Alexander Alobeydi vs Evan Graves

Case Number

23CV04147

Case Type

Hearing Date / Time

Fri, 04/05/2024 - 10:00

Nature of Proceedings

CMC; Motion to Strike; Motion to Seal; Motion for Attorney Fees

Tentative Ruling

(1) For all reasons discussed herein, the special motion to strike of defendant is granted, in part, as to the third, fourth, fifth, sixth, and seventh causes of action alleged in plaintiff’s complaint. The special motion to strike of defendant is denied as to the ninth cause of action alleged in plaintiff’s complaint.

(2) For all reasons discussed herein, the motion of plaintiff to seal the declaration of Alexander Alobeydi is granted. The declaration of Alexander Alobeydi lodged conditionally under seal on February 20, 2024, is ordered filed under seal. No other court records or records relating to the case are to be sealed at this stage of the proceedings. Only the court, the parties named in this action, and their counsel of record are authorized to inspect the sealed record.

(3) The court continues the hearing on the motion of defendant for attorney’s fees and costs to May 3, 2024.

Background: 

On September 25, 2023, plaintiff Alexander Alobeydi (Alobeydi) filed a complaint in this matter against defendant Evan Graves (Graves), alleging nine causes of action: (1) assault; (2) battery; (3) intentional interference with economic relations; (4) negligent interference with economic relations; (5) abuse of process; (6) malicious prosecution – former criminal proceeding; (7) malicious prosecution – lack of probable cause; (8) trespass; and (9) defamation. As alleged in the complaint:

On May 21, 2022, Graves placed Alobeydi in a chokehold and held him there until Alobeydi was able to fight back enough to free himself from Graves’ grasp. (Compl., ¶ 7.) The police were called and Graves falsely reported to them that he and Alobeydi were in a domestic relationship, which they were not. (Compl., ¶ 7.) This false information led to Alobeydi being arrested on domestic violence charges which were later dropped. (Compl., ¶ 7.) As a result of his arrest based on false or misinformation provided by Graves to the police, Alobeydi was suspended from work and lost income. (Compl., ¶ 8.)

Graves filed a small claims action against Alobeydi for injuries Graves claims he sustained when Alobeydi freed himself from Graves’ chokehold (the small claims action). (Compl., ¶ 9.) Before filing the small claims action, Graves repeatedly threatened Alobeydi with legal action, demanded that Alobeydi disclose who Alobeydi was spending time with, and stated that he would make Alobeydi pay by filing legal action against Alobeydi if Alobeydi did not tell Graves who Alobeydi was spending time with. (Compl., ¶ 9.)

On November 6, 2023, the court ordered the small claims action, filed as case number 236V00720, related to the present action. (See Order dated Nov. 6, 2023.)

On December 11, 2023, Graves filed a special motion to strike the third, fourth, fifth, sixth, seventh, and ninth causes of action alleged in plaintiff’s complaint (the motion to strike). In the notice of the motion to strike, Graves asserts that the entirety of the present action arises out of the filing of the small claims action and statements made by Graves to law enforcement, close friends, and relatives about domestic violence perpetrated by Alobeydi. Graves argues that the statements at issue are a matter of public interest.

With respect to the third and fourth causes of action specifically, Graves asserts that Alobeydi’s claims are based on statements Graves allegedly made to law enforcement regarding the intimate nature of the parties’ relationship and conduct which relates to domestic violence. Graves further contends that Alobeydi cannot show a probability of success on the claims alleged in the third and fourth causes of action.

With respect to the fifth cause of action, Graves asserts that Alobeydi’s claim arises out of the filing of the small claims action and efforts by Graves to meet and confer with Alobeydi before initiating the small claims action. Graves contends that these activities are privileged under Civil Code section 47, subdivision (b), and that Alobeydi cannot offer admissible evidence to prove that the filing of the small claims action was improper.

With respect to the sixth cause of action, Graves asserts that any statements he made to law enforcement which caused Alobeydi’s arrest and a subsequent investigation were true and that statements made by Alobeydi to law enforcement in the course of their investigation do not equate to an act by Graves in bringing a claim maliciously or without probable cause.

With respect to the seventh cause of action, Graves contends that a verdict has not yet been reached in the small claims action and that Alobeydi cannot offer admissible evidence to prove malicious intent.

With respect to the ninth cause of action, Graves contends that Alobeydi cannot offer admissible evidence to prove the falsity of the alleged statements describing violence and made to a group of coworkers or friends, and that Alobeydi has not described with particularity any harm to Alobeydi’s business, profession, or occupation.

Graves has also concurrently filed a motion for an order awarding Graves prevailing party attorney’s fees and costs (the fee motion).

Alobeydi opposes the motion to strike and the fee motion. Alobeydi has also filed a motion for an order sealing the Alobeydi declaration submitted in support of Alobeydi’s opposition to the motion to strike. Alobeydi contends that the declaration should be filed under seal to protect the privacy rights of third-party witnesses and to protect these witnesses from embarrassment or intimidation. Graves has not filed an opposition to the motion to seal.

Analysis:

(A) Special Motion To Strike

Code of Civil Procedure section 425.16 (the California Anti-SLAPP Law or the anti-SLAPP statute) authorizes a special motion to strike a cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) (Note: Undesignated statutory references shall be to the Code of Civil Procedure unless otherwise indicated.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, original italics (Baral).)

The court’s evaluation of a motion brought under the anti-SLAPP statute involves two steps: “[f]irst, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

“Before engaging in [the] two-step analysis, a court must consider any claims by the plaintiff that a statutory exemption contained in section 425.17 applies.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622.) Plaintiff bears the burden to establish that the challenged activity falls within an exemption. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 23, 25.) In his opposition to the motion, Alobeydi does not contend that an exemption under section 425.17 applies to the activity or conduct challenged by Graves in the motion to strike.

(1) First Prong

“To make a showing under the first prong, the defendant need not show that the actions it is alleged to have taken were protected as a matter of law, but need only establish a prima facie case that its alleged actions fell into one of the categories listed in section 425.16, subdivision (e).” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 882.) Protected activity includes statements made in an official proceeding authorized by law, statements made in connection with an issue under consideration or review in an official proceeding, statements made in a place open to the public in connection with an issue of public interest, or “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e); see also Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1018.)

