrate its claims have at least ‘ “minimal merit” ’
[Citation].” The trial court noted the parties’ agreement on step
one that “[t]here’s no question in this case that Plaintiff’s claims
involve free speech.”
Moving to step two, the trial court then found that this was
“not a case brought by Schneider on frivolous grounds, simply to
harass defendants,” and was therefore “not the type of baseless
lawsuit . . . that the anti-SLAPP statute was designed to weed
out.” The trial court found that Schneider “argues persuasively
that defamation can be implied . . . and how the ordinary viewer
understands the trailer and documentary to be defamatory.” The
trial court did not provide a detailed analysis of the merits of
Schneider’s defamation claim, but concluded that he “carried his
burden . . . [and] show[ed] that his claim has at least ‘minimal
merit,’ for the purposes of this stage of the anti-SLAPP analysis
. . . [and] pointed to [ ] substantial amounts of evidence that could
support his theory of implied defamation.”
Defendants timely appealed.

6
 DISCUSSION
I. The anti-SLAPP framework and our standard of
review on appeal
California law authorizes a special motion to strike
unmeritorious pleadings that have the effect of “ ‘chill[ing] the
defendant’s exercise of First Amendment Rights.’ ” (Paul v.
Friedman (2002) 95 Cal.App.4th 853, 861.) The Legislature
created this procedure, codified at section 425.16, in response to
“a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.” (§ 425.16, subd. (a).)
“Section 425.16 is a procedural remedy designed to eliminate
SLAPPs in the early stages of litigation” and is intended to spare
defendants the unnecessary expense of litigation and the
concomitant chill on speech that fear of such litigation engenders.
(Paul, at p. 862.) As such, “[a]nti-SLAPP motions may only
target claims ‘arising from any act of [the defendant] in
furtherance of the [defendant’s] right of petition or free speech
under the United States Constitution or the California
Constitution in connection with a public issue.’ ” (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057,
1062 (Park).) This is codified in section 425.16, subdivision (e), to
include, among other activities, “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.” (§425.16, subd.
(e)(3).)
An anti-SLAPP motion to strike proceeds in two steps. “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 court determines that relief

7
is sought based on allegations arising from activity protected by
the statute, the second step is reached. There, the burden shifts
to the plaintiff to demonstrate that each challenged claim based
on protected activity is legally sufficient and factually
substantiated. The court, without resolving evidentiary conflicts,
must determine whether the plaintiff’s showing, if accepted by
the trier of fact, would be sufficient to sustain a favorable
judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016)
1 Cal.5th 376, 396.) At both steps, the party bearing the burden
must only establish a prima facie showing. (Issa v. Applegate
(2019) 31 Cal.App.5th 689, 701–702 (Issa).) “ ‘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 be stricken under the
statute.’ ” (Id. at p. 701, quoting Navellier v. Sletten (2002)
29 Cal.4th 82, 89.)
“In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the
plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the
court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant’s evidence supporting the motion
defeats the plaintiff’s attempt to establish evidentiary support for
the claim.” (Wilson v. Parker, Covert & Chidester (2002)
28 Cal.4th 811, 821; see also Park, supra, 2 Cal.5th at p. 1067
[“We do not, however, weigh the evidence, but accept plaintiff’s
submissions as true and consider only whether any contrary
evidence from the defendant establishes its entitlement to prevail
as a matter of law”].)

8
 The appellate court’s review of an order granting an anti-
SLAPP motion is de novo. (Park, supra, 2 Cal.5th at p. 1067; see
also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [“An
appellate court reviews an order denying an anti-SLAPP motion
from a clean slate”].) However, “[i]f the trial court’s decision
denying an anti-SLAPP motion is correct on any theory
applicable to the case, we may affirm the order regardless of the
correctness of the grounds on which the trial court reached its
conclusion.” (Issa, supra, 31 Cal.App.5th at p. 701.)4 It is
therefore our job to determine, after an “ ‘independent review of
the entire record,’ ” whether Defendants made a threshold
showing that Schneider’s claim arose from Defendants’ free
speech protected by section 425.16, and, if so, whether Schneider
has made a sufficient showing that he is likely to succeed on the
merits of his defamation case. (De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 856, quoting City of Costa Mesa
v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371.)
II. Analysis
A. Protected Speech
It is undisputed that the documentary and trailer fall
under the categories of speech protected by the anti-SLAPP

4 Parties and amici curiae debate whether the trial court

incorrectly applied the “minimal merit” standard to allow
Schneider’s claim to proceed merely upon a showing that it was
not frivolous or intended to harass. Regardless of whether the
trial court applied the correct standard, this court may affirm the
denial of the motion to strike if the court was correct in its
ultimate conclusion. (Balzaga v. Fox News Network, LLC (2009)
173 Cal.App.4th 1325, 1336 (Balzaga) [“We thus review the trial
court’s ruling and not its rationale”].)

9
statute. (§ 425.16, subd. (e).) The trial court found that step one
had been satisfied and Schneider does not challenge this finding
on appeal.
B. Likelihood of Success on the Merits
At the second step, Schneider must “make a prima facie
showing of facts that, if proven, would support a judgment in his
favor” on his sole cause of action for defamation per se. (Issa,
supra, 31 Cal.App.5th at pp. 701–702.) “ ‘The elements of a
defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to
injure or causes special damage.’ ” (Id. at p. 702, quoting Taus v.
Loftus (2007) 40 Cal.4th 683, 720.) In addition, because
Schneider is a public figure, “he must also demonstrate, by clear
and convincing evidence, that the challenged statements were
made with actual malice.” (Id. at p. 703.)
Schneider’s complaint does not allege that any specific
factual statement regarding him in Quiet on Set is false. That
Defendants’ documentary is not alleged to contain express
falsities is not, however, fatal to a claim of defamation.
“California law recognizes that a defamatory statement can be
either ‘expressly stated or implied.’ ” (Manzari v. Associated
Newspapers Ltd. (9th Cir. 2016) 830 F.3d 881, 889 (Manzari),
quoting Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 (Forsher).)
“ ‘ “[I]f the defendant juxtaposes [a] series of facts so as to imply a
defamatory connection between them, or [otherwise] creates a
defamatory implication . . . he may be held responsible for the
defamatory implication, . . . even though the particular facts are
correct.” [Citation.]’ [Citation.] Therefore, ‘it is the defamatory
implication—not the underlying assertions giving rise to the
implication—which must be examined to discern whether the

10
statements are entitled to full constitutional protection.’ ” (Weller
v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d
991, 1003, fn. 10.)
Because Schneider relies on a theory of defamation by
implication, he “must demonstrate that (1) his . . . interpretation
of the statement is reasonable; (2) the implication or implications
to be drawn convey defamatory facts, not opinions; (3) the
challenged implications are not ‘ “substantially true;” ’ and (4) the
identified reasonable implications could also be reasonably
deemed defamatory.” (Issa, supra, 31 Cal.App.5th at p. 707.)
Schneider claims that a reasonable implication of Defendants’
documentary is that Schneider sexually abused children.
Defendants do not argue that characterization as a child
sexual predator is not defamatory.5 Nor do the parties dispute
whether this characterization is “substantially true.” Schneider

5 Defendants argue that Schneider’s claim is not defamatory per

se because it relies on implication. Defamation per se
encompasses defamation by implication, provided that it is
unnecessary to rely on extrinsic information to discern the
defamatory meaning of the offending statement. (See McGarry v.
University of San Diego (2007) 154 Cal.App.4th 97, 112 [“A
statement can also be libelous per se if it contains a charge by
implication from the language employed by the speaker and a
listener could understand the defamatory meaning without the
necessity of knowing extrinsic explanatory matter”].) Defendants
do not argue that extrinsic information is required to understand
why labeling Schneider as one who molests children “exposes
[him] to hatred, contempt, ridicule, or . . . has a tendency to
injure him in his occupation.” (Civ. Code, § 45; see also Grenier v.
Taylor (2015) 234 Cal.App.4th 471, 486 [statements that plaintiff
molested children were factual statements alleging criminal
conduct and are defamatory on their face].)

11
denies engaging in such conduct and, while Defendants stand by
allegations of other forms of bad behavior made in Quiet on Set,
they do not advance the argument that child sexual abuse is a
substantially true description of Schneider’s conduct.
Additionally, Defendants do not argue that characterizing
Schneider as someone who has sexually abused children is
merely a matter of opinion and not a fact capable of being
disproven. Thus, the only element of Schneider’s defamation by
implication claim that is disputed by Defendants is whether their
work is reasonably subject to the meaning Schneider contends.
On appeal, we are tasked with determining whether Quiet
on Set and its trailer are reasonably subject to Schneider’s
interpretation as a matter of law. If the court finds that
Defendants’ work is “ ‘susceptible of both an innocent and
libelous meaning,’ ” then Schneider has satisfied the minimal
merit threshold and the motion to strike must be denied.
(Edward v. Ellis (2021) 72 Cal.App.5th 780, 790 (Edward),
quoting Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th
375, 385.)
i. Evidentiary issues
Before addressing whether Schneider satisfied his burden
and demonstrated a probability of success on the merits, we must
determine what evidence may properly be considered. Through
the Vaccaro declaration, Schneider introduced statements found
online that were purportedly made by viewers of the
documentary or its trailer reflecting their belief that Schneider
had engaged in child sexual abuse. Schneider argues that these
online postings should be considered as evidence that viewers
did, in fact, attribute a defamatory meaning to Defendants’ work,
and thereby support his assertion that Quiet on Set and its trailer

12
are susceptible to a defamatory implication as a matter of law.
Defendants objected to the Vaccaro declaration on various
grounds, including lack of foundation and relevance, which were
overruled by the trial court. Defendants renew their arguments
that these statements taken from various social media platforms
should not be considered. We agree.
We consider the trial court’s evidentiary ruling for abuse of
discretion. (Bennett v. Superior Court (2019) 39 Cal.App.5th 862,
876.) “A trial court ruling that rests on an error of law is an
abuse of discretion.” (Ibid.)
The evidence that Schneider seeks to have the court
consider are statements in newspapers and Internet postings
such as: “Dan Schneider needs to be in prison IMMEDIATELY,”
“Dan Schneider was the Harvey Weinstein of Nickelodeon,” and
“We owe [Amanda Bynes] and [Drake Bell] an apology and our
support. May they find peace and may the abusive [Nickelodeon]
executives and child molesters be brought to justice.
#DanSchneider #quietonset,” and a caption referencing Schneider
as an “alleged assaulter.” These postings were made on various
platforms, under individuals’ handles, some of which appear to be
a first and last name, while others we must hope are
pseudonyms, such as “MrAverageViewer,” “kermittthefrog2311”
and “Cowbells.” He seeks to introduce these statements as
evidence that “viewers understood Defendants’ statements or
implications . . . to mean that Schneider in fact committed crimes
of child sexual abuse.”
Defendants argue that the third-party statements should
not be considered because “[t]he ‘dispositive question’ in [an
implied defamation] case is ‘whether a reasonable fact finder
could conclude the published statement declares or implies a

13
provably false assertion of fact.’ This is ordinarily a question of
law for the court.” (Edward, supra, 72 Cal.App.5th at p. 790,
quoting Franklin v. Dynamic Details, Inc., supra, 116
Cal.App.4th at p. 385; Couch v. San Juan Unified School District
(1995) 33 Cal.App.4th 1491, 1500 (Couch) [“Whether published
material is reasonably susceptible of an interpretation which
implies a provably false assertion of fact—the dispositive
question in a defamation action—is a question of law for the
court”].) Whether there is evidence that selected readers did
adopt the interpretation Schneider advances, Defendants argue,
is of no relevance to the court’s analysis.
Prior courts have agreed. In San Francisco Bay Guardian,
Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 660 (S.F. Bay
Guardian), the court found that declarations by individuals who
had read the offending newspaper article and did not recognize it
as a parody did “not raise a question of fact as to the view of the
average reader.” The court reasoned that the “question is not one
that is to be answered by taking a poll of readers but is to be
answered by considering the entire context in which the offending
material appears.” (Ibid.; see also Couch, supra, 33 Cal.App.4th
at p. 1503, fn. 9 [allegations that other readers interpreted the
offending newspaper section in the same manner as plaintiff
were insufficient to raise issue of fact because the viewpoint of
the average reader cannot be ascertained in this way]; Polygram
Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 556,
fn. 15 [denying request to amend complaint to allege that
individuals understood defendant’s statement to refer to
plaintiff’s product where the court found that, as a matter of law,
the statement could not be taken seriously].)

