# Kaplan v. Gimelstob CA2/2

> California Court of Appeal · November 23, 2022

URL: https://www.frixlaw.com/law-library/cases/8600708

## Case

- **Court:** California Court of Appeal
- **Decided:** November 23, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 11/23/22 Kaplan v. Gimelstob CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

RANDALL KAPLAN, B315197

Cross-Complainant and (Los Angeles County
Respondent, Super. Ct. No.
19STCV19647)
v.

JUSTIN GIMELSTOB,

Cross-Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, 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.

******
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

1 “SLAPP” is short for Strategy Lawsuit Against Public
Participation.

2
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 incident2
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.

2 Consistent with the applicable standard of review
governing anti-SLAPP motions, we set forth these facts in the
light most favorable to Kaplan, as the nonmoving party.

3
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

4
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.”

5
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.”

6
● 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.”

7
Kaplan opposed the motion. In support of the opposition,
Kaplan submitted a declaration laying out his version of what
happened during the Halloween 2018 incident (and his wife
submitted a similar declaration), as well as the fact that he had
spoken with Gimelstob’s ex-wife only on the night of the incident
as well as once before in the prior five years; on neither occasion,
Kaplan attested, had he “coordinate[d] or conspire[d]” with her
“to help her custody case or cause harm to” Gimelstob.
Following Gimelstob’s filing of a reply, the parties’ filing of
objections to one another’s evidence, and a hearing, the trial court
issued a ruling denying Gimelstob’s anti-SLAPP motion. The
court found that Gimelstob’s statements on the podcast
constituted “protected activity” under the anti-SLAPP statute
because Gimelstob is a “person . . . in the public eye” and because
the Halloween 2018 incident itself “was [a] subject [of] media
attention.” The court also found that Kaplan had carried his
burden of showing that his slander per se claim had the minimal
merit necessary to withstand dismissal under the anti-SLAPP
statute.
C. Appeal
Gimelstob filed this timely appeal of the trial court’s anti-
SLAPP ruling.
DISCUSSION
Gimelstob argues that the trial court erred in denying his
anti-SLAPP motion to strike Kaplan’s slander per se claim. We
independently review the denial of an anti-SLAPP motion.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Bowen v. Lin
(2022) 80 Cal.App.5th 155, 161.) Because our task is to review
the trial court’s ruling and not its reasoning (People v. Zapien
(1993) 4 Cal.4th 929, 976; Musgrove v. Silver (2022) 82

8
Cal.App.5th 694, 704, fn. 4), we need not consider Gimelstob’s
attacks on the trial court’s reasoning.
I. Law, Generally
A. The anti-SLAPP statute
The anti-SLAPP statute “provides a procedure for weeding
out, at an early stage, meritless claims arising from protected
activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
Specifically, the anti-SLAPP statute protects—and thus
“subject[s] to a motion to strike”—any “cause of action . . . arising
from any act of [a] person in furtherance of the person’s right of
petition or free speech under the United States Constitution or
the California Constitution in connection with a public issue.”
(Code Civ. Proc., § 425.16, subd. (b)(1).)
When a party moves to strike a cause of action (or specific
allegations within that cause of action) under the anti-SLAPP
statute, a trial court has two tasks. (Barry v. State Bar of
California (2017) 2 Cal.5th 318, 321 (Barry).) First, the court
must evaluate whether the moving party has “made a threshold
showing that the challenged cause of action arises from protected
activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Second, and only if the court concludes that the moving party has
made this “threshold showing,” the court must examine whether
the nonmoving party has “established . . . a probability that [he]
will prevail on the [challenged cause of action].” (Code Civ. Proc.,
§ 425.16, subd. (b)(1); see Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 819-820 (Oasis West).) That burden is met
if the nonmoving party demonstrates that the challenged cause of
action has “minimal merit” (Navellier v. Sletten (2002) 29 Cal.4th
82, 94), and he does so by making a “prima facie factual
showing”—based on admissible evidence—“sufficient to sustain a

