The opinion
Filed 9/20/23 Kiesling v. Noon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HEATHER KIESLING, D078678, D079310
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00030513-CU-PO-NC)
ADELE NOON,
Defendant and Appellant;
EVA LOUISE BUNETA et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of San Diego County,
Robert P. Dahlquist, Judge. Reversed in part, affirmed in part, and
remanded with directions.
Law Offices of Lisa R. McCall, Lisa R. McCall, and Erica M. Baca for
Plaintiff and Appellant, Heather Kiesling.
Behmer & Blackford and Timothy S. Blackford for Defendant and
Appellant, Adele Noon.
Horton, Oberrecht & Martha and Nathaniel J. Michels for Defendants
and Respondents, Eva Louise Buneta and Jon N. Buneta.
Law Offices of Joseph Barr & Associates and Joseph J. Barr, Jr. for
Defendants and Respondents, Walter Robert Hagen and Yvette Noble Hagen.
Neighbors in a community in Carlsbad, California, who all lived close to
the elementary school their young children attended, became embroiled in a
feud. The conflict intensified after the daughter of parent Adele Noon fell off
a rolling backpack outside the school and the girl’s older brother filed a report
with the school alleging one of the feuding parents, Heather Kiesling,
intentionally caused the fall. Kiesling was involved in separate altercations
with two other sets of parents and Kiesling’s husband Michael, an attorney,
sent cease and desist demands to Walter Robert (Rob) Hagen and Eva Louise
Buneta threatening restraining orders against them if they did not stay away
from his wife. Kiesling alleges these parents, in retaliation, then asked the
school to ban her from campus.
Kiesling eventually obtained temporary civil harassment restraining
orders against Hagen and Buneta and also brought the underlying civil
lawsuit against Noon, Hagen and his wife Yvette Noble Hagen, and Buneta
and her husband Jon N. Buneta. In the civil case, Kiesling alleged claims for
defamation, assault, stalking, intentional infliction of emotional distress,
negligent infliction of emotional distress, invasion of privacy, illegal electronic
eavesdropping and recording, and negligence. Noon, the Hagens, and the
Bunetas each brought special motions to strike Kiesling’s claims under Code
2
of Civil Procedure section 425.161, asserting the claims arose from protected
speech and that Kiesling could not show a probability of prevailing on the
merits of the claims.
The trial court granted in part and denied in part each motion,
concluding several of Kiesling’s allegations arose from protected speech and
that some of her corresponding causes of action had no merit. The court
struck two entire causes of action, Kiesling’s claims for invasion of privacy
and illegal electronic eavesdropping and recording. Kiesling appeals these
orders, and also appeals the three subsequent orders entered by the court
awarding attorney’s fees and costs to the defendants based on their partially
successful special motions to strike.
On appeal, Kiesling asserts the trial court erred by partially granting
the motions to strike because the defendants failed to establish that any of
the allegations underlying her claims for defamation, invasion of privacy, and
electronic eavesdropping arose from conduct that was in furtherance of the
defendants’ rights of petition or free speech in connection with a public issue.
Kiesling further argues that even if the defendants did show their conduct
was protected, the court erred by finding she did not meet her burden to show
a likelihood of prevailing on the merits of her claims.
As to the fee awards, Kiesling argues that because the motions to strike
were improperly granted, the fee awards likewise must be reversed. In
addition, Kiesling contends that even if the order partially granting Noon’s
motion to strike is not reversed, the fee and cost award in her favor was
1 Code of Civil Procedure section 425.16 is commonly referred to as the
anti-SLAPP (strategic lawsuit against public participation) statute. (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) Subsequent
undesignated statutory references are to the Code of Civil Procedure.
3
granted in error because she failed to achieve the objective of her motion to
strike, which was a complete dismissal from the lawsuit.
Noon also appeals from the order denying in part her anti-SLAPP
motion. She asserts the court erred by not granting her motion fully since all
of Kiesling’s allegations about Noon concern protected speech and Kiesling
failed to show a sufficient probability of prevailing on the claims arising from
those allegations.
As we shall explain, we agree with Kiesling that the trial court erred by
granting the Hagens’ and Bunetas’ anti-SLAPP motions to the extent that
those motions were based on the defendants’ conduct of videorecording
Kiesling, which is not protected under section 425.16. As a result, we also
reverse the subsequent fee orders in favor of these defendants so that on
remand the trial court can reevaluate those awards in light of our decision.
We affirm the trial court’s orders on Noon’s anti-SLAPP motion, rejecting
both Kiesling’s and Noon’s appellate arguments, and affirm the subsequent
fee award entered in favor of Noon.
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2017, Adele Noon and her family moved into the
neighborhood where the Kieslings, the Hagens, and the Bunetas lived. Noon
and Kiesling were next door neighbors and lived around the corner from the
elementary school attended by the parties’ children. Noon and Kiesling were
initially on friendly terms. However, in late 2018, Kiesling’s and Noon’s
relationship became strained. Kiesling thought Noon was too demanding,
asking Kiesling to frequently help with her school-age children. Noon
thought Kiesling was “erratic and unstable” and eventually asked Kiesling to
give her family space.
4
On a Friday afternoon in May 2019, Kiesling walked her two children
home from school and approached two of Noon’s children, who were walking
home alone, from behind. What happened next is in dispute. Kiesling
asserts that as she tried to pass the slow-moving Noon children she
accidentally bumped Noon’s second-grade daughter, who was riding on a
rolling backpack called a “Zuca,” causing the girl to fall off the Zuca to the
ground and begin to cry. Noon alleges her children reported to her that
Kiesling intentionally pushed her daughter off the backpack, and that her
daughter cried all the way home. Noon says the incident traumatized her
daughter and left her afraid of Kiesling.
Thereafter, Noon’s son, a sixth-grade student at the time and who
witnessed the incident, filed a “student accident report” with the school. In
the report, the boy stated, “My neighbor was behind us near the end of the
crowd on Friday. She said ‘I’m gonna make you go faster’ and kicked the
back of my sister’s Zuca. She then said ‘sorry’ sarcastically and I said ‘that
was not okay!’ My sister cried and I walked her home ....” The principal of
the school then conducted a short investigation into the accident report,
speaking with both Noon and Kiesling.
Kiesling told the principal she put her foot on the backpack to stop the
girl from falling and that the fall was accidental. The principal testified at a
hearing on Kiesling’s requests for restraining orders against Rob Hagen and
Eva Buneta, that during her investigation she had a discussion with Kiesling
about school safety, ensuring that students are not touched, and that parents
are not involved with school discipline.2 The principal testified that her
investigation was inconclusive as to how Noon’s daughter fell.
2 After the meeting, Kiesling sent a letter to the principal reiterating her
position that she did not intentionally cause Noon’s daughter to fall.
5
Later in May, Kiesling had a tense interaction with Yvette Hagen, who
lived across the street from the Kieslings. Kiesling’s dog ran across the street
and jumped up on Yvette, who was holding her own smaller dog. Kiesling
alleged that Yvette kneed her dog causing the dog to lick that spot for two
days; Yvette stated she merely turned away from Kiesling’s dog and held her
knee up to avoid the dog.
The following August, Kiesling’s children were playing on a slope in
front of the Hagen’s property. Kiesling stated that Rob Hagen demanded
that her children get off of his property and that she responded that it was
not his property. The Hagens’ declarations state that Rob only asked the
children to stay off the slope because it was not safe and it was damaging to
the landscaping. Kiesling alleged that the following day she had another
altercation with Rob and Yvette Hagen in front of their home, asserting that
Rob came out of his house and began yelling in her face in front of her
children about the dog incident and the disputed property line.
