Bondarenko v. Nelson CA3

Filed 11/6/26 Bondarenko v. Nelson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) IVENGEN BONDARENKO, C105213 Plaintiff, Cross-defendant and Appellant, (Super. Ct. No. SCV0055104) v. FOREST NELSON et al., Defendants, Cross-complainants and Respondents. Plaintiff and cross-defendant Ivengen Bondarenko appeals from the trial court’s denial of his motion to strike four causes of action from defendant and cross-complainant Forest Nelson’s verified cross-complaint under Code of Civil Procedure 1 section 425.16, widely known as the anti-SLAPP (strategic lawsuit against public participation) statute. The anti-SLAPP statute is designed to protect defendants and cross-defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern (§ 425.16, subd. (b)(1)) and identifies four categories of protected activity in that regard (id. at subd. (e)). 1 Undesignated statutory references are to the Code of Civil Procedure. 1  Litigation of an anti-SLAPP motion involves a two-step process. “First, the court decides whether the [movant] 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 [non-movant] has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) The first step of the anti-SLAPP analysis is dispositive of this appeal. Bondarenko sought to strike the four causes of action in the cross-complaint based on Nelson’s verified allegations that Bondarenko made false reports to the police regarding Nelson’s purported criminal conduct. Bondarenko argued the causes of action arise from protected activity because reports to the police (whether true or not) are acts protected under section 425.16, subdivision (e)(2) as statements made in connection with official proceedings authorized by law. The trial court disagreed, as do we. As we explain, although reports to the police are generally protected activity under section 425.16, knowingly making false police reports are not. Because Bondarenko did not controvert the allegation that he knowingly made false police reports, he failed to show that the causes of action arise from protected activity. We accordingly affirm. FACTUAL AND PROCEDURAL BACKGROUND 2 This appeal arises out of a business and partnership dispute. Bondarenko sued Nelson for breach of fiduciary duty, conversion, fraud, accounting and dissolution, declaratory relief, and civil theft under Penal Code section 496 pertaining to their general 2 We note Bondarenko failed to provide appropriate record citations in his statement of facts. He cites a span of the same 40 pages in the cross-complaint for each asserted fact. This does not comport with appellate rules of procedure, which require that each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears” (Cal. Rules of Court, rule 8.204(a)(1)(C)), including “a summary of the significant facts limited to matters in the record” (id., rule 8.204(a)(2)(C)). 2 partnership that was established by oral agreement. In response, Nelson, in his individual capacity and on behalf of Nelson-Bondarenko Partnership, filed a verified cross- complaint against Bondarenko and others. As pertinent here, Nelson’s causes of action against Bondarenko include defamation, interference with economic relationships, intentional infliction of emotional distress, and violations of Business and Professions Code section 17200 et seq. (collectively, challenged causes of action). As a basis for the challenged causes of action, Nelson alleges that, among other things, Bondarenko “knowingly filed false police reports against Nelson” and “falsely reported to the police that Nelson had stolen a truckload of electric scooters, prompting two Placer County Sheriff’s deputies to investigate the baseless claims.” He further alleges that “Bondarenko, and his agents or accomplices, have made false and defamatory statements of fact about Nelson, which statements Bondarenko and/or his agents or accomplices published to a third party, including [certain] staff, employees, contractors, and vendors, and the Placer County Sheriff.” Bondarenko moved to strike the challenged causes of action under section 425.16. 3 He argued, as pertinent here, that his alleged reports to the police arose from the exercise of protected activity under section 425.16, subdivision (e)(2). In that regard, he asserted “whether or not the reports were true is irrelevant to the threshold [anti-SLAPP] inquiry; what matters is that the statements were made in the context of initiating a governmental investigation.” Bondarenko further argued that Nelson could not demonstrate a probability of prevailing on the challenged causes of action because Nelson’s allegations are vague and Bondarenko’s statements to the police are privileged under Civil Code section 47. Bondarenko did not file any evidence in support of his motion. 3 We granted Bondarenko’s motion to augment the record with his notice and motion to strike, and the memorandum of points and authorities filed in support. 