A defendant must also demonstrate that the plaintiff’s claims “in fact arise from” conduct that falls within subdivision (e) of section 425.16. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620, original italics (Rand Resources); Code Civ. Proc., § 425.16, subd. (b)(1).) “A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citation.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062, original italics (Park).) To determine whether protected activity underlies or forms the basis for the claim, the court considers “the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.)

Third, fourth, and sixth causes of action:

In the third and fourth causes of action, Alobeydi asserts theories of liability which are titled as, respectively, intentional and negligent interference with economic relations. Graves contends that Alobeydi has not pleaded a cause of action for contractual economic relations. For this reason, Graves assumes for present purposes that the third and fourth causes of action alleged in the complaint refer to prospective claims of interference with Alobeydi’s ongoing employment. (See Motion at p. 7, ll. 15-17.)

As a threshold matter, the court notes that in the complaint, Alobeydi does not allege the existence of a contract with a third party. (See, e.g., Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148 [the existence of a valid contract between the plaintiff and a third party is an element of a cause of action for intentional interference with contractual relations].) In his opposition to the motion to strike, Alobeydi asserts that the theories of liability alleged in the third and fourth causes of action are based on an interference by Graves with a prospective economic advantage. (See Opp. at pp. 3 & 7 [addressing the elements of the torts of intentional and negligent interference with prospective economic advantage].) For these reasons, it is the court’s understanding that Alobeydi intends to allege in the third and fourth causes of action claims for tortious interference with prospective economic advantage which impose liability “for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition.” (Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal.App.4th 842, 845.)

The third cause of action alleges a claim for intentional interference with prospective economic advantage, which requires a plaintiff to plead and prove “ ‘ “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” [Citations.]’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea Supply).)

The fourth cause of action alleges a claim for negligent interference with prospective economic advantage, which is similarly established “where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786 (North American).)

Notwithstanding whether the alleged interference by the defendant is intentional or negligent, to meet the third element of each tort, a plaintiff “must plead and prove that the defendant’s acts are wrongful apart from the interference itself.” (Korea Supply, supra, 29 Cal.4th at p. 1154; see also National Medical Transp. Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440-441 [the element of “independent wrongfulness” also applies to claims for negligent interference].)

Under the anti-SLAPP statute, “[a]t the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) Graves contends that the protected activity alleged in the third and fourth causes of action consists of reports made by Graves to law enforcement in which Graves allegedly stated that he and Alobeydi were in an intimate relationship and which resulted in Alobeydi being arrested for domestic violence and suspended from his employment. (Motion at p. 6, ll. 20-23 & p. 8, ll. 17-22.)

In the third cause of action, Alobeydi alleges that Graves “reported to the police that he and [Alobeydi] were in a domestic relationship….” (Compl., ¶ 27.) Alobeydi further alleges that because he and Graves were not in a domestic relationship, the report made by Graves to the police was false. (Compl., ¶ 27.) In the fourth cause of action, Alobeydi incorporates by reference each of the prior paragraphs of the complaint and alleges that Graves made a false report to the police stating that he and Alobeydi were in a domestic relationship. (Compl., ¶¶ 31, 34.) In addition, in each cause of action, Alobeydi further alleges that the making of a false report to police by Graves resulted in Alobeydi being wrongly arrested for domestic violence which caused Alobeydi to be suspended from his employment and to miss numerous days of work. (Compl., ¶¶ 27-29, 34, 38.)

Alobeydi also asserts in his opposition to the motion to strike that the conduct by Graves that forms the basis for the claims alleged in the third and fourth causes of action is the making of a purportedly false police report in which Graves purportedly stated that he and Alobeydi were in a domestic relationship. (See Opp. at p. 4, ll. 9-14; p. 5, ll. 19-21 & 23-25; p. 8, ll. 4-9 & 18-19; p. 9, ll. 1-2 [identifying the independently wrongful act as the making of a police report by Graves in which Graves falsely stated that the parties were in a domestic relationship]; see also Code Civ. Proc., § 425.16, subd. (b)(2) [the court considers the pleadings and supporting and opposing affidavits “stating the facts upon which the liability or defense is based”].)

For all reasons further discussed above, Graves has established that the independent wrongful act which supplies the elements of the claims alleged in the third and fourth causes of action is the making of a police report by Graves in which Alobeydi contends Graves falsely stated that he and Alobeydi were in a domestic relationship. Alobeydi further asserts that the making of a false police report by Graves resulted in Alobeydi’s arrest and suspension from employment. For these reasons, the claims for relief alleged in the third and fourth causes of action are supported by the making of a false police report by Graves.

Graves must demonstrate that the act of making an allegedly false police report is protected under section 425.16, subdivision (e). (Park, supra, 2 Cal.5th at p. 1063.) Graves contends that his statements to law enforcement facilitated the administration of criminal laws, which, according to Graves, qualifies the making of a police report an issue of public interest to ensure open and honest cooperation with law enforcement in the pursuit of a criminal investigation. Graves also asserts that reporting unlawful conduct to law enforcement is protected under Civil Code section 47, subdivision (b).

Under Civil Code section 47, subdivision (b), a publication made in any official proceeding authorized by law is privileged. (Civ. Code, § 47, subd. (b).) “[A] communication concerning possible wrongdoing, made to … a local police department, and which communication is designed to prompt action by that entity, is as much a part of an “official proceeding” as a communication made after an official investigation has commenced.” (Williams v. Taylor (1982) 129 Cal.App.3d 745, 753; see also Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364-366, 372, superseded by amendment to Civ. Code § 47, subd. (b) [also noting that a broad application of the privilege under section 47, subdivision (b), “serves the important public interest of securing open channels of communication between citizens and law enforcement personnel”].) “Civil Code section 47 gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112.)

“[A]lthough section 425.16 and Civil Code section 47, subdivision (b) are not coextensive and are substantively different, ‘the two statutes serve similar policy interests, and courts “look[ ] to the litigation privilege [Civ. Code, § 47] as an aid in construing the scope of section 425.16, subdivision [ (e)(2) ] with respect to the first step of the two-step anti-SLAPP inquiry....” [Citations.]” (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965 (Kenne).) “Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to ‘the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.’ [Citations.]” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.)

