California Court of Appeal Aug 29, 2014 No. D064236Unpublished
Filed 8/29/14 Ervin v. Ben-Nun CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHN L. ERVIN, D064236
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00102850- CU-NP-CTL) MICHAL BEN-NUN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joel M.
Pressman, Judge. Affirmed.
John L. Ervin, in pro. per., for Plaintiff and Appellant.
Godes & Preis, Robert M. Dato, Joseph M. Preis, and Oliver B. Dreger, for
Defendant and Respondent.
John Ervin brought tort claims against his former wife, Michal Ben-Nun, alleging
she falsely accused him of threatening to harm her and their young children before and
during the couple's dissolution proceeding. The court granted Ben-Nun's anti-SLAPP
motion, and entered judgment in Ben-Nun's favor. (Code Civ. Proc., § 425.16
(§ 425.16).)
Ervin does not challenge that the anti-SLAPP statute governs his claims, but
contends the court erred in finding he did not meet his burden to show a probability of
prevailing on three of his causes of action: malicious prosecution, intentional infliction
of emotional distress, and defamation. We reject these contentions and affirm the
Because of the nature of the legal issues raised by the parties, we set forth the
factual background in some detail. Our factual summary is based solely on the facts
contained in the appellate record. Because Ben-Nun did not object to Ervin's evidence,
we assume the admissibility of Ervin's evidence for purposes of this appeal. We include
a discussion of the evidence presented by both parties, but resolve evidentiary conflicts in
Ervin's favor when ruling on the probability-of-prevailing issues.
Background
Ben-Nun and Ervin were married in 1999, and have three young children. On
August 26, 2011, the family and Ervin's mother were on a vacation in Simi Valley. After
checking into a hotel, Ben-Nun and Ervin had a heated argument. The parties dispute
precisely what was said during the argument, but it is undisputed that the family left the
hotel immediately after the argument without staying overnight and returned to their
home in San Diego.
2
According to Ervin, the next day Ben-Nun appeared depressed and was rude to
him. During the day, Ben-Nun left the children with Ervin (and his mother) while Ben-
Nun went shopping. When Ben-Nun returned, she called her friends, Christina and
Frederick Kamme, and told them about "the incidents in Simi Valley," and that she would
like them to come to the house and "try to talk" to Ervin. Mr. Kamme later came over to
speak with Ervin. According to Ervin's mother, Mr. Kamme concluded that nothing was
"wrong" with Ervin.
The next day, on August 28, the couple continued to have emotional arguments.
Ben-Nun suggested that Ervin agree to go to counseling, but he refused. Ervin told Ben-
Nun he wanted their youngest daughter to attend a Christian preschool rather than her
Jewish preschool, and if Ben-Nun did not agree, he wanted a divorce. These comments
triggered a "hysterical," emotional reaction by Ben-Nun. Ben-Nun called her neighbor,
Caroline Levenberg, who is an attorney specializing in the representation of minors.
Ben-Nun told Levenberg that Ervin had threatened the family while they were on
vacation and she was scared. After speaking with her husband (who is a police
detective), Levenberg advised Ben-Nun to call the police.
Levenberg then spoke with another neighbor, Brenda Daly, a deputy district
attorney with substantial expertise in mental health issues. Levenberg told Daly that
"[Ben-Nun] had contacted her, and she was very afraid and very worried because [Ervin]
had threatened to kill them and the kids and then was acting still crazy in the
morning. . . . " Daly agreed that Ben-Nun should call the police.