14
 In support of the contrary position, Schneider cites
Gaprindashvili v. Netflix, Inc. (C.D. Cal., Jan. 27, 2022, No. 2:21-
cv-07408-VAP-SKx) 2022 WL 363537 (Gaprindashvili), in which
a district court denied an anti-SLAPP motion where the
petitioner, a trailblazing female chess champion, alleged that the
remark in defendant’s film that she “ ‘has never faced men [at
chess]’ ” was a false statement injurious to her reputation. (Id. at
p. *7, italics and bold omitted.) Relying solely on the words used
by defendants and their surrounding context in the film, the
court determined that “[a]n average viewer easily could interpret
the Line . . . as ‘disparaging the accomplishments of Plaintiff’ . . .
[and that] such a falsehood ‘constitutes an injury to reputation.’ ”
(Id. at p. *7, quoting Nguyen-Lam v. Cao (2009) 171 Cal.App.4th
858, 867.) The court also acknowledged that evidence that
“viewers did in fact interpret the Line as defamatory . . . though
not dispositive, supports the allegation that a ‘reasonable’ viewer
would believe the line to be defamatory.” (Id. at p. *10.)
However, evidence of the public’s response only “support[ed]” the
finding the trial court already made that the challenged
statement was susceptible to the claimed defamatory meaning;
the trial court did not rely on evidence of the public’s response to
make that finding.6

6 While courts have at times acknowledged third party

statements that are consistent with their own conclusion that a
work is susceptible to a defamatory interpretation, it is the
court’s own analysis as a matter of law that controls. (See, e.g.,
Gaprindashvili, supra, 2022 WL 363537, at p. *7.) Further,
reference to social media commentary, even when invoked to
demonstrate the correctness of the court’s own conclusion, must
be undertaken with extreme caution, given the inherent

15
 Schneider cites additional cases where courts purportedly
relied on evidence of the public’s reception, but those are equally
unavailing. For instance, Schneider cites Montandon v. Triangle
Publications, Inc (1975) 45 Cal.App.3d 938, where the court
affirmed a jury verdict after trial finding that the defendant
magazine published a description of socialite and author Pat
Montanton that implied that she was a prostitute. The court in
Montandon recounted the trial testimony, which included
evidence that people, including fans of Ms. Montandon,
interpreted the magazine’s statement to have that defamatory
meaning. (Id. at pp. 943–944.) Schneider also cites another
district court case, Denison Powerlifting Inc. v. Dorsey (C.D. Cal.,
Feb. 10, 2025, No. 8:23-cv-00744-JVS-KES) 2025 WL 1011783,
where the trial court considered public comments on a video
posted by the defendant on social media in opposition to
defendant’s summary judgment motion.
In neither case did the defendant argue that the public’s
response was irrelevant; however, such a challenge would have

unreliability of such content. (See, e.g., State v. Allcock (Vt. 2020)
237 A.3d 648, 654 [observing that Facebook removed over 3.3
billion fake accounts in 2018 and five billion fake accounts in
2019]; see also People v. Ware (2022) 14 Cal. 5th 151, 174
[recognizing that social media postings are “expression aimed at
a particular audience. . . [and] may include an element of
performance”]; Summit Bank v. Rogers (2012) 206 Cal.App.4th
669, 696–697 [“ ‘[A]ny reader familiar with the culture of . . .
most electronic bulletin boards . . . would know that board culture
encourages discussion participants to play fast and loose with
facts. . . . Indeed, the very fact that most of the posters remain
anonymous, or pseudonymous, is a cue to discount their
statements accordingly.’ [Citation.]”].)

16
been unavailing because both cases involved the sufficiency of the
evidence for a jury to conclude that defamation had occurred.
California courts have long recognized that “[w]hether or not the
[statement] is reasonably susceptible of this interpretation is a
question for the court and, if so, whether or not it was so
understood is a question for the jury.” MacLeod v. Tribune
Publishing Co. (1959) 52 Cal.2d 536, 546; Balla v. Hall (2021) 59
Cal.App.5th 652, 686, quoting MacLeod, at p. 546 [same]; John
Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [“ ‘[I]t is
a question of law for the court whether a challenged statement is
reasonably susceptible of [a defamatory] interpretation . . . . If
that question is answered in the affirmative, the jury may be
called upon to determine whether such an interpretation was in
fact conveyed’ ”].) This is an important distinction, as the
relevant question at the summary judgment and trial stage is
whether the evidence supported—or could support—a jury’s
conclusion that the challenged statement was in fact interpreted
in a defamatory manner. Schneider’s cases are therefore
inapposite.7
We agree with Defendants that the statements made by
members of the public on various Internet sites are not relevant

7 Schneider additionally references Harvey v. Netflix (C.D. Cal.,

Sept. 27, 2024, No. 2:24-cv-04744-RGK-AJR) 2024 WL 4536639,
*6, in which the trial court denied defendant’s anti-SLAPP
motion finding that a reasonable person could have identified
plaintiff as the subject of defendant’s story. Contrary to
Schneider’s characterization, the trial court relied on its own
evaluation of the facts to conclude that there were “strong and
specific” similarities that would have allowed the public to
identify plaintiff. (Ibid.)

17
to the court’s determination whether the work is susceptible to a
defamatory interpretation as a matter of law.
ii. Defamatory Elements in Quiet On Set
“In examining whether a statement is false and
defamatory, we look to the totality of the circumstances, which
includes not only the words of the identified defamatory
statement, but the context in which the statement was made.
[Citation.] ‘[A] defamatory meaning must be found, if at all, in a
reading of the publication as a whole.’ [Citation.] ‘Defamation
actions cannot be based on snippets taken out of context.’ ” (Issa,
supra, 31 Cal.App.5th at pp. 713–714.)
Schneider contends that, despite this directive, Defendants’
trailer and documentary should be viewed and analyzed as
separate works. This approach has been generally rejected by
courts, with our Supreme Court cautioning that “ ‘ “the
publication in question must be considered in its entirety; ‘[i]t
may not be divided into segments and each portion treated as a
separate unit.’ ” ’ ” (Baker v. Los Angeles Herald Examiner (1986)
42 Cal.3d 254, 261.) Focusing on a small piece of the offending
work also impedes the court’s ability to consider how an average
viewer would interpret the work, given that an average audience
member would be more likely to receive the offending statements
within the context of the whole. (See S.F. Bay Guardian, supra,
17 Cal.App.4th at p. 660 [“[o]nly a viewer that read only the fake
letter . . . and looked at nothing else could miss the joke in this
case, and that is not the average reader”].)
However, to the extent courts have recognized that the
audience is likely to receive something less than the whole, they
have adjusted their contextual analysis accordingly. For
instance, in Manzari, supra, 830 F.3d at p. 890, the defendant

18
newspaper argued that there could be no implied defamation
where a large photo of the petitioner appeared under the
headline “ ‘Porn industry shuts down after “female performer”
tests positive for HIV’ ” because the article, when read in full,
was “logically inconsistent with the inference that the actress in
question was [petitioner].” In rejecting the newspaper’s
argument, the Ninth Circuit noted that some viewers received
the defamatory content—the headline and photo—independently
from the article as it “spread rapidly” online, “truncated with the
headline followed directly by [petitioner’s] photograph . . . but
without the rest of the article to provide any further context for
the image.” (Ibid.)
Similarly, in Kaelin v. Globe Communications Corp. (9th
Cir. 1998) 162 F.3d 1036, 1041, the Ninth Circuit reversed an
order granting summary judgment in favor of the National
Enquirer magazine while acknowledging that its allegedly
defamatory headline accompanied an article that was entirely
true. It held that the headline “COPS THINK KATO DID IT!”
reasonably implied that the plaintiff, “Kato” Kaelin, was a
suspect in the murder of Nicole Brown Simpson and Ronald
Goldman. (Id. at p. 1037.) Even though the substantive article
clarified that he was only suspected of perjury, the court observed
that the corresponding story, 17 pages from the headline, “was
too far removed from the cover headline to have the salutary
effect [defendant] claims.” (Id. at p. 1041.) It further recognized
that the magazine’s audience consisted of both its “ ‘ordinary
reader . . . as well as those who merely glance at the headlines
while waiting at the supermarket checkout counter.’ ” (Ibid.,
quoting Eastwood v. National Enquirer, Inc. (9th Cir. 1997) 123
F.3d 1249, 1256.) Thus, while the cases are consistent that the

19
allegedly defamatory elements of a work must be viewed in
context, they also recognize that, when the average audience
member may receive the defamatory elements divorced from the
entire work, the analysis must reflect that reality.
We believe it is appropriate, therefore, to independently
analyze the Quiet on Set trailer, which was published and
distributed separately from the Quiet on Set five-part
documentary, and that doing so accurately reflects how an
“average viewer” received Defendants’ work. The trailer was
placed “into broadcast circulation” on February 8, 2024, while the
documentary episodes began airing over a month later, on March
17, 2024. The documentary aired on the ID Network, and was
simultaneously made available on HBO’s streaming platform.
While the record does not describe how the trailer was circulated,
it does reflect that it was, at minimum, posted on the ID
Network’s YouTube page. Moreover, the purpose of a trailer is to
advertise a film and is intended to reach a broader audience than
those who will ultimately elect to watch the film in its entirety.
Many of those who view the trailer may therefore have no
interest in viewing the three-plus hour documentary, and the
context provided by the entire work cannot be imputed to the
viewers of the trailer. We therefore agree that under these
circumstances, it is proper to determine whether the trailer—in
its entirety, but standing apart from the five-part feature it
teased—is reasonably subject to the implied defamatory meaning
asserted by Schneider.
We now turn to a detailed description of Quiet on Set and
its trailer, including the specific elements that Schneider

20
contends support a defamatory interpretation to determine
whether either is reasonably subject to a defamatory meaning.8
a. Additional factual background
Quiet on Set Trailer
Schneider identifies three specific excerpts from the Quiet
on Set trailer that he asserts are defamatory by implication.
First, he observes that after mentioning Schneider and his
impact on both children’s television and the careers of several
well-known child actors, the documentary inserts the logo of
Investigation Discovery (ID Network), the cable network that
produced Quiet on Set and, Schneider contends, is “dedicated to
true crime documentaries.”
The second contested excerpt is a voiceover stating that
“[w]orking for Dan [Schneider] was like being in an abusive
relationship. Dan’s treatment of people on his shows was an
open secret,” followed closely by another voice asking “[h]ow safe
can any kids be in that environment?” The “abusive relationship”
statement is accompanied by images of adult women apparently
on a television set. It is immediately followed by an additional

8 While the parties dispute the reasonable interpretation of the

material, they do not dispute that the exhibits provided to the
trial court reflect a true and correct copy of the works that are the
subject of this controversy. To the extent the parties’ descriptions
of these works differ, for instance with respect to the sequencing
of images, the court relies upon its own independent review of the
exhibits. The court has therefore adopted Schneider’s factual
allegations in this recitation unless, after its own review, it has
concluded that the record evidence cannot support Schneider’s
description. (Barker v. Fox & Associates (2015) 240 Cal.App.4th
333, 348 [granting anti-SLAPP motion after review of emails that
did not contain the statements as characterized by the plaintiff].)

21
voice-over from a woman stating that her “lawyer filed
complaints; gender discrimination, hostile work environment,
harassment” accompanied by images of what appears to be a
complaint with the words “denied equal pay” and “sexually
hostile work environment” highlighted. A few seconds later, the
question is posed regarding kids’ safety, with the full statement:
“How safe can any kids be in that environment. There would be
even bigger problems down the line with actual pedophiles on
set.”
The third allegedly defamatory element in this trailer is the
statement that “[t]here would be even bigger problems down the
line with actual pedophiles on set,” combined with the
observation that, to this point, Schneider remained the only
person mentioned by name. Along with this, he identifies the
trailer’s description of “horrific sexual crimes against children”
shortly after this statement as further support for a defamatory
interpretation. With respect to what is actually shown in the
trailer, immediately after the statement regarding “actual
pedophiles on set,” the trailer cuts to photographs of three men
with a voiceover that states: “These are three predators who
worked at Nickelodeon, all in a short amount of time.” None of
the individuals depicted is Schneider. Schneider’s name is also
not mentioned in the trailer at any point after this reference to
predators. The reference to the crimes against children comes
after displaying the three men’s images, and while the criminal
acts are being discussed, there is an excerpt of what appears to be
a legal document with the words “Peck coached the victim”
highlighted.
Finally, at the close of the trailer, a former child actor is
asked if he had ever told his story before, and the trailer ends

22
with the question unanswered. According to Schneider, by not
explicitly providing the identity of the child abuser “the
implication remains that it was Schneider who perpetrated the
crime.”
Quiet on Set: Episode 1
The first element in this episode that Schneider claims
supports a defamatory inference is the opening graphic, which
states, “This series investigates the abuses experienced by
children from the adults they were expected to trust. Viewer
discretion is advised.” The second is an approximately one-
minute montage of clips regarding Schneider’s success, including
his receipt of a lifetime achievement award and references to him
as a “golden boy” who “shaped children’s entertainment.” This
brief segment ends with a voiceover warning that “if you were a
child of the ‘90s, this is going to ruin that for you.” The episode
then displays a series of photos of Schneider on a television show
set, along with two photos of Schneider with the same child
actress sitting close together—one with his hand on her back—
and clips of interviewees interspliced with short clips of various
Schneider-produced shows. These images are accompanied by
voiceovers from various individuals stating that “he made them
do things that are very weird” and that there were “all these
setups that referenced porn.” Together, Schneider argues, this
creates the inference that he was “a child sexual abuser.”
This episode then chronicles some of Schneider’s on-set
behavior, both positive and negative. This includes commentary
from individuals characterizing Schneider as a “self-deprecating
and really funny boss,” as a “mentor” to the young actors, and as
a “forward think[er]” in his support of strong female leads. It
also includes a significant discussion of, what Defendants