3  Nelson opposed the motion to strike, arguing, among other things, that Bondarenko failed to meet the first step of the anti-SLAPP analysis because he did not controvert the allegations that he knowingly made false police reports. Nelson submitted his own declaration in opposition to the motion, wherein he attested that various allegations in his verified cross-complaint were true. In his reply brief, Bondarenko noted that he was filing objections to Nelson’s declaration (which he did) and asserted “[t]he only ‘evidence’ that matters at this stage is what is actually alleged.” He explained a moving party may rely on the cross- complainant’s allegations alone to show that the alleged conduct is protected activity under the anti-SLAPP statute. (Citing Supershuttle International, Inc. v. Labor & Workforce Development Agency (2019) 40 Cal.App.5th 1058, 1065.) Bondarenko reasoned: “Whether the reports were accurate, exaggerated, or mistaken is a factual question that cannot be resolved by accepting the [c]ross-[c]omplainant’s accusations as true. What matters is that the challenged causes of action arise from Bondarenko’s act of communicating with law enforcement in connection with official proceedings, [which is] activity that lies squarely within the scope of protected conduct.” The trial court denied the motion to strike and overruled Bondarenko’s objections to Nelson’s declaration in their entirety. The trial court found that Bondarenko failed to show that the alleged conduct was protected activity under section 425.16 “because the uncontroverted allegations are that cross-defendant filed false police reports and made false statements to sheriffs.” Bondarenko appeals. 4  DISCUSSION We review Bondarenko’s challenge to the trial court’s denial of his anti-SLAPP motion de novo. 4 (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) As explained ante, this appeal turns on the first step of the anti-SLAPP analysis, i.e., whether Bondarenko made a prima facie showing that the challenged causes of action arise from acts taken in furtherance of Bondarenko’s constitutional rights of free speech or petition in connection with a public issue. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 112.) Bondarenko’s “burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni, at p. 1009.) Here, to meet his burden under the first step of the analysis, Bondarenko relied exclusively on the allegations in the verified cross-complaint and identified the acts taken in furtherance of his rights as the reports he made to the police. We accept as true the facts pled in the verified cross-complaint for purposes of analyzing whether Nelson’s claims arose from protected activity. (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733.) Based on those facts, we conclude Bondarenko did not meet his burden and affirm the trial court’s denial of his motion to strike. Although reports to the police are generally protected activity under section 425.16, subdivision (e)(2) as statements made in connection with official proceedings (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942), knowingly making false reports to the police are not. That is because it is illegal to knowingly make false police reports. (Pen. Code, § 148.5, subd. (a); Dwight R. v. Christy B. (2013) 212 Cal.App.4th 4 We accordingly do not address Bondarenko’s arguments as to purported error in the trial court’s analysis. 5 697, 711 (Dwight R.) [“[u]nlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute”].) Within the framework of the anti-SLAPP statute, “when the defendant’s [or cross- defendant’s] assertedly protected activity may or may not be unlawful, the defendant [or cross-defendant] may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law.” (Dwight R., supra, 212 Cal.App.4th at p. 711; Flatley v. Mauro (2006) 39 Cal.4th 299, 317 [“section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law”].) “An activity may be deemed unlawful as a matter of law [under the first prong of the anti-SLAPP analysis] when the defendant [or cross-defendant] does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful.” (Dwight R., at p. 712, italics added.) The first circumstance applies here. Taking the facts alleged in the verified cross-complaint as true, Bondarenko knowingly made false reports to the police that Nelson had stolen a truckload of electric scooters. Bondarenko’s reports to the police were thus unlawful and did not, as a matter of law, constitute protected activity under section 425.16. Bondarenko did not, like the movants in Kenne v. Stennis (2014) 230 Cal.App.4th 953 (a case that Bondarenko asserts is analogous to this case), controvert the allegations regarding falsity. (Id. at p. 967 [movants denied any report made to the police was false or illegal]; see also Dwight R., supra, 212 Cal.App.4th at p. 712 [first step in anti-SLAPP analysis met when movant denied allegations of unlawful conduct]; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512 [first step in anti-SLAPP analysis met when defendant introduced declaration indicating allegedly false statements to police were true].) Accordingly, Bondarenko’s reliance on “case law holding that when allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law” under section 425.16 is misplaced. (Italics added.) 