3
Shortly after, Ben-Nun took her children to a neighbor's home and called the
police department. Ben-Nun told the responding police officer that two days earlier
while on their vacation Ervin had made threats to harm her and two of the children. Ben-
Nun said Ervin told her (in the children's presence) that he would get a gun and shoot her
and the children. Ben-Nun said she did not believe Ervin would hurt the children and he
had never physically abused her, but that Ervin has a temper and had been behaving
erratically. The police officer also spoke with two of Ervin's children. Ervin's daughter
said: "My mom and dad were arguing in the hotel room. My dad told us he was going to
shoot all of us. He was mad at all of us for ruining his vacation." Ervin's son said: "We
were in the hotel room and my dad got mad at my mom. He said if we were not better
the next day he would shoot us all. He was shouting at us when we got back to San
Diego . . . ." The officer recorded all of these statements in his police report prepared
later that evening.1
The police officer initially told Ben-Nun he did not intend to take any action. In
response (while the officer was still there), Ben-Nun called neighbor Daly (the deputy
district attorney) and asked what she should do because she was " 'worried' " and " 'really
scared.' " Daly responded " 'You need to . . . be very honest with the police officer. Tell
him everything that happened. Tell him that you are afraid. Tell him all of the things
that you're feeling. What you're telling me you need to tell him.' " At Ben-Nun's urging,
Daly then briefly spoke with the police officer. Daly told the officer: " '[A]ll I know is
1 We reject Ervin's evidentiary objections to the admissibility of the police report; however, we do not consider the children's hearsay statements for the truth of the matter. 4
what [Ben-Nun] told me. What she's telling me is that she's afraid and that he threatened
to kill her and the kids.' " Daly advised the officer to question Ben-Nun and reach his
own assessment, and suggested the possibility of issuing an emergency protective order if
the officer believed this was necessary.
After further consideration and without first speaking with Ervin, the officer
telephoned a superior court judge to apply for an emergency protective order. Based on
the information provided by the police officer, the superior court judge authorized the
police officer to issue the order requiring Ervin to stay away from Ben-Nun and the
children on a temporary basis. The officer advised Ben-Nun to seek a more permanent
protective order from the court. According to the officer's police report, when the officer
later served Ervin with the written emergency order, Ervin made a "spontaneous
statement" admitting he had made a threatening comment to Ben-Nun in Simi Valley. As
recorded in the police report, "Ervin [told the police officer] 'I asked my wife if she
would be happier if I killed all of us.' " In his anti-SLAPP declaration, Ervin denied
making this statement to the police officer.
Dissolution and Protective Order Proceedings
The next day, Ben-Nun petitioned for a temporary restraining order against Ervin
under the Domestic Violence Protection Act (DVPA). (Fam. Code, § 6200 et seq.) In a
supporting declaration, Ben-Nun stated that on August 26, Ervin "complained that the
children and I were ruining his vacation. Then, in front of all three children and me,
[Ervin] angrily threatened us by saying 'One day I will take a gun and shoot all four of
you.' " She said, "[t]he children and I were scared as [Ervin's] anger level increased."
5
Ben-Nun said that when they returned to San Diego, Ervin engaged in actions that made
her "nervous" so she called friends and neighbors to attempt to calm Ervin down and urge
him to see a counselor. She stated that Ervin previously said he would "kidnap the two
older kids" and he has "thrown objects at doors and has broken the door." She also said
that Ervin once punched their oldest daughter in the forehead when she was in bed.
The court issued the temporary restraining order, and scheduled a hearing for a
permanent protective order. The next day, Ervin filed a dissolution action against Ben-
Nun.
During the next week, the parties' counsel engaged in negotiations, resulting in a
supervised visitation schedule for Ervin and the parties' agreement to participate in
private mediation. As part of this negotiation and at the recommendation of her attorney,
Ben-Nun agreed to dismiss her DVPA petition, and she did so on September 9.
The next day, Ervin returned to the family home, but the couple continued to have
verbal disagreements. Neighbor Daly witnessed Ervin yelling at Ben-Nun while Ben-
Nun was standing outside, and Daly believed Ervin appeared "unstable" and that
"something [was] not right with him."2 Daly said that his demeanor "was more than
somebody that was just angry . . . ."
2 Daly said she is "one of the lead people in [the district attorney's] office for all of the mental health cases. . . ." and has 15 years of experience in this area.
6
An anonymous individual3 contacted the child protection agency (Child Welfare
Services (CWS)), expressing concern for the children. An agency social worker, Aaron
Meng, interviewed Ben-Nun and the children, and during the interview Ben-Nun
disclosed Ervin's threatening statements.
On that same day, Ervin signed a written stipulation agreeing to mediate custody
issues. A few hours later, Ervin received a call from social worker Meng. According to
Ervin, Meng said there "has been a complaint that [Ervin] had committed child abuse
against [his] children because [Ervin] threatened them in Simi Valley . . . and . . . Ben-
Nun would be leaving the house with them . . . ." Ervin said he "asked Mr. Meng many
times if there were any other allegations and he told me there were not."
