Bassi v. Bassi

321 Cal.Rptr.3d 1

Robert BASSI, Plaintiff and Respondent,

v.Susan BASSI, Defendant and Appellant.

H049873

Court of Appeal, Sixth District.

Filed April 15, 2024

Trial Court: Santa Clara County Superior Court, Trial Judge: Hon. Andrea E. Flint (Santa Clara County Super. Ct. No. 2012FL009065)

Counsel for Appellant Susan Bassi: Patrick Joseph Evans

Counsel Respondent Robert Bassi: Carlos Martinez, Christine Fumi Kawamoto, Bay Area Law Firm, San Jose

The Court¹

[1] Susan Bassi appeals the denial of her anti-SLAPP motion² to strike a petition for a domestic violence restraining order (DVRO) brought by her ex-husband, Robert Bassi.³ Robert filed the petition for DVRO in response to a series of e-mails from Susan that he contends were harassing, disturbed his peace, interfered with his business, and affected his standing in the community. Susan asserts the e-mails are protected free speech and litigation correspondence informing Robert of her intent to file an "agricultural racketeering RICO"⁴ action against him and others.

The trial court denied Susan’s anti-SLAPP motion after deciding that several of the e-mails were not privileged or protected speech, and Robert had demonstrated a likelihood of prevailing on the merits of his DVRO petition. We affirm the order.

I. FACTS AND PROCEDURAL BACKGROUND⁵

A. Petition For Domestic Violence Restraining Order

This appeal arises from a DVRO petition filed toward the end of a protracted and contentious marital dissolution between Susan and Robert, In 2018, the trial court entered judgment in the marital dissolution; this court affirmed the judgment in 2023.⁶

In 2021, Robert filed a petition for DVRO (hereafter, petition) and obtained a temporary restraining order against Susan. The petition indicated that Robert and Susan were previously married, had initiated a divorce action in 2012, and that Susan was previously declared a vexatious litigant by the superior court.

The 2021 petition cited a "barrage" of e-mail communications from Susan as the basis of the requested restraining order. Robert asserted, "Susan Bassi has been harassing me for months by email, disturbing my peace, and interfering with my business. The harassing emails make accusations that I have engaged in criminal acts, fraud, vast conspiracies, and threaten me directly. The emails are often copied to business associates and customers, subjecting me to contempt, ridicule, and lost opportunities. My lawyer asked [the] lawyer for Susan Bassi to stop with the harassing emails and all she did was step up the number of harassing emails."

Robert contended that the e-mails served "no legitimate purpose" because he and Susan were each represented by counsel and there was no need for her to personally contact him. He interpreted the e-mails as threats, including statements about Robert’s girlfriend (calling her a " ‘RICO bookkeeper’ "), and statements accusing Robert of involving his and Susan’s children and grandchildren and of being "an ‘AG mob boss,’ " likening him to "Bernie Madoff," and telling him that his " ‘window is narrow’ " and he " ‘will have to answer for [his conduct].’ "

The petition included copies of e-mails sent by Susan to Robert in June and July 2021,⁷ which he asserted were "just the recent emails."

B. Special Motion to Strike DVRO Petition (Anti-SLAPP Motion)

The trial court continued the hearing on the petition to allow for proper service on Susan, during which time Susan filed a substitution of attorney to represent herself. She subsequently filed a notice of limited scope representation identifying attorney Patrick Evans, her attorney for the future RICO action, as her attorney for purposes of the DVRO petition. On October 25, prior to the scheduled DVRO hearing, Susan filed the anti-SLAPP motion at issue in this appeal (motion).

The motion alleged that Robert filed the petition not to protect himself from harassment but to "suppress and punish his ex-wife [Susan]’s exercise of free and litigation privileged speech." Susan asserted that Robert sought to restrain her from "voicing claims that he and co-conspirators engage in racketeering to produce and sell counterfeit seed used to grow phony ‘organic’ lettuce for consumers"—conduct she argued was of great public interest because "it cheats seed patent holders out of intellectual property and defrauds consumers into believing they are buying ‘organic.’ " The motion claimed that it was not harassment that prompted the petition, which was filed "months" after the purportedly offending e-mails, but rather "Robert’s alarm at Susan’s fact-based RICO complaint" of which she had informed Robert and his family law counsel, Carlos Martinez. Susan argued that Robert never designated an attorney to receive communications about the forthcoming RICO action, and because Martinez refused to receive any communications from Susan’s attorney related to her proposed RICO action and blocked those e-mails, her only option was to contact Robert directly.

