Kaplan v. Gimelstob

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RANDALL KAPLAN, Cross-Complainant and Respondent, v. JUSTIN GIMELSTOB, Cross-Defendant and Appellant.

B315197

California Court of Appeals, Second District, Second Division

November 23, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV19647 Kevin C. Brazile, Judge. Affirmed with directions.

Vedder Price, Eric R. McDonough, Deborah A. Hedley, Lauren E Wertheimer; and Robert M. Dato for Cross-Defendant and Appellant.

Gordon Rees Scully Mansukhani, Matthew G. Kleiner, Norvik Azarian and Scott W. McCaskill for Cross-Complainant and Respondent.

HOFFSTADT, J.

In a display that a trial court characterized as "junior high and high school" conduct, two wealthy, middle-aged men-one a former professional athlete and the other a venture capitalist- got into a fistfight while trick or treating with their families on Halloween night 2018. The men have now moved their spat into the court system. After the ex-athlete pled no contest to felony assault, he went on a podcast to claim that he was the victim of an attack "initiated" by the venture capitalist, that he had entered the plea because the criminal court system was rigged, and the venture capitalist was conspiring with the ex-athlete's ex-wife to manipulate the family court to get her custody of the child the ex-athlete had with her. After the venture capitalist sued the ex-athlete for slander for his remarks on the podcast, the ex-athlete filed a motion to strike the slander claim under our State's anti-SLAPP law (Code Civ. Proc., § 425.16).^[1] The trial court denied the motion, thereby allowing the slander claim to move forward. The ex-athlete challenges that ruling. Many of his arguments reflect a fundamental misunderstanding of how the anti-SLAPP law works. All of his arguments are also meritless. Thus, we largely affirm, but elect to strike certain allegations from the slander claim despite the ex-athlete's failure to ask the trial court for such relief.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The parties

Justin Gimelstob (Gimelstob) was a professional tennis player until he retired in 2007. Since then, he has coached other players as well as, in his own words, worked as a "broadcaster, producer, talent representative, and brand ambassador."

Randall Kaplan (Kaplan) is a "venture capitalist."

Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party.

B. The Halloween 2018 incident^[2]

On Halloween night in 2018, both Gimelstob and Kaplan were out trick or treating in Brentwood, which is an upscale neighborhood on the west side of Los Angeles, California. Kaplan was with his wife and their two-year-old daughter; Gimelstob, with his girlfriend and his five-year-old son. Gimelstob was dressed up as "Maverick" from Top Gun.

As Kaplan's wife and child were watching, Gimelstob "ambushed" Kaplan from behind and-"unprovoked and entirely without warning"-knocked Kaplan to the ground. Gimelstob mounted Kaplan's prone body, and proceeded to punch him 50 to 100 times. The attack lasted three minutes and ended only when a passerby pulled Gimelstob off of Kaplan.

C. Gimelstob's criminal plea

The Los Angeles County District Attorney charged Gimelstob with committing a battery inflicting serious bodily injury, which is a crime that can be charged as a felony or a misdemeanor. (Pen. Code, § 243, subd. (d).) The District Attorney charged it as a felony.

After the trial court expressed its tentative inclination to reduce the offense to a misdemeanor if Gimelstob entered a plea to the charge as a felony, the court allowed Kaplan and Kaplan's wife to read their victim impact statements to the court. While Kaplan was speaking, Gimelstob repeatedly shook his head and said "not true," made facial expressions and otherwise engaged in "demonstration[s] of frustration," tried to get the trial court judge's attention, and glanced back at the press assembled in the courtroom gallery. Given what the trial court perceived to be petulant and sophomoric antics by Gimelstob while Kaplan spoke, the court expressed concern that Gimelstob did not really want to accept responsibility for the charged crime and might be better suited to proceed to trial on the felony battery charge. After Gimelstob assured the court that he wanted to accept responsibility for the crime, Gimelstob entered a no contest plea to the battery crime as a felony. Consistent with its prior indication, the trial court then reduced the felony to a misdemeanor, and placed Gimelstob on probation for three years; as conditions of probation, Gimelstob was ordered to complete 60 days of community labor and take a one-year anger management course. Gimelstob thereafter was ordered to pay Kaplan $15,204.42 in restitution, which was comprised of $268 to replace the clothing Kaplan was wearing during the incident, $875 for medical expenses, $2,325 for physical therapy, and the remainder for mental health therapy.