Four days later, on September 19, Ben-Nun filed a second DVPA petition. Ben-
Nun discussed Ervin's August 26 threat and said that Ervin's "behavior . . . has grown
increasingly unstable" and "erratic" and "I believe he has lost all control. I feel
completely misle[d] by [Ervin's] representations through his counsel which made it seem
like we could peacefully resolve the custody issues with private mediation." She
expressed concern for her own safety, and said that a school counselor has reported that
their older 11-year-old daughter "feels unsafe at home" and that her dad has been "telling
her horrible things about her mother . . . ." Ben-Nun also said their nine-year-old son told
her "that his legs wobble every time [Ervin] shouts at [Ben-Nun]," and that when Ben-
3 The record does not disclose the identity of the anonymous individual, but according to Ervin it was a staff member of the Jewish Family Services (a mandated reporter) with whom Ben-Nun spoke to obtain assistance with family conflict issues.
7
Nun's attorney raised this issue with Ervin's counsel, Ervin responded by "confront[ing]"
his son about disclosing this information.
In his response to the DVPA petition, Ervin disputed that he was "out of control"
since returning home, but he did not deny that he and his wife had a highly emotional and
angry argument during their Simi Valley trip and did not deny making an "irresponsible"
statement to his wife during the argument. In a lengthy explanation (discussed in more
detail below) he indicated the statement—when viewed in context—was not a threat, and
that Ben-Nun did not feel threatened and understood the remark was merely "bluster" and
not serious.
The court granted a temporary restraining order, and then later scheduled a
January 2012 hearing on the contested motion for a permanent protective order. Soon
after, CWS notified Ervin that it had found Ben-Nun's claims to be unsubstantiated and
terminated the investigation.4
During the next several months, the family court handled matters regarding
custody and visitation as part of the dissolution proceeding. At her deposition, Ben-Nun
said she would prefer to have sole physical custody of the children, but understood the
professionals would be deciding the custody issues and made clear that she intended to
follow those recommendations.
4 This finding is based on Ervin's hearsay statement; other information indicates that the agency found some allegations unsubstantiated and some inconclusive. 8
In mid-January 2012, Ben-Nun dismissed her DVPA petition, stating the children
were "visiting with dad regularly" and she was "following [the] recommendation of
minor's counsel [and the] children's therapist."
Ten months later, in November 2012, the family court held a hearing regarding
custody issues. At the hearing, Ervin (representing himself) cross-examined Ben-Nun
extensively about her assertions that he had made a threat in Simi Valley, and questioned
why she had waited two days to report the alleged threat. Ben-Nun responded that she
had hoped things would become more relaxed, but two days later, "I just felt that
everything [was] spiraling out of control and you were not controlling your actions." She
said that Ervin was yelling in German, and the "kids were terrified . . . ." She testified
that the morning before she called the police, Ervin was acting erratically, "running
around in the house, taking keys. . . [¶] . . . [¶] . . . going through drawers in the house
looking for passports." At that point, she asked him to go to counseling, but he "starting
yelling . . . 'How dare you ask me to go to a counselor? . . . . I'm a scientist. . . . How
could a counselor understand what a scientist thinks?"5
At the conclusion of the family law hearing, the family court found Ben-Nun
"made the allegations to [CWS] in good faith." The court also denied Ervin's request that
it make an affirmative finding that there was no child abuse. The court noted that all
parties have now agreed that the August/September 2011 events would not affect the
resolution of custody/visitation issues for or against either party.
5 This transcript was submitted by Ervin in opposition to the anti-SLAPP motion.
9
Complaint
In August 2012, while the custody issues were being litigated in the family court,
Ervin filed a complaint against Ben-Nun alleging several causes of action, including
malicious prosecution, intentional infliction of emotional distress, and defamation per
se.6 Each of the causes of action was based primarily on Ervin's assertion that Ben-Nun
falsely accused him of threatening to harm the family during their August 2011 vacation,
and that this accusation interfered with his relationship with his children, resulting in
severe emotional distress and harm to his reputation in the community.
