Peterson v. Mojdehi CA4/1

Opinion

Filed 9/29/26 Peterson v. Mojdehi CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KIM PETERSON et al., D085286 Plaintiffs and Respondents, (Super. Ct. No. 37-2020- 00024427-CU-PN-CTL) v.

ALI MOJDEHI,

Defendant and Appellant;

BARNES & THORNBURG, LLP, Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Marcella O. McLaughlin, Judge. Affirmed in part and reversed in part with directions. Caldarelli Hejmanowski Page & Leer, William J. Caldarelli; Marisa Janine-Page Appeals & Litigation and Marisa Janine-Page for Defendant and Appellant Ali Mojdehi. Lewis Kohn & Walker and Brett M. Weaver; Law Offices of Vatche Chorbajian and Vatche Chorbajian for Plaintiff and Respondent Kim Peterson.

1 Halpern May Ybarra Gelberg, Joseph J. Ybarra, and Dean B. Shaffer for Defendant and Respondent Barnes & Thornburg, LLP. Ali Mojdehi appeals the trial court’s order under the anti-SLAPP statute (Code Civ. Proc.,1 § 425.16) granting in part and denying in part his special motion to strike claims asserted by Kim Peterson and Kim Funding, LLC (Kim Funding) (collectively, plaintiffs). The trial court granted Mojdehi’s SLAPP motion as to plaintiffs’ claim for tortious interference with economic advantage but denied it as to their claim for defamation. Mojdehi contends that while the court correctly found plaintiffs’ defamation claim arises from protected activity under the anti-SLAPP statute, the court erred in finding that plaintiffs showed a probability of succeeding on their claim. Although plaintiffs disagree with the court’s conclusion that their defamation claim arises from protected activity, they argue that the court reached the right result because their claim has at least minimal merit.2 We conclude that plaintiffs have forfeited their argument that their defamation claim does not arise from protected activity by failing to contest the rationale for the trial court’s ruling under section 425.16, subdivision (e)(2). Even if they had not forfeited their argument, we discern no error in the trial court’s finding that the allegedly defamatory statements were protected activity under subdivision (e)(2) because they were made in connection with anticipated litigation. We further conclude that plaintiffs failed to meet their burden of establishing a probability of success on their 1 Undesignated statutory references are to the Code of Civil Procedure.

2 Plaintiffs also filed a notice of cross-appeal, but we dismissed the cross- appeal at their request.

2 defamation claim because it is barred by the litigation privilege (Civ. Code, § 47, subd. (b)). Accordingly, we affirm in part and reverse in part the trial court’s order and remand the matter with directions. We need not and do not resolve the other issues raised on appeal.3 FACTUAL AND PROCEDURAL BACKGROUND4 We repeat some of the facts summarized in our prior opinion affirming in part and reversing in part an order denying Mojdehi’s anti-SLAPP motion as to plaintiffs’ claims for professional negligence and breach of fiduciary duty. (See Peterson, et al., v. Mojdehi, et al. (Sept. 27, 2022, D078461) [nonpub. opn.].) A. The Ponzi Scheme Peterson and Mojdehi became friends in 2006 when they served together on their children’s school board. From 2012 through 2014, while Mojdehi was a partner at the law firm of Cooley LLP, Peterson hired Mojdehi to represent him and his companies in bankruptcy matters. In 2014, Peterson formed and managed Kim Funding LLC (Kim Funding) to provide capital to a lending platform for liquor license applicants. Between December 2015 and July 2019, two companies owned or managed by members of Mojdehi’s family, L’Audace, LLC (L’Audace), and ABPS, LLC 3 We deny Mojdehi’s request for judicial notice of various documents from other proceedings and news articles, as they are not relevant or necessary to resolve this appeal. (Save Lafayette Trees v. East Bay Regional Park Dist. (2021) 66 Cal.App.5th 21, 29, fn. 2.)

4 The statement of facts in plaintiffs’ respondents’ brief contains no citations to the record in violation of California Rule of Court 8.204(a)(1)(C). We therefore do not rely on plaintiffs’ statement of facts in our analysis. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