Shortly after, Michael Kiesling wrote a letter to the parties’
homeowners association (HOA) and a separate email to Rob Hagen. The
letter to the HOA asserted that the Hagens did not own the portion of the
property that the Kiesling children had played on and that Rob had
inappropriately yelled at Kiesling and their children to get off his property.
Michael’s email to Rob asserted that Rob had physically threatened Kiesling
and attached a copy of the letter to the HOA. The email further threatened
that if Rob had any additional contact with Kiesling or their children, “you
and I will have a very serious problem,” and that if Rob attempted “to
interfere with [the Kiesling’s property] rights again, [the Kieslings] will
evaluate available legal remedies.”
6
Unsurprisingly, Kiesling’s relationships with her neighbors did not
improve thereafter. Kiesling said that Eva Buneta, whose family was close
with the Hagens, and whose husband Jon coached Kiesling’s son in soccer
and baseball, became cold towards her. Kiesling stated in her declarations in
opposition to the motions to strike that Eva told Kiesling it would be best if
they did not speak. Kiesling also alleged Eva filmed their interactions with
her phone. In her declaration, Kiesling described feeling intimidated and
uncomfortable around the Hagens and Bunetas, who she said had previously
been friendly to her, and stated the women glared at her when they were
together at the elementary school, spoke in hushed tones with other parents
in her presence, and continued to record her. Kiesling also asserted that Jon
was unkind to her son at a soccer game, isolating him from the group when
he was not paying attention, which resulted in Kiesling moving her son to a
different team.
Kiesling reported that one day in October, Eva and Yvette were
walking behind Kiesling at school pickup, when Eva said, “excuse us,” and
brushed Kiesling’s arm. This caused Kiesling to believe a “physical attack
might be imminent.” Kiesling stated she learned later that Yvette was
filming the incident. The following day, Michael sent an email to Jon Buneta
demanding Eva stay at least 50 feet away from Kiesling and desist “glaring”
at Kiesling or trying to make her and their children feel uncomfortable.
Michael’s email stated that if Jon did not reply assuring his wife’s compliance
with the demand, Michael would obtain a restraining order against Eva.
Kiesling alleges in her complaint and her declarations that the next
day, Rob Hagen, entered the neighborhood in his large sport utility vehicle
and saw Kiesling and her children walking. She alleges Rob made eye
contact with her, sped up his vehicle, and came within 10–12 feet of her and
7
her children. According to Kiesling, this resulted in a panic attack and her
no longer feeling safe in the neighborhood alone. Shortly after, Kiesling
again observed Eva filming her. Later that month, Kiesling obtained a
temporary civil harassment restraining order against Rob Hagen.
Although the timing is unclear from the record, sometime around these
incidents, the Hagens and Bunetas spoke with the elementary school
principal about their relationship with the Kieslings. The school principal
testified at the hearing in the restraining order cases, which took place on
October 13, 2020, that the Hagens spoke with her in the summer of 2019—
after the backpack incident involving Noon’s children and the confrontation
on their property with Kiesling. According to the principal, the Hagens told
her they were concerned about the safety of their children because of
Kiesling’s interaction with the Hagens over their property line.
The following fall, the Hagens’ twin daughters were placed in the same
class as Kiesling’s son, prompting the Hagens to again speak with the school
principal. The principal testified that they were concerned for their
daughters’ safety and wanted the principal to keep a close eye on the class.
The principal agreed to do so. The Bunetas also raised concerns about
Kiesling to the principal. They sent the principal email communications and
also met with her in the fall of 2019. Like the Hagens, the Bunetas expressed
concern for the safety of their children at the school because of Kiesling’s
behavior. The Bunetas asked the principal not to place their child in the
same class as Kiesling’s child and to keep an eye on their children to ensure
their safety.
After the meetings with the Hagens and Bunetas, the principal called a
meeting with the Kieslings. The principal told the Kieslings multiple
families had expressed concerns about the Kieslings’ behavior in the
8
neighborhood and asked them to do “everything in their power to make sure
that they didn’t increase any concerns,” and to “mak[e] sure they were
mindful about not being too close to the families” involved in order to
maintain a “peaceful, positive, productive learning environment on …
campus.” The principal also explained at the restraining order hearing that
another parent had reported to her that after Kiesling’s daughter told
Kiesling about a conflict with another child at school, Kiesling had
approached the child and demanded an apology and possibly grabbed the
child’s arm. The principal testified that in her meeting with Kiesling,
Kiesling denied touching the child.
Kiesling’s complaint alleges that throughout the fall of 2019 and into
the following year, Eva Buneta and Yvette Hagen continued to videorecord
Kiesling and otherwise make her feel uncomfortable by glaring at her and
turning other parents and community members against her. In February
2020, Kiesling obtained a temporary civil harassment restraining order
against Eva Buneta. In April 2020, the Hagens moved away from the
neighborhood.
Neither the Hagens nor the Bunetas denied filming the Kieslings. Both
sets of parents stated in their declarations in support of their motions to
strike that they began filming their public interactions with Kiesling because
of her irrational behavior and her and her husband’s threatened and actual
legal proceedings against them.
On August 26, 2020, Kiesling filed the underlying complaint. Therein,
she alleged the defendants engaged in a conspiracy to make her life and her
“children’s day to day lives so miserable that they would no longer have the
emotional capacity to remain in the neighborhood or school and would move
away.” With respect to Noon, Kiesling’s complaint asserted that shortly after
9
they met, Noon began making inappropriate demands of Kiesling to care for
Noon’s five children. In the same timeframe, Noon began complaining about
Kiesling’s dog barking loudly, which caused Kiesling to complain to Noon
about her children playing too loudly in their neighboring backyard. Kiesling
further alleged this conflict caused Noon to retaliate when her daughter fell
off the Zuca backpack by telling her son to blame Kiesling. According to
Kiesling, Noon then engaged in a campaign to defame her as a child abuser.
The complaint also alleged that Rob Hagen assaulted Kiesling by
yelling at her, first when her children played on the slope next to or on the
Hagens’ property and again the next day in front of their home. Kiesling also
alleged that the five defendants conceived of a “malicious campaign of
retribution against [Kiesling] and her children” by approaching the
authorities at their children’s shared elementary school and demanding she
be banned from the campus in an effort to “retributively intimidate and
torment” Kiesling and her children.3 Kiesling alleged that the defendants
made false reports to the principal and other school authorities defaming her.
Kiesling’s complaint asserts eight causes of action against all of the
defendants: defamation, assault, stalking under Civil Code section 1708.7,
intentional infliction of emotional distress, negligent infliction of emotional
distress, invasion of privacy, electronic eavesdropping and recording in
violation of Penal Code section 632, and negligence. Following the filing of
Kiesling’s complaint, the Hagens, the Bunetas, and Noon each brought
motions to strike certain allegations in the complaint. Noon argued that
allegations in the complaint against her arose from protected speech,
3 The complaint also alleges that the defendants tried to get the principal
fired when she did not agree to their demand to ban Kiesling from campus.
10
including her communications with school officials about the incident when
her daughter fell off her rolling backpack.
The Hagens’ motion asserted that all of Kiesling’s allegations against
them arose from three types of events, all protected by the anti-SLAPP
statute. Their motion asked the court to strike all eight causes of action
Kiesling asserted against them. Specifically, they argued Kiesling’s claims
arose from their protected right to (1) request the Kieslings to leave their
property or they would report her to the police; (2) communicate to their
children’s school seeking to obtain a safe environment; and (3) record Kiesling
in public to obtain evidence for the legal proceedings initiated by Kiesling and
related to their complaints to the school.