In the malicious prosecution claim, Ervin alleged Ben-Nun prosecuted the two
DVPA petitions without cause and in bad faith, and caused Ervin substantial emotional
distress and monetary damages. In the emotional distress claim, Ervin alleged Ben-Nun
engaged in "outrageous, reckless act[s]," including "recruit[ing] numerous third parties to
have Mr. Ervin found a child abuser" and making false allegations in an effort to "remove
Mr. Ervin from the lives of his three children." He alleged Ben-Nun made these false
allegations to police officers, court officials, friends, neighbors, and school officials. In
the defamation claim, Ervin alleged that Ben-Nun falsely told numerous individuals that
he was a "domestically violent child abuser" and that he "committed crimes of moral
turpitude like domestic violence and/or child abuse . . . ." He also alleged Ben-Nun
6 Ervin also asserted an abuse of process claim, and additionally sued Ben-Nun's attorneys. However, because Ervin does not challenge the abuse of process ruling or the judgment in favor of the attorneys, we omit a discussion of these claims and parties here. 10
falsely told the children's piano teacher that the children's music lessons need to be
canceled because he has not paid child support.
Anti-SLAPP Motion
Ben-Nun moved to dismiss the complaint under the anti-SLAPP statute,
contending the claims arose out of her constitutionally protected speech and petitioning
activities. (§ 425.16.) On the probability of prevailing issue, Ben-Nun submitted various
documents, including: (1) her declaration in which she stated that she filed the initial
protective order petition "in response to a threat from [Ervin] that he was going to get a
gun and shoot our entire family"; (2) the police report and emergency protective order
containing statements made by the parties on the evening of August 28 (as summarized
above); (3) her declaration in support of the second DVPA petition that discussed the
reasons she was afraid of Ervin; and (4) Ervin's declaration opposing this second DVPA
petition.
In the latter declaration, Ervin said he has "never threatened to harm anyone," but
acknowledged that he and Ben-Nun had a heated argument in Simi Valley on the evening
of August 26. Ervin elaborated: "[Ben-Nun] and I have both been feeling a higher level
of stress than usual and have allowed the temperature of our rhetoric to rise to an
unreasonable degree. We are here because words were said, which should not have been
said: to each other, to the children, to the police and to the court. . . . [¶] Specifically, on
August 26, after a trying day travelling in Malibu and Simi Valley with my wife, three
children and my 75 year old mother Elfriede, I made an irresponsible comment which is
being understood out of context. . . ." (Italics added.) Ervin said he "had no intention of
11
trying to create fear [or] harming anyone"; he "never threatened to harm anyone"; and he
made the comment in reference to Ben-Nun's prior suicide attempt 10 years earlier. He
said that Ben-Nun "knew the statement in Simi Valley wasn't a threat, but the children
have become scared. Whether it is because of that statement, or because they were
interviewed by the police and child services, or because they have been forcibly separated
from their father twice, or because they know their parents are divorcing is difficult to
know . . . ." (Italics added.) Ervin said that "even with the stress from the trip . . . and
the comment in Simi Valley, we had kept things generally together. That was, until two
days after we returned from Simi Valley . . . . [¶] My request to change [the youngest
daughter's] school set off a chain of events with [Ben-Nun] . . . . In Simi Valley she
knew my comments were bluster. Unfortunate, irresponsible, but not meant as a threat."
(Italics added.)
Opposition to Anti-SLAPP Motion
In opposing the anti-SLAPP motion, Ervin argued the statute did not govern his
complaint, and even if it did, he could show a probability of prevailing on each of his
claims.
In support, he proffered his own declaration in which he denied making any
threatening statement on the evening of August 26, and stated that Ben-Nun gave no
indication that she felt threatened on that evening or the next day. Ervin said that two
days after they returned from their trip, Ben-Nun called the police in direct response to
his informing her he would file for divorce if she did not agree to transfer their child from
her Jewish preschool. He denied he told the police officers that he had made a
12
threatening statement to Ben-Nun. He said the officers "did not take my statement, nor
did they ask my side of the story or ask any other questions of me." He said "Ben-Nun's
representation to the police officer and to the Family Court . . . that I in any way
threatened her or the children with physical violence is not true. I never said I would get
a gun and shoot her and the children, nor did I say anything else which may have been
reasonably construed as a threat."
