California Court of Appeal Jul 1, 2024 No. E081825Unpublished
Filed 7/1/24 Petersen v. Feldman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MICHAEL PETERSEN,
Plaintiff and Appellant, E081825
v. (Super.Ct.No. CVPS2302429)
STEPHEN MARK FELDMAN, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Manuel Bustamante,
Judge. Affirmed.
Michael Petersen, in pro per., for Plaintiff and Appellant.
Law Offices of Mark E. Goodfriend and Mark E. Goodfriend, for Defendant and
Respondent.
1
Michael Petersen brought this action against Stephen Feldman for libel and
invasion of privacy. Feldman is an attorney, and Petersen bases his complaint on a letter
that Feldman sent on behalf of a client. Feldman filed a special motion to strike the
complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute.1
(Unlabeled statutory citations refer to the Code of Civil Procedure.) The trial court
Petersen argues that Feldman admitted under penalty of perjury in the website
action that the GoDaddy letter was not preparation for the website action, so subdivision
(e)(2) of section 425.16 does not apply. But the court determined that the letter was in
anticipation of litigation against GoDaddy, not the website action. The record supports
the court’s conclusion. The letter was written on the letterhead of Feldman’s law office
and stated that Feldman represented Zilberstein. Feldman demanded that GoDaddy
cancel Petersen’s unauthorized registration of the domain name in Zilberstein’s name.
Feldman also observed that California law provides a cause of action for invasion of
privacy, and it stated that if GoDaddy did not cancel the registration, then GoDaddy
would be “complicit in and actively participating” in Petersen’s “theft and serious
misuse” of Zilberstein’s name. Those statements implied that GoDaddy would be subject
to a lawsuit if it did not cancel the registration. The letter thus was a prelitigation
communication demanding that GoDaddy cease doing certain acts or be subject to a
lawsuit. (Lunada, supra, 230 Cal.App.4th at p. 472.)
Petersen further argues that the court erred because the statements that he served
10 years in prison and was engaged in a shakedown, attempted extortion, and nefarious
activity are irrelevant to the issues under consideration or review in the website action or
any potential claim against GoDaddy. The argument lacks merit.
The statements about a shakedown, extortion, and nefarious activity were relevant
to the website action against Petersen. The cause of action under Business and
Professions Code section 17525 requires Zilberstein to show that Petersen acted with “a
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bad faith intent” in registering the domain name. (Bus. & Prof. Code, § 17525, subd.
(a).) The statements related to whether Petersen had that bad faith intent.
In addition, the characterization of Petersen’s activity and his claimed motives
were relevant to persuading GoDaddy that it should investigate Petersen’s use of the
domain name and prevent him from using it, or the company would face a lawsuit for
“complicit[y]” in Petersen’s claimed misuse of the name. The statements therefore
“constituted an attempt to prevent further misuse” of the domain name and “thereby
mitigate [Zilberstein’s] potential damage.” (Neville, supra, 160 Cal.App.4th at p. 1268.)
In that way, the statements were relevant to any claim against GoDaddy or Petersen.
The statement that Petersen was a convicted felon who had served 10 years in
prison was relevant because it went to Petersen’s credibility. Evidence of prior felony
convictions is admissible in civil actions “[f]or the purpose of attacking the credibility of
a witness.” (Evid. Code, § 788; Robbins v. Wong (1994) 27 Cal.App.4th 262, 274.)
Petersen would be a witness in any action against him or GoDaddy for the claimed
misuse of the domain name. And even if the prior convictions were not admissible in
court under the Evidence Code, the information still would be relevant to GoDaddy’s
consideration of Petersen’s credibility in any internal investigation of the domain name
registration.
Petersen also suggests that the court erred because it “ignored” two cases that
analyzed whether statements were sufficiently related to issues in the underlying
litigation. Those cases are Paul v. Friedman (2002) 95 Cal.App.4th 853 (Paul) and
Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140 (Nguyen). There is no
11
basis in the record to presume that the trial court failed to consider Paul and Nguyen.
Both cases were discussed at length in Neville, the case on which the court relied in its
ruling. (Neville, supra, 160 Cal.App.4th at pp. 1264, 1267-1268.) In any event, although
Petersen summarizes Paul and Nguyen, he does not explain why they are analogous to
this case. Neither case shows that the trial court erred.
In Paul, the court held that statements about a securities broker’s personal
financial affairs and his claimed substance use were irrelevant to any issue under review
in an arbitration proceeding against him, which alleged securities law violations, breach
of fiduciary duty, fraud, and negligence. (Paul, supra, 95 Cal.App.4th at pp. 857, 866-
868.) The court rejected the argument that the information was relevant to show that the
broker was impaired and distracted while performing his duties. (Id. at pp. 858-859,
868.) The arbitration claim “ma[de] no allegations of ‘impaired judgment’ or
‘distractions’ causing damage to the claimants,” and the arbitration decision did not
“mention . . . any such claims or arguments.” (Id. at p. 868.) The defendant therefore
failed to show that the statements were protected by subdivision (e)(2) of section 425.16.
(Paul, at p. 868.) In contrast, most of the challenged statements here went to the heart of
the domain name dispute in that they addressed Petersen’s claimed improper motives for
registering the name. And as already discussed, the statement about Petersen’s criminal
record was relevant to his credibility. Nothing in Paul compels a different conclusion.