The Bunetas’ motion argued that the complaint asserts various types of
conduct (driving a car at Kiesling; Eva running into Kiesling; glaring;
threatening to have the principal fired; making defamatory statements to the
elementary school principal and to the school superintendent, other parents,
the pest control employee, and the gardener; videorecording Kiesling and her
children; isolating Kiesling’s son at a soccer practice; and yelling at Kiesling
to stay off property), and that certain of that conduct is protected.
Specifically, they argued anti-SLAPP protection should be afforded to
Kiesling’s allegations of (1) reports and statements to the school and school
officials, (2) defamatory statements to other parents and community
members to warn them about Kiesling’s dangerous conduct, and
(3) videorecording Kiesling to obtain evidence for the legal proceedings
initiated by her and for any school-related investigation.
11
Kiesling opposed the three motions, asserting that none of her
allegations arose from protected speech or activity.4 In her opposition to
Noon’s motion, Kiesling argued that all of the speech underlying her
defamation claim occurred after August 2019 and thus was unrelated to the
rolling backpack incident that occurred the prior May and therefore not a
part of any official proceeding at the school. Further, she asserted any
allegedly defamatory statements to members of the community other than
school officials were not protected because the statements did not involve a
matter of public interest. Kiesling also submitted her own declaration and
that of her husband, as well as various documents, that she argued showed a
sufficient probability of prevailing on each claim.
In her oppositions to the Hagens’ and Bunetas’ motions, Kiesling
argued that the defamatory statements she alleged were not connected to any
official proceeding, nor were they related to any matter of public interest. In
addition, as in her opposition to Noon’s motion, she argued her evidence
showed a sufficient probability of prevailing on each cause of action.5
Noon, the Hagens, and the Bunetas each submitted reply briefs and a
joint hearing on the motions took place shortly after. At the hearing, after
argument by all parties, the trial court took the matter under submission.
The following week, the court issued separate orders on each special motion
to strike.
In its order on Noon’s motion, the court concluded all of Noon’s
statements to school and school district staff were protected under
4 All of Kiesling’s opposition briefs and supporting papers were filed late.
The trial court, however, exercised its discretion to consider the documents.
5 Kiesling also filed objections to the evidence submitted by her
opponents.
12
section 425.16, subdivision (e)(1) and that Kiesling had failed to demonstrate
a likelihood of success on the merits of any claims based on the protected
allegations. The court granted her motion with respect to specific paragraphs
of the complaint, striking paragraphs 28, 42, a portion of 47, 59–61, 67, 71,
75–78, and portions of paragraphs 80 and 103. The court denied the motion
with respect to allegations of statements made to third parties unrelated to
the school proceedings, declining to strike paragraph 45, and the remaining
portions of paragraphs 47, 80, and 103.
The trial court’s orders on the Hagens’ and Bunetas’ motions are
substantially similar. The court concluded that all of the allegations
concerning statements made to school personnel were protected speech and
that Kiesling had not shown a probability of prevailing on the claims
connected to those allegations because they are protected by the litigation
privilege. The court also found the defendants’ videorecording of Kiesling
was protected activity since it was specifically done in response to the
threatened and actual litigation commenced by Kiesling against them and
that Kiesling had not met her burden to show a sufficient probability of
prevailing on her claims for invasion of privacy and illegal eavesdropping and
recording based on those allegations. In accord with these findings, the court
granted the motion with respect to specific paragraphs of Kiesling’s
complaint, striking paragraphs 5(g), 28, 39–43, a portion of paragraphs 47
and 51, 53–54, 59–61, 67, 71, 75–78, and a portion of paragraph 103. In
addition, the court entirely struck Kiesling’s sixth and seventh causes of
action for invasion of privacy and illegal eavesdropping and recording,
respectively.
In each order, the court also granted the defendants’ requests for an
award of reasonable attorney’s fees to be determined by noticed motion.
13
Kiesling timely appealed from the three orders and Noon appealed from the
order denying in part her motion. Thereafter, the defendants filed motions
for awards of attorney’s fees. The Bunetas moved for an award of fees and
costs of $28,948. The Hagens moved for a total award of $28,648. Noon’s
motion sought a total award of $35,500, including $30,846 for fees and costs
associated with her motion to strike and an additional $4,654 in fees and
costs for the fee motion itself.
After additional briefing and hearings on the fee motions, the court
partially granted each motion. The court slightly reduced the fees requested
by the Bunetas to exclude amounts not attributable to the anti-SLAPP
motion and then awarded half of that amount plus costs, $12,548. The court
reduced the fee award based on the fact that the Bunetas obtained some, but
not all, of the relief they requested in their motion to strike. The court
awarded the Hagens $13,248, similarly reducing their requested award by
half based on their partial success on their motion to strike. The court
awarded Noon costs and attorney’s fees of $24,000, slightly less than the
$29,855 requested, reducing the award for fees requested that were unrelated
to the ant-SLAPP motion or duplicative, and slightly discounting the award
to account for the fact that Noon was not completely successful. The court
also granted Noon’s request for fees and costs associated with the fee motion
itself.
14
Kiesling timely appealed from all the orders partially granting the anti-
SLAPP motions and from the three fee award orders.6
DISCUSSION
As discussed, Kiesling challenges the trial court’s orders granting in
part the defendants’ special motions to strike. She first asserts the trial court
erred because the defendants failed to establish that any of the allegations
underlying her claims for defamation, invasion of privacy, and electronic
eavesdropping arose from conduct that was in furtherance of the defendants’
rights of petition or free speech in connection with a public issue. Kiesling
further argues that even if the defendants did show their conduct was
protected, the court erred by finding she did not meet her burden to show a
likelihood of prevailing on the merits of her claims.
As to the attorney’s fees and costs awards, Kiesling argues that because
the motions to strike were improperly granted, the fee awards likewise must
be reversed. In addition, Kiesling contends that even if the order granting
Noon’s motion to strike in part is not reversed, the fee and cost award in her
favor was granted in error because she failed to achieve a complete dismissal
from the lawsuit.
In her cross-appeal, Noon argues the court erred by not granting her
motion in full because all of Kiesling’s allegations about Noon concern
protected speech and Kiesling failed to show a sufficient probability of
prevailing on the claims arising from those allegations.
6 Kiesling’s appeals from the orders on the anti-SLAPP motions and her
appeal from the fee award in favor of Noon, as well as Noon’s cross-appeal
from the partial denial of her anti-SLAPP motion were assigned by this court
to one case number, D078678. Kiesling’s appeals from the fee award orders
in favor of the Bunetas and Hagens were assigned to a separate case number,
D079310. On Kiesling’s motion, the appeals were consolidated.
15
I
Anti-SLAPP Legal Principals
Section 425.16 sets a procedure for striking “lawsuits that are ‘brought
primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.’ ” (Kibler v. Northern Inyo
County Local Hosp. Dist. (2006) 39 Cal.4th 192, 197.) Under section 425.16,
the “trial court evaluates the merits of the lawsuit using a summary-
judgment-like procedure at an early stage of the litigation.” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
Section 425.16 provides in pertinent part: “A cause of action against a
person arising from any act of that 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 shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)
Resolution of an anti-SLAPP motion “thus involves two steps. ‘First,
the court decides whether the defendant has made a threshold showing that
the challenged cause of action is one “arising from” protected activity.
[Citation.] If the court finds such a showing has been made, it then must
consider whether the plaintiff has demonstrated a probability of prevailing on
the claim.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819‒
820.) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to being stricken under the statute.’ ”
(Id. at p. 820.)