23
summarized as, the “hostile work environment two adult female
writers on The Amanda Show endured, including allegations of
unequal pay as well as a graphic portrayal of an incident in
which Schneider coerced one of the female writers to act like she
was being sodomized while leaning over the table in the writers’
room in front of Schneider and her fellow writers.” Schneider
does not allege that any of the content in this approximately 40-
minute stretch supports a defamatory implication.
The third element that Schneider argues supports a
defamatory inference is the concluding minute of this episode. It
begins with a voiceover saying: “How safe can any kids be in that
environment if that’s how the adult women are being treated
behind the scenes? . . . . But there would be even bigger problems
down the line with actual pedophiles on set.” The audio then
transitions to news report stating: “Van Nuys division officers
have arrested a suspected child predator charged with kissing
and touching a nine-year-old girl, but officers believe there may
be more victims.” There is no name or image of a suspect to
accompany this statement, but rather a television screen with
black-and-white static.
Quiet on Set: Episode 2
Schneider identified two elements from this episode as
defamatory. First, he argues that after “introducing [Jason]
Handy, who was ultimately convicted of various felony sex crimes
against children,” the documentary “immediately and
inexplicably cuts to an image [showing a large number of
apparent cast and crew members] that centers upon and zooms in
toward Schneider, not Handy.” As alleged by Schneider, this
framing purportedly occurs shortly after “a graphic description of
Handy’s misconduct” while the victim’s mother states, “[h]e had

24
also told this young girl, I can get you on other shows.” Schneider
argues that “without explaining who the speaker’s reference to
‘he’ was . . . the viewer is left to conclude that, like Handy,
Schneider used his position to facilitate child sexual abuse.”
Schneider’s description of this segment does not exactly
correspond with what is displayed in the episode. A review of
this section of the documentary reflects that approximately six
minutes of this episode are focused on Handy. Schneider is not
mentioned at any time during this six-minute segment. This
section begins with Handy’s introduction, which is provided
through a television news clip showing his photo and full name
under the heading “child molester” and a statement that he had
been arrested. After a discussion of some of Handy’s actions, the
segment discusses his criminal prosecution. Immediately prior to
introducing the cast and crew photo that includes both Schneider
and Handy, an interviewee recounts a specific incident involving
a young victim. The full dialogue is as follows:

“[Interviewee 1:] Jason Handy meets another girl on
a different Nickelodeon show, Cousin Skeeter. She
was just a guest star on the show, they became
friendly, and on one day in the spring or summer of
2000, when the girl was nine years old, she and Jason
Handy were playing video games in her bedroom. He
kissed her twice and on the second kiss, he tried to
force his tongue inside her mouth. She backed away
feeling uncomfortable about the kisses. He told her
not to tell her mother about the kisses.

“[Interviewee 2:] He had also told this young girl ‘I
can get you on other shows.’ So, there was that
promise of he’s going to take her far in this business.

25
 “[Interviewee 1:] Ultimately, Jason was sentenced to
six years on two felony counts and one
misdemeanor….”

During this statement by Interviewee 2, the crew photo
featuring both Handy and Schneider (along with numerous
others) appears, but when the voiceover states, “he’s going to take
her far,” the image zooms in on Handy, not Schneider, as
Schneider alleged. Immediately following this statement, the
image changes to a mug shot of Handy when describing his
criminal sentence.
Another element in this episode that Schneider alleges is
defamatory is the statement that another abuser, Brian Peck,
“ ‘worked closely with Dan as this dialogue coach’ and that Peck
was ‘very much one of the cogs in the Dan Schneider machine.’ ”
Schneider also points to the documentary’s display of a photo
featuring him hugging a female child actor, Giovonnie Samuels,
which then pans to a similar photo of Samuels hugging abuser
Peck. The referenced photos appear on the same page of a
scrapbook introduced by Samuels earlier in the documentary.
To give context to this excerpt from Episode 2, this imagery
occurs while former child actors who worked with Peck discussed
how they learned of Peck’s abuse and arrest. One of the actors,
Kyle Sullivan, recounted that at the end of a table read for their
show, shortly after Peck’s arrest, “Dan says ‘would it be possible
for the parents to leave the room for a moment so that our friends
can talk to the kids.” The “friends,” who Sullivan believed were
lawyers, told them that Peck would no longer be on set and asked
if “anyone ha[s] anything they would like to say”—an interaction
that Sullivan states left him very uncomfortable. Regarding this
same incident, Samuels states that, “thinking about it now, as an

26
adult, and having the parents leave the room, that was a little
sus[pect].” Sullivan further states, “that experience was really
disillusioning, and left a lasting impact on me in terms of how the
world works.” It is after this discussion that the episode features
the aforementioned photos of both Peck and Schneider, along
with Samuels’s voiceover stating: “We go through enough as child
actors, and for us to not feel like we have a voice, that’s worse,
‘cause you don’t know who you’re supposed to trust.” Sullivan
then states, “after this like, very awkward pregnant pause, the
lawyerly fellows were like ‘okay, thank you very much!’ and then
Dan was like ‘Alright!’ and everyone got up and that was that.”
Quiet on Set: Episode 3
Schneider does not specifically identify any portion of this
episode as allegedly defamatory; however, this episode provides
additional relevant context for the allegedly defamatory
elements. This episode focuses on the sexual abuse experienced
by a single former child actor that had not been disclosed
publicly, as well as the institutional response on set. The
perpetrator of this abuse, Brian Peck, is specifically identified by
name and shown in accompanying images. Schneider is
mentioned at various points in this episode, including statements
from the abuse survivor that he was “the only official at
Nickelodeon who stood by [the victim] at this time.”
Quiet on Set: Episode 4
Schneider also does not identify any element of this episode
as false or allegedly defamatory, but it provides further relevant
context. This episode continues to discuss the dynamics between
Schneider and others on the set, and examines specific skits and
recurring themes in Schneider’s shows that included sexual
innuendo or sexual scenarios involving minor actors. This

27
includes a scene involving then child actor, Jamie Lynn Spears,
and a “ ‘goop pop’ ” that was made to squirt onto Spears’s face. A
former child actor explained “she had overheard one of the boys
on set call [the imagery] . . . a ‘cum shot.’ ” After discussing
similar examples, this episode includes a voiceover explaining
that “an internal Nickelodeon investigation ‘did not find any
evidence of inappropriate sexual behavior, [or] inappropriate
relationships with children, but it did find evidence of [Schneider]
being abusive to others in the workplace.’ ”
Quiet on Set: Episode 5
Schneider identifies one element in the concluding minutes
of the final episode as defamatory. This episode includes an
interview with Shane Lyons, a former child actor from
Schneider’s show All That. Lyons’s interview segment lasts
approximately five minutes, and he begins by talking about his
positive experience as a young actor until his contract was not
renewed. He also speaks generally about the experience of child
actors transitioning out of professional acting. The interviewer
then asks Lyons why he came forward. Lyons responds by
discussing his reaction to learning the details of Peck’s sexual
abuses via the earlier episodes of Quiet on Set, and discusses his
own interactions with Peck, which Lyons alleges included
“passes” and inappropriate sexual references. The interviewer
asks what on-set protections he would recommend based on his
experiences. Lyons responds:

“So, updating the law first and foremost, so that no
individual who is a convicted child molester can ever
get on a Hollywood set again. And currently, there is
a loophole in the law that as long as there is a
guardian or a parent omnipresent on the set, they
don’t have to hire people who go through a

28
 background check. And I think more broadly, when
you have a cult of personality in any work
environment, inevitably it’s ripe for toxicity. We get
into their sphere, and their orbit, and no one wants to
disrupt what is happening above or below.”

The element that Schneider claims is defamatory is the
display of a photo of Schneider on a television set that appears
when Lyons says, “cult of personality,” and is removed after
“toxicity.”
b. Defamation Analysis
i. Trailer
As detailed above, Schneider identifies specific elements of
the trailer that he contends imply that he sexually abused
children. The first is the display of the ID Network logo and the
tag line “True Crime Event” shortly after the trailer introduces
Schneider and his impact on children’s television. The second
element is a voiceover likening working for him to being in an
“abusive relationship.” This statement is accompanied by images
of adult women, references to filing a complaint for workplace
discrimination and harassment and images of a legal document
reflecting such allegations. A few moments later, the question is
posed: “How safe can any kids be in that environment. There
would be even bigger problems down the line with actual
pedophiles on set.” After this statement, the trailer cuts to
photographs of three men with a voiceover that states: “These are
three predators who worked at Nickelodeon, all in a short
amount of time,” followed by a description of some of the crimes
committed, while the name of one of the perpetrators appears on
screen. The trailer ends with an unidentified individual being
asked if they had ever told their story before, and no answer is
given. Schneider contends that because he was the only

29
individual explicitly named, it implies “that it was Schneider who
perpetrated the crime.”
Ample case law has made clear that “ ‘it is not the literal
truth or falsity of each word or detail used in a statement which
determines whether or not it is defamatory; rather, the
determinative question is whether the “gist or sting” of the
statement is true or false, benign or defamatory, in substance.’ ”
(Issa, supra, 31 Cal.App.5th at p. 702, quoting Ringler Associates
Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181–
1182.) Nonetheless, we cannot agree with Schneider that a
reasonable viewer could understand that the “gist” of this trailer
is that Schneider sexually abused children.
It is important to note that while we are not permitted to
resolve factual disputes, we are equally required to reject the
plaintiff’s allegations if the defendant’s evidence has “ ‘ “defeated
that submitted by the plaintiff as a matter of law.” ’ ” (Issa,
supra, 31 Cal.App.5th at p. 701.) To the extent that Schneider’s
description does not match the undisputed content of Quiet on Set
and its trailer we cannot credit Schneider’s description as
evidence that could prevail at trial to defeat Defendants’ motion.
On this point, Schneider’s description does differ in ways that
directly affect the totality of the circumstances analysis. For
instance, while Schneider contends that, by the end of the trailer
“only Schneider’s name and likeness [were] offered,” this is not an
accurate statement of what the trailer shows. Rather, by one
minute and 13 seconds into the trailer, it displays a photo of
three men, with the voiceover: “These are three predators who
worked at Nickelodeon, all in a short amount of time.” And,
contrary to Schneider’s description, Peck’s name is displayed
onscreen, highlighted on what appears to be a legal document, as

30
the abusive conduct is described. Schneider, on the contrary, is
not mentioned at all in the trailer after it segues into a discussion
of child abuse.
Schneider’s specific claim is that the trailer implies that he
has sexually abused children, and the court has to evaluate the
allegedly defamatory elements to determine if they are
susceptible to that specific interpretation. If we consider all of
the allegedly defamatory components cited by Schneider, along
with the context in which they occurred—i.e., the display of the
ID Network and “true crime” tag line, mention of an “abusive
relationship” paired with dialogue and images referencing an
adult woman’s claim of workplace harassment, a reference to
pedophiles on set coupled with the images of three men expressly
identified as “predators” (none of whom are Schneider), and the
description of incidents of child sexual abuse while displaying
Peck’s name although not audibly naming him as the abuser—we
cannot find that they reasonably permit the implication
Schneider sexually abused children. Scheider’s interpretation is
simply not “ ‘the meaning that people of average intelligence and
understanding would give it.’ ” (Balzaga, supra, 173 Cal.App.4th
at p. 1339, quoting Ramsey v. Fox News Network (D. Colo. 2005)
351 F.Supp.2d 1145, 1151.)
ii. Quiet on Set five-episode documentary
We similarly cannot find that the elements Schneider cites,
scattered throughout Defendants’ three-and-a-half-hour
documentary, can reasonably support the defamatory implication
that he is a child sexual predator. The limited question for this
court is not whether the Defendants’ work states or implies that
Schneider was a bad boss, created a toxic workplace, produced
age-inappropriate scripts, or even engaged in inappropriate

31
sexual conduct with adult employees; it is whether the
documentary is reasonably subject to the interpretation that
Schneider sexually abused children. We conclude that Quiet on
Set “neither expressly nor by fair implication” charges Schneider
with child sexual abuse. (Forsher, supra, 26 Cal.3d at p. 805.)
Schneider identified various statements and images across
three of the five episodes of Quiet on Set that he asserts have a
defamatory implication. This begins, he alleges, by displaying a
content warning before the first episode, advising viewer
discretion because “[t]his series investigates the abuses
experienced by children from the adults they were expected to
trust.” He then points to a montage early in the first episode that
shows clips of Schneider’s successes and ends with a voiceover
warning the viewer that “if you were a child of the ‘90s,” this
documentary would “ruin” that for them. It also shows two
images of Schneider with a child actress. The next 40 minutes
focus on allegations of workplace sexual harassment and
discrimination, and contrast Schneider’s treatment of female
staff with his work seemingly advancing progressive female
characters. In the concluding minute of this episode, a voiceover
asks, “How safe can any kids be in that environment if that’s how
the adult women are being treated behind the scenes? But there
would be even bigger problems down the line with actual
pedophiles on set.” This is followed by a clip from a news report
stating that Van Nuys police arrested a suspected child predator,
but it does not include a name or image.
The second episode continues the discussion of the
suspected child predator, who is identified by name and
accompanying image as Jason Handy, with the caption “child
molester.” While Handy and his conduct are discussed over the

32
next approximately six minutes, there is no mention of
Schneider. There is also a crew photo that includes dozens of
people, including both Handy and Schneider, that appears when
the mother of one of Handy’s victims explains that her daughter
was told that “he” could get her on other shows. This ultimately
zooms in on Handy and transitions to Handy’s mugshot, stating
that he was convicted and sentenced to six years.
Schneider additionally claims that the manner in which he
is incorporated into the discussion of Brian Peck, the other
convicted pedophile identified by name and image, also
contributes to this false implication. He states that Defendants
“exaggerate[d]” the relationship between the two by describing
Peck, as working “closely” with Schneider as the dialogue coach
and as one of the “cogs” in Schneider’s machine. After a former
child actor describes Peck’s abuse, other former child actors on
the same set discuss how they experienced the workplace
response to the revelation of that abuse. They recount a meeting
in which Schneider asked the children’s parents to leave the room
while unknown adults—whom the children understood to be
attorneys—disclosed that Peck would not be returning to the set
and asked if they had anything to disclose. After none of the
child actors spoke up, Schneider said, “Alright!” and the meeting
was concluded. The former actors stated that they now
understand that asking their parents to leave the room was a
“suspect” request, and reflected on that moment as leaving “a
lasting impact” that left them disillusioned about the television
industry and wondering who they could trust. During this
discussion, the screen shows two photos on a scrapbook page—
one with Schneider hugging a child actress and another with