Ervin further declared that he does not own a gun; has never owned a gun; loves
his children; has been actively involved in their care since they were born; has never
physically harmed his wife or children; has never done anything to make his wife or
children believe he was going to physically harm them; and did not sign a settlement
agreement vacating the two restraining orders. Ervin additionally stated that the CWS
investigation found the child abuse claims to be "unsubstantiated." Regarding his
claimed emotional distress, Ervin said his separation from his children caused him to lose
weight and precluded him from sleeping. He also claimed he has been shunned by his
neighbors, friends, and school officials.
Ervin also produced the declaration of his mother, who generally supported Ervin's
version of the events and said that Ervin always acted appropriately with his family. His
mother acknowledged, however, that Ben-Nun told her on August 26 while they were
still in Simi Valley that Ervin "had threatened to get a gun and shoot all of them."
Ervin also proffered the transcripts of the depositions of Ben-Nun and numerous
other individuals, including neighbors and the CWS workers. The deposition transcripts
included in the appellate record are excerpts of the depositions of Ben-Nun and neighbor
13
Daly. Ervin also submitted telephonic records in an attempt to show Ben-Nun did not
report his alleged threat until after the couple had the argument about their daughter's
preschool. Ervin also raised evidentiary objections to various documents, including the
August 28 police report and the statements contained within the report.
Court's Ruling
After considering the parties' submissions and conducting a hearing, the court
found all of Ervin's causes of action were subject to the anti-SLAPP statute and Ervin did
not meet his burden to show a probability of prevailing on these claims. The court did
not specifically rule on Ervin's evidentiary objections.
DISCUSSION
I. Legal Standards Governing Anti-SLAPP Motions
Under section 425.16, a court "shall" grant a defendant's motion to strike a cause
of action "arising from" an act "in furtherance of" the defendant's constitutional petition
or free speech rights unless the plaintiff establishes a probability of prevailing on the
claim. (§ 425.16, subd. (b)(1).) To promote participation in matters of public
significance, courts must construe this statute "broadly" in favor of the moving party.
(§ 425.16, subd. (a).)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process.
(Taus v. Loftus (2007) 40 Cal.4th 683, 703.) First, the court must decide whether the
defendant has met its burden to show the challenged cause of action is one arising from
constitutionally protected activity as defined in the statute. (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Second, if this showing has been made,
14
the court must determine whether the plaintiff has met its burden to show a probability of
prevailing on the claim. (Ibid.)
On appeal, Ervin does not challenge the court's conclusion that his claims arose
from protected activity, and argues only that the court erred in ruling that he did not meet
his burden to show a probability of prevailing on his claims. To satisfy this burden, Ervin
was required to " ' "demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is credited. . . ." ' " (Hawran v. Hixson (2012) 209
Cal.App.4th 256, 273.) Although " ' "the court does not weigh the credibility or
comparative probative strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant's evidence supporting the motion defeats the plaintiff's
attempt to establish evidentiary support for the claim." [Citation.] In making this
assessment it is "the court's responsibility . . . to accept as true the evidence favorable to
the plaintiff. . . ." [Citation.] The plaintiff need only establish that his or her claim has
"minimal merit". . . .' " (Id. at pp. 273-274.)
An appellate court engages in the same analysis as the trial court and must apply a
de novo review standard. (See Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146,
1159.)
II. Challenge to Court's Written Explanation of its Ruling
As a centerpiece of his appellate arguments, Ervin contends the trial court erred in
failing to consider his own evidence and improperly focused only on Ben-Nun's
evidence. This argument is not a basis for reversal. Even assuming the court erred in
15
making certain credibility and other factual determinations in Ben-Nun's favor, we are
not bound by the court's findings and conduct an independent review of the entire record.
"If the trial court's decision is correct on any theory applicable to the case, we affirm the
order regardless of the correctness of the grounds on which the lower court reached its
conclusion." (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) As explained
below, we have conducted an independent review of the appellate record, and we
determine that—when viewing all the admissible evidence in the light most favorable to
Ervin—he did not meet his anti-SLAPP burden to show a probability of prevailing on any
of the challenged causes of action.
III. Malicious Prosecution
A. Legal Principles
To establish a malicious prosecution claim, the plaintiff must prove the prior
action was (1) brought (or continued) without probable cause; (2) initiated with malice;
and (3) pursued to a legal termination in his or her favor. (See Zamos v. Stroud (2004) 32