“The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) Moreover, “[t]he making of allegedly false police reports also can be protected petitioning activity under the first prong of the anti-SLAPP statute if the falsity of the report is controverted.” (Kenne, supra, 230 Cal.App.4th at p. 966.) A defendant may satisfy the burden to show the conduct in question is protected under the anti-SLAPP statute even when the conduct is allegedly unlawful. (See, e.g., Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165-166.)

Graves disputes the falsity of the police report at issue by offering evidence to show that he and Alobeydi have been in what Graves characterizes as a dating relationship since 2021. (Graves Decl., ¶ 1 & Exh. A.) Therefore, there exists a factual dispute as to whether the police report at issue was false when it was made. Because the truth of the police report is controverted, the allegation that Graves made a false police report alone is insufficient to render the activity in question outside the protection of the anti-SLAPP statute. (Kenne, supra, 230 Cal.App.4th at p. 967; see also Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512 [false report of child abuse arose from protected activity].) Therefore, for all reasons discussed above, Graves has met his burden to show that the claims alleged in the third and fourth causes of action arise from protected activity under section 425.16, subdivision (e)(1) & (2).

Graves asserts that the sixth cause of action for malicious prosecution also arises from the making of a false police report by Graves. In the sixth cause of action, Alobeydi incorporates each of the prior paragraphs of the complaint, and alleges that Graves was “actively involved in causing [Alobeydi] to be arrested and charged with a crime on … May 21, 2022[,]” which was terminated in Alobeydi’s favor. (Compl., ¶ 47.) Alobeydi further alleges that “no reasonable person in Graves’ position would have believed there were grounds for making the false statements Graves made to the police resulting in [Alobeydi’s] arrest.” (Compl., ¶ 49.)

In his opposition to the motion to strike, Alobeydi contends that the act of lying to the police about Graves’ relationship status with Alobeydi provides a “clear basis of liability for malicious prosecution” because it was “not objectively reasonable for [Graves] to state he was in a domestic relationship with” Alobeydi and because Graves had no basis to think that charges for domestic violence against Alobeydi were legally tenable. (Opp. at p. 13, ll. 11-13, 16-20.)

For all reasons discussed above, Graves has demonstrated that the claim for relief alleged in the sixth cause of action is also supported by the allegation that Graves made a report to the police falsely stating that he and Alobeydi were in a domestic relationship. The same analysis applies. For all reasons further discussed above, Graves has met his burden to demonstrate that the claim alleged in the sixth cause of action arises from protected activity under section 425.16, subdivision (e)(1) & (2).

Fifth and seventh causes of action:

Graves asserts that the fifth and seventh causes of action for, respectively, abuse of process and malicious prosecution are each based entirely on the filing of the small claims action by Graves.

In the fifth cause of action, Alobeydi alleges that Graves intentionally filed the small claims action “for an improper purpose including but not limited to using it to threaten and attempt to control and extract money from [Alobeydi]”, which resulted in harm to Alobeydi. (Compl., ¶¶ 41-42.) In the seventh cause of action for malicious prosecution, Alobeydi alleges that Graves filed the small claims action with malice and without probable cause, and that “[u]pon a verdict against Graves either in this action once consolidated with the small claims action, or separately in the small claims action, [the small claims] action against [Alobeydi] will be terminated in [Alobeydi’s] favor.” (Compl., ¶¶ 54-57.)

In his opposition to the motion to strike and with respect to the fifth cause of action for abuse of process, Alobeydi contends that the evidence demonstrates that Graves acted with an ulterior motive in filing the small claims action. (See, e.g., Opp. at p. 9, ll. 17-19; p. 11, ll. 4-9.)

For all reasons discussed above, the court finds that the conduct which supports the claims alleged in the fifth and seventh causes of action is the filing of the small claims action by Graves.

“It is well established that filing a lawsuit is an exercise of a party’s constitutional right of petition. [Citations.]  ‘ “ ‘[T]he constitutional right to petition ... includes the basic act of filing litigation or otherwise seeking administrative action.’ ” ’ [Citations.] Further, the filing of a judicial complaint satisfies the ‘in connection with a public issue’ component of section 425.16, subdivision (b)(1) because it pertains to an official proceeding. [Citations.]” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087, 1089 [].) In addition, “[e]very claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215.)

Because the claims alleged in the fifth and seventh causes of action arise solely from the filing of the small claims action by Graves, Graves has met his burden to demonstrate that these causes of action arise from protected activity under section 425.16, subdivision (e)(1) & (2), for all reasons discussed above.

Ninth cause of action:

Graves asserts that the ninth cause of action for defamation arises from a statement made by Graves to a group of people asserting that Alobeydi “beat the F*** out of me.” (Motion at p. 14, ll. 14-16.) In the ninth cause of action for defamation, Alobeydi alleges that “Graves falsely told a group of people that knew [Alobeydi], that [Alobeydi] ‘beat the f*** out of me.’ ” (Compl., ¶ 65.) Alobeydi further alleges that the group to whom Graves made this statement included Alobeydi’s coworkers. (Compl., ¶ 66.)

Graves contends that the statement described in the ninth cause of action concerns domestic violence by Alobeydi against Graves and therefore constitutes an issue of public interest under Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226 (Sipple).

“Determining the ‘public interest’ invokes the public/private distinction, which is one of the most malleable in all the law.” (Jeppson v. Ley (2020) 44 Cal.App.5th 845, 850.) Generally, statements that fall within the purview of section 425.16, subdivision (e)(4), include those which concern “a person or entity in the public eye”, conduct “that could directly affect a large number of people beyond the direct participants”, and which involve “a topic of widespread public interest.” (Id. at pp. 850-851, original italics.)

In his declaration submitted in support of the motion to strike, Graves offers evidence to show that he discussed the alleged “domestic violence” he experienced from Alobeydi with his friends and family. (Graves Decl., ¶ 12.) However, the communications that Graves made to his friends and family do not appear to include the statement alleged in the ninth cause of action for defamation as further discussed above. In addition, Graves expressly denies that he told people that Alobeydi “beat the f*** out of me” as alleged by Alobeydi in the complaint. (See Graves Decl., ¶ 12.)

Because Graves denies that he made the statement alleged in the ninth cause of action, Graves offers no evidence regarding the context in which the alleged statement was made. For example, Graves submits no evidence or information to show the size of the group of people to whom the statement was made, the location where the statement was made, or that the group of people to whom the alleged statement was made knew or understood that Alobeydi and Graves were in a dating or domestic relationship at the time the statement was purportedly made.