33
Peck hugging the same actress. The screen first focuses more on
the photo with Schneider and then pans to the image with Peck.
There are two intervening episodes that Schneider does not
claim contain potentially defamatory material. Episode three
extensively discusses Peck’s sexual abuse of a single child actor.
Episode four discusses various skits that child actors recounted
as recognizing either now or at the time as including sexual
innuendo that they believe was inappropriate for a show directed
at children. This episode also included an explicit disclaimer that
“an internal Nickelodeon investigation ‘did not find any evidence
of inappropriate sexual behavior, [or] inappropriate relationships
with children, but it did find evidence of [Schneider] being
abusive to others in the workplace.’ ”
The series concludes with episode five, which includes,
among other things, a discussion of policy suggestions to prevent
future harm. During this segment, the interviewer asks a former
child actor what on-set protections he would implement, and he
responds that they should “updat[e] the law first and foremost, so
that no individual who is a convicted child molester can ever get
on a Hollywood set again. . . . And I think more broadly, when
you have a cult of personality in any work environment,
inevitably it’s ripe for toxicity . . . and no one wants to disrupt
what is happening above or below.” Schneider argues that
displaying an on-set photo of Schneider during the excerpt: “cult
of personality in any work environment, inevitably it’s ripe for
toxicity” implies that he “is a convicted child molester” or “aid[ed]
and abett[ed]” the crimes of other child molesters.
The documentary clearly distinguishes between the
lamentable conduct that its participants attribute to Schneider—
gender discrimination, harassment, toxic workplace behavior,

34
and inappropriate sexual innuendo—and the child sexual abuse
explicitly attributed to three named individuals, two of whom are
discussed at length.9 Quiet on Set also affirmatively states that
Schneider’s employer investigated his conduct and, while it
confirmed some inappropriate behavior, it found no evidence of
child sexual abuse. Schneider’s attempt to find an alternative
meaning than what is expressly stated in the documentary is
unavailing.
Forsher, supra, 26 Cal.3d at pages 805–806, in which the
California Supreme Court rejected a similarly strained reading of
the defendant’s book, is instructive. Plaintiff claimed that the
author’s book, Helter-Skelter, implied that he was an accomplice
to the murder of Manson Family attorney Ronald Hughes. (Id. at
p. 807.) The book recounted the disappearance of Hughes, noting
that Hughes had traveled for a day with the plaintiff, James, and
his associate, Lauren, before parting ways. (Id. at p. 797.)
Another set of witnesses reported seeing Hughes alive and well
the next day. (Ibid.) The book noted that, due to this later
reported sighting of Hughes, the plaintiff was “ ‘not polygraphed
and [his] story was taken at face value.’ ” (Id. at p. 804.) The
book later discusses the Manson-family related murder of a man
and woman who shared the same first name of plaintiff and his
associate—James and Lauren—and speculates briefly whether
they could have been the same people. (Id. at pp. 801–802.) The
book ultimately concludes, however, that it is unlikely that the

9 The third individual was only discussed in passing as someone

who was found to work at Nickelodeon despite a prior conviction
for a crime related to child sexual abuse; there was no indication
within the documentary that he committed any acts of child
abuse towards any member of Schneider’s cast.

35
two men were the same people due to a significant difference in
their reported ages. (Ibid.) Finally, although the book suggested
two Manson family members may have been responsible for
Hughes’s disappearance and murder—neither of whom was the
plaintiff—it acknowledged that the identity of the actual
perpetrator was unknown. (Ibid.)
The court held that “the claimed defamatory nature of the
book insofar as it relates to appellant is so obscure and
attenuated as to be beyond the realm of reasonableness.”
(Forsher, supra, 26 Cal.3d at p. 805.) The court acknowledged
that the book commented on the fact that the plaintiff never had
his statement tested by the police, and that the book also
explored whether the Manson-affiliated James might be one and
the same as the plaintiff James Forsher. However, the court
observed that the book also expressly ruled out either fact as
possible evidence of the plaintiff’s involvement in Hughes’s
murder. (Id. at p. 804.) The Forsher court went on to
acknowledge that “[j]ust as the court must refrain from a ‘hair-
splitting analysis’ of what is said . . . to find an innocent meaning,
so must it refrain from scrutinizing what is not said to find ‘a
defamatory meaning which the article does not convey to a lay
reader.’ ” (Id. at p. 803, quoting Mullins v. Thieriot (1971) 19
Cal.App.3d 302, 304.) This court will similarly refrain from
splitting hairs to find an allegation of child sexual abuse where
the only such abuse discussed is explicitly attributed to named
perpetrators and the documentary expressly states that an
investigation into Schneider found no evidence of abuse.10 On

10 Because we conclude that Schneider cannot meet his burden to

show a probability of success on the merits because he is unable

36
this record, we conclude that Schneider has not shown a
likelihood of success on the merits of his defamation claim.
DISPOSITION
The order denying the motion to strike is reversed, and the
trial court is directed to enter a new and different order granting
the motion. (§ 452.16, subd. (c).) Defendants are awarded their
costs on appeal.
CERTIFIED FOR PUBLICATION IN THE OFFICIAL
REPORTS

OCHOA, J.*

We concur:

ADAMS, P. J. HANASONO, J.

to establish that Defendants’ work is reasonably subject to a
defamatory interpretation, we do not address Defendants’
additional arguments that Schneider could not establish actual
malice, or that he was required to plead and present evidence of
special damages and failed to do so.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

37


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A170749
MARY D., (Alameda County Super. Ct.
No. RG21106563 )
Plaintiff and Respondent,
v. ORDER MODIFYING
OPINION AND DENYING
MATTHEW MCCAULEY,
REHEARING [NO CHANGE IN
Defendant and Appellant. IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on August 12,
2026, be modified as follows:
On page 24, in first paragraph of the Discussion section I,
subsection F, in the third sentence, make the following five
changes:
1. Replace the words “he may” with “, on a successful”;
2. Insert the word “to” after the word “challenge”;
3. Replace the word “but” with “, he may”;
4. Insert a period and two spaces after the word “proof” and
delete “, and”;
5. Capitalize the word “we”;
so that the resulting two sentences read:
 “McCauley cites no authority, however, for the proposition
that, on a successful challenge to the fairness of the
proceeding as a whole, he may exempt from retrial an issue
on which he claims Mary D. failed to carry her burden of
proof. We are not bound to develop the argument for him.”
On page 24, in first paragraph of the Discussion section I,
subsection F, insert a new footnote 9 after the citation
“(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830.)” which reads as follows:

“In a petition for rehearing, McCauley argued that he cited
cases holding that, where a punitive damages award is not
supported by substantial evidence, the issue should not be
retried. McCauley did cite Baxter v. Petersen (2007)
150 Cal.App.4th 673, 681, for that proposition, but there
was no claim in that case that the entire trial unfolded
under conditions that violated due process. Perhaps
McCauley could have developed an argument that a
defendant who prevails on such a claim may nonetheless
prevent the plaintiff from retrying certain issues on other
grounds, but his briefing did not address that question.”
On page 25, in the last sentence of the first full paragraph,
replace the number 29 with the number 20, so that the sentence
reads:
“At trial, Mary D. was 20 years old.”
There is no change in judgment. The petition for
rehearing, filed August 21, 2026, is denied.

Dated: September 10, 2026 STREETER, Acting P. J.

2
Filed 8/12/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MARY D.,
Plaintiff and Respondent, A170749
v.
MATTHEW MCCAULEY, (Alameda County Super. Ct.
No. RG21106563 )
Defendant and Appellant.

Mary D.1 sued Matthew McCauley for personal injury based on years of
sexual abuse when she was a minor. A jury found him liable for multiple
torts, and it awarded Mary D. compensatory and punitive damages.
On appeal, McCauley contends that the trial court: (1) deprived him of
his constitutional right to meaningful access to the courts—and abused its
discretion—by denying his requests for a continuance to enable him to retain
counsel; (2) deprived him of his constitutional right to a fair trial by allowing
the trial to proceed when the court reporter attended remotely one day and
when videoconferencing audio was intermittently choppy; and (3) abused its
discretion by admitting into evidence school photographs of Mary D. during
the years of abuse. McCauley also contends that insufficient evidence of his
financial circumstances supports the jury’s punitive damage award, and that
the award was excessive. He requests that we reverse the punitive damage

1 “Mary D.” is a pseudonym for plaintiff used in the trial court and on

appeal.
award with no remand for retrial. Based on any one of the remaining errors,
or based on their cumulative effect, McCauley requests that we reverse the
judgment and remand the matter for a new trial on liability and
compensatory damages.
We agree with McCauley that the trial court abused its discretion and
violated his constitutional rights by denying his continuance requests. We
therefore reverse the judgment and remand for a new trial, although we
conclude that Mary D. is entitled to retry all issues, including punitive
damages.
In light of this disposition, we do not reach McCauley’s argument that
the court reporter’s remote attendance or the audio problems prevented a fair
trial. We also do not reach his punitive damages contentions. But since the
question likely will recur on remand, we explain why we see no error in the
trial court’s decision to admit the school photographs.2
BACKGROUND
I.
In 2021, a jury convicted McCauley of felony counts relating to his
sexual abuse of Mary D. The criminal court sentenced him to prison, where
he remained. About two months after he was convicted, Mary D. filed this
civil action against him. McCauley initially retained a lawyer to represent
him in the case.
During the same period, McCauley was also involved in divorce
proceedings in family court. Around the time that Mary D. filed her lawsuit,
the family court set up a blocked account for McCauley to prevent him from

2 We grant McCauley’s requests for judicial notice of documents filed in

his divorce action and of this court’s online docket in his criminal case, as
well as the court’s online listing of the parties and their attorneys.
2
fraudulently transferring assets. A few months later, around September
2021, the family court directed a deposit into the account of $536,265.
About a year later, around July 2022, McCauley ran out of unblocked
funds. In August, he filed a substitution of counsel and began to represent
himself. At this time, trial was set for April 3, 2023. In January 2023, at
Mary D.’s request, the court continued the trial date to October 2, 2023.
On July 13, 2023, the court filed an undated letter from McCauley in
which he requested that the court grant him access to his blocked funds so
that he could retain counsel. He noted that he was incarcerated and
contended that he was unable to meaningfully participate in the case on his
own.
The next day, McCauley appeared remotely at a previously scheduled
case management conference.3 He told the court (Hon. Tara Desautels) that
he was in the process of securing representation and should be able to do so
within two weeks. Judge Desautels told McCauley that she had no authority
to order access to his funds, and she advised him to make a request
“forthwith” of the family court judge handling his divorce case.
The minutes from the next case management conference, held a month
later on August 18, recounted that “defendant [had] represented he
anticipated securing counsel for the instant action within two weeks . . .
however no notice of substitution appears to have been filed.” The court
instructed that McCauley “must file a substitution of attorney before the next