Nguyen was a litigation privilege case. The privilege applies to communications
that have “‘some reasonable relevancy to the subject matter of’” litigation. (Nguyen,
supra, 69 Cal.App.4th at p. 147.) The case involved a dispute between an employer and
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its former employee (Nguyen), who was allegedly soliciting customers to switch their
business to his new employer. (Id. at pp. 143-144.) In a letter from the former employer
to the new employer, the former employer accused Nguyen of unfair competition and
falsely stated that Nguyen had served prison time for “‘repeatedly and violently
assaulting his wife.’” (Id. at p. 144.) The court held that the statement about Nguyen’s
criminal record was not reasonably relevant to the unfair competition dispute. (Id. at p.
151.) First, the statement was false: Nguyen was convicted of shooting at an unoccupied
car and vandalism, not assaulting his wife, and he served time in jail, not prison. (Ibid.)
Second, any connection to the unfair competition dispute was tenuous, because “one’s
proclivity to engage in [unfair business] practices is in no way, shape or form predictable
by whether he (a) beats his wife, (b) shoots at unoccupied cars, or (c) commits
vandalism.” (Ibid.) Third, the court rejected the argument that Nguyen’s criminal
convictions would be relevant to impeach his credibility if he became a witness. (Ibid.)
It concluded that the connection to his credibility was also tenuous. (Ibid.) The court
observed that trial courts have discretion to exclude prior felony convictions under
Evidence Code section 352. (Nguyen, at p. 151.) In addition, the court reasoned that it
“stretche[d] credulity to the breaking point to believe” that the former employer
mentioned the alleged “wife beating” because it wanted to advise the new employer that
Nguyen’s credibility might be subject to impeachment. (Ibid.) The court concluded that
the reasonable interpretation of the letter, and “possibly the only reasonable
interpretation” of the letter, was that “it was essentially ‘vindictive’ behavior” by the
former employer. (Id. at p. 152.)
13
Nguyen’s reference to Evidence Code section 352 does not persuade us that prior
felony convictions are irrelevant to a witness’s credibility. As already explained, the
Evidence Code establishes that they are relevant for that purpose. (Evid. Code, §§ 210,
788.) And a court’s decision to exclude evidence under Evidence Code section 352 does
not mean that the evidence is irrelevant. The section merely permits the court to exclude
otherwise relevant evidence if its probative value is outweighed by other factors. (Evid.
Code, § 352; see People v. Castro (1985) 38 Cal.3d 301, 307 [Evidence Code section 352
applies “to all relevant evidence”].) Moreover, the Nguyen court’s conclusion about the
vindictiveness of the former employer does not show error here. The statement that
Nguyen had repeatedly and violently assaulted his wife was particularly inflammatory
and gave rise to a reasonable inference of vindictiveness. The GoDaddy letter was
restrained by comparison—it stated that Petersen was a convicted felon but did not
describe his crimes at all.
For all of these reasons, Petersen fails to show that the court erred by concluding
that the GoDaddy letter was protected activity under subdivision (e)(2) of section 425.16.
II. Step two: probability of prevailing
To establish a probability of prevailing on the merits, “‘the plaintiff “must
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.”’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) “[T]he
plaintiff cannot rely on the allegations of the complaint, but must produce evidence that
would be admissible at trial. [Citation.] Thus, declarations may not be based upon
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‘information and belief’ [citation,] and documents submitted without the proper
foundation are not to be considered.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 212.)
The plaintiff must also show a probability of prevailing on any substantive
defenses that the defendant raises, such as the litigation privilege. (Trinity Risk
Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th
995, 1006.) The litigation privilege “applies to any communication (1) made in judicial
or quasi-judicial proceedings (2) by litigants or other participants authorized by law (3) to
achieve the objects of the litigation and (4) that have some connection or logical relation
to the action. [Citation.] The privilege is ‘not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or afterwards.’” (Id. at pp.
1006-1007.) The privilege immunizes defendants from almost all tort liability. (Olsen v.
Harbison (2010) 191 Cal.App.4th 325, 333.)
Petersen argues that the court erred by concluding that the litigation privilege
applies to the GoDaddy letter. But the court concluded that Petersen had not shown a
probability of prevailing for two independent reasons. First, he offered no evidence to
show a probability of prevailing on the merits. Second, even if he had offered such
evidence, the litigation privilege would defeat his complaint. Petersen does not address
the court’s first determination about the lack of evidence. He therefore fails to carry his
burden of showing that the court erred, and we need not address his arguments regarding
the litigation privilege. (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 969 [“We
presume the superior court’s order is correct, and the appellant must affirmatively show
15
error]; ibid. [it is not the appellate court’s role to “scour the record and make” the
appellant’s arguments for him].)
DISPOSITION
The order granting Feldman’s anti-SLAPP motion is affirmed. Feldman shall
recover his costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
16
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's grant of an anti-SLAPP motion, holding that a pre-litigation letter sent by an attorney to a third party was protected activity under Code of Civil Procedure section 425.16 and that the plaintiff failed to demonstrate a probability of prevailing on the merits.
Issues
Whether a pre-litigation letter sent to a third party constitutes protected activity under the anti-SLAPP statute.
Whether the plaintiff established a probability of prevailing on the merits of his libel and invasion of privacy claims.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Prelitigation letters demanding that a party cease from doing certain acts or be subject to a lawsuit based on that conduct are in preparation or anticipation of litigation and fall within the protection of section 425.16, subdivision (e)(2)”