3 (ABPS), loaned a total of over $8 million to Kim Funding for investment in the liquor license lending platform. Peterson personally guaranteed the loans. Mojdehi left Cooley LLP and joined Barnes & Thornburg LLP (Barnes & Thornburg) in April 2018. Between August 2018 and June 2019, Mojdehi personally loaned a total of $475,000 from a retirement account to Kim Funding for investment in the liquor license lending platform. Mojdehi agreed to increase the amount of his loan by $150,000 in June 2019. In August 2019, Mojdehi learned that the liquor license lending platform was a Ponzi scheme and that its founder, Gina Champion-Cain, had been charged with securities fraud. The Securities and Exchange Commission froze all platform assets and ordered a receiver to conduct an accounting. In September 2019, L’Audace, ABPS, and other entities that had loaned money to Kim Funding for investment in the lending platform filed involuntary petitions against Peterson and Kim Funding in the United States Bankruptcy Court for the Southern District of California. Mojdehi and Barnes & Thornburg represented the petitioners. Peterson, Kim Funding, and the petitioning investors later filed joint motions with the bankruptcy court to dismiss the petitions in February 2020. Meanwhile in December 2019, Peterson and Kim Funding joined two other entities in suing Chicago Title Company (Chicago Title), the escrow company that held the lending platform’s loan funds, for fraud, negligence, and other claims. (Kim Funding, LLC, et al. v. Chicago Title Company, et al. (San Diego Super. Ct., 2019, No. 37-2019-00066633-CU-FR-CTL (Chicago Title Action)).) In February 2020, Payson Stevens, another investor in the Ponzi scheme, participated in a call with Mojdehi and Mojdehi’s son, Cyrus Mojdehi. Stevens was not a party to the Chicago Title Action at the time.

4 During the call, Mojdehi and his son tried to persuade Stevens to join a lawsuit against Chicago Title and Peterson that some of the Kim Funding investors, including L’Audace and ABPS, planned to bring. That suit, which was filed a month later in March 2020, named Chicago Title, Peterson, and others as defendants. (Levin et al. v. Chicago Title Company, et al. (San Diego County Super. Ct., 2020, No. 37-2020-00016983-CU-MC-CTL (Levin Action)).) Stevens later decided to join as a plaintiff in the Chicago Title Action. B. Mojdehi’s First Anti-SLAPP Motion In July 2020, plaintiffs sued Mojdehi and Barnes & Thornburg for professional negligence and breach of fiduciary duty. Plaintiffs alleged, among other things, that Mojdehi attacked Peterson’s character and reputation in his telephone calls with Stevens. Mojdehi and Barnes & Thornburg filed an anti-SLAPP motion against the entire complaint, which the trial court denied after finding that Mojdehi did not meet his burden to show the complaint arose from protected activity. (Code Civ. Proc., § 425.16.) Mojdehi appealed, and we remanded the matter to the trial court with directions to enter a new order granting Mojdehi’s anti-SLAPP motion in part as to the alleged malicious filing of frivolous involuntary bankruptcy petitions, and otherwise denying the motion. (See Peterson, et al., v. Mojdehi, et al., supra, D078461.) C. Mojdehi’s Second Anti-SLAPP Motion Following remittitur to the trial court, in March 2024 plaintiffs filed an amended complaint adding causes of action for defamation and tortious interference with prospective economic advantage. In this complaint, plaintiffs allege that in his conversations with Stevens, Mojdehi “knowingly and falsely accused Peterson of being associated with or complicit in Cain’s 5 fraud.” (Boldface and italics omitted.) Plaintiffs further allege that Mojdehi “was and/or is an officer of L’Audace LLC and/or APBS, may have contributed money to either or both, . . . and formerly represented L’Audace.” Lastly, plaintiffs allege Mojdehi had a financial interest in ABPS. Mojdehi and Barnes & Thornburg filed another anti-SLAPP motion in April 2024 arguing that both the defamation and tortious interference claims are based on protected speech and implicate the litigation privilege, among other things. The trial court first found that Mojdehi’s alleged statements to Stevens were made in connection with the Levin Action and constituted protected activity. The court then concluded that plaintiffs showed a probability of prevailing on their defamation claim, but not their tortious interference claim. The court therefore dismissed the tortious interference claim, but otherwise denied Mojdehi’s motion to strike. DISCUSSION Mojdehi asks us to reverse the trial court’s order denying his anti- SLAPP motion as to the defamation claim, arguing that while the court correctly found the claim arises from protected activity, the court erred in finding that plaintiffs showed a probability of succeeding on its claims because: (1) plaintiffs failed to plead their claim with legal sufficiency or provide competent evidence to substantiate the claim; (2) evidence shows Mojdehi’s statements were substantially true or non-actionable opinion; and (3) Mojdehi’s statements are protected by the litigation privilege. Plaintiffs argue in response that: (1) Mojdehi’s statements do not concern a matter of public interest under section 425.16, subdivision (e)(4); (2) their defamation claim was sufficiently pled and supported by competent evidence; (3) the statements did not constitute a non-actionable opinion; and (4) the litigation privilege does not apply to Mojdehi’s statements.