9
favorable judgment” on that cause of action (Baral, supra, 1
Cal.5th at pp. 384-385; Steed v. Department of Consumer Affairs
(2012) 204 Cal.App.4th 112, 124.) In assessing the sufficiency of
this showing, a court is to “consider the pleadings, and
supporting and opposing affidavits” (Code Civ. Proc., § 425.16,
subd. (b)(2)), but must “‘“accept as true the evidence favorable to
the [nonmoving party] and evaluate the [moving party’s] evidence
only to determine if it has defeated that submitted by the
[nonmoving party] as a matter of law.”’” (Oasis West, at p. 820.)
Thus, a court is generally not to make credibility determinations
or otherwise weigh the evidence submitted. (Kashian v.
Harriman (2002) 98 Cal.App.4th 892, 906; Ross v. Kish (2006)
145 Cal.App.4th 188, 197.) If the nonmoving party satisfies its
burden, the anti-SLAPP motion must be denied; if it fails to do
so, the pertinent cause of action must be stricken. (Barry, at p.
321.)
B. Slander and slander per se
Slander is a species of defamation. (Civ. Code, § 44.)3 To
prove a claim for slander, a plaintiff must prove (1) a publication
(2) that was false, (3) that was unprivileged, and (4) that either
(a) has a “natural tendency to injure” or (b) “causes special
damage.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46
Cal.App.5th 869, 888; Gonzalez v. Fire Ins. Exchange (2015) 234
Cal.App.4th 1220, 1240, fn. 5; Nguyen-Lam v. Cao (2009) 171
Cal.App.4th 858, 867.) If the statement has a “natural tendency”
to injure (that is, to be defamatory), it is slander per se and the
plaintiff need not prove any special damages flowing from the
false publication. (Regalia v. The Nethercutt Collection (2009)

3 All further statutory references are to the Civil Code unless
otherwise indicated.

10
172 Cal.App.4th 361, 367; Albertini v. Schaefer (1979) 97
Cal.App.3d 822, 829 (Albertini).)
Section 46 delineates four categories of slander per se, two
of which are relevant to this case—namely, a statement that
either (1) “[c]harges any person with a crime, or with having been
indicted, convicted, or punished for a crime” (§ 46, subd. (1)), or
(2) “[t]ends directly to injure [a person] in respect to his office,
profession, trade or business, either [(a)] by imputing to him
general disqualification in those respects which the office or other
occupation peculiarly requires, or [(b)] by imputing something
with reference to his office, profession, trade, or business that has
a natural tendency to lessen its profits” (id., subd. (3)). As section
46’s separation of these categories into different subdivisions
separate by the word “or” confirms (§ 46), these categories are
independent of one another; contrary to what Gimelstob urged
during oral argument, a plaintiff who shows that a statement
charges someone with a crime under subdivision (1) of section 46
does not also have to show injury to reputation under subdivision
(3) of section 46.
In assessing whether a particular statement falls into a
category of slander per se, a court is to consider the speaker’s
statement “in its entirety” rather than “divide[] [it] into
segments,” and is also to focus on the ‘“natural and probable
effect upon the mind of the average’ listener” rather than engage
in a “critical analysis of a mind trained in the law.” (Correia v.
Santos (1961) 191 Cal.App.2d 844, 851 (Correia); accord, Baker v.
Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261; Stevens
v. Storke (1923) 191 Cal. 329, 334.) With this standard, a
defendant accordingly is liable not only for what he states