The bare allegation that Alobeydi  “beat the f*** out of” Graves as alleged in the complaint does not, standing alone and on its face, concern the topic of domestic violence. Furthermore, it can be reasonably inferred from the allegations of the complaint that the group to whom the statement was allegedly made included a relatively small number of people comprised in part of Alobeydi’s coworkers. “ ‘[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest…[.]’ [Citation.]” (Rand Resources, supra, 6 Cal.5th at p. 621.) For this reason, the statement on its face is, at best, a matter of concern only to the specific audience identified in the complaint and not a matter of public interest. As noted above, Graves offers no evidence to demonstrate otherwise. Even if the allegations of the complaint revealed that the group to whom the statement was made was large, which they do not, “ ‘[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.’ [Citation.]” (Ibid.)

The allegations of the complaint also do not demonstrate or suggest that the statement at issue was made in place that was open to general public use “ ‘ “for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” ’ [Citations.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130.) The allegations also do not suggest that the statement was made in a place that was “sufficiently open to general public access to be considered a public forum.” (Id. at p. 1131.)

In his opposing declaration, Alobeydi asserts that on February 18, 2023, while Alobeydi was at the “Imperial Lounge” with “some acquaintances”, Graves came up to the group Alobeydi was with and proclaimed that Alobeydi was Graves’ “ex” and that Alobeydi “beat the f***” out of Graves. (Alobeydi Decl., ¶ 30.) If the court were to consider Alobeydi’s evidence which states the facts upon which the theory of liability alleged in the ninth cause of action is based, this evidence is also insufficient to show that the alleged statement was made in a public forum or directly affected a large number of people beyond the members of the group to whom the alleged statement was made notwithstanding whether the statement involved a matter of public interest. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150 [private discussions about a matter of public interest that do not contribute to or participate in the broader public conversation or debate do not merit protection under the anti-SLAPP statute.)

In addition, the facts at issue in Sipple are not analogous to the facts which give rise to Alobeydi’s defamation claim. Plaintiff in Sipple was a prominent nationally known political consultant who was the subject of a magazine article regarding a custody dispute between plaintiff and his first wife and which revealed allegations that plaintiff physically and verbally abused plaintiff’s first and second wives. (Sipple, supra, 71 Cal.App.4th at pp. 230-231.) Notwithstanding whether domestic violence is a matter of public interest, the allegations of the complaint and the evidence further discussed herein show that the present matter does not involve an issue of public interest relating to a nationally known figure or media coverage of an issue of public interest. For this reason, Sipple is not persuasive authority for present purposes.

For all reasons further discussed above, Graves has failed to meet his burden to show that the statement which gives rise to the claim alleged in the ninth cause of action falls within the purview of section 425.16, subdivision (e)(3) or (4). Therefore, the court will deny the motion to strike as to the ninth cause of action alleged in Alobeydi’s complaint.

Moreover, slander per se includes a false or unprivileged oral publication that charges a person with a crime. (Civ. Code, § 46, subd. (1); Douglas v. Janis (1974) 43 Cal.App.3d 931, 939, fn. 8.) The statement at issue charges Alobeydi with, at a minimum, the crime of assault under Penal Code section 240 and, if the court were to consider and accept as true the evidence offered by Alobeydi, Penal Code section 273.5, subdivision (a)(3). (See Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1140 [discussion of the elements of a defamation claim].) There is no evidence showing that the statement was privileged as further discussed above. Moreover, the evidence is sufficient for present purposes to support a finding that the statement made by Graves to the group of people was false. (Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 368 [the trier of fact determines if the statement is defamatory].) Further, under the facts present here, Alobeydi is not required to prove actual damages. (Id. at p. 367.) For these reasons, even if the court were to find that Graves met his burden to demonstrate that the claim alleged in the ninth cause of action arises from protected activity, Alobeydi has made a sufficient prima facie showing of facts supporting the defamation claim alleged in the ninth cause of action, and has demonstrated that the claim is legally supported and factually substantiated.

(2) Second Prong

If the defendant establishes that the challenged claim arises from protected activity under section 425.16, subdivision (e), “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, supra, 1 Cal.5th at p. 396.)

The second step, which requires Alobeydi to “demonstrate the merit of the claim by establishing a probability of success[,]” is a “ ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation]” (Baral, supra, 1 Cal.5th at p. 384.) In evaluating whether Alobeydi has established a probability of success, “[t]he court’s single task is to determine whether [Alobeydi] has made a prima facie showing of facts supporting [the challenged] cause of action.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)

To determine whether a plaintiff has established a probability of prevailing on a claim subject to an anti-SLAPP motion, the court considers the defendant’s opposing evidence “only to determine if it defeats the plaintiff’s showing as a matter of law. [Citation.] That is, the court does not … make credibility determinations. [Citations.] Finally, in assessing the probability the plaintiff will prevail, the court considers only the evidence that would be admissible at trial. [Citations.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)

Fifth and seventh causes of action:

The fifth cause of action is titled as a claim for abuse of process. “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rusheen) [also noting that the tort of abuse of process encompasses “ ‘the entire range of “procedures” incident to litigation.’ ”].)

As further discussed above, the claim alleged in the fifth cause of action arises from the filing of the small claims action. Civil Code section 47 further discussed above also “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. “ (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Under the litigation privilege, “communications with ‘some relation’ to judicial proceedings [are] absolutely immune from tort liability….” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193; see also Rusheen, supra, 37 Cal.4th at p. 1063 [“the litigation privilege … applies regardless of malice” and is intended to “afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions”].)
 

The litigation privilege applies to all torts except malicious prosecution. (Rusheen, supra, 37 Cal.4th at p. 1057.) The privilege has been applied “specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations.” (Id. at p. 1058.) Therefore, to the extent Alobeydi seeks to impose tort liability for abuse of process based on a publication that is privileged under Civil Code section 47, including statements made in or related to a judicial proceeding, the absolute privilege under Civil Code section 47 applies to bar the claim. (Pech v. Doniger (2022) 75 Cal.App.5th 443, 465.)