3 The record contains only the minutes from pretrial proceedings.

There are no reporter’s transcripts or agreed or settled statements.
3
hearing” and “is to also obtain an order in his family case . . . regarding
access to his funds.”
By the next case management conference, three weeks later on
September 8, McCauley had not filed a substitution of attorney. He
represented that he had been unable to obtain an order from the family court
to access his funds. The court found good cause to continue the trial to
November 13. It scheduled the next case management conference for
October 11.
There is no evidence in the record about when McCauley mailed his
request for access to his funds to the family court, although he dated the
request August 30 and the supporting declaration August 31, and McCauley’s
wife filed responsive documents on September 27. The register of actions
shows that the court filed the request on October 2, and three days later, it
issued an order setting a hearing on the matter for October 25.
Meanwhile, the trial court held its scheduled case management
conference on October 11. The court instructed McCauley to update the court
“forthwith” about a ruling from the family court regarding his request.
McCauley did not appear at the October 25 family court hearing, and
that court continued it to November 8. In his opening brief on appeal,
McCauley notes that there is no indication that the order setting the
October 25 hearing date had been served on him. The next day, the clerk
mailed the minutes from the October 25 hearing, which included the
videoconference information for the next hearing, to McCauley in prison.
At the October 27 pretrial conference in this action, McCauley reported
to the trial court that he had no update regarding the requested family court
order. The trial court’s minutes note that the family court had continued the
October 25 hearing to November 8 because McCauley had been unable to
4
appear. The trial court continued the pretrial conference again, this time by
about two weeks, to November 13, five days after the family court hearing
date. It continued the trial by three weeks to December 4.
McCauley attended the family court hearing on November 8, but the
court did not rule on his request. It continued the hearing to December 5.
We presume that McCauley had notice of the December 5 family court
hearing because he was present at the hearing at which it was set, although
it does not appear from the record that the court served McCauley with its
minutes or any other document that would have enabled him to appear
remotely, as it had for the November 8 hearing.
On November 13, the trial court in the civil action issued pretrial
conference minutes, although the minutes do not note any appearances and
the register of actions shows that the court issued a tentative ruling several
days earlier. The minutes note that, “[a]ccording to the register of actions, on
11/8/23, a hearing was held in [the family court]. The matter was continued
to 12/5/23.” The trial court continued the pretrial conference and the trial
dates a third time because “the results of the [family court hearing] impact
defendant’s ability to retain counsel in this action . . . .” The court continued
the matters by about eight weeks, but a few days later continued them by
another month to accommodate a pre-planned trip by Mary D.’s counsel. As a
result, the pretrial conference was set for February 16, 2024, and the trial for
February 26.
McCauley did not attend the December 5 family court hearing. In his
absence, the family court orally granted his request, providing him access to
$100,000. There is no evidence that the minute order entered after the
hearing was served on him. In the minute order, the court instructed his
wife’s counsel to prepare the findings and order after hearing. Although the
5
record is not entirely clear, it appears that counsel did not submit the papers
until about a month later.
The family court—this time a different judge in a different
department—held another hearing in January 2024 at which McCauley did
not appear. There is no evidence that McCauley had notice of the hearing.
His wife’s counsel advised the court that McCauley was incarcerated, in light
of which the court noted it could not find that McCauley had intentionally
failed to appear. It directed the clerk to serve notice on McCauley in prison.
McCauley also did not appear at the next two trial court conferences in
this action, which occurred in February after the case had been reassigned to
a different judge (Hon. Somnath Raj Chatterjee). On February 1, the trial
court had issued a general pretrial order, to which it appears Mary D.
responded with a trial brief, statement of the case, witness list, and special
verdict form. The record suggests that McCauley may not have received the
order, since a February 21 entry on the register of actions notes that a mailed
pretrial order was returned to the court.
At the first of the February conferences, held February 16, the trial
court instructed Mary D.’s counsel to report back on the steps necessary to
ensure that the trial court protected McCauley’s due process rights during
pretrial proceedings and at trial. Specifically, the court asked Mary D.’s
counsel to look at whose obligation it was to request appearance assistance
from the prison.
In between the two February conferences, Mary D.’s counsel submitted
a responsive brief. It discussed the prison’s protocol for prisoner court
appearances via videoconferencing, explaining that McCauley had access to
the prison’s videoconferencing equipment and that it would be made
available to him if there were a court order. It also discussed measures to
6
protect an indigent, incarcerated civil litigant’s right to meaningful access to
the courts required under the California Supreme Court decisions Payne v.
Superior Court (1976) 17 Cal.3d 908, 922–923 (Payne), and Yarbrough v.
Superior Court (1985) 39 Cal.3d 197, (Yarbrough). The brief noted that this
right to affirmative assistance from the trial court applies only to prisoners
who are indigent, and it contended that there was no evidence before the trial
court that McCauley was indigent. It argued that the only appropriate
“remedy” to which he was entitled was appearance at trial by videoconference
or transfer to an Alameda County jail to permit him to attend in person.
At the second conference, held February 26, the trial court instructed
Mary D.’s counsel to submit an order for the prison to provide McCauley with
access to videoconferencing during the pretrial and trial dates. The trial
court then continued the pretrial conference and trial a fourth time to April 5
and April 15, respectively, and directed the clerk to serve McCauley with a
copy of the order setting these dates.
McCauley attended the April 5 pretrial conference—apparently his first
appearance before the new judge—at which the parties and the court
discussed witnesses and voir dire. The minutes note that McCauley informed
the court that he did “not intend to present any witnesses to testify.” The
court continued the pretrial conference to April 12 and the trial to April 22.
Meanwhile, on April 3, the family court had finally signed a written
order memorializing its December 5 oral ruling and minute order granting
McCauley access to $100,000 for retaining a lawyer. The court caused the
order to be served on McCauley by mail.
At the April 12 pretrial conference, a lawyer who had represented
McCauley in his criminal case made a special appearance on his behalf,
presumably because McCauley had learned that the family court had granted
7
him partial access to his funds. The lawyer requested a continuance and
represented that she would help McCauley find counsel. In the first of the
two continuance rulings at issue in this appeal, the trial court denied the
request and continued the pretrial conference by one week to April 19. At the
continued pretrial conference on April 19, McCauley renewed his continuance
request, which the trial court again denied—the second continuance ruling at
issue. As with previous conferences, neither the April 12 nor the April 19
conference was reported, and on appeal McCauley has not submitted an
agreed or settled statement for either.
Trial began on April 22, with McCauley appearing remotely from
prison by videoconferencing. The court split the trial into two phases,
liability and compensatory damages in the first and punitive damages in the
second.
After the first phase closed, the jury returned a special verdict finding
the following: McCauley had acted negligently toward, sexually battered,
assaulted, and falsely imprisoned Mary D., and his tortious acts were
substantial factors in causing Mary D. harm. The jury awarded Mary D.
$10 million in past noneconomic damages, $6 million in future noneconomic
damages, and $350,000 in future economic damages. After the second phase
closed, the jury found that McCauley had engaged in malicious or oppressive
conduct, and it awarded Mary D. $5 million in punitive damages.
DISCUSSION
I.
McCauley contends that the trial court erred by denying his April 12
and April 19 requests to continue the trial. Specifically, under Payne, supra,
17 Cal.3d 908, and its progeny, he argues that as an indigent, incarcerated
civil litigant, he was entitled to have the court take affirmative remedial

8
steps to effectuate his constitutional right to meaningful court access. He
further argues that the court’s denials of a continuance violated that right.
Mary D.’s response is fourfold. First, she contends that, without an agreed or
settled statement of the unreported hearings at which the continuances were
requested and denied (see California Rules of Court, rules 8.134, 8.137),
McCauley has failed to supply an adequate record for appellate review.
Second, she argues that the record does not support McCauley’s claim of
indigency because he could have sought access to his blocked funds long
before July 2023, when he first raised the issue with the trial court. Third,
she argues that, even if McCauley were effectively indigent, the trial court
adequately protected his rights by ensuring that he could attend and
participate in the trial by videoconference. Finally, she maintains that any
error in denying a continuance was harmless. We take up these arguments
in turn after addressing the parties’ dispute about the standard of review. In
a final section, we address McCauley’s argument that Mary D. should not
receive an opportunity to seek punitive damages in any retrial.
A.
Acknowledging that denials of requests for a continuance are normally
reviewed for abuse of discretion, McCauley argues that we should
nonetheless review the issue de novo because it implicates his constitutional
rights. He cites, for example, People v. Seijas (2005) 36 Cal.4th 291, which
held that independent review applies to the trial court’s determination
whether a witness may assert the privilege against self-incrimination
because it affects the defendant’s constitutional right of confrontation. (Id. at
p. 304; see also People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7
[concluding that the trial court’s denial of a new trial motion should be
reviewed independently because it implicated the defendant’s “federal
9
constitutional rights to due process and concerns the fundamental fairness of
his trial”].)
McCauley does not, however, cite a decision applying the de novo
standard of review to a trial court’s ruling that implicates the right set forth
in Payne, supra, 17 Cal.3d 908. As Mary D. points out, our high court and
our sister courts have uniformly treated the standard of review in that
context as abuse of discretion, although there is no indication that any
dispute about that question was raised. (See Payne, at pp. 925–927;
Yarbrough, supra, 39 Cal.3d at pp. 204, 207; J.S. v. D.A. (2026)
118 Cal.App.5th 891, 896; Jameson v. Desta (2009) 179 Cal.App.4th 672, 678–
680, 684; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483–1487;
Wantuch v. Davis (1995) 32 Cal.App.4th 786, 796.) Based on the language in
Payne and Yarbrough, we will apply that standard as well.
The standard presumes deference to the trial court. (Bancomer, S.A. v.
Superior Court (1996) 44 Cal.App.4th 1450, 1457.) But “[t]he scope of
discretion always resides in the particular law being applied.” (People v.
Jacobs (2007) 156 Cal.App.4th 728, 737.) “ ‘The discretion of a trial judge is
not a whimsical, uncontrolled power, but a legal discretion, which is subject
to the limitations of legal principles governing the subject of its action, and to
reversal on appeal where no reasonable basis for the action is shown.’ ”
(Westside Community for Independent Living, Inc v. Obledo (1983) 33 Cal.3d
348, 355.)
B.
Because a trial court’s judgment or order is presumed to be correct and
the burden of demonstrating error rests with the appellant, “[i]n many cases
involving the substantial evidence or abuse of discretion standard of review,
. . . a reporter’s transcript or an agreed or settled statement of the
10
proceedings will be indispensable.” (Southern California Gas Co. v. Flannery
(2016) 5 Cal.App.5th 476, 483 (Flannery).) Relying on this authority,
Mary D. argues that we “need not reach the merits” of McCauley’s claim
because he did not supply an agreed or settled statement of the two
unreported hearings at which his requests for a continuance were denied.
Stated generally, the absence of a transcript or an agreed or settled
statement will be fatal on appeal when the record of those oral proceedings
could show that the challenged order would not have been an abuse of
discretion. Flannery cited Vo v. Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th 440, an appeal of an attorney fee award. In Vo, the trial
court’s order made clear that, in determining what amount was reasonable, it
had considered the “entire course of the litigation,” including the pleadings
and the evidence presented to the jury. (Id. at p. 447.) The appellants,
however, failed to include either the pleadings or the trial transcripts in the
record. (Ibid.) The appellate court explained: “The absence of a record
concerning what actually occurred at the trial precludes a determination that
the trial court abused its discretion. It is not possible to judicially and
appropriately determine from the inadequate record provided by defendant
that the trial court abused its discretion in its conclusion that $470,000 was a
reasonable award in comparison to the scope of the litigation as a whole.”
(Id. at p. 448.) Flannery also cited Ballard v. Uribe (1986) 41 Cal.3d 564,
which challenged the trial court’s denial of a new trial motion. There, the
record lacked not only a transcript of the motion hearing—which could have
revealed the basis for the trial court’s denial—but also the transcripts of the
underlying trial proceedings that would be necessary to evaluate the claimed
errors. (Id. at p. 574.) In short, in both Vo and Ballard, the reviewing court
was unable to find an abuse of discretion because the missing portions of the
11
record could readily have disclosed a proper basis for the trial court’s
decision.
In Flannery itself, the court disagreed that the appeal was subject to
dismissal simply because the appellant failed to include an agreed or settled
statement of the unreported hearing that led to the challenged orders.
(Flannery, supra, 5 Cal.App.5th at p. 483.) Instead, it proceeded to evaluate
the multiple claims of error, concluding only in some instances that the
incompleteness of the record foreclosed them. For example, the court rejected
a due process claim concerning the procedure by which the motions were
granted in part because “[w]ith no reporter’s transcript in the record, we
presume that Flannery had the opportunity to present evidence at the
hearing . . . and waived any objection to the court proceeding on the parties’
declarations and exhibits alone.” (Id. at p. 485.)
Here, the absence of an agreed or settled statement means we do not
know why the court denied any continuance to allow McCauley to retain
counsel once he learned that the family court had granted him access to his
blocked funds. It also means, as Mary D. points out, that we do not know
whether the trial court “made the threshold determinations that McCauley is
indigent and that this lawsuit involves a bona fide threat to his personal or
property interests,” whether it considered the proper factors in evaluating
how to protect his constitutional right of access, or what potential remedies it
considered. But while the record’s silence could work to McCauley’s
disadvantage on those points insofar as we will presume the court considered
everything it was required to, it does not make his claim unreviewable;
rather, it means we must affirm unless there is no adequate justification the

12
court could have given for its decision.4 As in other cases, we conduct our
review based on the contentions raised in the briefs. (Connell v. Superior
Court (1997) 59 Cal.App.4th 382, 394.) Here, again, Mary D. suggests two
possible justifications for the court’s decision: First, the court reasonably
could have concluded that McCauley’s failure to have acted sooner in the
litigation to secure access to his blocked funds meant he should not receive
the heightened due process protections required for indigent incarcerated
litigants; or second, even if McCauley were effectively indigent, the court
reasonably could have concluded that his rights were adequately protected by
ensuring his ability to participate in the trial by videoconference.
Accordingly, we proceed to consider these alternatives.
C.
McCauley points us to Payne, supra, 17 Cal.3d 908 and Yarbrough,
supra, 39 Cal.3d 197, and their progeny in the courts of appeal. These
decisions establish that an indigent, incarcerated person who is sued in civil
court has equal protection and due process rights to meaningful court access
so they can defend their interests. If a trial court finds that an incarcerated
civil litigant is both (1) indigent and (2) a party to a bona fide civil action that
threatens their interests, the court must intercede to ensure the litigant’s