16
“A defendant satisfies the first step of the analysis by demonstrating
that the ‘conduct by which plaintiff claims to have been injured falls within
one of the four categories described in subdivision (e) [of section 425.16]’
(Equilon [Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,] 66), and
that the plaintiff’s claims in fact arise from that conduct (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1063). The four
categories in subdivision (e) describe conduct ‘ “in furtherance of a person’s
right of petition or free speech under the United States or California
Constitution in connection with a public issue.” ’ (§ 425.16, subd. (e).)” (Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.)
Defendants here contend Kiesling’s causes of action arise from three of
these categories: “written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law” (§ 425.16, subd. (e)(1)); “written or oral statement or
writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law” (id., subd. (e)(2)); and “conduct in furtherance of the
exercise of the constitutional right of petition or ... free speech in connection
with a public issue or an issue of public interest” (id., subd. (e)(4)).
With respect to the first two categories protected by the statute, “[t]he
moving party need not separately demonstrate that such an oral or written
statement concerns an issue of public significance.” (Midland Pacific
Building Corp. v. King (2007) 157 Cal.App.4th 264, 271.) However, to satisfy
section 425.16, subdivision (e)(4), the speech or conduct must relate to an
issue of public interest. (See Old Republic Construction Program Group v.
The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 874 [“ ‘[O]nly one of
the four categories of protected activity covers [noncommunicative] conduct
17
(§ 425.16, subd. (e)(4) ...) and that type of protected activity must have taken
place “in connection with a public issue or an issue of public interest.” ’ ”] (Old
Republic).) In addition, the statute is construed broadly to maximize
protection for acts in furtherance of the right to petition. (§ 425.16, subd. (a)
[“The Legislature finds and declares that it is in the public interest to
encourage continued participation in matters of public significance, and that
this participation should not be chilled through abuse of the judicial process.
To this end, this section shall be construed broadly.”].)
“A defendant’s burden on the first prong is not an onerous one. A
defendant need only make a prima facie showing that the plaintiff’s claims
arise from the defendant’s constitutionally protected free speech or petition
rights. (See Governor Gray Davis Com. v. American Taxpayers Alliance
(2002) 102 Cal.App.4th 449, 456.) ‘ “The Legislature did not intend that in
order to invoke the special motion to strike the defendant must first establish
[his or] her actions are constitutionally protected under the First Amendment
as a matter of law.” [Citation.] “Instead, under the statutory scheme, a court
must generally presume the validity of the claimed constitutional right in the
first step of the anti-SLAPP analysis, and then permit the parties to address
the issue in the second step of the analysis, if necessary. [Citation.]
Otherwise, the second step would become superfluous in almost every case,
resulting in an improper shifting of the burdens.” ’ ” (Optional Capital, Inc. v.
Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112, italics
omitted; see also RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020)
56 Cal.App.5th 413, 426 [“Any claimed illegitimacy of the defendant’s acts is
an issue that must be raised and supported by the plaintiff in discharging its
burden on prong two. [Citations.] ‘To conclude otherwise would effectively
18
shift to the defendant a [merits] burden statutorily assigned to the
plaintiff.’ ”].)
For purposes of both prongs of an anti-SLAPP motion, “[t]he court
considers the pleadings and evidence submitted by both sides, but does not
weigh credibility or compare the weight of the evidence. Rather, the court’s
responsibility is to accept as true the evidence favorable to the plaintiff ....”
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
However, “when the complaint itself alleges protected activity, a moving
party may rely on the plaintiff’s allegations alone in arguing that the
plaintiff’s claims arise from an act ‘in furtherance of the person’s right of
petition or free speech.’ ” (Bel Air Internet, LLC v. Morales (2018) 20
Cal.App.5th 924, 929 (Bel Air).) Section 425.16 “does not require a moving
party to submit declarations confirming the factual basis for the plaintiff’s
claims.” (Ibid.) To do so would preclude relief for defendants who dispute the
plaintiff’s claims, having “the perverse effect of making anti-SLAPP relief
unavailable when a plaintiff alleges a baseless claim, which is precisely the
kind of claim that section 425.16 was intended to address.” (Ibid.)
With respect to the second prong, “in order to establish the requisite
probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have
‘ “stated and substantiated a legally sufficient claim.” ’ [Citations.] ‘Put
another way, the plaintiff “must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89.)
“Review of an order granting or denying a motion to strike under
section 425.16 is de novo. [Citation.] [Like the trial court, we] consider ‘the
pleadings, and supporting and opposing affidavits … upon which the liability
19
or defense is based.’ (§ 425.16, subd. (b)(2).)” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Our de novo review “includes
whether the anti-SLAPP statute applies to the challenged claim.” (Thomas v.
Quintero (2005) 126 Cal.App.4th 635, 645.) “[W]e apply our independent
judgment to determine whether” the claim arises from acts done in
furtherance of the defendants’ “right of petition or free speech in connection
with a public issue.” (Ibid.) “Assuming these two conditions are satisfied, we
must then independently determine, from our review of the record as a whole,
whether [the plaintiffs have] established a reasonable probability that [they
will] prevail on [their] claims.” (Ibid.)
II
Analysis
A
The Defendants’ Statements to School Officials
Are Protected Petitioning Activity
Kiesling asserts that the trial court erred by finding the defendants’
alleged statements to the elementary school principal and other school
officials were protected. She makes several arguments to support this claim.
First, Kiesling asserts that there was no official proceeding authorized by law
because her complaint addresses only conduct occurring long after the “Zuca
accident.” Next, she contends that the statements made by the Bunetas and
Hagens are not protected because they relate only to the conflict among
adults, and did not concern “school” business.
With respect to Noon, Kiesling asserts that Noon’s declaration in
support of her motion did not satisfy prong one because it is self-serving, not
sufficiently specific, and not designed to prompt official action because Noon’s
demands to have Kiesling removed occurred long after the Zuca accident.
20
Kiesling also asserts that the two cases relied on by the trial court to find
protected petitioning activity, Lee v. Fick (2005) 135 Cal.App.4th 89 (Lee) and
Brody v. Montalbano (1978) 87 Cal.App.3d 725 (Brody), are distinguishable.
With respect to the Bunetas, Kiesling also contends they did not satisfy
their burden on prong one because the declarations they submitted in support
of their motion to strike did not mention any communication to the school or
assert that their communications to the school were designed to prompt
official action. This argument lacks merit. The Bunetas denied making the
statements that Kiesling attributed to them in her complaint and in her
declaration in support of her opposition briefs. Accordingly, the Bunetas’
declarations reflect this position and do not describe the statements alleged
solely by Kiesling. The Bunetas, like the other defendants, sought to strike
the allegations contained in Kiesling’s complaint that were premised on the
protected activity of reporting Kiesling’s behavior to school officials to prompt
official action, i.e. banning her from the school’s campus and nearby
sidewalks. The fact that the Bunetas’ declarations do not address these
alleged statements, which they deny making, is not dispositive. (See Bel Air,
supra, 20 Cal.App.5th at p. 929 [requiring the “moving party to submit
declarations confirming the factual basis for the plaintiff's claims” would
have “the perverse effect of making anti-SLAPP relief unavailable when a
plaintiff alleges a baseless claim”].) Rather, the Bunetas appropriately relied
on the allegations contained in Kiesling’s complaint to establish their alleged
speech is protected.
As with the Bunetas, Kiesling also finds fault with Noon’s declaration.