6  Lugo v. Pixior, LLC (2024) 101 Cal.App.5th 511 also does not assist Bondarenko. In that case, the plaintiff sued her former employer and others for malicious prosecution. The employee claimed the employer “had falsely reported her to [the] police, which triggered a criminal prosecution against her that she defeated.” (Id. at p. 513.) The trial court denied the employer’s anti-SLAPP motion, but the appellate court reversed. The appellate court explained, “[a]s a matter of law, [the employer] had a winning defense: criminal prosecutors acted only after an independent investigation.” (Ibid.) It further explained that, although the employee was declared “factually innocent” after the prosecution dismissed the case “as unprovable,” “a prosecutor nonetheless made remarks [the employer] sa[id] showed [its] continued belief in [the employee’s] actual, but unprovable, culpability.” (Ibid.) In other words, the employer controverted the employee’s allegations that it falsely reported criminal conduct to the police by relying on a prosecutor’s remarks. Here, in contrast, Bondarenko did not deny the allegations that he made false police reports. Bondarenko’s assertion that the allegations of falsity were controverted by his evidentiary objections to Nelson’s declaration need not detain us long. Bondarenko’s position in the trial court was that he was entitled to the benefit of section 425.16 notwithstanding whether his reports to the police were false. He further argued that “[t]he only ‘evidence’ ” pertinent to the first step of the anti-SLAPP inquiry was “what is actually alleged” and he asserted that he met his burden by showing the cross-complaint itself showed that the causes of action arose from protected activity. Nelson’s declaration was thus irrelevant to Bondarenko’s burden under the first step of the anti-SLAPP analysis, as were Bondarenko’s objections to that declaration. Bondarenko further does not explain with reasoned argument and citation to authority how his counsel’s legal objections to Nelson’s declaration controverted the verified factual allegations in the cross-complaint. (Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433 [arguments of counsel not evidence]; In re S.C. 7 (2006) 138 Cal.App.4th 396, 408 [appellant must present meaningful legal analysis supported by citations to authority to support claim of error].) At bottom, Bondarenko elected to rely exclusively on the verified allegations in the cross-complaint and his legal objections to Nelson’s declaration did not controvert those allegations to create a factual dispute. We also reject the notion that the absence of evidence that Bondarenko conceded the falsity of the police reports rendered the verified allegations controverted, as Bondarenko appears to suggest. We next turn to Bondarenko’s summary statement that, “[a]rguably, the trial court should have employed [a beyond-a-reasonable-doubt] standard in determining that [his] statements to police were illegal activity.” (Citing People v. Mumin (2023) 15 Cal.5th 176, 198 [discussing role of proof-beyond-a-reasonable-doubt standard in substantial evidence review of instructional error claims in criminal cases].) We do not address the argument because we deem it forfeited. First, nothing in the record shows that Bondarenko raised the argument in the trial court, and he does not argue otherwise. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [“arguments raised for the first time on appeal are generally deemed forfeited”].) Second, Mumin does not stand for the proposition asserted and Bondarenko provides no reasoned argument with citation to authority that the analysis in that case pertains to anti-SLAPP motions. (In re S.C., supra, 138 Cal.App.4th at p. 408.) Based on the uncontroverted verified allegations in the cross-complaint that Bondarenko knowingly made false police reports, which were unlawful, Bondarenko did not demonstrate that his conduct was protected under section 425.16, subdivision (e)(2). We accordingly do not address the other arguments raised by the parties in this appeal, including Bondarenko’s challenge to the trial court’s denial of his objections to Nelson’s declaration. We affirm the trial court’s denial of Bondarenko’s motion to strike. 8  DISPOSITION The order denying Bondarenko’s motion to strike under section 425.16 is affirmed. Nelson shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).) /s/ BOULWARE EURIE, J. We concur: /s/ MAURO, Acting P. J. /s/ MESIWALA, J. 9