4 The presumption that an official duty has been regularly performed

(Evid. Code, § 664) may allow us to presume that the trial court made a
finding, one way or the other, about whether McCauley was indigent. (Cf.
J.S. v. D.A., supra, 118 Cal.App.5th at p. 897 [reviewing court could not
conclude the trial court made the required findings under Payne where the
minute order did not show it ruled on incarcerated defendant’s request for an
extension before holding unreported hearing on domestic violence restraining
order request in his absence].) But because there is no indication which
finding the court made and Mary D. argues the trial court’s denial of a
continuance would have been proper whatever its finding on that question,
we consider both possibilities below.
13
meaningful access to the courts. (Yarbrough, supra, 39 Cal.3d at pp. 200–
201; Apollo v. Gyaami, supra, 167 Cal.App.4th at pp. 1483–1484.)
There is no dispute that McCauley was a party to a bona fide civil
action that threatened his interests. The parties disagree only about whether
he was indigent for purposes of Payne. McCauley argues that he was
indigent because he was unable to retain counsel without access to the funds
in his blocked account. Mary D. does not dispute that point—i.e., she does
not suggest that McCauley had any other funds to retain counsel or that the
family court granted McCauley access to his account with enough time for
him to hire a lawyer before trial. But she argues that he was not indigent so
as to be entitled to Payne’s protections because he was not diligent in
pursuing the matter earlier in the case. Specifically, although she does not
contend that McCauley lacked diligence after he raised the issue with the
trial court in July 2023, she notes that there were two years between the time
his blocked account received $536,265 and his later letter to the court.5
We are not persuaded that McCauley’s failure to seek access to the
blocked funds before July 2023 establishes such a lack of diligence that he
should be deemed to have had access to them notwithstanding that they
remained inaccessible to him for more than half a year while he sought an
order from the family court. First, McCauley’s letter to the family court
explained that he did not exhaust his other funds until July 2022, so there
was not a two-year period in which he was unable to pay counsel. Second,
when he did exhaust them, trial was scheduled for April 2023, some nine

5 At oral argument, Mary D.’s counsel confirmed that Mary D. bases

her diligence argument solely on the period preceding McCauley’s July 2023
letter to the court, acknowledging that it appears he “did his best” once the
court instructed him that he would need to obtain an order from the family
court.
14
months away, and in January 2023 Mary D. obtained a continuance of that
date to October, apparently because she wanted to wait until McCauley’s
criminal conviction was final so he could not continue to assert the privilege
against self-incrimination. As McCauley argues, the docket shows little
action in the case between August 2022 and July 2023, with multiple dates
continued by the court based on the continuance Mary D. obtained in
January. Third, at the time he wrote his letter, McCauley reasonably could
have believed there was enough time to gain access to the account and hire a
lawyer to represent him at a trial several months away. Indeed, knowing all
the particulars, Judge Desautels appears to have expected that McCauley
would be able to file a substitution of counsel in time for the trial to go
forward as scheduled.
The delays after that date were not the inevitable result of McCauley
raising it when he did. The record reveals several shortcomings in the way
the family court acted on McCauley’s request. The register of actions shows
that he submitted with his request for order a notice to appear remotely. The
court signed an order permitting him to do so but the record does not show it
was served on him. When McCauley failed to appear at the hearing on
October 25, the court evidently realized the problem and continued the
hearing to November 8 with an instruction that the clerk serve the minutes
with the videoconference information on McCauley in prison. When
McCauley appeared on November 8, the court did not rule on the request and
instead continued the hearing to December 5. The record does not show that
the court had the clerk send the minute order to McCauley—as it had just
done before the November 8 hearing—so he did not appear at the continued
hearing. When the court granted his request in his absence, it again did not
have the clerk serve the minutes on McCauley and merely asked his wife’s
15
counsel to submit the findings and order after hearing. It appears that a
month passed before opposing counsel did so, and then three more months
passed before the court signed it.
In light of McCauley’s status as an unrepresented, incarcerated litigant
and the time-sensitive nature of his request for access to funds, the family
court could have done more to ensure that McCauley was informed of and
able to attend the proceedings, as well as to resolve the issue expeditiously.
(See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368 [acknowledging
that superior courts face a heavy volume of marital dissolution matters, with
a substantial majority litigated by unrepresented parties, but noting that
“family law litigants should not be . . . deprived of access to justice”]; Park v.
Guisti (2025) 116 Cal.App.5th 197, 205 [“We encourage the trial court to
communicate with prison personnel as necessary to ensure Park is given a
meaningful ability to attend court appearances and present his case”]; cf.
In re Marriage of Knox (2022) 83 Cal.App.5th 15, 21 fn.2 [trial court’s
unreasonable delay in acting on wife’s request for attorney fees pendente lite
denied her “meaningful access to justice as that concept is described in the
final report and recommendations of the Elkins Family Law Task Force”].)
While Mary D. argues that McCauley benefitted from multiple trial
continuances, they were largely occasioned by the slow progress of the family
court proceedings during a time when Mary D. concedes he was diligent.6
Those continuances indicate that Judge Desautels concluded the trial should
not take place while McCauley’s request was pending before the family court.

6 Two later continuances were granted (1) to accommodate plaintiff’s

counsel’s travel schedule and (2) because McCauley did not appear at the
February pretrial conference, apparently because he did not receive the
court’s pretrial order (which the register of actions shows was returned).
16
 We do not suggest that Judge Chatterjee was bound to adhere to
Judge Desautels’s view of that issue. The question before us is the narrower
one of whether it would have been reasonable to disregard McCauley’s
effective indigence, notwithstanding the delays occasioned by the family
court’s resolution of McCauley’s request, because he did not start the process
earlier.7 Having carefully considered the parties’ arguments about the
record, we think the answer is no. The Supreme Court emphasized that the
right of meaningful access to the courts is fundamental. (Payne, supra, 17
Cal.3d at pp. 914, 919.) There is no dispute that, as a practical matter,
McCauley was indigent as long as there was a court order preventing him
from using any of his funds. We accept the principle underlying Mary D.’s
argument—that McCauley, by a marked lack of diligence in protecting his
right of access to the courts, might forfeit any claim to the judicial solicitude
described in Payne. But for the reasons described above, we do not think the
record shows a failure to act that would rise to that level. (Cf. Goodhue v.
Tureaud (1979) 100 Cal.App.3d 205, 211–212 [incarcerated defendant was
properly served and received written notices but took “no steps appropriately
calculated to protect or suggesting a desire to protect his interest prior to
suffering a default judgment”].) Again, measured against the span of the
case, the period between the time McCauley exhausted his funds and raised
the issue with the court was relatively brief, and for much of it the progress of
the litigation was stalled by the continuance Mary D. obtained. We therefore
conclude it would have been an abuse of discretion for the trial court to deny
a continuance on the ground that Payne simply did not apply to McCauley.

7 Again, we do not know whether that was Judge Chatterjee’s view; we

are considering a potential justification for the denial of a continuance as
argued by Mary D. in her brief.
17
 D.
We turn to Mary D.’s alternative argument that the trial court
adequately protected McCauley’s rights by ensuring that he could participate
in the trial by videoconference. We start by examining Payne, supra,
17 Cal.3d 908, and Yarbrough, supra, 39 Cal.3d 197, to guide our review of
the trial court’s actions.
In Payne, supra, 17 Cal.3d 908, as here, an incarcerated person, Payne,
was sued for damages based on the crime for which he had been convicted.
(Id. at pp. 911–912.) He was unrepresented, and the Department of
Corrections denied his request to allow him to attend the trial. (Id. at
p. 912.) In his absence, the trial court entered a default judgment against
him. (Ibid.) He filed a petition for writ of error on the ground that he had
been denied permission to attend trial and had been denied his right to
counsel. (Ibid.) Treating the petition as a motion to vacate, the trial court
denied it. (Ibid.) The Supreme Court concluded that, if Payne were indigent,
the trial court’s rulings had violated his right to court access. (Id. at pp. 926–
927.)
After establishing that an indigent, incarcerated civil defendant facing
bona fide legal action threatening his interests has a right to court access, the
Payne court discussed potential remedies to ensure that access. (Payne,
supra, 17 Cal.3d at pp. 923–925.)
“One possible solution,” it noted, “is to accord prisoners the right of
personal appearance to defend any action, but to deny indigent prisoners
appointed counsel.” (Payne, supra, 17 Cal.3d at p. 923.) The Court observed
that such an approach had the advantage of “superficial symmetry” between
indigent prisoners and indigent free people. (Ibid.) But “prisoners do not
have the same access to free legal services as other indigents. Equally
18
significant, a prisoner, unlike a free person, is not able to seek out witnesses
in his behalf or undertake the investigative functions often needed to defend
a civil suit.” (Ibid.) It concluded that, at least as a blanket rule, “allowing a
right of personal appearance is not an appropriate remedy for prisoners
seeking to defend a civil action.” (Ibid.)
The Court also considered a rule that trial courts defer trial until after
the release of an indigent, incarcerated defendant. (Payne, supra, 17 Cal.3d
at p. 923.) In some circumstances, the Court concluded, when a
postponement would not substantially prejudice the rights of plaintiffs, this
remedy would suffice. (Ibid.) “However,” the Court continued, “in many
situations, particularly when a defendant is serving a long term of
confinement, a postponement will substantially impair the interests of the
plaintiff.” (Ibid.)
“In those cases,” the Court concluded, “the only feasible method of
granting access rights to indigent prisoners is appointment of counsel.”
(Payne, supra, 17 Cal.3d at p. 923.) The Court noted that it was not
establishing an absolute right to appointment of counsel. (Id. at p. 924.) But
in cases where the threshold requirements are met, and a continuance is not
feasible, the trial court should ascertain “whether an attorney would be
helpful . . . under the circumstances of the case.” (Ibid.) It noted that the
determination should be simple. (Ibid.) “[I]f the prisoner is not contesting
the suit against him, or any aspect of it, there is no need for counsel; but if he
plans to defend the action and an adverse judgment would affect his present
or future property rights, an attorney should be appointed.” (Ibid.)
In Yarbrough, supra, 39 Cal.3d 197, the Supreme Court confirmed the
right to court access and the inquiry process set forth in Payne. (Yarbrough,
at p. 207.) A trial court, it reiterated, is required “to consider the defendant’s
19
indigency, the feasibility of a continuance, whether [the] defendant’s interests
are actually at stake, and whether counsel would be helpful under the
circumstances.” (Ibid.) It also elaborated on when counsel would be helpful.
(Id. at p. 205.) In a case in which the incarcerated person is collaterally
estopped to relitigate issues decided against them in their prior criminal
trial, for example, the trial court should consider whether other questions of
fact remain to be litigated. (Ibid.) A determination that counsel would not be
helpful on the question of liability in such circumstances, it noted, “does
not . . . foreclose the need for counsel on the issue of the amount of damages.”
(Id. at p. 206.)
McCauley was not asking that counsel be appointed for him. Rather,
having just learned that the family court had finally signed an order granting
him access to some of his funds to hire a lawyer to represent him, he was
seeking a continuance that would have allowed him to do so. There is no
doubt, under the guidelines of Payne and Yarbrough, that this was a case in
which an attorney would have been helpful. (See Payne, supra, 17 Cal.3d at
p. 923; Yarbrough, supra, 39 Cal.3d at p. 207.) McCauley faced a bona fide
civil suit seeking millions of dollars in damages. (See Payne, at p. 924;
Yarbrough, at p. 207.) He planned to contest the action. (See Payne, at
p. 924.) Although his conviction collaterally estopped him to relitigate some
issues in the civil case, other issues would be litigated. (See Yarbrough, at
pp. 205–206.) Counsel might not have advised contesting every one of them,
but the jury had to decide whether McCauley’s acts were a substantial factor
in causing Mary D. harm; whether his conduct was outrageous; whether he
intended to cause Mary D. emotional distress; whether she suffered
emotional distress; what were the amounts of her past noneconomic damages,
future noneconomic damages, and future economic damages; whether
20
McCauley acted with malice or oppression; and what amount of punitive
damages, if any, was appropriate.
Moreover, both Payne and Yarbrough approved postponement as a tool
for ensuring access so long as the delay did not substantially prejudice the
plaintiff’s rights. (Payne, supra, 17 Cal.3d at p. 923; Yarbrough, supra,
39 Cal.3d at p. 206.) As acknowledged in Payne, it would not be fair or
practical to defer a trial until after a defendant completed a lengthy prison
sentence. (Payne, at p. 923.) But here, an appropriate continuance would not
have been a matter of years or even months. Mary D. does not argue that
any delay to enable McCauley to retain counsel would have caused her
substantial prejudice.
Citing Wantuch v. Davis, supra, 32 Cal.App.4th 786, Mary D. argues
that an indigent, incarcerated litigant “does not have the right to any
particular remedy,” and that “the trial court determines the appropriate
remedy to secure access in the exercise of its sound discretion.” (Id. at
p. 794.) She notes that Wantuch lists possible remedies, drawn from case
law, which include “use of closed circuit television or other modern electronic
media” and “transfer of the prisoner to court.” (See id. at pp. 792–793.) In
her view, it was enough for the trial court to ensure court access by arranging
for McCauley to appear by videoconference.
We are not persuaded. The fact that different remedies have been
described in the case law does not mean that any one of them may be deemed
adequate for any situation. A trial court must exercise its discretion within
the guidelines outlined in Payne, supra, 17 Cal.3d 908, and Yarbrough,
supra, 39 Cal.3d 197. (Yarbrough, at p. 207.) As Payne explains, the
question of remedy in a case like this one is straightforward. (Payne, at
p. 924.) If the defendant plans to contest the action and an adverse judgment
21
would affect his interests, then representation by an attorney is warranted.
(Ibid.) We recognize that there are circumstances in which an incarcerated
litigant’s appearance, via electronic media or otherwise, may provide
meaningful access. But such circumstances do not include trial in a case with
(1) a defendant who has asked for help securing counsel and has, or soon will
have, the ability to pay for counsel, (2) disputed facts on at least some
important issues, and (3) significant financial exposure.
In addition, we do not agree that evidence of McCauley’s
videoconference participation in pretrial and trial shows that he had
meaningful access—thus suggesting that the trial court had acted
reasonably. First, we review the trial court’s exercise of discretion as of the
time it was exercised, not in light of subsequent events. (See People v. Welch
(1999) 20 Cal.4th 701, 739.) Second, and regardless, we find Mary D.’s
characterization of McCauley’s participation to be overstated. When
McCauley was represented at the outset of this action, the parties’ attorneys
estimated that trial would take 10 days. It ended up taking less than four.
McCauley entered no exhibits into evidence and he called no witnesses. His
opening statement lasted one minute, in contrast to Mary D.’s, which lasted
15. The only objection he made was overruled. He made no closing
argument. He made no objections to jury instructions or the verdict form.
His lack of legal training left him little more than a spectator to the
proceedings against him.
Under these circumstances—where McCauley needed a relatively brief
continuance to use the funds the family court had finally released for him to
retain counsel—we do not agree that the trial court adequately protected his
constitutional right of meaningful access by allowing him to participate by
videoconference.
22
 E.
Mary D. argues that any error was harmless. The parties agree that
the standard in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)
applies when the denial of a continuance that results in a deprivation of
counsel violates a constitutionally protected right. (See In re Marriage of
Tara & Robert D. (2024) 99 Cal.App.5th 871, 888, fn. 7.)8
To be sure, this is not a case in which McCauley’s liability was in doubt.
His criminal convictions, which were final, prevented him from relitigating
the facts of what he had done to Mary D. throughout her childhood. Even
with a lawyer, McCauley would almost certainly be found liable to her for
substantial damages. But McCauley contends that the numbers suggested by
Mary D.’s counsel and adopted by the jury were not based on specific
testimony or evidence, and a lawyer could have provided assistance in
reducing them. McCauley himself presented no alternative argument or
evidence. Mary D. argues that it is equally plausible that the jury would
have arrived at the same damages figures—those proposed by her counsel
and unrebutted by McCauley—even if McCauley had been represented. But
“equally plausible” is not the standard that the parties agree applies. (See
Chapman, supra, 386 U.S. at p. 24.)
Mary D. also contends that McCauley has failed to show prejudice
because he “makes no representation” regarding the availability of a lawyer

