Filed 12/4/15 Ryan v. Holt CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


JAMES F. RYAN,

     Plaintiff and Respondent,                                         G050855

                   v.                                                  (Super. Ct. No. 30-2013-00680594)

ERIC V. HOLT,                                                          OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Linda S.
Marks, Judge. Affirmed in part and reversed in part.
                   Michael Hammad for Defendant and Appellant.
                   James F. Ryan, in pro. per., for Plaintiff and Respondent.


                                             *               *               *
              This case is related to the appeal in Ryan v. Allione (Dec. 4, 2015,
G050104) (nonpub. opn.). Plaintiff James F. Ryan filed this action against both
defendants Eric V. Holt and Paul R. Allione. The complaint contains 16 causes of action,
including defamation by slander, extortion, and abuse of process. Before Ryan filed this
action, Holt had filed a request for fee arbitration against Ryan with the Riverside County
Bar Association. As to Holt, the lawsuit was stayed pending completion of the
arbitration. In July 2014, a ruling was issued in the arbitration, but Ryan promptly
rejected the award and requested a trial in the matter.
              While the arbitration between Ryan and Holt was pending, Allione filed a
motion to strike the above mentioned counts under Code of Civil Procedure
section 425.16 (hereafter section 425.16). On March 10, 2014, the trial court granted his
motion as to the causes of action for defamation and abuse of process, but denied it as to
the extortion claim. Allione appealed from the portion of the order denying his motion to
strike the extortion count.
              Two months after the trial court ruled on Allione’s motion, Holt moved to
strike the same three causes of action under section 425.16. In a minute order issued after
a hearing held September 29, 2014, the court declared it was abstaining from ruling on
the motion as to extortion, citing Allione’s pending appeal from the prior ruling, and it
denied Holt’s motion as to defamation and abuse of process.
              Holt appeals from this ruling. We shall affirm the trial court’s ruling as to
the defamation count, but reverse it as to the abuse of process cause of action.


                     FACTS AND PROCEDURAL BACKGROUND


              The factual background for this lawsuit is set forth in our opinion in Ryan v.
Allione, supra, G050104, at pp. 2-3. Suffice it to say, Ryan, an attorney, represented Holt
in a prior civil action in Riverside County. Ryan claims the retainer agreement provided

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his fee would consist of a 25 percent share of the final judgment or settlement in the case.
The Riverside action settled with the opposing party agreeing to pay Holt $30,000 and
give him title to some patents and the deed to a gold mine. A dispute then arose as to the
amount of Ryan’s fee. Allione agreed to assist Holt in resolving the fee dispute. The
events relevant to Allione’s activities are set forth in the related case.
              Eventually, Ryan filed this lawsuit against both Holt and Allione. The
complaint’s preliminary allegations allege the creation and terms of attorney-client
retainer agreement, Ryan’s performance of legal services, his receipt of the cash and
placement of $22,500 of the funds in his client trust account, transfer of the patent titles
and the gold mine’s deed to Holt, and Holt’s alleged “refus[al]” to pay Ryan “his 25%
share” of the value of the assets recovered by him.
              The first through third causes of action seek recovery against Holt only for
breach of contract, quantum meruit, and fraud. The remaining counts are alleged against
both Holt and Allione.
              The seventh count for defamation by slander, generally alleges “that rather
than paying Ryan for his legal services, [d]efendants . . . have instead undertaken a
concerted effort of making false and malicious accusations in a deliberate effort to
malign, discredit, and injure [him] and his professional reputation” in an “attempt to
dissuade [him] from pursuing payment for his” services in the underlying lawsuit.
(Capitalization omitted.) It specifically asserts that Holt told “a third party that . . . Ryan
had taken the $30,000.00 from trust and had probably spent it, . . . transferred ownership
of the Goldmine [and] . . . the turntable patents into his name,” after “refus[ing] to turn
over any of these assets to Holt, . . . Allione filed a complaint against Ryan with the State
Bar because of these wrong doings [sic] and that they were going to have his license
taken away.” (Capitalization omitted.)
              The fifteenth cause of action requests damages for abuse of process. This
count is based on “[d]efendant’s acts of assault and battery upon [Ryan], trespass on [his]