11
explicitly, but also for what he insinuates. (MacLeod v. Tribune
Publishing Co. (1959) 52 Cal.2d 536, 547.)
II. Analysis
On appeal, neither party challenges the trial court’s finding
that Gimelstob’s podcast statements constitute “protected
activity” under the anti-SLAPP statute. Thus, the propriety of
the trial court’s ruling turns on whether Kaplan established that
his slander per se claim has minimal merit. The parties are in
agreement that Kaplan did not carry his burden with respect to
three statements alleged in Kaplan’s cross-complaint but not
made by Gimelstob during the podcast—namely, that (1) Kaplan
said he was “glad” that Gimelstob’s father passed away, (2) that
Kaplan said Gimelstob’s father was an “asshole,” and (3) that
Kaplan said Gimelstob’s father was “a bigger asshole than”
Gimelstob. The trial court did not strike these statements
because Gimelstob’s anti-SLAPP motion only sought to strike the
slander per se claim in its entirety; on our de novo review, we will
overlook Gimelstob’s procedural blunder and strike these
individual allegations from Kaplan’s complaint because they were
never published in an unprivileged manner. Thus, we are left to
examine two statements made by Gimselstob during the
podcast—namely, (1) Gimelstob’s statements accusing Kaplan of
“committing an assault upon him” on Halloween 2018, and (2)
Gimelstob’s statements that Kaplan was “conspiring with
Gimelstob’s ex-wife to manipulate the legal process” in
Gimelstob’s ongoing custody battle with his ex-wife.
On appeal, Gimelstob raises what boils down to three
reasons why Kaplan did not establish minimal merit to his
slander per se claim based on these statements—namely, that (1)
they do not qualify as slander per se (and thus fail because

12
Kaplan did not otherwise establish any special damages), (2) they
are privileged by the litigation privilege (§ 47, subd. (b)), and (3)
they are not false.
A. Slander per se
Both statements made by Gimelstob on the podcast qualify
as slander per se because they “[c]harge[]” Kaplan “with [a]
crime.” (§ 46, subd. (1).) Although it “must be appear from the
[speaker’s] words themselves . . . that the [speaker has] charged
the plaintiff with a crime” (Haub v. Freiermuth (1905) 1 Cal.App.
556, 557), “it is not necessary that the language used should be
chosen with the technical nicety required in an indictment” (Carl
v. McDougal (1919) 43 Cal.App. 279, 281 (Carl)). Thus, a speaker
charges another with a crime if he accuses him of being a “thief”
(Albertini, supra, 97 Cal.App.3d at pp. 829-830), of being a
“lockbreaker” (Leaper v. Grandy (1937) 22 Cal.App.2d 475, 477),
of taking money not belonging to him (Douglas v. Janis (1974) 43
Cal.App.3d 931, 940), of forging a check (Carl, at p. 281), or of
belonging to a criminal organization like the mafia (Arno v.
Stewart (1966) 245 Cal.App.2d 955, 960-961).
This standard is met here.
With regard to the Halloween 2018 incident, Gimelstob
stated that he “neither provoked nor initiated” and it was Kaplan
who “initiated physical contact,” and that it came to blows that
Kaplan exaggerated. Because the only other participant in the
melee was Kaplan, Gimelstob’s statements insinuated that
Kaplan provoked and initiated a “fight” that involved an
exchange of punches. The conduct Gimelstob attributes to
Kaplan constitutes both an assault and a battery. (See Pen.
Code, § 240 [assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of

13
another”], § 242 [battery is “any willful and unlawful use of force
or violence upon the person of another”].) Gimelstob contends
that he never used the words “assault” or “battery” and only
accused Kaplan of “initiat[ing] physical contact,” but this
contention ignores the context of his statement and rests upon
precisely the type of ‘“hair-splitting analysis of language”’ that
the courts have rejected. (Correia, supra, 191 Cal.App.2d at p.
851.)
With regard to Kaplan’s coordination with Gimelstob’s ex-
wife, Gimelstob stated that the two were on a “mission to
manipulate . . . the legal process,” including through “l[ying]” and
“misrepresent[ation],” to obtain a court order granting “custody of
[Gimelstob’s] son” to his ex-wife. This constitutes the crime of
“conspir[ing]” to “[f]alsely . . . maintain any suit, action, or
proceeding.” (Pen. Code, § 182, subd. (a)(3).)
* * *
In light of our analysis, we have no occasion to decide
whether Gimelstob’s statements are slander per se for the
additional reason that they impugned his professional reputation
under subdivision (3) of section 46.
B. Litigation privilege
Because slander does not reach “privileged” statements (§
46), a person’s statements that fall within the so-called “litigation
privilege” are not actionable. The litigation privilege applies to
any communication made in a judicial or quasi-judicial
proceeding that (1) is made by authorized participants, (2) is
made to achieve the objects of litigation, and (3) has a logical
connection to the action. (Silberg v. Anderson (1990) 50 Cal.3d
205, 212; Action Apartment Assn., Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1241.)