8 This case, cited by Mary D., did not hold that Chapman necessarily

applies; rather, it clarified that it applied the standard in People v. Watson
(1956) 46 Cal.2d 818, 836, because there was no claim that the denial of the
continuance, although it resulted in a deprivation of trial counsel, gave rise to
a constitutional violation. (In re Marriage of Tara & Robert D., supra,
99 Cal.App.5th at p. 888, fn. 7.) Without deciding the issue, we accept the
parties’ reliance on the Chapman standard for purposes of this decision.
23
had the trial court granted his continuance request. But under the Chapman
standard, it is the party benefiting from a constitutional error who bears the
burden of showing the error was harmless. (Chapman, supra, 386 U.S. at
p. 24.) McCauley had just learned that he had access to the funds when the
trial court declined any continuance. Mary D. offers no reason to conclude
that McCauley could not have found a lawyer once he was able to pay for one.
Accordingly, we cannot “declare a belief that [the court’s error] was
harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.)
F.
McCauley contends that reversal based on the trial court’s denial of a
continuance should result in a remand for a new trial only on liability and
compensatory damages—not on punitive damages. He argues that the
punitive damages award is not supported by substantial evidence, and
therefore the award should be vacated and not retried. McCauley cites no
authority, however, for the proposition that he may challenge the fairness of
the proceeding as a whole but exempt from retrial an issue on which he
claims Mary D. failed to carry her burden of proof, and we are not bound to
develop the argument for him. (In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830.) Accordingly, we do not reach McCauley’s
substantial evidence challenge to the punitive damages award. We remand
the issue of punitive damages for retrial along with the issues of liability and
tort damages.
II.
McCauley contends that the trial court abused its discretion by
admitting eight school photographs of Mary D., one for each year from
prekindergarten through third grade and sixth grade through eighth grade.
Because this issue is likely to recur in a new trial, we explain why we are
24
unpersuaded by McCauley’s argument that the court abused its discretion.9
We first recount additional facts for context, and then we address the
argument.
McCauley was Mary D.’s uncle and godfather. When Mary D. was in
prekindergarten, McCauley started picking her up from school three or four
days a week. Mary D. first remembers him abusing her when she was in
kindergarten or first grade. The abuse did not stop until she was in high
school. At trial, Mary D. was 29 years old.
Though relevant evidence is generally admissible (Evid. Code, § 351), a
trial court may exclude it if its probative value is substantially outweighed by
the probability that it will create substantial danger of undue prejudice (id.
at § 352). “Relevant evidence” means evidence having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the
determination of the action. (Id. at § 210.) “Evidence is substantially more
prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable
‘risk to the fairness of the proceedings or the reliability of the outcome.’ ”
(People v. Waidla (2000) 22 Cal.4th 690, 724.) We review the trial court’s
decision to admit evidence for abuse of discretion. (Id. at p. 717.)
The photographs should have been excluded, McCauley argues, because
there was no dispute as to Mary D.’s age at the time of the abuse.10 While he

9 Because we conclude that the court did not err, and because we

include this discussion for the benefit of the parties and the court in a retrial,
we do not reach Mary D.’s argument that McCauley forfeited his argument by
failing to object. Nor do we reach McCauley’s contention that he was
prejudiced by the purported error.
10 The evidence appears to support that the abuse started when

Mary D. was in kindergarten or first grade, not when she was in
prekindergarten. McCauley does not raise this point, however, either by
alleging specific error as to the photograph from prekindergarten or
25
is correct as to the lack of dispute, his argument misses the probative value,
and thus the relevance, of the photographs. (See People v. Cage (2015)
62 Cal.4th 256, 283 [prosecutor may use photographic evidence even when
defendant stipulates to a fact].) Information about a child’s age by number of
years is more abstract than a photograph that offers concrete visual details
that can help a juror understand the child’s developmental stage at that time.
Here, these visual details were particularly useful given that the plaintiff
sitting before the jurors in the courtroom was then a young adult. Further,
we agree with Mary D. that her ages, and the related developmental stages,
during the time that McCauley abused her were relevant to whether
McCauley acted with malice, to whether his conduct was outrageous, and to
the physical pain, mental suffering, loss of enjoyment of life, grief, anxiety,
humiliation, embarrassment, worry, and emotional distress that she suffered
in the years of abuse. McCauley argues that these elements were addressed
by testimony. But “evidence does not become irrelevant simply because other
evidence may establish the same point.” (People v. Smithey (1999) 20 Cal.4th
936, 973–974.)
We are unpersuaded that the photographs presented a danger of undue
prejudice that would warrant their exclusion under Evidence Code
section 352. They were limited to one for each year. And, as Mary D. notes,
they were not selected for an emotional response. (See People v. Suff (2014)
58 Cal.4th 1013, 1070–1073.) They do not, for example, show her playing
with toys or a pet or hugging a family member or a friend. (See ibid.) We

otherwise. Nor does he challenge the statement in Mary D.’s brief on appeal
that the photographs “show [her] at each age she was abused by
McCauley . . . .” Accordingly, we do not address the prekindergarten
photograph separately from the others.
26
conclude that the photographs’ potential for prejudice did not substantially
outweigh their probative worth.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court
for a new trial. The court is instructed to ensure McCauley’s meaningful
access to the court consistent with this opinion if McCauley meets the
threshold requirements of Payne, supra, 17 Cal.3d 908, at the time of the
remand. McCauley is entitled to recover costs on appeal.
GOLDMAN, J.

WE CONCUR:

STREETER, Acting P. J.
SWEET, J. *

*Judge of the Marin Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.
27
Trial Court: Alameda County Superior Court

Trial Judge: Honorable Somnath Raj Chatterjee

Counsel for Plaintiff and Mazur & Mazur, Janice Ryan Mazur
Respondent:

Counsel for Defendant and Law Offices of Tiffany J. Gates and
Appellant: Tiffany J. Gates
Law Offices of Scott A. Bonzell and Scott
A. Bonzell

28


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

UNIVERSAL SHOPPING B348490
PLAZA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
25NNCV01228)
v.

PIONG BIN HONG,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Reversed and
remanded with directions.
Piong Bin Hong, in pro. per., for Defendant and Appellant.
Kimball, Tirey & St. John and Tiffany D. Truong for
Plaintiff and Respondent.
_______________________

Piong Bin Hong, doing business as Five Star Restaurant,
appeals from the judgment entered in favor of his commercial
landlord, Universal Shopping Plaza (Universal), following a court
trial in Universal’s unlawful detainer action. Hong contends the
trial court erred in entering judgment in favor of Universal
because Universal’s three-day notice to pay rent or quit was
invalid under California Code of Civil Procedure section 1161,
subdivision (2) (section 1161(2)), because the notice demanded
Hong pay rent that became due more than one year before the
notice was served and posted. Hong also contends the court erred
in awarding Universal $123,111 in holdover damages because he
was not in default and Universal refused his offer to pay holdover
rent.
Universal acknowledges that Hong’s missed rent payment
for January 2023 and underpayment of the February 2023 rent
occurred more than a year prior to service of the three-day notice
(on February 12, 2025). But Universal argues the three-day
notice was nonetheless valid because the parties’ lease agreement
provided that any rent payments made by Hong were to be
applied to Hong’s oldest payment obligations. Thus, Universal
argues, Hong’s regular monthly payments after he missed the
January payment temporarily cured his default but put him in a
continual state of arrears, such that the three-day notice two
years later was timely because it was based on a current
obligation.
Universal’s position, which the trial court adopted, is
contrary to the plain meaning and intent of section 1161(2).
Section 1161(2) requires a three-day notice be served “within one
year after the rent becomes due,” not on the date the landlord
decides the lease has been breached under a contractual
provision delaying for one month at a time any default in the
nonpayment of rent. Further, the landlord’s interpretation of
section 1161(2)’s one-year notice requirement is inconsistent with
the Legislature’s intent in creating the summary unlawful

2
detainer procedure to ensure fairness to the parties by preventing
a landlord from sitting on its rights, then at a later time forcing
an eviction on a long-overdue rent payment.
Precisely such unfairness occurred here: The evidence at
trial showed that Hong paid his monthly rent for over two years
before he was served with the three-day notice, and the unpaid
rent demanded in the notice corresponded precisely with his
initial nonpayment. Accordingly, the notice was void and cannot
support the unlawful detainer judgment and award of holdover
damages. We reverse the judgment and remand for the trial
court to enter a judgment in favor of Hong.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Lease Agreement and 2023 Rent Dispute
Hong owns the Five Star Restaurant in San Gabriel. On
December 19, 2016 Hong and Universal entered into a five-year
commercial lease agreement for space in Universal’s shopping
plaza on West Valley Boulevard for the period from January 1,
2017 to December 31, 2021. Paragraph 4.1 of the lease,
governing payment of rent, stated “[Hong] shall pay to
[Universal] without prior demand, deduction, or offset, payable in
advance upon commencement of the first month of the term
hereof and thereafter on the first day of each calendar month
during the original or any extended term hereof, and subject to
increases as provided for herein, monthly minimum rent of
[$30,625] per month.” The monthly base rent would increase by

3
3 percent “on the beginning of the second lease year and every
year thereafter.”1
Paragraph 27.1, titled “Events of Defaults and Remedies,”
provided Hong would be considered in default upon “failure by
[Hong] to make any payment of rent or additional rent
required . . . to be made by [Hong] hereunder, as and when due,
where such failure shall continue for a period of three days after
written notice thereof from [Universal] to [Hong]; provided,
however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil
Procedure Section 1161, as amended.”2
Paragraph 4.5 of the lease, titled “Application of
Payments,” provided, “All payments received by [Universal] from
[Hong] . . . shall be applied to the oldest payment of obligation
owed by [Hong] to [Universal]. No designation by
[Hong] . . . shall modify this clause or have any force or effect.” 3

1 Hong was obligated to pay “additional rent” beyond the
base rent for common area maintenance, insurance premiums,
property taxes, and other enumerated expenses incurred by
Universal. During the lease term, Hong’s monthly rent payments
typically exceeded his base rent by about $15,000 to $20,000.
2 We have omitted capitalization in the lease and subsequent
three-day notice.
3 Contracts may contain an application of payments
provision to clarify, with respect to a debtor who has “several
obligations” to a creditor (here, lease payments owed by Hong to
Universal), the priority of obligations to be satisfied by a
payment. (See Civ. Code, § 1479 [describing priority of
obligations to be satisfied by payments in absence of application
of payments provision or other expression of parties’ intent].)

4
 Upon expiration of the original lease on December 31, 2021,
the parties agreed to continue with a month-to-month tenancy.
However, Hong did not make a rental payment in the month of
January 2023, because he believed he was entitled to a 10-
percent discount for 2022 based on a conversation he had in
June 2021 with Victoria Chiang, the leasing and office manager
for Universal, in which she offered him a rent reduction in light
of challenges resulting from the COVID-19 pandemic.
On January 5, 2023 Hong sent a letter to Maggie Lei, an
accountant and member of the Universal property management
team. Hong asserted in the letter that he overpaid rent by
$65,989 in the 2022 calendar year because he was not given the
promised rent discount. Hong wrote, “Instead of issuing you a
check for the January 2023 charges, I am deducting the January
charges of $57,388 from my total credit amount of $65,989, which
leaves a credit balance of $8,600. I will then deduct the
remaining credit amount of $8,600 from the rent that I will owe
for the month of February 2023, and issue a check for the
difference.”4 Consistent with his letter, Hong did not pay the rent
for January 2023, and his rental payment on February 1, 2023
was $8,600 less than the monthly payment owed. Hong
thereafter fully paid the rent for March 2023, and he continued to
pay the monthly rent for the next 23 months.

