Unreported / Non-Citable
Background
Ivengen Bondarenko and Forest Nelson were involved in a business and partnership dispute arising from a general partnership allegedly formed by oral agreement. Bondarenko sued Nelson for breach of fiduciary duty, conversion, fraud, accounting and dissolution, declaratory relief, and civil theft under Penal Code section 496. Nelson, individually and on behalf of the Nelson-Bondarenko Partnership, responded with a verified cross-complaint against Bondarenko and others. The four claims challenged on appeal were defamation, interference with economic relationships, intentional infliction of emotional distress, and violations of Business and Professions Code section 17200 et seq.
Nelson's verified cross-complaint alleged that Bondarenko knowingly filed false police reports accusing Nelson of stealing a truckload of electric scooters, prompting two Placer County Sheriff's deputies to investigate baseless claims, and that Bondarenko and his agents made false and defamatory statements about Nelson to third parties including the sheriff's office. Bondarenko moved to strike the four causes of action under Code of Civil Procedure section 425.16, relying exclusively on the cross-complaint's allegations and filing no supporting evidence. He maintained that reports to police are protected activity under section 425.16, subdivision (e)(2), regardless of their truth. Nelson opposed with a declaration attesting that the cross-complaint's allegations were true. The trial court denied the motion and overruled Bondarenko's objections to that declaration, finding the allegations of false reports and statements to sheriffs uncontroverted.
The Court’s Holding
Reviewing de novo, the Court of Appeal resolved the appeal at the first step of the two-step anti-SLAPP analysis: whether Bondarenko made a prima facie showing that the challenged claims arise from protected speech or petition activity. Accepting the verified cross-complaint's facts as true for that inquiry, the court held that although reports to the police are generally protected as statements made in connection with official proceedings under section 425.16, subdivision (e)(2), knowingly false police reports are not, because Penal Code section 148.5 makes knowingly filing a false report illegal. Under the unlawful-as-a-matter-of-law doctrine, the uncontroverted verified allegations that Bondarenko knowingly made false reports rendered his conduct unlawful and therefore outside section 425.16's protection, defeating his threshold showing.
The court distinguished decisions in which movants denied falsity or supplied evidence controverting alleged illegality. Bondarenko did not controvert the falsity allegations: his evidentiary objections to Nelson's declaration did not create a factual dispute because he relied solely on the pleadings, counsel's legal objections are not evidence, and he offered no reasoned authority showing those objections disproved the verified allegations. The court also deemed forfeited his suggestion that illegality required proof beyond a reasonable doubt, noting he did not show the argument was raised below and supplied no adequate appellate analysis. Because Bondarenko failed at the first step, the court did not decide whether Nelson could show a probability of prevailing, expressly left the parties' other arguments unaddressed including his challenge to the ruling on the declaration objections, affirmed the denial of the motion to strike, and awarded Nelson his costs on appeal.
Key Takeaways
- A police report is not automatically protected anti-SLAPP activity when uncontroverted verified allegations establish that the report was knowingly false and the movant does not deny the falsity.
- A movant who relies exclusively on the opposing party's verified pleading must accept its factual allegations for the threshold protected-activity analysis.
- Evidentiary objections to an opponent's declaration do not themselves controvert verified factual allegations, and arguments of counsel are not evidence.
- The court did not decide whether Nelson had a probability of prevailing on the cross-complaint because Bondarenko failed at the first step of the anti-SLAPP analysis.
- The beyond-a-reasonable-doubt argument was deemed forfeited, and the court did not reach the remaining appellate arguments or the challenge to the trial court's ruling on the declaration objections.
Why It Matters
The decision applies the established illegality exception in a pleading-driven anti-SLAPP posture. Its case-specific point is not that every allegation of a false police report defeats protection, but that uncontroverted verified allegations of knowing falsity can make the conduct unlawful as a matter of law at the first step. The court contrasted Bondarenko's position with cases in which movants denied falsity or introduced contrary evidence.
The affirmance leaves Nelson's four challenged claims intact rather than adjudicating their merits. It also illustrates the practical consequences of relying only on allegations, failing to submit supporting evidence, and presenting an inadequately developed new argument on appeal.