She argues that it is insufficient to sustain her burden on prong one of the
anti-SLAPP analysis because it is self-serving and vague as to the timing of
Noon’s complaints to school officials. These arguments are also without
21
merit. Kiesling’s complaint and her own declarations supporting her
opposition to the defendants’ anti-SLAPP motions are replete with the
alleged specific details about the defendants’ statements to the principal and
other school officials that establish the protected nature of the
communications at issue. These documents are sufficient to support the
court’s finding. (See Bel Air, supra, 20 Cal.App.5th at p. 929.)
Kiesling next contends that her allegations concerning the Bunetas’,
the Hagens’, and Noon’s statements to the principal and other district
employees are not protected because those statements did not seek to prompt
official action since they occurred after the principal completed her
investigation of the Zuca accident.
It is well-settled that “the ‘official proceeding[s]’ provision of section
425.16, subdivision[s] (e)(1) [and (e)(2)] ha[ve] language parallel to that
contained in the ‘official proceeding[s]’ provision of Civil Code section 47,
subdivision (b).” (Lee, supra, 135 Cal.App.4th at p. 96.) “ ‘[J]ust as
communications preparatory to or in anticipation of the bringing of an action
or other official proceeding are within the protection of the litigation privilege
of Civil Code section 47, subdivision (b) [citation], … such statements are
equally entitled to the benefits of section 425.16.’ ” (Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
“Civil Code section 47, subdivision (b) provides that any publication
made in any ‘judicial proceeding’ or ‘in any other official proceeding
authorized by law’ is privileged. The privilege is designed to provide the
utmost freedom of communication between citizens and public authorities
whose responsibility is to investigate wrongdoing. [Citation.] Accordingly,
communications to an official agency intended to induce the agency to initiate
action are part of an ‘official proceeding.’ [Citation.] Thus it is well settled
22
that complaints to school authorities about a teacher or principal in the
performance of his or her official duties are privileged.” (Lee, supra, 135
Cal.App.4th at p. 96, italics added.)
We agree with the Bunetas, the Hagens, and Noon that the statements
they allegedly made to school authorities are properly characterized as part
of an official proceeding authorized by law, even though some of the alleged
statements occurred several months after Noon’s daughter fell off the Zuca
backpack. The school principal is charged with maintaining safety at the
public school. Indeed, at the restraining order hearing the principal testified
that safety at school is her highest priority. The allegations made by Kiesling
that were stricken from her complaint by the trial court all involved the
defendants reporting concerns about their children’s safety in the presence of
Kiesling in an alleged effort to prevent Kiesling from coming onto school
property.
Because Kiesling alleges the reports to the principal were made in an
effort to prompt action by the school, we agree with the trial court that these
allegations may be properly characterized as part of an official proceeding
even though the principal testified she had concluded her investigation into
the Zuca incident. Indeed, according to own Kiesling’s allegations, the
defendants sought the specific official action of banning her from campus.
These allegations are petitioning activity protected by the litigation privilege
and the anti-SLAPP statute.
Kiesling also contends that the Bunetas and Hagens only “complained
to the school about (i) neighborhood disputes between adults, and (ii) an
accident they did not witness involving someone else’s child.” This assertion,
however, is contradicted by the complaint’s explicit allegations. As Kiesling
herself states, the allegations at issue are that “the Bunetas [and Hagens]
23
repeatedly demanded that [Kiesling] be permanently banned from school
campus and the public sidewalk.” Whether the reasons for this alleged
demand were related to their own conflict with Kiesling or her conduct at
school, the fact remains that Kiesling’s allegations are that the Bunetas and
Hagens petitioned the principal and other district employees for official
action to protect their children from her at school. Kiesling alleges they
wanted to prevent Kiesling from coming onto campus and interacting with
their children, and further to have the principal disciplined for failing to take
this action. We agree with the trial court that this alleged conduct
constitutes petitioning activity under section 425.16, subdivisions (e)(1) and
(2), because they were statements made to school officials seeking official
action.
Kiesling argues that Lee, supra, 135 CalApp.4th 89 and Brody, supra,
87 Cal.App.3d 725 were improperly relied on by the trial court because these
cases concerned complaints about school officials, not parents. We do not
agree that this distinction forecloses anti-SLAPP relief. In Lee, the plaintiff’s
claims for defamation, libel, conspiracy to interfere with prospective economic
advantage, and intentional interference with prospective economic advantage
were based on oral complaints and letters sent to school officials by a parent,
who asserted that Lee, a high school baseball coach, had mistreated their
baseball player son. (Lee, at pp. 93–94.) The Court of Appeal concluded this
speech was protected petitioning activity because the communications were
made “to prompt official action” by school authorities. (Id. at p. 96.) The
same is true of allegations struck by the trial court here. The
communications at issue were made by parents and, as alleged by Kiesling,
sought official action by the school and the school district to ban Kiesling
from the school. Lee contains no limitation requiring the petitioning activity
24
to be directed at a school official’s or employee’s conduct rather than another
parent’s conduct.
Lee cited Brody, which involved parent complaints to school officials
about an assistant principal’s handling of an altercation involving middle
school students. The parents’ complaints led to a hearing before the board of
education, and eventually to a defamation and malicious prosecution lawsuit
by the assistant principal against the parents. (Brody, supra, 87 Cal.App.3d
at p. 728.) The Court of Appeal affirmed a directed verdict in favor of the
parents and held that the parents’ complaints were protected by the litigation
privilege, including the initial communications by the parents that were
intended to prompt official action by the school. (Id. at p. 733.)
Like Lee, the court in Brody determined that complaints to school
officials intended to cause official action by the school constituted protected
petitioning activity. Neither case draws a distinction between official action
against a school employee or a parent who is alleged to have committed
misconduct against a student. We see no reason to impose such a limitation
in this case. The critical factor is whether the alleged communication is
intended “to prompt official action” by the school. (See Brody, supra, 87
Cal.App.3d at p. 733 [“Underlying the absolute privilege is a recognition of
the importance of providing utmost freedom of communication between
citizens and public authorities whose responsibility is to investigate
wrongdoing.”].) Kiesling alleges just this, i.e. that the defendants sought to
prompt the school to take official action by banning her from campus.
Accordingly, the trial court properly found paragraphs 5(g), 28, 39–43,
25
portions of 47, 59–61, 67, 71, 73, 75–78, and portions of 80 and 103 of the
complaint constitute protected activity.
B
The Bunetas’ and Hagens’ Recording of Kiesling
Are Not Protected Conduct
Kiesling next contends that the trial court’s finding that the Bunetas’
and Hagens’ video recordings of her were protected petitioning activity was
error because the recordings are not communicative conduct, were not made
in anticipation of litigation, and the recordings were criminally illegal. The
Bunetas respond that Kiesling waived this argument by not raising it in the
trial court. Alternatively, the Bunetas contend the trial court correctly
concluded that recording Kiesling was protected petitioning activity under
the authority of Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049
(Tichinin). The Hagens likewise argue that their act of recording Kiesling
was protected pre-litigation investigation.
We agree with Kiesling that the alleged conduct by the Bunetas and
Hagens of recording Kiesling to gather evidence for the various disputes
between the parties does not fall within the protected conduct set forth in
section 425.16, subdivision (e). The trial court concluded that after Michael
Kiesling sent cease and desist emails to Rob Hagen on August 24, 2019, and
to Jon Buneta on October 8, 2019, litigation by Kiesling was seriously
considered and had ripened into a proposed proceeding. The court further
found that these “defendants’ video recordings were made as part of their
effort to gather and preserve evidence for use in the various legal proceedings
[including this one] and the then-ongoing school administrative proceedings.”