6 We conclude that by only presenting argument regarding section 425.16, subdivision (e)(4), plaintiffs have forfeited any argument that their claim does not arise from protected activity under section 425.16, subdivision (e)(2), as the trial court ruled. Notwithstanding the forfeiture, we discern no error in the trial court’s finding that the allegedly defamatory statement was protected activity because it was made in connection with anticipated litigation. We further conclude that because the litigation privilege applies to Mojdehi’s allegedly defamatory statements, plaintiffs cannot meet their burden of establishing a probability of success on their claim. Accordingly, we affirm in part and reverse in part the court’s order and remand the matter with directions. We need not and do not resolve the other issues raised on appeal. A. Statutory Framework The anti-SLAPP statute provides in relevant part that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike [anti-SLAPP motion], unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Ruling on an anti-SLAPP motion typically involves two steps. First, defendants moving to strike a cause of action must show the act underlying the claim falls within one of the four categories of protected activity listed in section 425.16, subdivision (e). (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66; Bowen v. Lin (2022) 80 Cal.App.5th 155, 160 (Bowen).) Those four categories include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any 7 other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(1)–(4).) The first two categories in subdivision (e) pertain to statements or writings made before or in connection with an official proceeding. (§ 425.16, subd. (e)(1), (2).) The latter two categories both require a specific showing that the alleged action concerns a matter of public interest (id., subd. (e)(3), (4)), while the first two categories require that the alleged action involve an official proceeding. (Id., subd. (e)(1), (2); see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117–1118.) If defendants make a sufficient showing under the first prong of the anti-SLAPP analysis, the burden shifts to plaintiffs to show the targeted causes of action are legally sufficient and supported by evidence that, if credited, would sustain a judgment for plaintiffs. (Baral, supra, 1 Cal.5th at pp. 384, 396; Bowen, supra, 80 Cal.App.5th at p. 160.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; accord, Bowen, at p. 160.) We apply de novo review to the trial court’s decision on both prongs. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 8 1250; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 796; Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1018.) B. Analysis In ruling on Mojdehi’s anti-SLAPP motion, the trial court first found that Mojdehi’s alleged defamatory statements to Stevens about Peterson’s involvement in the Ponzi scheme were made in connection with the Levin Action and constituted protected activity under section 425.16, subdivision (e)(2). The court explained that subdivision (e)(2) protects written or oral statements “made in connection with an issue under consideration or review by a legislative, executive, or judicial body.” (§ 425.16, subd. (e)(2).) It then found that Mojdehi’s communications were made in connection with anticipated litigation because according to the complaint, Mojdehi’s purpose in making the statements was to enable or encourage Stevens to join the Levin Action. Plaintiffs’ opening brief does not address the trial court’s application of section 425.16, subdivision (e)(2). Rather, plaintiffs only address section 425.16, subdivision (e)(4), which has to do with speech “in connection with a public issue or an issue of public interest.” Because plaintiffs have not developed any argument regarding subdivision (e)(2), we consider the argument forfeited. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [a reviewing court “is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived”]; Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554–555 [even applying de novo standard of review, review is limited to issues which have been adequately raised and supported in the opening brief].)

