Petersen v. Feldman

1

MICHAEL PETERSEN, Plaintiff and Appellant, v. STEPHEN MARK FELDMAN, Defendant and Respondent.

E081825

California Court of Appeals, Fourth District, Second Division

July 1, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. CVPS2302429 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.

OPINION

MENETREZ J.

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 granted the anti-SLAPP motion. We affirm.

BACKGROUND

I. Allegations of the complaint

According to Petersen's complaint, he pled no contest to unspecified offenses for events that occurred in 1986, and he served a prison term from late 1989 to April 1992. He opened his own business, Diversified Arbitration, in 1993, and he obtained a certificate of rehabilitation in 1999. Since 2006, he has been a licensed private investigator and has passed extensive state and federal background checks.

From 2014 to 2017, Petersen was the victim of a real estate scam perpetrated by Ahron Zilberstein. Petersen owned commercial real property in Los Angeles County, and Zilberstein filed six frivolous actions against Petersen to force him into selling the property for hundreds of thousands of dollars under market value. Feldman represented Zilberstein in five of those actions. Feldman learned about Petersen's background through the discovery process in those actions. Specifically, Feldman learned about Petersen's criminal history and imprisonment, certificate of rehabilitation, founding of Diversified Arbitration, and licensure as a private investigator.

Petersen discovered that Zilberstein had scammed hundreds of other victims. In early 2016, Petersen bought a domain name from GoDaddy and formed the website "ahronzilberstein.com," which he used to publicize legal filings, judgments, and sanctions orders against Zilberstein. Feldman sent a letter to GoDaddy in his capacity as Zilberstein's attorney in April 2016. The letter was written on the letterhead of Feldman's law office and stated that Feldman represented Zilberstein. The subject line of the letter read, "Demand to Cancel Unauthorized Registration." The letter stated that Petersen "ha[d] or might have" registered the domain name "'ahronzilberstein.com.'" It further stated that the registration was accomplished without Zilberstein's knowledge or consent.

More than two years after the GoDaddy letter, in November 2018, Zilberstein filed a lawsuit against Petersen to force him to shut down the website (the website action) (L.A. Super. Ct., No. 18vecv00182). Feldman again represented Zilberstein.

The trial court in the website action granted Petersen's motion for summary judgment in April 2023, and Zilberstein moved for reconsideration of that order. Feldman submitted a declaration in support of the motion for reconsideration. According to the declaration, Feldman had spent 10 hours or more "dealing with legal issues in connection with Mr. Petersen's website" that were not investigation or preparation for the website action. Feldman cited as an example the time that he had spent attempting to convince GoDaddy to take down the website, including the letter that he sent to GoDaddy in April 2016. He attached the GoDaddy letter as an exhibit to his declaration. (Both Feldman's declaration and the GoDaddy letter are exhibits to Petersen's complaint in this case.)

Petersen first learned of the GoDaddy letter when Feldman attached it to his declaration and filed it in the website action. Feldman and Zilberstein actively concealed the letter from Petersen by failing to produce the letter during discovery in the website action.

Petersen bases the complaint in this matter on the following statements in the GoDaddy letter:

• Petersen has "a colorful background, including but not limited to being a convicted felon" who "served 10 years in prison."

• The domain name registration was "part and parcel of an avowed 'shakedown' attempt by Mr. Petersen of Mr. Zilberstein."

• Feldman knew of no "motive on behalf of Mr. Petersen [other] than malice, avarice and greed as evidenced by Mr. Petersen's attempted extortion of Mr. Zilberstein."

• GoDaddy should "take the appropriate action to shut down Mr. Petersen's nefarious activity."

• If GoDaddy did not cancel the domain name registration, the company was "in effect complicit in and actively participating [in], profiting [from], and cooperating in a theft and serious misuse of Mr. Zilberstein's name."

Petersen alleges that the foregoing statements were false and defamatory or disclosed private facts from his distant past. On that basis, the complaint alleges causes of action for libel, libel per se, invasion of privacy for public disclosure of private facts, and invasion of privacy for placing Petersen in a false light.

II. The anti-SLAPP motion

Feldman moved to strike the entire complaint under the anti-SLAPP statute (§ 425.16). He argued that the GoDaddy letter constituted protected activity because he filed the letter with his declaration in the website action, rendering the letter a "written or oral statement made in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e)(2).) He also argued that Petersen's claims had no merit because the litigation privilege (Civ. Code, § 47, subd. (b)) applied to the GoDaddy letter. Feldman asserted that he sent the letter to GoDaddy to determine who registered the domain name, prevent the registration from going forward, and advise GoDaddy of its complicity in invasion of privacy claims. He argued that the letter therefore was investigation and preparation for litigation, and he ultimately filed litigation against Petersen.

Feldman submitted a declaration in support of the anti-SLAPP motion, stating that the letter to GoDaddy had several purposes. He was not absolutely certain that Petersen had registered the domain name (ahronzilberstein.com), and he wanted to confirm that. He also wanted to persuade GoDaddy to investigate Petersen's use of the domain name and persuade the company that Petersen should be prevented from using it. GoDaddy had dispute resolution methods and procedures for resolving domain name disputes.

Further, Feldman advised GoDaddy that if it did not prevent Petersen's use of the domain name, GoDaddy "would be complicit with Petersen." Feldman knew that Petersen had been convicted of at least four felonies and had spent time in prison. He believed that Petersen had been sentenced to 10 years in prison. He mentioned Petersen's criminal history to give GoDaddy public information that might have been useful in its investigation and decision to prevent Petersen from using the domain name. The website action against Petersen alleged a violation of Business and Professions Code section 17525 (bad faith registration of another person's name as a domain name). Feldman submitted the GoDaddy letter in the website action to demonstrate that Zilberstein had incurred economic damages (legal fees) caused by Petersen's registration of the domain name.

Petersen opposed the anti-SLAPP motion. He argued that the GoDaddy letter was not a "statement made in connection with an issue under consideration or review by a . . . judicial body" (§ 425.16, subd. (e)(2)), because Feldman admitted in his declaration in the website action that the GoDaddy letter did not constitute investigation or preparation for that litigation. Petersen's declaration in support of his opposition stated that he was not sentenced to and did not serve 10 years in prison. He also stated that he informed Feldman of his purpose in forming the website-to educate and protect the general public. He was not engaged in a shakedown of Zilberstein and had not attempted to extort Zilberstein. Feldman had exhibited "an extreme amount of malice" toward Petersen throughout their litigation history, frequently calling Petersen a crook or a criminal and threatening Petersen with physical harm.

In his reply brief, Feldman argued that the GoDaddy letter was protected activity because the statements were in connection with a dispute that ripened into litigation. Feldman's declaration in support of the reply brief reiterated that he sent the GoDaddy letter to persuade the company not to host the website, and he said that he was contemplating litigation against Petersen in good faith when he sent the letter.

The trial court granted Feldman's anti-SLAPP motion. It concluded that the GoDaddy letter constituted protected activity because the letter was sent in anticipation of litigation against GoDaddy. Although the letter did not expressly threaten legal action against GoDaddy, the letter "stated that if [GoDaddy] did not cancel the website's registration, it would be complicit in the theft and misuse of Zilberstein's name," and the letter "implied [GoDaddy] would be liable for the tort of invasion of privacy if it did not take the demanded action." The court also ruled that Petersen had not shown a probability of success on his claims. The court concluded that Petersen offered no relevant evidence to support his claims and relied solely on his complaint. Moreover, even if he had offered evidence, the litigation privilege protected the GoDaddy letter and thus defeated Petersen's claims.

DISCUSSION

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