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property and direct threats to take [his] license to practice law,” plus an offer to dismiss
the State Bar matter “in return for [Ryan’s] relinquishing” the balance of his fee claims as
grounds for recovery.
              Holt moved to strike the defamation, abuse of process, and extortion
counts. As to the defamation and abuse of process claims, his motion relied solely on a
request the court take judicial notice of Allione’s previously filed moving papers.
              Ryan’s opposition to the defamation count cited his declaration opposing
Allione’s motion. That declaration summarized Ryan’s version of his June 6, 2012
encounter with Allione, Allione’s efforts in assisting Holt in filing the State Bar claim,
including the alleged improper offer to dismiss the bar proceeding in return for Ryan’s
agreement to settle the fee dispute. Ryan also claimed Holt had repeated the false
statements quoted above “to at least one other individual.” His opposition concerning
abuse of process relied on the contents of his declaration opposing Allione’s motion to
strike and argued this count was “based on an impermissible threat” “to file a complaint
against [him] with the State Bar.”
              Holt’s reply claimed Ryan’s “[c]omplaint fails to distinguish the operative
facts of defamation as to Allione versus those assigned to Holt.” He raised a similar
criticism of Ryan’s opposition to the abuse of process count, claiming “the complaint
only alleges that Holt is vicariously liable for the acts of his agent; attorney Allione.”


                                       DISCUSSION


1. Scope of Review
              “Section 425.16, subdivision (b)(1), provides: ‘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

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court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.’ The analysis 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. (§ 425.16,
subd. (b)(1).) 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.’
[Citation.] ‘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.’ [Citation.] We review an order
granting or denying a motion to strike under section 425.16 de novo.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.)


2. Defamation by Slander
               In challenging the trial court’s ruling on the defamation cause of action,
Holt claims this count “is . . . premised on [his] complaint to the State Bar,” and argues
the filing of that matter is protected by the litigation privilege. (Civ. Code, § 47, subd.
(b).) Ryan responds, noting the complaint also alleges Holt allegedly made false
statements to a third party himself that do not constitute protected speech. We find
Ryan’s contention has merit.
               “Slander is a species of defamation. ‘Defamation constitutes an injury to
reputation . . . . A false and unprivileged oral communication attributing to a person
specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain
other derogatory statements regarding a person, constitutes slander.’ [Citation.] In
addition to false statements that cause actual damage [citation], the Legislature has
specified that slander includes a false statement that . . . [¶] . . . [¶] [t]ends directly to
injure him in respect to his office, profession, trade or business, either by imputing to him
general disqualification in those respects which the office or other occupation peculiarly

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requires, or by imputing something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits . . . .’” (Nguyen-Lam v. Cao
(2009) 171 Cal.App.4th 858, 867.) “One of the elements of the tort of defamation is
‘publication.’” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) “Publication means
communication to some third person who understands the defamatory meaning of the
statement and its application to the person to whom reference is made. Publication need
not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith
v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
              While defamation does not constitute protected speech, a cause of action
for defamation is subject to being struck under section 425.16. (Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 464.) “That the
Legislature expressed a concern in the statute’s preamble with lawsuits that chill the valid
exercise of First Amendment rights does not mean that a court may read a separate proof-
of-validity requirement into the operative sections of the statute. [Citations.] Rather, any
‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and
support in the context of the discharge of the plaintiff’s [secondary] burden to provide a
prima facie showing of the merits of the plaintiff’s case.’ [Citation.] Plaintiffs’ argument
‘confuses the threshold question of whether the SLAPP statute [potentially] applies with
the question whether [an opposing plaintiff] has established a probability of success on
the merits.’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94; Hecimovich v. Encinal
School Parent Teacher Organization, supra, 203 Cal.App.4th at p. 464.)
              Nonetheless, we conclude Holt has failed to establish his alleged separate
statement to a third party is potentially subject to section 425.16. The phrase “‘act 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’” is statutorily defined as “(1)
any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written or oral

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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, (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).)
              As for Holt’s reliance on the trial court’s ruling in Allione’s activities in
filing the State Bar complaint, we note the specific factual allegations in the seventh
cause of action addressed Holt’s alleged conduct. “[W]hether the challenged claims arise
from acts in furtherance of the defendant[’s] right of free speech or right of petition under
one of the categories set forth in section 425.16, subdivision (e),” is determined by
“‘examin[ing] the principal thrust or gravamen of a plaintiff’s cause of action’” to
“‘identify[] “[t]he allegedly wrongful and injury-producing conduct . . . that provides the
foundation for the claim.”’” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015)
238 Cal.App.4th 200, 209.) “If the mention of protected activity is ‘only incidental to a
cause of action based essentially on nonprotected activity,’ then the anti-SLAPP statute
does not apply.” (Id. at p. 210.)
              Ryan’s complaint alleged Holt individually made a false and injurious
statement to a single third party. There is no allegation Holt’s allegedly defamatory
statement was made before or in connection with any official proceeding, in a public
place, or involved an issue of public interest. This statement fails to satisfy the
requirements of any of the four categories of protected activity. As noted, to be subject to
a motion to strike under section 425.16, “a cause of action” must “arise[] from protected
speech or petitioning . . . .” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) Holt failed
to carry his burden of establishing the first prong of the anti-SLAPP motion analysis.
Thus, the trial court properly denied his motion as to the cause of action for defamation.