The express allegations of the complaint and information and evidence offered by Alobeydi demonstrate that Alobeydi’s abuse of process claim is based solely on the filing of the small claims action by Graves. Because the absolute litigation privilege applies to the filing of the small claims action by Graves, Alobeydi cannot establish a probability of prevailing on the claim of abuse of process based on that activity. (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1172 [a plaintiff “cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim”]; see also Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1497-1498 [litigation privilege barred claims based on initiation of lawsuit].) For these reasons, the court will grant the motion to strike the fifth cause of action for abuse of process alleged in Alobeydi’s complaint.

In the seventh cause of action, Alobeydi seeks to impose liability on Graves for malicious prosecution also based solely on the filing of the small claims action by Graves. (See Compl., ¶¶ 54-56 [alleging that Graves commenced the small claims action, which upon a verdict against Graves will terminate in Alobeydi’s favor, with malice and without probable cause].) In his opposition to the motion, Alobeydi offers no reasoned factual or legal argument to demonstrate that the seventh cause of action for malicious prosecution is legally or factually substantiated. Moreover, “a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding.” (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479.) As the seventh cause of action for malicious prosecution arises solely from the filing of the small claims action by Graves, and for all reasons discussed above, the court will grant the motion to strike the seventh cause of action alleged in the complaint.

Third and fourth causes of action:

As further discussed above, the claims alleged in the third and fourth causes of action are based solely on the making of a police report by Graves in which Graves stated that he and Alobeydi were in a domestic relationship. For all reasons discussed above, “reports made by citizens to police regarding potential criminal activity … fall within the [Civil Code] section 47 privilege.” (Devis v. Bank of America (1998) 65 Cal.App.4th 1002, 1007-1008.)

Though the making of a police report by Graves falls within the litigation privilege of Civil Code section 47, subdivision (b), the privilege does not extend to “any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” (Civ. Code, § 47, subd. (b)(5).) Therefore, to demonstrate a probability of prevailing on the third or fourth causes of action, Alobeydi must offer admissible evidence showing that Graves made a report to the police knowing that the report was false or with reckless disregard for its truth or falsity such that the claim is not barred under Civil Code section 47, subdivision (b).

To support his contention that the police report at issue was false, Alobeydi submits his declaration in which Alobeydi offers information regarding the nature of his relationship with Graves. (See Alobeydi Decl., ¶ 8.) Alobeydi contends that this information establishes that he and Graves were not in a dating relationship as defined in Penal Code section 273, subdivision (b)(3), at the time Graves made the police report.

Alobeydi also submits the declaration if investigator Anthony Paradis (Paradis) to demonstrate that Graves agreed that he was not in a dating relationship with Alobeydi. (See Paradis Decl., ¶¶ 3 & 4.) Paradis describes statements made by Graves to Paradis during an interview on June 3, 2022, regarding the events which led to Alobeydi’s arrest. (Id. at ¶ 3.) The statements made by Graves during the interview include that Graves and Alobeydi were “just very good friends” and nothing more, that the relationship could not “remotely be called any sort of ‘dating relationship’ ”, and that there was never any commitment between Alobeydi and Graves other than “just friendship”. (Id. at ¶ 4.) Graves also told Paradis that he was surprised the arresting officers characterized the matter as “domestic violence” because the relationship between Graves and Alobeydi did not meet that definition. (Id. at ¶ 3.)

Accepting the evidence offered by Alobeydi as true and drawing all reasonable inferences in Alobeydi’s favor (Lee v. Kim (2019) 41 Cal.App.5th 705, 720), the evidence offered by Alobeydi is sufficient for present purposes to permit the court to make a finding that, based on statements made by Graves, Alobeydi and Graves were not in a domestic relationship at the time Graves made the police report resulting in Alobeydi’s arrest.

The court has also considered admissible information offered in the Graves moving declaration offered to show that Graves and Alobeydi were in a domestic relationship. (See Graves Decl., ¶ 1 & Exh. A.) Though the information and evidence presented by Graves creates a factual dispute regarding whether Alobeydi and Graves were in a domestic relationship at the time the police report was made, it is not sufficient as a matter of law to defeat Alobeydi’s showing further discussed above. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 [the court does not “resolve conflicting factual claims” to determine if plaintiff has made a sufficient factual showing].)

Alobeydi must also offer evidence which, if true, is sufficient to demonstrate that Graves made a report to the police stating that he and Alobeydi were in a domestic relationship. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, 93-94.) To make this showing, Alobeydi offers the declaration of Andrew Walker (Walker) who declares that “[i]n the early morning hours of May 21, 2022, officers from the Santa Barbara County Sheriff’s Office came to my home in response to a 911 call.” (Walker Decl., ¶ 2.) Walker further declares that, after Graves spoke to the officers, Graves later informed Walker “that [Graves] told the officers that he was in a domestic relationship with [Alobeydi]” and that “as a result [Alobeydi] was arrested on domestic violence charges.” (Walker Decl., ¶ 3.)

Walker further declares that after Alobeydi was arrested, Graves related to Walker that “[t]he police were pushing for and leading [Graves] down the path to say he and [Alobeydi] were in a domestic relationship. [Graves] eventually capitulated and told the cops what they seemed to want to hear, and said yes, [Alobeydi and Graves] were in a domestic relationship.” (Walker Decl., ¶ 6.) Walker also states that Graves told him that Graves “was intent on getting [Alobeydi] arrested on May 21, 2022, ‘no matter what,’ or words to that effect.” (Walker Decl., ¶ 9.)

The evidence appearing in the Walker declaration is also sufficient to permit the court to find that Graves made a report to police in which Graves asserted that he and Alobeydi were in a domestic relationship. Therefore, and for all reasons further above, the evidence is sufficient for present purposes to support a finding that the exemption to the litigation privilege under Civil Code section 47, subdivision (b)(5), applies here.

The elements of a claim for negligent or intentional interference with prospective economic advantage are further discussed above. Alobeydi offers evidence showing that he has been employed with the Airport Division of the City of Santa Barbara (the City) since August 2019, including on the date Alobeydi was arrested (i.e., May 21, 2022.) (Alobeydi Decl., ¶ 2.) This evidence is sufficient to permit the court to find that there exists an economic relationship between Alobeydi and a third party which contained a reasonably probable future economic benefit sufficient to support the first element of Alobeydi’s claims for intentional and negligent interference alleged in the third and fourth causes of action.