D. The January 2019 podcast

On January 19, 2021, Gimelstob appeared on a tennis-focused podcast entitled "Control the Controllables," which was hosted by Dan Kiernan. The host asked Gimelstob for "the truth" about the Halloween 2018 incident. In response, Gimelstob stated:

• He "neither provoked [n]or initiated any incident that evening," either "verbally or physically." According to Gimelstob, it was Kaplan who "initiated physical contact," and only after Kaplan "engaged and initiated" did Gimelstob lose "restraint." Consistent with Kaplan being the aggressor and assailant, Gimelstob stated that there was "absolutely not 100ths of the damage" Kaplan had reported suffering; this was confirmed, Gimelstob pointed out, by the police report, in which the police had checked a box indicating "no physical damage." Gimelstob nevertheless bragged-not once, but twice-that he "got the better" of Kaplan in the fight. Gimelstob characterized his plea to the felony battery crime as the "legal system" "[u]nfortunately" "hav[ing] its blind spots," including Marsy's Law allowing "a victim . . . to say whatever they want."

• Kaplan had "threatened to help [Gimelstob's] ex-wife take custody of [his] son," which included "l[ying]" and "misrepresenting" the truth about the altercation as part of their joint "mission to manipulate . . . the legal process."

Gimelstob lamented that he had "lost everything" due to the Halloween 2018 incident and its fallout, but said, "you know what? It just makes for a better comeback."

II. Procedural Background

A. Pleadings

Kaplan's wife sued Gimelstob for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, and (3) loss of consortium.

Gimelstob filed a cross-complaint against Kaplan. In the operative first amended cross-complaint, Gimelstob sued Kaplan for (1) assault (on Halloween 2018), (2) battery (on Halloween 2018), (3) equitable indemnity (to reimburse Gimelstob for any judgment Kaplan's wife obtains against him), (4) abuse of process, (5) intentional interference with contractual relations (with all of Gimelstob's postretirement activities), and (6) intentional interference with a prospective economic advantage (with other possible postretirement activities that had not yet ripened into contracts). Gimelstob seeks actual damages and punitive damages.

Kaplan then filed a cross-claim against Gimelstob for (1) assault, (2) battery, and (3) slander per se. Kaplan also named the podcast host and the host's businesses as defendants to the slander claim. With regard to his slander claim, Kaplan alleged that:

• Gimelstob had falsely accused Kaplan "of committing an assault upon him" on Halloween 2018, while falsely denying that Gimelstob was responsible for the attack and that Kaplan had "suffered any injuries in the assault."

• Gimelstob had "falsely accused Kaplan of conspiring with Gimelstob's ex-wife to 'manipulate the legal process' to damage Gimelstob."

• Gimelstob had falsely said that Kaplan had told Gimelstob, on Halloween 2018, that Gimelstob's recently deceased father was an "asshole."

As part of his slander claim, Kaplan alleged that Gimelstob's statements did "damage to [his] business reputation and damage to [his] personal reputation in the community," and also "imput[ed to Kaplan] criminal conduct."

B. Gimelstob's anti-SLAPP motion

Gimelstob filed an anti-SLAPP motion to strike the entirety of Kaplan's slander per se claim. In support of his motion, Gimelstob submitted declaration and deposition testimony (given in Gimelstob's dissolution case) from himself, from his girlfriend, and from Kaplan's former housekeeper. This testimony paints a very different picture of what happened on Halloween 2018: Kaplan approached Gimelstob, and told him, "I heard your dad just dropped dead and he was an even bigger asshole than you." Shocked and angry, Gimelstob asked Kaplan, "What the fuck is wrong with you?" After Kaplan walked away, Gimelstob ran to catch up to Kaplan and demanded to know, "What is your fucking problem with me?" When Kaplan responded, "Fuck you" and pushed Gimelstob "hard in the chest," Gimelstob responded by "clotheslin[ing]" Kaplan with his "left arm" and thereby knocking Kaplan down to the grass, where the two got into a "wrestling scrap" as Gimelstob sat astride Kaplan "swinging" his fists for 20 to 30 seconds. In support of his motion, Gimelstob also included the police report from the incident. Although the report noted that Gimelstob had "approached victim from behind, [and] punched [him]," the reporting officer also checked the box for "no serious injury to victim."

Kaplan opposed the motion. In support of the opposition, Kaplan submitted a...