Geiser v. Kuhns

1

GREGORY GEISER, Plaintiff, Appellant, and Cross-Respondent, v. PETER KUHNS et al., Defendants, Respondents, and Cross-Appellants.

B279738

California Court of Appeals, Second District, Fifth Division

May 8, 2023

NOT TO BE PUBLISHED

Order Filed Date 5/25/23

APPEAL from orders of the Superior Court of Los Angeles County, Nos BS161018, BS161019, BS161020, Armen Tamzarian, Judge. Affirmed in part, reversed in part, and remanded with directions.

Beach Cities Law Group, Frank Sandelmann and Joshua A. Valene, for Plaintiff, Appellant, and Cross-Respondent.

Law Office of Matthew Strugar, Matthew Strugar; Law Office of Colleen Flynn, Colleen Flynn, for Defendants, Respondents and Cross-Appellants.

ORDER MODIFYING OPINION

THE COURT:

It is ordered that the opinion filed herein on May 8, 2023, is modified as follows:

On page 3, in the last sentence of the Introduction, "their civil harassment petitions" is replaced with "plaintiff's civil harassment petitions".

On page 19, "The parties are to bear their own costs on appeal" is replace with "Defendants are awarded their costs on appeal."

There is no change in the judgment.

KIM J.

INTRODUCTION

Plaintiff Gregory Geiser filed petitions for civil harassment restraining orders against defendants Peter Kuhns and spouses Mercedes and Pablo Caamal, after defendants demonstrated at plaintiff's place of business and in front of his residence in an attempt to prevent the Caamals' eviction from their home. In response, defendants moved to strike the civil harassment petitions as strategic lawsuits against public participation (anti-SLAPP motions). After plaintiff voluntarily dismissed his civil harassment petitions, the trial court awarded defendants attorney fees as the prevailing parties on the petitions. The trial court denied defendants' attorney fees on their anti-SLAPP motions ruling they would not have prevailed on the motions.

Plaintiff appeals the trial court's determination that defendants were the prevailing parties on the civil harassment petitions and, alternatively, the calculation of the attorney fees award. Defendants appeal the trial court's determination that they would not have prevailed on their anti-SLAPP motions.

On August 30, 2018, the panel majority affirmed the trial court's orders.^[1] On November 14, 2018, the California Supreme Court granted defendants' petition for review. On September 11, 2019, the Supreme Court transferred the matter back to us with directions to reconsider the matter in light of its decision in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn.com) which interpreted the "catchall provision" of the anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (e)(4)^[2]).

On February 28, 2020, having considered FilmOn.com's application to this matter, the panel majority again affirmed the trial court's orders.^[3] On July 22, 2020, the Supreme Court granted defendants' petition for review. On August 29, 2022, the Supreme Court held that the panel majority "erred in holding that the demonstration outside [plaintiff's] home did not constitute speech in connection with a public issue under the anti-SLAPP statute's catchall provision" and remanded for further proceedings consistent with its opinion. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1256 (Geiser).) Having considered the matter in light of the Supreme Court's opinion, we affirm the trial court's order awarding defendants' attorney fees on their civil harassment petitions, reverse the court's order denying defendants their attorney fees under the anti-SLAPP statute, and remand the matter for further proceedings as set forth below.

BACKGROUND

Plaintiff is the founder, President, and Chief Executive Officer of Wedgewood LLP, which is in the business of purchasing rehabilitating, and selling distressed properties. On September 23, 2015, through a non-judicial foreclosure sale, a Wedgewood subsidiary purchased from Wells Fargo a triplex Ms. Caamal owned (the property) for $284,000. Wedgewood then obtained an eviction judgment for one of the units.

According to Ms. Caamal, on December 17, 2015, she and her husband, along with a group of concerned citizens, went to Wedgewood's office building and requested a meeting with plaintiff to attempt to prevent their eviction and to negotiate a repurchase of her home. The concerned citizens included Kuhns and persons involved with the Alliance of Californians for Community Empowerment (ACCE), an entity whose various missions include saving homes from foreclosure and fighting against displacement of long-term residents. Kuhns is the Los Angeles Director for ACCE. The group set up a tent in Wedgewood's lobby and disrupted its business.