Citing Tichinin, supra, 177 Cal.App.4th at page 1065, the court found the
26
recordings were protected petitioning activities under section 425.16,
subdivision (e)(1).
As Kiesling points out, however, the protection afforded by
subdivision (e)(1) (and also subdivision (e)(2)) of the anti-SLAPP statute, by
the statute’s own terms, applies only to written and oral communications,
and not other conduct. Only section 425.16, subdivision (e)(4) provides
protection for other types of petitioning conduct, such as videorecording.
Critically, to qualify for anti-SLAPP protection under this provision of the
statute, the petitioning activity must concern a matter of public interest.
(Old Republic, supra, 230 Cal.App.4th at p. 874.)
Here, the Bunetas and Hagens made no assertion that their conduct of
videorecording Kiesling concerned a matter of public interest. Rather,
Kiesling alleges that these defendants began recording Kiesling to harass
her. Alternatively, the Bunetas and Hagens contend that they recorded
Kiesling to gather evidence for litigation which became imminent when
Kiesling’s husband sent cease and desist letters threatening legal action.
Under either version of events, the purpose of the videorecording concerned
only a private dispute between the parties, not a matter of public concern.
Accordingly, section 425.16, subdivision (e)(4) is not applicable.7
Tichinin, supra, 177 Cal.App.4th 1049, relied on by the Hagens in their
motion and by the trial court, does not lead us to conclude otherwise.
7 To avoid this problem, the Bunetas assert the video recordings are
properly construed as “communicative conduct” that was intended to
communicate “ ‘Hey, I’m video recording this (and you), so you better pay
attention to your behavior and what you do, say, and how you act.’ ” This
argument lacks merit. As discussed, section 425.16, subdivisions (e)(1) and
(2) do not protect “communicative conduct.” Rather, they protect only oral
and written statements. The act of videorecording does not satisfy this
requirement.
27
Tichinin did not consider whether prelitigation conduct constitutes
petitioning activity for purposes of the first prong of the anti-SLAPP analysis.
In Tichinin, the plaintiff lawyer sued the city for violation of his First
Amendment right to petition the government after the lawyer was censured
by the city council for hiring a private investigator to determine if a member
of the council was having an extramarital affair with the city attorney. (Id.
at p. 1055.) The plaintiff was investigating the affair because he believed his
client, a developer, received an adverse determination from the council that
the plaintiff suspected was the result of bias caused by the affair. The city
council brought a successful anti-SLAPP motion and the plaintiff appealed.
(Ibid.)
The plaintiff conceded the city’s adoption of a resolution admonishing
him was protected by the anti-SLAPP statute but argued his civil rights
claim under 42 United States Code section 1983 had sufficient merit to
satisfy the second prong of the anti-SLAPP analysis. (Tichinin, supra, 177
Cal.App.4th at pp. 1061‒1064.) The portion of Tichinin cited by the trial
court, and the Hagens, relates to this second-prong analysis, which required
the court to consider whether the investigator’s attempt to record the
participants in the alleged affair was protected petitioning activity under the
First Amendment (and not whether it was protected conduct for purposes of
the first prong of the anti-SLAPP statutory analysis). (Id. at pp. 1062‒1064.)
The court agreed with the plaintiff that the conduct was “prelitigation
investigation to support a potential claim” against the city council and
“sufficiently related to the right to petition as to fall within the protected
‘breathing space’ of that [constitutional] right.” (Id. at p. 1071.) Tichinin’s
analysis concerning the merits of the plaintiff’s First Amendment civil rights
claims is not relevant to the question of whether the Bunetas’ and Hagens’
28
videorecording of Kiesling is encompassed by the statutory language of
section 425.16, subdivision (e)(1), (2), or (4).
In sum, we agree with Kiesling that the defendants’ videorecording of
her does not fall within the categories of protection afforded by section
425.16. The defendants failed to satisfy their burden on prong one of the
anti-SLAPP analysis with respect to this conduct and the trial court erred by
ruling to the contrary. Accordingly, the trial court’s orders granting the
Bunetas’ and Hagens’ motions to strike with respect to this conduct are
reversed and on remand the trial court is directed to reinstate paragraphs 51,
53, 54, and 142–156 of Kiesling’s complaint.8
C
The Allegations Kiesling Identifies As Incidental
Are Protected Statements and Conduct
Kiesling next asserts, without any explanation, that several specific
allegations in the complaint struck by the trial court must be reinstated
under Baral v. Schnitt (2016) 1 Cal.5th 376, 394 (Baral) because they “merely
provide context, without supporting a claim for recovery....” To prevail on
appeal, Kiesling “ ‘must establish both error and prejudice from that error.
[Citation.] In order to demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal analysis and
citation to the record. Rather than scour the record unguided, we may decide
8 Because we conclude that the Bunetas and Hagens failed to establish
that Kiesling’s allegations of their videorecording of her were protected
activity, and thus not entitled to anti-SLAPP protection, we do not reach the
second prong of the analysis with respect to the invasion of privacy and
eavesdropping claims. We express no view on the merits of these claims and
hold only that the videorecording conduct by the defendants that forms the
basis of the claims is not afforded protection by section 425.16,
subdivision (e).
29
that the appellant has forfeited a point urged on appeal when it is not
supported by accurate citations to the record. [Citations.] Similarly, we may
disregard conclusory arguments that are not supported by pertinent legal
authority.’ ” (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th
583, 597; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 146 [“ ‘In order to demonstrate error, an appellant must
supply the reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ ”].)
Because Kiesling has failed to make a cogent argument that would
justify a reversal of the anti-SLAPP order with respect to these specific
allegations, she has not established the trial court erred by striking
paragraphs 28, 36, 39, 40–43, 73, 75, 78, and 80.
D
Kiesling Failed to Meet Her Burden to Show a Probability of Prevailing
On the Merits of Her Defamation Claim
With respect to the second step of the anti-SLAPP analysis, Kiesling
asserts that she showed a probability of prevailing on her defamation cause
of action because the defendants failed to establish the litigation privilege
applied to their alleged statements to school officials. In support, she points
to Penal Code section 11172, subdivision (a), which allows criminal liability
for the false reporting of child abuse, and asserts—for the first time on
appeal—that statements she alleges the defendants made to school officials
are illegal under this statute and thus not subject to the litigation privilege of
Civil Code section 47, subdivision (b).
The trial court struck just one portion of one sentence in Kiesling’s
defamation cause of action. In paragraph 103, Kiesling alleges that the
defendants “did, state, publicize, and/or republicize as fact, verbally and/or in
30
writing, to perhaps as many as several dozen individuals including, but not
limited to [Kiesling’s] neighbors, school parents, sports team parents, school
authorities, teachers, and staff, school district authorities and staff, and/or
[Kiesling’s] gardener and pest control provider, the false assertions that
[Kiesling] was a deranged and violet child abuser, and/or was inclined to
commit violence against children, and/or was a menace, that the listener
needed to ‘watch out for’ and ‘be careful of.’ ” From this sentence, the court
struck the words “school authorities, teachers, and staff, school district
authorities and staff.”
The court concluded that this portion of the defamation cause of action
was not actionable because, as discussed, the defendants’ statements to
school personnel were part of an official proceeding and therefore protected
under section 425.16, subdivision (e)(1). The court further found that
Kiesling had failed to meet her burden to show she had a sufficient likelihood
of success on the merits of her defamation claim, to the extent the claim was
based on statements to school personnel, because such statements were
protected by the litigation privilege of Civil Code section 47, subdivision (b),
and therefore not actionable.