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3. Abuse of Process
              Holt contends the trial court erred in denying his request to strike the abuse
of process cause of action. He focuses on the allegations of a threat to file a State Bar
complaint and the subsequent use of an offer to withdraw that complaint as a means of
obtaining a favorable settlement were barred by the litigation privilege. (Civ. Code, § 47,
subd. (b).)
              “The common law tort of abuse of process arises when one uses the court’s
process for a purpose other than that for which the process was designed. . . . [¶] ‘[T]he
essence of the tort [is] . . . misuse of the power of the court; it is an act done in the name
of the court and under its authority for the purpose of perpetrating an injustice.’
[Citation.] To succeed in an action for abuse of process, a litigant must establish that the
defendant (1) contemplated an ulterior motive in using the process, and (2) committed a
willful act in the use of the process not proper in the regular conduct of the proceedings.”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057.)
              Ryan’s abuse of process count alleges conduct that arguably would satisfy
the anti-SLAPP motion’s first prong. It refers to “threats to take Ryan’s license to
practice law,” the subsequent filing of “a complaint against [him] with the State Bar,”
then, “while [the] complaint was pending, offering to dismiss the State Bar proceeding.”
(Capitalization omitted.) Thus, to prevail on this cause of action, Ryan needed to
establish a probability of prevailing on it. “[I]n order to establish the requisite probability
of prevailing [citation], 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, supra, 29 Cal.4th at pp. 88-89.)
              Ryan cannot satisfy the first requirement of stating a legally sufficient
cause of action for abuse of process. First, this cause of action refers to “acts of assault

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and battery” and “trespass on [his] property.” These allegations do not refer to any use of
legal process whatsoever. Further, the only “process” alleged is the threat to file a
complaint with the State Bar and the subsequent effort to employ the pendency of that
proceeding to achieve a favorable settlement. Where a “defendant t[akes] no action
pursuant to authority of court, directly or by ancillary proceedings, no judicial process
[i]s abused.” (Meadows v. Bakersfield S. & L. Assn. (1967) 250 Cal.App.2d 749, 753.)
Thus, it has been held “Application of the tort to administrative proceedings would not
serve the purpose of the tort, which is to preserve the integrity of the court.” (Stolz v.
Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1823.) Since
there is no allegation Holt misused the power of the court, Ryan failed to state a legally
sufficient claim for abuse of process.
              Alternatively, Ryan attempts to rely on California Rules of Court,
rule 3.1113 to support the trial court’s ruling. He argues the court could have denied
Holt’s motion on procedural grounds because Holt, by requesting the trial court to take
judicial notice of Allione’s motion to the extent it addressed the defamation and abuse of
process causes of action, violated rule 3.1113(d)’s 15-page limit. This argument lacks
merit.
              Ryan failed to assert this argument in the trial court. Consequently, he
waived any alleged procedural defect in the length of Holt’s supporting memorandum.
Further, there is no indication the trial court relied on this alleged defect in denying
Holt’s anti-SLAPP motion. California Rules of Court, rule 3.1113(g) provides “A
memorandum that exceeds the page limits of these rules must be filed and considered in
the same manner as a late-filed paper” and, in the latter situation, “If the court, in its
discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
(Cal. Rules of Court, rule 3.1300(d).) The court’s minute order denying Holt’s anti-
SLAPP motion makes no mention of the court declining to consider Holt’s supporting
memorandum because it exceeded the mandated page limit. Finally, Holt did not

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incorporate Allione’s argument, but filed a separate request that the trial court take
judicial notice of Allione’s supporting memorandum. (Cal. Rules of Court, rule 3.1113(l)
[“request for judicial notice must be made in a separate document listing the specific
items for which notice is requested”].) Thus, we conclude Holt’s supporting
memorandum did not violate the court rules.
              We conclude the trial court erred in denying Holt’s motion to strike the
abuse of process cause of action.


                                      DISPOSITION


              The portion of the order denying appellant’s motion as to the cause of
action for defamation is affirmed. The portion of the order denying the motion as to the
abuse of process cause of action is reversed. Each party shall bear his own costs on
appeal.




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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