Plaintiff was not present. Wedgewood's Chief Operating Officer Darin Puhl and its General Counsel Alan Dettelbach went to the lobby. Dettelbach attempted to move the tent and was shoved by one of the demonstrators. The police were called. No one was arrested or cited.

Puhl spoke with the Caamals and learned they were interested in repurchasing the property. He offered to meet with them in private if the demonstrators left the building. The Caamals agreed. In the meeting, the Caamals told Puhl they could afford to repurchase the property. Puhl agreed to hold off enforcement of Wedgewood's eviction judgment on the property's first unit (an unlawful detainer trial was set for January 2016 for the other two units) for several weeks so the Caamals could meet with a lender to assess whether they could qualify for a loan. Although Puhl "gave [the Caamals] an idea of the value [of the property] according to similar properties in the area," they did not discuss a purchase price.

The Caamals subsequently submitted to Wedgewood a prequalification letter apparently with a purchase price of $300,000. In early January 2016, Puhl again met with the Caamals. Puhl informed them that Wedgewood believed the property was worth $400,000 according to real estate websites and $300,000 was unacceptable. Wedgewood offered to sell them the property for $375,000.

The Caamals asked for additional time to obtain a home loan, agreeing to vacate the entire property within 60 days-by March 20, 2016-if they could not obtain financing. On March 18, 2016, the Caamals sent Wedgewood a prequalification letter with a $300,000 purchase price. Wedgewood deemed the prequalification letter unacceptable because it was not for the purchase price of $375,000 and it expressly stated that it did "not constitute loan approval."

The Caamals did not vacate the property by the date agreed upon, and, on March 23, 2016, they, Kuhns, and persons involved with ACCE returned to Wedgewood's office building seeking to meet with plaintiff. Mr. Caamal allegedly stated, "'[Y]ou're not getting me out of this property alive.'" The Caamals and their supporters left the premises either because the police were called and removed them or because Puhl agreed to review the Caamals' "prequalification" documents.

Because the Caamals had not arranged to purchase the property by the date agreed upon, Wedgewood had the San Bernardino Sheriff's Department evict them on March 30, 2016. Later that night, defendants and persons involved with ACCE went to plaintiff's residence. According to defendants, the Caamals and their supporters staged a residential picket on the sidewalk outside of plaintiff's home. They held signs, sang songs, chanted, and gave short speeches. The demonstration lasted for about an hour-from about 9:00 p.m. to 10:00 p.m. Officers from the Manhattan Beach Police Department were present, but did not order the demonstrators to disburse or intervene to stop the demonstration. No one was arrested or cited.

According to Gilbert Saucedo, a National Lawyers Guild legal observer, ACCE organized the demonstration to protest the unfair and deceptive practices Wedgewood and its agents used to purchase the property and to evict the Caamals. He estimated there were 25 to 30 demonstrators and described the demonstration as "peaceful."

Plaintiff viewed the demonstration at his home differently. Two days after the demonstration, he filed petitions for civil harassment restraining orders against defendants. In his petitions, plaintiff stated that around 9:00 p.m., a "mob" of about 30 persons arrived at his residence and chanted, "Greg Geiser, come outside! Greg Geiser, you can't hide!" Plaintiff called the police. His wife sneaked out the back door and hid at a neighbor's house.

Plaintiff further recounted the incident in his declaration in support of restraining orders as follows: "Sometime before midnight, as a result of discussions with the police and Wedgewood's lawyer, the mob disbanded. My wife and I were left shaken by the escalating campaign of harassment that has followed me from work to my home. In view of the mob actions combined with the direct verbal threats, we are in fear for our safety. We have arranged for private security to stand guard outside both our place of business and our house.

"I further understand from conversations Wedgewood's general counsel had with the police the night the mob assaulted my home that police require a court order to keep the mob away from my house by any meaningful distance. This is why we are seeking this Court's assistance in issuing an order for these respondents to stay away from my wife and me, my business, and my home, by at least 100 yards."

The trial court issued temporary restraining orders. The orders required defendants to stay at least 50 yards from plaintiff, his wife, and Wedgewood for the following three weeks.

Defendants responded to the civil harassment petitions by filing anti-SLAPP motions. They claimed plaintiff was attempting to stifle their free speech and...