Kiesling argues this finding was error because “[a]s a matter of law,
‘the litigation privilege of Civil Code section 47(b) does not protect [a]
31
defendant from the liability imposed by Penal Code section 11172(a).’ ”9 She
argues the statements to school staff were false reports of child abuse subject
to criminal penalties, and therefore the litigation privilege does not apply.
This argument, however, was not asserted by Kiesling in the trial court.
Instead, Kiesling argued only that sufficient evidence supported the
claim. She did not address the defendants’ assertions in their motions to
strike that the alleged statements to school officials were protected by the
litigation privilege because the statements were made to prompt action by
the school, either to keep the defendants’ children separate from Kiesling’s
children or to keep Kiesling off of the school campus. Kiesling’s failure to
challenge this argument in the trial court dooms her challenge in this court
9 Penal Code section 11172, subdivision (a), provides civil and criminal
immunity for mandated reporters of abuse and conditional immunity for all
other reporters, which applies unless the person makes the report with
knowledge or reckless disregard of its falsity. The provision states: “No
mandated reporter shall be civilly or criminally liable for any report required
or authorized by this article, and this immunity shall apply even if the
mandated reporter acquired the knowledge or reasonable suspicion of child
abuse or neglect outside of their professional capacity or outside the scope of
their employment. Any other person reporting a known or suspected
instance of child abuse or neglect shall not incur civil or criminal liability as a
result of any report authorized by this article unless it can be proven that a
false report was made and the person knew that the report was false or was
made with reckless disregard of the truth or falsity of the report, and any
person who makes a report of child abuse or neglect known to be false or with
reckless disregard of the truth or falsity of the report is liable for any
damages caused. No person required to make a report pursuant to this
article, nor any person taking photographs at their direction, shall incur any
civil or criminal liability for taking photographs of a suspected victim of child
abuse or neglect, or causing photographs to be taken of a suspected victim of
child abuse or neglect, without parental consent, or for disseminating the
photographs, images, or material with the reports required by this article.
However, this section shall not be construed to grant immunity from this
liability with respect to any other use of the photographs.”
32
because it was her burden to show the claim’s merit, including that the
defendants’ alleged statements to school personnel were not protected by the
litigation privilege. (See Baral, supra, 1 Cal.5th at p. 384 [It is the plaintiff’s
burden at the second step of the anti-SLAPP analysis “to demonstrate the
merit of the claim by establishing a probability of success.”].)
Further, because Kiesling did not make any argument in the trial court
showing how the statements to school personnel fell outside the litigation
privilege, her attempt to do so in this court (relying on Penal Code
section 11172, subdivision (a)) is forfeited. (See Natkin v. California
Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011 [“Issues
presented on appeal must actually be litigated in the trial court .... ‘ “[W]e
ignore arguments, authority, and facts not presented and litigated in the trial
court.” ’ ”]; In re Marriage of Elali & Marchoud (2022) 79 Cal.App.5th 668,
682 [“ ‘[T]he appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal issue.’ ”].)
Accordingly, the trial court’s orders striking paragraphs 5(g), 28, 39–43,
portions of 47, 59–61, 67, 71, 73, 75–78, and portions of 80 and 103 (the
allegations related to the defendants’ statements to school staff, including the
33
portion of the defamation cause of action discussed in this section) are
affirmed.10
III
Attorney’s Fees & Costs
After the trial court granted the anti-SLAPP motions, the defendants
moved for attorney’s fees and costs pursuant to the statute’s fee and cost
shifting provision, section 425.16, subdivision (c). The trial court awarded
the Bunetas $12,548 in attorney’s fees and costs, the Hagens $13,248; and
Noon $24,000. On appeal, Kiesling argues the awards should be reversed
because the anti-SLAPP motion should not have been granted. Because we
conclude that the trial court erred by granting the motion with respect to
Kiesling’s claims for invasion of privacy and eavesdropping based on the
Bunetas’ and Hagens’ conduct of videorecording her and her family, we
conclude the fee award orders with respect to these defendants must be
reversed and the matter remanded for reconsideration.
“ ‘An award of attorney fees to a partially prevailing defendant under
section 425.16, subdivision (c) ... involves competing public policies: (1) the
public policy to discourage meritless SLAPP claims by compelling a SLAPP
plaintiff to bear a defendant’s litigation costs incurred to eliminate the claim
from the lawsuit; and (2) the public policy to provide a plaintiff who has
facially valid claims to exercise his or her constitutional petition rights by
filing a complaint and litigating those claims in court. [Citations.] In
balancing these policies, ... the court should first determine the lodestar
10 In her briefing, Noon points out that the court’s orders did not strike
the second sentence of paragraph 47 of the complaint, which states
“ ‘Defendants defamed [Kiesling] to school authorities.’ ” We agree with Noon
that this appears to be an inadvertent oversight by the trial court and on
remand direct that this additional sentence be stricken.
34
amount for the hours expended on the successful claims, and, if the work on
the successful and unsuccessful causes of action was overlapping, the court
should then consider the defendant’s relative success on the motion in
achieving his or her objective, and reduce the amount if appropriate.” (Malin
v. Singer (2013) 217 Cal.App.4th 1283, 1305.)
Here, for obvious reasons, the trial court considered the Bunetas’ and
Hagens’ motions for fees based only on the orders it issued. Because we
conclude that those orders must be partially reversed and instruct the trial
court on remand to reinstate some of the allegations that were stricken, the
trial court must reevaluate the defendants’ requests for attorney’s fees in
light of this change. We express no opinion with respect to how much the fee
awards should be reduced; that is a matter for the trial court on remand.
With respect to Noon, Kiesling contends that the court’s fee order in
her favor must be reversed even if we affirm the underlying order granting in
part her motion to strike. Kiesling argues that the court erred by awarding
Noon the majority of the fees she requested because Noon was only partially
successful on her motion to strike, and did not obtain her objective of
“extract[ing] herself from this lawsuit entirely.”
We review an anti-SLAPP attorney fee award under the deferential
abuse of discretion standard. (Ketchum v. Moses (2001) 24 Cal.4th 1122,
1131, 1130.) The trial court’s fee determination “ ‘ “will not be disturbed
unless the appellate court is convinced that it is clearly wrong.” ’ ” (Id. at
p. 1132.) An attorney fee dispute is not exempt from generally applicable
appellate principles: “The judgment of the trial court is presumed correct; all
intendments and presumptions are indulged to support the judgment;
conflicts in the declarations must be resolved in favor of the prevailing party,
and the trial court’s resolution of any factual disputes arising from the
35
evidence is conclusive.” (In re Marriage of Zimmerman (1993) 16 Cal.App.4th
556, 561‒562.) We may not reweigh on appeal a trial court’s assessment of
an attorney’s declaration (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28
Cal.App.4th 613, 622‒623) and it is for the trial court “to assess credibility
and resolve any conflicts in the evidence. Its findings ... are entitled to great
weight. Even though contrary findings could have been made, an appellate
court should defer to the factual determinations made by the trial court when
the evidence is in conflict.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
We agree with Noon that Kiesling has not shown the trial court’s
decision to award Noon the majority of the attorney’s fees she requested was
an abuse of discretion. Noon requested a total award of $35,500, consisting of
$29,855 in attorney’s fees and $991 in costs for prevailing on her special
motion to strike and $4,500 in fees and $154 in costs related to her motion
seeking an award of attorney’s fees and costs. The court awarded Noon
$24,000 for the attorney’s fees related to her motion to strike, discounting the
amount of fees requested to eliminate (1) “attorney time not related to the
anti-SLAPP motion; (2) inefficiencies and duplication of effort; and (3) the
fact that [Noon] did not prevail on the entirety of her special motion to
strike.”