9 Even if plaintiffs had preserved the argument, we conclude there would be no grounds for reversal under section 425.16, subdivision (e)(2). The complaint alleges that Mojdehi wanted Stevens to fire his counsel and join a lawsuit Mojdehi had also filed against Chicago Title, and “he disparaged Peterson in his efforts to do so.” The complaint further alleges that those statements to Stevens in which Mojdehi “accused Peterson of being associated with or complicit in Cain’s fraud” formed the basis for the defamation claim. “A statement has a sufficient ‘connection’ with anticipated litigation if the person making the statement is engaged in a serious effort to encourage or counsel litigation by another.” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 943.) This includes a non-party’s attempt to encourage someone to pursue a particular litigation strategy. (Ibid.; see Bowen, supra, 80 Cal.App.5th at p. 162 [a son’s statements encouraging his parents to fire their attorney “were not tangential” to litigation]; see also Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 486 [attorney telling represented litigants to fire their attorney and hire him instead was protected activity because it involved communications about a pending case].) Here, the complaint makes clear that Mojdehi’s alleged statements were made in connection with pending and anticipated litigation. When Mojdehi talked to Stevens in February 2020, plaintiffs had already filed the Chicago Title Action and the Levin Action was on the verge of being filed. Considering the context and substance of Mojdehi’s allegedly defamatory statements, the trial court correctly ruled that they constitute protected activity under section 425.16, subdivision (e)(2). Because Mojdehi has made a sufficient showing under the first prong of the anti-SLAPP analysis, we next consider whether plaintiffs can meet their burden of showing that their defamation claim, if credited, would sustain a 10 judgment in their favor. (Bowen, supra, 80 Cal.App.5th at pp. 160–161.) We conclude that plaintiffs’ claim must fail because it is barred by the litigation privilege. Civil Code section 47 bars civil actions for damages based on communications in any judicial proceeding, absent certain inapplicable statutory exceptions. (See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg); Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.) As the Supreme Court explained in Hagberg, the litigation privilege has been given broad application in light of important policy considerations. (Hagberg, at pp. 361, 372.) Many cases have confirmed that Civil Code section 47, subdivision (b) encompasses “not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit.” (Hagberg, at p. 361.) As noted, Mojdehi’s statements related to both a pending lawsuit and an anticipated lawsuit. The trial court nonetheless reasoned that the litigation privilege did not apply because Mojdehi was neither a party nor a participant in the Levin Action. Although it is undisputed that Mojdehi was not a party to the suit, we conclude that he was a participant for purposes of applying the litigation privilege. Our Supreme Court has explained that the “litigation privilege is meant to protect more than the parties to a lawsuit from derivative suits that they might later bring against each other.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248.) The court made clear that the privilege extends to nonparties including witnesses, potential litigants, “and others.” (Ibid.) Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 is instructive on how the privilege can extend to nonparties. In that case, 11 a landlord’s employee was sued for threatening comments he made to tenants about an ongoing dispute over the filing of an unlawful detainer. (Id. at pp. 1480–1483.) The Court of Appeal found that the employee’s statements were protected by the litigation privilege, even though he was not a party, because the employee was the landlord’s representative and his statements “were clearly connected to and made in anticipation of the eviction action[.]” (Id. at p. 1489.) Here, when Mojdehi made the alleged defamatory statements, he was acting as a representative of Levin Action plaintiffs L’Audace and ABPS— even if not formally, as their legal counsel. According to the complaint, Mojdehi “was and/or is an officer of” those companies and “may have contributed money to either or both[.]” Those companies were allegedly owned and managed by members of Mojdehi’s family. Mojdehi had represented the companies as their counsel in the involuntary bankruptcy action, which itself bore a connection to the Levin Action. Moreover, Mojdehi held a financial interest in ABPS and was himself an investor in the lending platform, making him a potential witness and indirect victim of the Ponzi scheme. Plaintiffs cite Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296 (Wise) and other cases to argue that the litigation privilege does not cover “nonparticipants” like Mojdehi. But those cases do not support plaintiffs’ position. In Wise, the Court of Appeal concluded that an employer could be liable for disclosing its employee’s private medical information to her former husband because the employer was not a participant in their separation proceedings. (Wise, at p. 1304.) The employer had no logical connection or representative role in the employee’s marital dissolution, nor did it have a financial stake in the proceeding. Similarly, in Schoendorf v. U.D. Registry, 12 Inc. (2002) 97 Cal.App.4th 227, the Court of Appeal held that a consumer reporting agency’s communications about tenants were not privileged because the agency merely made statements “about past litigation in which they were not involved.” (Id. at pp. 242–243.) In these cases, courts concluded that the entities attempting to assert the privilege were insufficiently connected to the pending or anticipated litigation. In contrast, Mojdehi was an attorney who had professional, familial, and financial connections to the Levin Action and parties to the Levin Action. Far from being a passive observer with no stake in the proceeding, Mojdehi was a direct witness and participant in the events leading up to the suit’s initiation, and his statements to Stevens reflect that involvement. The litigation privilege is broad and “ ‘[a]ny doubt as to whether the privilege applies is resolved in favor of applying it.’ ” (Greco v. Greco (2016) 2 Cal.App.5th 810, 826.) We therefore conclude that the litigation privilege forecloses plaintiffs’ defamation claim against Mojdehi, which means plaintiffs have failed to meet their burden under the second prong of the anti- SLAPP statute for that claim. DISPOSITION The order granting in part and denying in part the anti-SLAPP motion is affirmed in part and reversed in part. The matter is remanded to the trial court with directions to vacate the order and enter a new order granting the 13 anti-SLAPP motion as to plaintiffs’ defamation claim, as well as plaintiffs’ tortious interference claim. Mojdehi shall recover his costs on appeal.

BUCHANAN, J.

WE CONCUR:

MCCONNELL, P. J.

O’ROURKE, J.