On the merits, the motion maintained as to the first step of the anti-SLAPP analysis that the e-mails to Robert consisted of speech related to litigation and made before government agencies, including law enforcement and executive agencies such as "the USDA, the IRS, the CCOF [organic certification], and the SEC." The motion identified the litigation to which the e-mails related as "seed RICO."

For each e-mail identified in Robert’s petition, Susan sought to explain the "seed RICO" litigation-related purpose of the communication, acknowledging the e-mails would otherwise "seem ‘off topic.’ " She argued that each of the e-mails pertained to the forthcoming RICO action—for example, by informing Robert of information related to the RICO draft complaint, suggesting that he keep the RICO matter confidential and avoid involving their children and grandchildren, and asserting she had evidence that "tied" Robert’s girlfriend to the alleged racketeering and made her a target defendant. Susan also claimed that her communications were protected speech because she is an investigative journalist who reports to the public on agricultural topics, and that Robert’s petition seeks to discredit her and "restrain journalistic inquiry."

As to the second prong of the anti-SLAPP analysis, the motion asserted that the petition cannot prevail as a matter of law because Robert has not shown the e-mails constituted "abuse" within the meaning of the applicable restraining order statute and moreover, cannot show that her speech was not protected by the litigation privilege. The motion characterized Robert’s declaration that he is "disturbed" by the "seed RICO" allegations as an "adoptive admission of RICO charges," the truth of which, according to the motion, Robert has not denied.

The motion included the declarations of Susan and Evans (Susan’s limited scope attorney for the proposed RICO action and petition), exhibits, and a series of evidentiary objections to the statements set forth in Robert's declaration in support of his petition. The exhibits included a copy of a revised draft RICO complaint, which Evans had sent to Robert’s attorney Martinez, and copies of Evans’s correspondence to Martinez and to counsel for one of the target corporate defendants in the proposed RICO action.

Evans’s declaration stated that he is Susan’s attorney investigating the agricultural racketeering scheme, is "skilled at assessing how individuals and firms are conducting themselves unlawfully but covering with a legitimate business façade," and based on his review and due diligence "contend[s] there is basis for probable cause to believe that the claims and allegations in the discussion draft RICO complaint … are true." Evans’s declaration summarized the basis for the draft seed RICO case, which alleges that Robert and others are engaged in the manufacture and sale of counterfeit stock seed sold as " ‘organic’ " seed, in alleged violation of federal law and state and local trade association regulations.

In her declaration, Susan described the seed businesses that she and Robert had formed, her prior consulting work in organic seed and agriculture, her discovery of the "racket," and Robert’s purported efforts through the decade of divorce proceedings to "completely shut [her] out from knowing about or investigating the businesses." Susan declared that after gaining access to certain books and records through the divorce proceedings in 2014, she learned of transactions that concerned her but was barred from reporting on the alleged tax and regulatory violations by the appointed discovery referee in the divorce case. Susan further declared that various family court orders denied her access to the " ‘double books’ for seed RICO that [she] believe[s]" Robert’s girlfriend "maintains for the RICO enterprise." Susan asserted that through her preparation of the "seed RICO allegations," she filed complaints to government agencies including the USDA and SEC, reported her concerns to law enforcement, and engaged with the IRS about tax issues, leading the IRS to request a copy of her draft RICO complaint. Susan asserted that she "will file the seed RICO federal complaint."

Robert filed written opposition to the anti-SLAPP motion and requested an award of attorney fees and costs. Robert objected to the. declarations of Susan and Evans "in their entirety" on grounds including lack of relevance or foundation, hearsay, and "argumentative nonsense that is at best merely conclusory rather than stating any actual facts based on personal knowledge." Robert contended that speech that violates the Domestic Violence Prevention Act (DVPA) under Family Code sections 6203 and 6320—which together define "abuse" to include conduct that " ‘destroys the mental or emotional calm of the other party’ "—is not protected speech. Robert argued that the e-mails could not qualify as prelitigation communications due to the lack of factual foundation for the proposed RICO action, which he maintained...