B. The Three-day Notice, the Complaint, and Hong’s Demurrer
On February 1, 2025 Hong paid his rent in full in the
amount of $66,158. On February 12, 2025 Universal served a “3-

4 Hong also claimed that Universal charged a $3,833 fee in
June 2022 that was improper.

5
Day Notice to Pay Rent or Quit” (three-day notice) on Hong. The
three-day notice stated Hong was delinquent in paying his rent
and demanded he pay “unpaid rent” in the amount of $65,989
within three days or surrender the premises. The three-day
notice did not state for which payment period the rent was due or
set forth Universal’s basis for calculating the unpaid rent.
After Hong failed to make an additional payment within
three days, on February 25, 2025 Universal filed an unlawful
detainer complaint using Judicial Council form UD-100. The
complaint, which attached the three-day notice, alleged the
parties had a written five-year lease agreement; Universal served
Hong with the three-day notice by leaving a copy at Hong’s
business; at the time of the three-day notice, the “amount of rent
due” was $65,989; and Hong failed to comply with the
requirements of the notice by the end of the three-day period.
The complaint requested possession of the premises, past-due
rent of $65,989, holdover damages of $1,219 per day (the alleged
fair market value of the premises) beginning on March 1, 2025,
and attorneys’ fees.
On March 12, 2025 Hong, representing himself, filed a
demurrer to the complaint, arguing the three-day notice violated
section 1161(2) because it required him to pay rent more than one
year after it became due. In support of the demurrer, Hong filed
a declaration, several documents relating to the parties’ dispute
over rent payments and alleged breaches of the lease in 2022, and
Hong’s January 5, 2023 letter to Lei. Universal opposed the
demurrer on the grounds that it relied on disputed factual issues
and extrinsic evidence. The trial court agreed and overruled the
demurrer. Hong answered the complaint on May 9, 2025.

6
C. The Unlawful Detainer Trial and Judgment
A three-day court trial commenced on June 6, 2025. Hong
represented himself at the trial using a court-certified Mandarin-
language interpreter. Universal called Chiang as a witness.
Hong testified and called Lei, Stephen Jiang (Universal’s
property manager), and Justin Chan (a representative of the
shopping plaza’s owner) as witnesses. The trial court admitted
the lease agreement, three-day notice, proofs of service, a lease
ledger, and communications between the parties.
A substantial portion of the trial related to the parties’
dispute in 2022 regarding a rent reduction by Universal and
Hong’s 2023 lease payments. The undisputed evidence showed
Hong withheld $65,989 in early 2023 by paying no rent in
January and withholding $8,600 from his February rent
payment. Lei testified that on January 25, 2023 Universal sent
Hong a notice stating he was in breach of the lease and that he
owed $63,127 for the January rent plus late fees.5 Lei admitted
that Hong paid the monthly rent from March 2023 through
February 2025. Chiang answered “Yes” when asked whether it
would “be accurate to say that once [Hong] fell behind on his rent
in 2023, he was always about a month behind in rent because the
payments received were applied to the oldest balances.” Further,
Chiang confirmed that the “unpaid rent” listed on the three-day
notice referred to the missed payments in January and
February 2023 “because of the application of payments.”
In her closing argument, Universal’s attorney asserted the
evidence showed that Hong’s “rental arrears” began in

5 Universal’s January 25, 2023 letter was admitted at trial
but is not in the record on appeal.

7
January 2023, and Universal’s January 25, 2023 letter was “very
clear” that Hong owed unpaid rent. Although Hong continued to
pay rent each month, “the applications were always applied to
the oldest balances that were owed, and therefore he [had]
always [been] essentially one month behind starting in 2023.”
Further, Universal made it clear in its response to Hong’s
January 5, 2023 letter to Lei that Universal did not agree to
discount Hong’s rent in 2022, nor did it consent to Hong’s
decision to unilaterally withhold rent based on his understanding
of the 2022 discussions. In his closing argument, Hong argued
the three-day notice violated section 1161(2) because “[it] didn’t
indicate the amount of $65,988.59 was [owed for] which month.”
Following the closing arguments, the trial court ruled in
favor of Universal. The court found that although Hong believed
Universal had orally agreed to a 10-percent rent reduction in
2022, there was no effective modification of the lease because the
lease required any agreement to be in writing. Moreover, it was
“problematic” that Hong, instead of resolving the issue formally,
simply failed to pay the rent.
The trial court rejected Hong’s argument that the three-day
notice was defective because it did not specify the period for
which rent was owed, finding that section “[1161(2)] does indicate
that all [Universal] had to do is list the back rent.” With respect
to the unpaid rent in the notice, the court advised Hong: “I
understand your argument that, if there was missed rent, it was
from prior months and was beyond the one-year statute. But
under the terms of the lease that continued on a month-to-month
basis, rent is applied to back rent first. And so for every payment
you made, it was applied to the back rent first, which meant that
you were missing a current payment.”

8
 On July 3, 2025 the trial court entered judgment in favor of
Universal, awarding it possession of the premises, $65,989 in
past-due rent, and $123,111 in holdover damages. Hong timely
appealed.

DISCUSSION

A. Unlawful Detainer Proceedings and Standard of Review
“The Unlawful Detainer Act [§§ 1159-1179a] governs the
procedure for landlords and tenants to resolve disputes about
who has the right to possess real property. [Citations.] Given
the need for quick, peaceful resolutions of unlawful detainer
actions, the statutory procedures must be strictly adhered to,
including the stringent requirements for service, notice, and
filing deadlines.” (Stancil v. Superior Court (2021) 11 Cal.5th
381, 394-395; accord, Dr. Leevil, LLC v. Westlake Health Care
Center (2018) 6 Cal.5th 474, 480 [“‘It has long been recognized
that the unlawful detainer statutes are to be strictly construed
and that relief not statutorily authorized may not be given due to
the summary nature of the proceedings. [Citation.] The
statutory requirements in such proceedings “‘must be followed
strictly.’”’”].)
“Section 1161(2) provides that a tenant is guilty of unlawful
detainer when the tenant continues in possession of a rental
property without the permission of the landlord after default in
the payment of rent.” (City of Alameda v. Sheehan (2024)
105 Cal.App.5th 68, 75 (Sheehan).) When the tenant continues in
possession, “service of a ‘valid three-day notice to pay rent or quit
is a prerequisite to an unlawful detainer action.’” (Ibid; accord,
Eshagian v. Cepeda (2025) 112 Cal.App.5th 433, 457.) “‘The
notice’s purpose is to inform the tenant of the breach so the

9
tenant can rationally choose whether to cure the breach and
retain possession, quit the property, or contest the allegations.’”
(Eshagian, at p. 457.) A three-day notice is only valid if the
landlord “strictly complies” with the requirements of
section 1161(2). (Eshagian, at pp. 457, 459 [three-day-notice was
defective because it did not state that failure to pay rent would
result in eviction, specify when the three-day period commenced
or ended, and provide a clear address for payment of rent owed];
accord, Sheehan, at pp. 81-82.)
Section 1161(2) specifies the precise information that must
be stated in the three-day notice and the notification
requirements for the notice to be valid. As relevant here, “[t]he
notice may be served at any time within one year after the rent
becomes due.” (§ 1161(2); see Levitz Furniture Co. v. Wingtip
Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038 (Levitz).)
“[A] landlord who waits more than one year to sue for rents due
from a tenant may be restricted to collecting such rents in a
separate action for breach of contract.” (Levitz, at p. 1042; see
WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526 [if a
landlord fails to strictly comply with section 1161(2)’s
requirements, its “‘“remedy is an ordinary suit for breach of
contract with all the delays that remedy normally involves and
without restitution of the demised property”’”].)
The legislative history of section 1161(2) reflects the
Legislature’s intent “‘to protect landlords and tenants by setting
clear requirements for payment [of overdue rent] to whom and
where.’” (Sheehan, supra, 105 Cal.App.5th at p. 75, quoting
Assem. Com. on Housing and Community Development, Analysis
of Sen. Bill No. 985 (2001-2002 Reg. Sess.), as amended July 9,
2001, p. 7.) Section 1161(2) also “prevents a landlord’s sitting on

10
his or her rights, when rent is unpaid at some point during the
life of a lease, then using long-overdue rent (but no recently
overdue rent) to effect an eviction.” (Levitz, supra,
86 Cal.App.4th at p. 1040.)
In reviewing a judgment following a bench trial, “‘we
review questions of law de novo, and we review the trial court’s
findings of fact for substantial evidence.’” (State of California ex
rel. Rapier v. Encino Hospital Medical Center (2022)
87 Cal.App.5th 811, 828; accord, Ribakoff v. City of Long Beach
(2018) 27 Cal.App.5th 150, 162; see Jessup Farms v. Baldwin
(1983) 33 Cal.3d 639, 660 [stating with respect to factual findings
following bench trial, “‘the power of an appellate court begins and
ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below”].) As part of our substantial evidence review, we “must
view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012; accord, Ribakoff, at p. 162.)

B. The Three-day Notice Failed To Comply with
Section 1161(2) Because the Unpaid Rent Became Due More
Than One Year Earlier
On appeal, Hong contends the three-day notice was invalid
because the unpaid rent that Universal demanded in the notice
was more than one year overdue. We agree.
The undisputed evidence at trial showed that Hong did not
pay rent on January 1, 2023, and he paid less than the full rent

11
on February 1, 2023, because he believed he was entitled to a
$65,989 rent reduction for 2022. On January 25, 2023 Universal
notified Hong he was in breach of the lease and that he owed
$63,127 for January 2023 (including a late fee). Universal took
no further action following this notice of breach, and Hong paid
the monthly rent due from March 2023 up to and including
February 1, 2025. Universal’s three-day notice served in 2025
identified the amount of unpaid rent as $65,989, which was the
exact amount Hong failed to pay in January and February 2023.
Further, Universal admitted at trial that the three-day notice
was based on the 2023 nonpayment.
On these facts, the three-day notice was invalid.
Section 1161(2) expressly requires that the notice be served
within one year “after the rent becomes due.” When there “‘is no
ambiguity, then we presume the lawmakers meant what they
said, and the plain meaning of the language governs.’” (Allen v.
Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227; see
Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40 [“If the
language is clear, [we] must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend.”].)
The lease stated in paragraph 4.1 that the rent was due
“without prior demand, deduction, or offset, payable in advance
upon commencement of the first month of the term hereof and
thereafter on the first day of each calendar month during the
original or any extended term hereof.” Hong failed to pay the
rent due on January 1, 2023, and his February 1, 2023 rent
payment was short by $8,600. Thus, under section 1161(2), to
bring an action for unlawful detainer based on this unpaid rent,
Universal had to serve a three-day notice no later than

12
February 1, 2024. Because it failed to do so, the notice was
invalid, and Universal could not prevail in the unlawful detainer
proceeding. (Levitz, supra, 86 Cal.App.4th at p. 1038.)6
Universal urges us to affirm the trial court’s finding that
the three-day notice was valid because even if Hong had missed a
rent payment in January 2023, “for every payment [Hong] made,
it was applied to the back rent first, which meant that [he was]
missing a current payment.” But the “allocation of payments”
provision in the lease does not save the three-day notice.
Paragraph 4.5 of the lease simply provided that all payments
made by Hong “shall be applied to the oldest payment of
obligation owed” to Universal. Although this provision might
affect the total amount owed for a prior failure to pay rent and
(potentially) the running of the limitations period for a breach of
contract action, it does not modify the date “rent becomes due”
under paragraph 4.1 (on the first day of the month), which is the
triggering event for service of the three-day notice of an unlawful
detainer action under section 1161(2).
To hold otherwise would undermine the legislative intent
underlying section 1161(2)’s notice provision to prevent landlords
from sitting on their rights when a tenant fails to pay rent at
some point in a lease, “then using long-overdue rent (but no

6 In Levitz, supra, 86 Cal.App.4th at pages 1042 to 1043, the
court held a landlord’s demand that includes unpaid rent that
was due outside the one-year window does not invalidate a three-
day notice, provided the notice also specifies unpaid rent falling
within the one-year window; however, in the unlawful detainer
proceeding the landlord could collect only the rent falling within
the one-year window and would need to file a suit for breach of
contract to recover the remaining amount. In this case, the
entire amount of unpaid rent fell outside the one-year window.

13
recently overdue rent) to effect an eviction.” (Levitz, supra,
86 Cal.App.4th at p. 1040.) Under Universal’s interpretation, a
landlord could take no action on a missed rent payment for years,
then, once prevailing market rates increase, pursue a summary
eviction of the tenant with just three days’ notice. We reject that
interpretation of section 1161(2) and reverse the judgment.7

DISPOSITION

The judgment is reversed. We remand for the trial court to
enter a new judgment in favor of Hong. Hong is entitled to
recover his costs on appeal.

FEUER, J.
We concur:

MARTINEZ, P. J.

STONE, J.

7 Although Universal may not avail itself of the unlawful
detainer proceedings and remedies, Universal is not without
recourse: It may bring an action for breach of contract, provided
it does so within the four-year statute of limitations under Civil
Code section 337. (Levitz, supra, 86 Cal.App.4th at p. 1042; see
WDT-Winchester v. Nilsson, supra, 27 Cal.App.4th at p. 526.)

14