Alobeydi must also offer admissible evidence sufficient to establish the second element of his claims for interference with prospective economic advantage, each of which require Alobeydi to show, with admissible evidence, that Graves knew of the existence of the economic relationship between Alobeydi and the City. (See North American, supra, 59 Cal.App.4th at p. 786; Korea Supply, supra, 29 Cal.4th at p. 1153.)

The evidence offered by Alobeydi to demonstrate Graves’ knowledge of his employment with the City includes Graves’ moving declaration in which Graves asserts that he heard Alobeydi voluntarily inform officers that he worked in law enforcement dispatch at the Santa Barbara Airport when the officers were interviewing the parties. (See Opp. at p. 4, ll. 5-8.) Alobeydi further states that Graves knew that Alobeydi intended to pursue a path to become a pilot in the Air Force and that a criminal record would potentially disrupt Alobeydi’s intentions in this regard. (Alobeydi Decl., ¶ 8.) Based on conduct described in the Alobeydi declaration, it is Alobeydi’s understanding that Graves lied to the police about the nature of the parties’ relationship “for the purpose of getting [Alobeydi] in trouble in all aspects of [Alobeydi’s] life, including [Alobeydi’s] present and future employment. (Ibid). Alobeydi also relies on the Walker declaration to demonstrate that Graves intended to get Alobeydi arrested. (Walker Decl., ¶ 9.)

Accepting the evidence offered by Alobeydi as true, the evidence is insufficient to support a finding that Graves knew of the existence of an employment relationship between Alobeydi and the City at the time Graves made the purportedly false statements to the police as further described above. For example, assuming it is true that Graves overheard Alobeydi inform officers that he worked in law enforcement dispatch at the airport, this evidence is insufficient to support a finding that Graves knew these facts before Graves made any purportedly false statements to the police. Moreover, evidence that Graves knew Alobeydi intended to become a pilot in the Air Force and that a criminal record would potentially disrupt these intentions is insufficient to permit a finding that Graves knew about the employment relationship between Alobeydi and the City, or that an arrest would cause Alobeydi to lose access to systems necessary for Alobeydi to perform his job with the City. (See Alobeydi Decl., ¶¶ 9 & 10 [describing systems to which Alobeydi lost access following Alobeydi’s arrest].)

Alobeydi also offers evidence to establish that on December 7, 2022, an anonymous letter was sent to Alobeydi’s supervisor at Alobeydi’s workplace which included a highlighted copy of the arrest report from May 21, 2022. (Alobeydi Decl., ¶¶ 8, 16-17.) Based on threats Alobeydi contends were made by Graves, which included Graves stating to Alobeydi that he would do “everything he could to interfere with [Alobeydi’s] plan to join the Air Force”, Alobeydi believes that Graves sent the highlighted police report to Alobeydi’s employer. (Id. at ¶¶ 12, 13, 16, 17.) Alobeydi also believes that, because Graves is identified in the police report as the “victim”, he is one of a few people who could obtain a copy of the report. (Id. at ¶ 17.)

Notwithstanding whether the evidence offered by Alobeydi regarding Graves’ conduct occurring after August 2022 is admissible, this evidence is also insufficient to demonstrate that Graves knew Alobeydi was employed with the City at the time Graves made the purportedly false police report. For example, the  evidence offered by Alobeydi shows that the highlighted copy of the police report was sent in or after August 2022, after the time that Alobeydi contends he was arrested and suspended from his job as a result. There is no evidence offered by Alobeydi which demonstrates any interference with Alobeydi’s employment following the City’s receipt of the highlighted police report.

In addition, as further discussed above, the third element of the tort of intentional interference with prospective economic advantage requires proof of an intentional act designed to disrupt the relationship. “Liability will not be imposed for unforeseeable harm, since the plaintiff must prove that the defendant knew that the consequences were substantially certain to occur.” (Korea Supply, supra, 29 Cal.4th at p. 1165.)

Similarly, to establish the tort of negligent interference, a plaintiff must prove that the defendant was or should have been aware that “if it did not act with due care” its actions would interfere with the relationship at issue, and that the defendant was negligent. (See North American, supra, 59 Cal.App.4th at p. 786.) Liability for negligent interference with prospective economic advantage will not be imposed in instances where the risk of harm is not foreseeable and not “closely connected” with the defendant’s conduct. (J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 808 (J’Aire).)

Because the evidence offered by Alobeydi is insufficient to establish Graves’ knowledge of the existence of an employment relationship between Alobeydi and the City, the evidence is also insufficient to support a finding that harm to that relationship was foreseeable to Graves, or that Graves knew or should have known that harm to the relationship or injury to Alobeydi was substantially certain to occur if Graves did not act with due care in reporting truthful information to the police.

Alobeydi further asserts that, after Graves falsely reported to police that he and Alobeydi were in a domestic relationship, Alobeydi was arrested and charged with domestic violence pursuant to Penal Code section 273.5. (Alobeydi Decl., ¶¶ 3, 4.) As part of his employment with the City, Alobeydi states that he requires access to systems that require an employee pass a background check. (Id. at ¶ 9.) Due to his arrest, Alobeydi lost access to these systems and was unable to perform his job resulting in Alobeydi being suspended from work. (Id. at ¶ 10.)

Under Penal Code section 273.5, subdivision (a), “[a]ny person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.” (Pen. Code, § 273.5, subd. (a).) A “victim” for purposes of the statute includes “someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243.” (Pen. Code, § 273.5, subd. (b)(3).)

“[Penal Code] [s]ection 273.5 applies to ‘corporal injury resulting in a traumatic condition.’ A ‘traumatic condition’ is defined as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.’ [Citation.] Thus, a defendant who inflicts only ‘minor’ injury violates the statute. [Citations.] … Section 273.5 requires a lesser showing of harm so officers can intervene more expeditiously in domestic disputes. [Citation.]” (People v. Silva (1994) 27 Cal.App.4th 1160, 1166.)

Though Penal Code section 273.5 offers persons in dating relationships “with greater protection by requiring less harm to be inflicted before the offense is committed” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952), “if [the] crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) “It is evident that a person who intends to inflict, and does inflict, bodily injury on a person which results in a traumatic condition on that person, necessarily commits an assault. Thus, simple assault is a lesser included offense of infliction of corporal injury result in a traumatic condition.” (People v. Serrano (2022) 77 Cal.App.5th 902, 919, 920 [also noting that simple assault under Penal Code section 240 is a lesser included offense under Penal Code section 273.5].)

