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Lie in Anticipation of Litigation Is Protected Conduct—C.A.
False Statement That Ex-Boyfriend Violated Restraining Order When No Such Order Exists Meets First Prong of
Anti-SLAPP Statute If Person Making the Representation Intends to Seek Such an Order, Justice Kim Says
By a MetNews Staff Writer
The Court of Appeal for this district has held that if a woman told a third party that her ex-boyfriend violated a restraining order against him, in her favor, causing financial harm to him, when no such order actually existed—as alleged in a lawsuit against the former girlfriend—the spewing of that lie was protected speech under the anti-SLAPP statute, if the plaintiff contemplated seeking such an order if the man’s conduct persisted.
Justice Dorothy Kim authored the unpublished opinion, filed Monday. It reverses an order by Los Angeles Superior Court Judge Robert S. Draper denying a special motion to strike filed by Christina Hayek pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16.
Draper found that the conduct did not meet the first prong of §425.16—protected speech—and he did not proceed to determine whether the plaintiff, Cameron Kaminski, could satisfy the second prong: showing that the probability of prevailing on the merits.
Draper’s View
He said in the minute order:
“[T]he communication which Hayek claims is protected by the anti-SLAPP statute is not a statement about litigation that is to be filed, but a claim that a restraining order had been issued and that Kaminski had violated it.”
At the hearing on the anti-SLAPP motion, Draper observed that what Hayek was saying was: “I was contemplating filing a restraining order, therefore, I told this third party that he had already violated a restraining order that was already in effect.”
Kim’s opinion declares that protected speech was shown based on Hayek’s statement having been made in anticipation of litigation. It instructs that on remand, the second prong be addressed.
Kaminski’s Allegations
In his brief on appeal, Kaminski set forth this rendition of the facts:
“Plaintiff-Respondent Cameron Kaminski works as a manager in the music industry. His former business and romantic partner, Defendant-Appellant Christina Hayek, has a history of retaliating against people she believes have wronged her and beginning in 2019, she targeted Kaminski as among this group. She told friends she intended to make Kaminski ‘pay,’ that there wasn’t room for both of them in the music industry, and that she wanted to contact Kaminski’s colleagues and badmouth him to them.
“In January 2021—more than a year since Kaminski and Hayek had had any kind of relationship—Hayek made good on these threats. She called Mary Allen, one of Kaminski’s colleagues, and told Allen that Kaminski had violated a restraining order she (Hayek) had against him by viewing and ‘liking’ her admittedly public Instagram posts. That conversation resulted in Kaminski losing a valuable management contract with an artist named Tripp St. because Allen—who as a talent agent booked musical appearances for Tripp St.—told Tripp St. about her call with Hayek. Kaminski also lost his professional relationship with Allen because she told him she would not work with him anymore.
“When Kaminski learned what Hayek had done, he sued her in March 2021, alleging multiple tort causes of action, including defamation per se. Kaminski has never had a restraining order issued against him in relation to anyone, and indeed, Hayek never sought one against him.”
Kim’s Opinion
Kim noted that under a California Supreme Court decision, allegations in a complaint need not be taken as true for purposes of an anti-SLAPP motion (unlike a demurrer), but she made clear that even if Hayek did mendaciously represent that she had obtained a restraining order against Kaminski and that he had violated it, that falsehood was not actionable. She wrote:
“Here, defendant submitted evidence that she had consulted with, although had not retained, an attorney to represent her in the filing of a petition for a restraining order against plaintiff. Thus, defendant adequately established, at least for purposes of the first prong of the anti-SLAPP statute that she was in good faith and seriously contemplating litigation. Defendant also submitted a declaration stating that when she spoke to Allen on January 15, 2021, she did so in order to obtain evidence that she could use in the contemplated restraining order proceeding. Such prelitigation investigation is ‘normally and reasonably part of effective litigation, if not an essential part of it.’…On these facts, we conclude defendant met her first prong burden of demonstrating that the acts alleged in plaintiffs complaint arose from protected conduct.”
The case is Kaminski v. Hayek, B314767.
Attorneys on appeal were Morgan E. Pietz of the Culver City firm of Pietz & Shahriari for Kaminski and Adam H. Braun of the Culver City firm of Braun & Braun and Allison L. Ehlert of Ehlert Hicks in Berkeley for Hayek.
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