As Noon asserts, her anti-SLAPP motion asked the court to strike the
allegations contained in paragraphs 28, 42, 45, 47, 59–61, 67, 71, 75–78, 80,
and 103. Of these paragraphs, the court granted the motion as to paragraphs
28, 42, a portion of 47, 59–61, 67, 71, 75-78, and portions of 80 and 103. The
court denied the motion as to just one full paragraph, 45, and portions of 47,
80 and 103. It is obvious that Noon was successful on her motion, and that
she obtained the majority of the relief that she sought. The trial court, in
turn, evaluated the success achieved by Noon and awarded her the majority
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of the fees she requested, discounting that amount to account for the fact that
she did not achieve complete success on her motion. This was a reasonable
calculation by the trial court and did not constitute an abuse of its wide
discretion under section 425.16, subdivision (c).
IV
Noon’s Cross-Appeal
In her cross-appeal, Noon argues the trial court erred by not granting
her motion to strike in its entirety. She contends that all of the alleged
statements she made concerning Kiesling, including those to individuals who
were not school officials, were issues of public interest and thus subject to
protection under section 425.16, subdivision (e)(4). She argues that the
alleged speech related to “general concerns of the safety and well-being of
children in the community,” which she asserts is a matter of public interest.
Kiesling responds that the statements she alleges Noon made were private in
nature and had no public purpose because she alleges the statements were
made only to harass Kiesling.
“Our courts have ably distilled the characteristics of ‘a public issue or
an issue of public interest.’ ” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7
Cal.5th 133, 149 (FilmOn.com).) “The inquiry under the catchall
provision[, section 425.16, subdivision (e)(4),] calls for a two-part analysis
rooted in the statute’s purpose and internal logic. First, we ask what ‘public
issue or [ ] issue of public interest’ the speech in question implicates—a
question we answer by looking to the content of the speech. (§ 425.16,
subd. (e)(4).) Second, we ask what functional relationship exists between the
speech and the public conversation about some matter of public interest.”
(Id. at pp. 149–150.) “ ‘[I]t is not enough that the statement refer to a subject
of widespread public interest; the statement must in some manner itself
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contribute to the public debate.’ ” (Id. at p. 150; see also Dyer v. Childress
(2007) 147 Cal.App.4th 1273, 1280 [“[t]he fact that ‘a broad and amorphous
public interest’ can be connected to a specific dispute” is not enough].)
The alleged statements at issue here, that Noon falsely told other
community members that Kiesling intentionally pushed her child off her
rolling backpack and was a child abuser, fail on the second step of this
analysis. Kiesling’s complaint asserts Noon made these allegedly false
statements to ostracize Kiesling from the community. The alleged purpose of
the statements was not to further public debate about child safety but to
harm Kiesling. For this reason, we agree with the trial court that these
statements do not fall within the protection afforded by the anti-SLAPP’s
catchall provision. (See Cross v. Cooper (2011) 197 Cal.App.4th 357, 374
(Cross) [“ ‘the focus of the speaker’s conduct should be the public interest
rather than a mere effort “to gather ammunition for another round of
[private] controversy” ’ ”]; Kettler v. Gould (2018) 22 Cal.App.5th 593, 605‒
606 (Kettler) [“We reject the notion that ‘the chance’ for elder abuse and fraud
by a financial planner, without more, can transform a single claim of elder
abuse and embezzlement into an issue of public interest. [¶] ... [¶] The
‘chance’ of misconduct toward others is completely speculative.”].)
The purpose of the alleged statements (i.e. to harm Kiesling) and the
context they were made in (i.e. the ongoing feud between these sets of
parents), show there was no nexus between the allegations about Kiesling
and the public debate concerning child safety. Kettler is instructive on this
issue. In Kettler, the court declined to extend anti-SLAPP protection to
allegedly defamatory statements made to an accrediting agency about a
financial advisor taking advantage of one elderly couple. The court held that
the one alleged incident of “abuse” was not sufficient to turn a private dispute
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between the advisor and the couple’s disgruntled son into discourse on the
broader public issue of financial elder abuse. (Kettler, supra, 22 Cal.App.5th
at pp. 605‒606; see also FilmOn.com, supra, 7 Cal.5th at pp. 150‒151 [“What
it means to ‘contribute to the public debate’ ” is “whether a defendant—
through public or private speech or conduct—participated in, or furthered, the
discourse that makes an issue one of public interest.”], emphasis added.)
Similarly, here, the discreet alleged incidents of “abuse” by Kiesling are
insufficient to turn those allegations, which occurred in the context of a
private dispute between the parties, into a contribution to the broader public
debate on child safety.11 We agree with the trial court’s rejection of this
11 Noon cites Cross, supra, 197 Cal.App.4th 357 in support of her
argument. Cross involved allegations by a property owner against her former
tenants for breach of the implied covenant of good faith and fair dealing
based on the tenants’ disclosure to a potential buyer that a registered sex
offender lived nearby. The Court of Appeal reversed the trial court’s
determination that the disclosure did not constitute a matter of public
interest. In its holding, the court looked to three earlier cases finding speech
about sexual abuse of children qualified for anti-SLAPP protection, as well as
the existence of the laws requiring “the collection and dissemination of
information about registered offenders” and “the Legislature’s expressions of
intent in enacting those laws” to protect children from abuse. (Id. at p. 378.)
The court also held that “the continuous access to and dissemination of
information about the presence of a registered offender in the area represents
ongoing ‘discussion,’ albeit a cyber discussion, between local authorities and
local residents about that particular offender.” (Id. at p. 383.) Cross
concerned the location of a convicted sex offender and the ongoing public
discourse and debate about such information. We do not agree with Noon
that the case supports anti-SLAPP protection for Kiesling’s allegations that
Noon was making false allegations of child abuse. Instead, Noon has
abstracted from Kiesling’s complaint only “a broad and amorphous public
interest” that is insufficient to qualify for anti-SLAPP protection. (Id. at
p. 379.)
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argument and affirm the court’s order partially denying Noon’s motion to
strike.12
DISPOSITION
The orders granting in part and denying in part the defendants’
motions to strike are affirmed in part and reversed in part. On remand, the
trial court is directed to reinstate paragraphs 51, 53, 54, 142–156 of
Kiesling’s complaint and to strike the second sentence of paragraph 47.
In addition, the orders awarding the Hagens and the Bunetas
attorney’s fees and costs are reversed. On remand, the trial court may
consider renewed requests by these defendants for fees and costs in light of
this opinion. The order awarding Noon attorney’s fees and costs is affirmed.
The Hagens, the Bunetas, and Kiesling are to bear their own costs of
appeal. Noon is awarded her costs of appeal as respondent and shall bear the
costs of her own appeal.
Murray v. Tran (2020) 55 Cal.App.5th 10, which Noon cites, is
distinguishable. There, we held that allegedly defamatory statements about
a dentist’s malpractice by a former business partner of the dentist to the
dentist’s new employer were protected. We concluded these statements had a
sufficient nexus to the public issue of protecting dental patients from sub-
standard care and “promoted the public conversation on that issue because
they were made to a person who had direct connection to and authority over
the patient population with whom” the dentist cared for. (Id. at p. 35.) Noon
makes no similar showing between Kiesling’s claim that Noon allegedly
defamed Kiesling by telling others she had harmed Noon’s daughter and the
asserted public issue of protecting children from Kiesling.
12 Noon’s request for attorney’s fees for her cross-appeal is denied.
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McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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