14
Gimelstob’s statements regarding the Halloween 2018
incident and Kaplan’s alleged conspiracy with his ex-wife are not
covered by the litigation privilege because Gimelstob published
those statements during a podcast wholly divorced from any
litigation. Gimelstob argues that he more explicitly accused
Kaplan of committing an assault and battery in his cross-
complaint. This is true, but utterly irrelevant because, for the
reasons discussed above, Gimelstob’s earlier statements on the
podcast sufficiently charge Kaplan with crimes, such that
Kaplan’s slander per se claim rests on Gimelstob’s unprivileged
podcast statements. It goes without saying that a person cannot
convert an unprivileged statement into a privileged one (and
thereby immunize himself from liability for defamation) merely
by repeating that statement in subsequent litigation.
C. Falsity
Kaplan also made a prima facie factual showing that
Gimelstob’s statements on the podcast were false. (Civ. Code, §
46.) Both Kaplan and his wife offered declarations recounting
that Kaplan did not assault or batter Gimelstob; rather, they
declared, it was Gimelstob who engaged in an “unprovoked
attack” by “ambushing” Kaplan from behind and without any
prior “interaction or discussion” between the two men. Kaplan
also declared that he did not “coordinate or conspire” with
Gimelstob’s ex-wife “to help her custody case or to cause harm to
Gimelstob,” and only contacted the ex-wife on the night of the
assault “to obtain information relative to Gimelstob’s
whereabouts and state of mind,” such as whether he possessed a
gun.

15
Gimelstob offers three reasons why, in his view, Kaplan did
not make a prima facie showing of the falsity of Gimelstob’s
podcast statements.
First, he asserts that Kaplan’s “self-serving” declaration
cannot be credited. This argument has the applicable standard of
review backwards. As explained above, we must construe the
evidence in the light most favorable to the nonmoving party
(here, Kaplan)—not, as Gimelstob seems to suggest, construe it
in the light least favorable to Kaplan.
Second, Gimelstob asserts that the trial court erred in
relying on his misdemeanor conviction as tending to prove that
Gimelstob’s denial of responsibility for the Halloween 2018
incident was false. This assertion is triply irrelevant. It is
irrelevant because our task is to review the trial court’s ruling,
not its reasoning. It is irrelevant because the declarations of
Kaplan and his wife are sufficient on their own to make a prima
facie showing that Gimelstob’s statements were false. And it is
irrelevant because the cases Gimelstob cites chiefly deal with
whether a prior plea is a binding admission of the underlying
conduct in a subsequent civil case, but the issue here is whether
Kaplan has shown his slander per se claim to have minimal
merit—not conclusive merit.
Finally, Gimelstob asserts that the evidence he submitted
in support of his anti-SLAPP motion corroborates his version of
the events that took place on Halloween in 2018 and negates
Kaplan’s evidence of falsity. This argument once again
misunderstands the principles applicable to an anti-SLAPP
motion. Kaplan only needed to show that the claim has “minimal
merit” (Baral, supra, 1 Cal.5th at pp. 384-385), and this standard
views the evidence through a prism friendly to the

16
plaintiff/nonmoving party. Because the conflicting evidence
Gimelstob offers does not defeat Kaplan’s evidence “‘“as a matter
of law”’” (Oasis, supra, 51 Cal.4th at p. 820), Gimelstob is at
bottom asking us to reweigh the evidence in a light more
favorable to him; this we cannot do. (Baral, at p. 384.)
DISPOSITION
The order denying Gimelstob’s anti-SLAPP motion is
affirmed with directions for the trial court to strike those
allegations in paragraphs 17 and 32 of Kaplan’s cross-complaint
regarding Gimelstob’s accusation that Kaplan disparaged his
father. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT
We concur:

_________________________, Acting P. J.
CHAVEZ

_________________________, J.*
BENKE

* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8600708. Public record. Not legal advice.