Alobeydi asserts that Graves also told police that Alobeydi assaulted him. (Alobeydi Decl., ¶ 3; see also ¶ 26 [asserting that because Alobeydi was afraid for his safety, he punched Graves].) Though Alobeydi contends that he was arrested because Graves told police that the parties were in a domestic relationship, Alobeydi offers no evidence to demonstrate that Alobeydi would not otherwise have been arrested for the lesser included offense of assault under a different provision of the Penal Code or that Graves’ statement that he and Alobeydi were in a domestic relationship was the sole cause of the arrest. (See, e.g., Pen. Code, § 240.) For this additional reason, the evidence offered by Alobeydi is insufficient to factually substantiate the element of causation with respect to Alobeydi’s claims of intentional and negligent interference with prospective economic advantage. (See J'Aire, supra, 24 Cal.3d at p. 808; Youst v. Longo (1987) 43 Cal.3d 64, 71; Civ. Code, § 1714.)

Moreover, for reasons further discussed above, the nature of the allegations of the complaint and the “thrust” of the motion are based on Alobeydi’s contention that Graves made false statements to the police regarding the nature of the parties’ relationship. (Baral, supra, 1 Cal.5th at p. 392.) To the extent Alobeydi claims there exists a likelihood of success as to claims arising from unprotected activity, Alobeydi cannot defeat the motion to strike on this basis. (Ibid.; see also Flatley v. Mauro (2006) 39 Cal.4th 299, 324 [anti-SLAPP statute does not apply to illegal activity].)

For this and all reasons further discussed above, Alobeydi has failed to factually substantiate each element of his claims for intentional and negligent interference with prospective economic advantage. Because Alobeydi has failed to meet his burden to make a prima facie showing of facts sufficient to sustain a favorable judgment as to the third and fourth causes of action alleged in the complaint, and a likelihood of success as to these claims, the court will grant the motion to strike the third and fourth causes of action alleged in the complaint.

Sixth cause of action:

In the sixth cause of action for malicious prosecution, Alobeydi alleges that Graves caused Alobeydi to be arrested and charged with a crime on May 21, 2022, that no reasonable person in Graves’ position would have believed there were grounds for making the false statements Graves made to the police which resulted in Alobeydi’s arrest, that Graves acted out of retaliation, and that the charges were terminated in Alobeydi’s favor. (Compl., ¶¶ 47-50.)

“[I[n order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ [Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) For reasons further discussed above, the litigation privilege does not apply to claims for malicious prosecution.

The evidence offered by Alobeydi to demonstrate a likelihood of success with respect to the sixth cause of action for malicious prosecution includes facts demonstrating statements made by Graves to Walker regarding an intent by Graves to get Alobeydi arrested no matter what, Graves lying to police officers by stating that he and Alobeydi were in a domestic relationship with the purpose of getting Alobeydi arrested, Alobeydi being arrested and charged with domestic violence under Penal Code section 273.4, and demonstrating that the charges were dismissed in July 2022. (See Alobeydi Decl., ¶¶ 2, 3, 4, 8, 21 & Exh. A.) To support Alobeydi’s assertion that the charges were dismissed, Alobeydi submits a letter from the Santa Barbara District Attorney’s office stating that “no criminal complaint will be filed in the matter at this time.” (Id. at Exh. A.)

The holding Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 918 (Van Audenhove) is instructive under the facts present here. Defendant in Van Audenhove contacted the Riverside County Sheriff’s Department and falsely accused plaintiff, who was defendant’s neighbor, of stalking. (Van Audenhove, supra, 11 Cal.App.5th at p. 917.) When an officer responded, defendant made additional false accusations with the intent to cause plaintiff’s arrest and prosecution. (Ibid.) As a result, plaintiff was arrested, booked, jailed, and released. (Ibid.) The district attorney’s office declined to prosecute defendant. (Ibid.) Plaintiff thereafter filed civil action against defendant. After the trial court sustained without leave to amend a demurrer by defendant to plaintiff’s first amended complaint which alleged a single cause of action for malicious prosecution, the matter was appealed.

In determining whether an arrest without formal charges could support a cause of action for malicious prosecution, the court noted that an arrest does not fit within the definition of an “action” or a “proceeding” for purposes of a malicious prosecution action. (Van Audenhove, supra, 11 Cal.App.5th at pp. 919-920, 924 [“[b]efore charges are filed, the actions of the police and the prosecutor are merely investigatory”].) The court further noted that “when there is a legal arrest, the arrestee does not yet have a cause of action for either false imprisonment or malicious prosecution; later, however, if a criminal action is filed, and if there is a favorable termination of that action, the arrestee’s cause of action for malicious prosecution becomes ripe, and the damages available relate back to the arrest.” (Id. at p. 920.) Therefore, the court found that there exists no recovery in malicious prosecution “for a legal arrest standing alone.” (Ibid.; see also County of Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 221 [malicious prosecution begins when the person is arraigned].)

Under the facts in Van Audenhove, which are analogous to the facts at issue here, the court found that the arrest of plaintiff in that case was legal “because the arresting officer had probable cause, based on [defendant’s] statements, even though those statements were false and malicious.” (Van Audenhove, supra, 11 Cal.App.5th at p. 920.) However, the court found that, absent “adjudicatory involvement” by a court, plaintiff’s allegations failed to allege a prosecution or a favorable termination sufficient to state a claim for malicious prosecution. (Id. at pp. 924-925.)

In Bidari v. Kelk (2023) 90 Cal.App.5th 1152, the court noted that under the “post-2020 version of Civil Code section 47”, the litigation privilege does not prevent a plaintiff from suing for torts other than malicious prosecution. (Bidari v. Kelk (2023) 90 Cal.App.5th 1152, 1170.) In concluding that the reasoning in Van Audenhove was sound, the court further noted that, under Civil Code section 47, “the Restatement approach to malicious prosecution claims is no longer the only way to assure that injury does not go without a remedy at law.” (Ibid.)

Alobeydi offers no evidence that there was some involvement by a court following the filing of charges against Alobeydi. The evidence offered by Alobeydi also does not show that the arrest was not legal notwithstanding whether it was based on false or malicious statements by Graves, or that Alobeydi was arrested solely because Graves stated that the parties were in a domestic relationship.

In addition, though Alobeydi offers evidence to demonstrate that the charges were dismissed or not pursued by the district attorney, a favorable termination is one that “tends to indicate the innocence of the accused[.]” (Jaffe v. Stone (1941) 18 Cal.2d 146, 150.) “However, release from arrest does not necessarily indicate innocence; the arrestee may yet be prosecuted.” (Van Audenhove, supra, 11 Cal.App.5th at p. 920.) For these reasons, evidence that the charges were dismissed does not, alone, demonstrate a favorable termination.

For all reasons discussed above, Alobeydi has failed to show that the claim asserted in the sixth cause of action is legally sufficient and factually substantiated. Because Alobeydi has failed to make a sufficient prima facie showing of facts to sustain a favorable judgment in his favor with respect to the claim for malicious prosecution asserted in the sixth cause of action, the court will grant the motion to strike that cause of action.

(B) Motion To Seal

Although California law recognizes a constitutional right of access to court documents, certain records may be sealed when they contain highly sensitive and potentially embarrassing personal information. (In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1078; People v. Jackson (2005) 128 Cal.App.4th 1009, 1024.) A court may order a record be filed under seal upon an express factual finding establishing an “overriding interest that overcomes the right of public access to the record”, that “the overriding interest supports sealing the records”, that “a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed”, that “the proposed sealing is narrowly tailored”, and that “no less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d)(1)-(5); Sander v. State Bar of California (2013) 58 Cal.4th 300, 319, fn. 7.)

Among other things, “[a] party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551 (b)(1).) The moving party bears the burden of presenting information sufficient to identify the nature of the harm threatened by disclosure of the record at issue. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

Alobeydi seeks an order sealing portions of his declaration submitted in support of the opposition to the motion to strike. Alobeydi contends that to demonstrate a probability of prevailing on the merits of his claims, he must demonstrate that he was wrongfully arrested, among other things. In order to make the required showing, Alobeydi contends, he must demonstrate that he was not in a domestic relationship with Graves.

To make the required showing, Alobeydi asserts that he must provide personal and intimate details pertaining to the nature of his relationship with Graves which include details of the parties’ sexual history including with third parties. If the record is not sealed, Alobeydi further contends, private information regarding sexual matters pertaining to Alobeydi, Graves, and third parties will be available to prospective employers, family members, and the public. Alobeydi also contends that if he is forced to testify publicly about his private sexual history, this would cause Alobeydi trauma and expose him to embarrassment.

Among the inalienable rights guaranteed by the California Constitution is the right to privacy. (Lewis v. Superior Court (2017) 3 Cal.5th 561, 569.) The right to privacy encompasses privacy in one’s sexual matters and relations notwithstanding whether there exists a marital relationship. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1567.)

The Alobeydi declaration submitted in support of Alobeydi’s opposition to the motion to strike discloses information of a highly personal and sexual nature pertaining to Alobeydi, Graves, and a third party, including information regarding sexual relations and the sexual history of Alobeydi. The information is of a highly sensitive nature and involves matters encompassed by the right to privacy in these matters. Therefore, for all reasons discussed above, the court finds there exists an overriding interest in protecting Alobeydi’s privacy rights in connection with these matters.

In addition, there exists an overriding interest in preventing disclosure of these private sexual matters, which includes Alobeydi’s sexual history, and potential embarrassment to Alobeydi regarding the information described in the Alobeydi declaration. These overriding interests overcome the public’s right to access this information due to the substantial probability that Alobeydi’s right to privacy regarding these sexual matters will be irreparably prejudiced if the public has access to the document. There also exists a substantial probability that Alobeydi will suffer undue embarrassment if this information is disclosed.

The court further finds that the proposed sealing is narrowly tailored to the portions of the Alobeydi declaration which describe sexual matters and not the entirety of the Alobeydi declaration. At this stage of the proceedings, there exists no less restrictive means to protect Alobeydi’s right to privacy with regard to the sensitive and personal nature of the sexual matters described in the Alobeydi declaration, or to protect Alobeydi from potential significant embarrassment should this information disclosed to the public in connection with the motion to strike. The court is not aware of any countervailing interests or prejudice to Graves, who presumably is in possession of some of the information described in the Alobeydi declaration and who has not filed an opposition to the motion to seal.

For all reasons discussed above, the court will grant the motion to seal of Alobeydi. The Alobeydi declaration shall be placed under seal. No other court records or records relating to the case are to be sealed at this stage of the proceedings. Only the court, the parties named in this action and their counsel are authorized to inspect the sealed record.

(C) Procedural Matters

California Rules of Court, rules 2.104 and 2.108, subdivision (1), require, respectively, that papers must be printed or typewritten “in type not smaller than 12 points” and that page spacing be one and one-half or double-spaced. The opening memorandum filed by Graves in support of the motion to strike is written in 11.5-point type in violation of California Rules of Court, rule 2.104. In addition, the page spacing of the memorandum appears to be smaller than one and one-half spaced in violation of California Rules of Court, rule 2.108. Moreover, the use of smaller type and page spacing than permitted by court rules makes it difficult for the court to easily review the papers causing an inefficient utilization of scarce judicial resources.

Furthermore, the use of 11.5-point type and less than one and one-half page spacing causes the memorandum submitted in support of the motion to strike to exceed the 15-page limit. (See Cal. Rules of Court, rule. 3.1113(d).) Applying rough calculations, the use of a type size and page spacing that is smaller than permitted by court rules results in a memorandum which exceeds the page limit by approximately or at least 2 pages. Though court rules permit a party to apply to the court for permission to file a longer memorandum, Graves has not done so here. (See Cal. Rules of Court, rule 3.1113(e).)

Moreover, under California Rules of Court, rule 3.1113(g), “[a] memorandum that exceeds the page limits of these rules shall be filed and considered in the same manner as a late-filed paper.” The court has discretion to refuse to consider a late-filed paper. (Cal. Rules of Court, rule 3.1300(d).)

Counsel for Graves is reminded of their obligation to comply with court rules. Future failures to comply may result in the court exercising its discretion to refuse to consider any improper papers, or the issuance of sanctions.