Full brief: Jane Does answer Scientology's appeal in Masterson civil case

[Danny and Dave just got a shellacking]

Back in April, we brought you Scientology’s appeal brief in the civil lawsuit filed by Danny Masterson’s victims against the church and the That ‘70s Show actor, who is a Scientology celebrity.

This is separate from the appeal that Danny himself has filed in the criminal case that has him serving 30 years to life in prison. He’s on his own in that case, and we’re waiting for the Los Angeles DA’s Office to file its answer to his appeal.

In the civil lawsuit, Danny is being sued along with the church by the same victims who put him in prison in the criminal case, along with a few more plaintiffs. This lawsuit is about the years of intimidation and harassment these victims say they have been put through since they came forward to the LAPD with their allegations.

The civil case actually predates the criminal one, and was filed back in June 2019. But even after six years, the case is still only in preliminary matters because it was put on hold during Danny’s trials. Once it got going again after Danny was convicted, Scientology filed anti-SLAPP motions in an attempt to gut the lawsuit, but those motions were denied outright by Judge Upinder Kalra.

Scientology appealed that ruling, and that’s why the case is now moving slowly through the 2nd Appellate District of the California Court of Appeals.

In its appeal brief, Scientology argued that Judge Kalra had erred in various ways, primarily by not seeing the criticisms that the Jane Does may have heard as protected speech in a public debate. It appeared to our expert, TX Lawyer, as a pretty weak and cynical argument. Judge Kalra had agreed with the victims that what Scientology was accused of was trying to shut down their private assertions about sexual assault, not public debate about a celebrity.

Also, Scientology sneers at the lawsuit in its filings, arguing that the instances of harassment were not connected to the church, for example, and that the Jane Does have not provided evidence to back up their allegations.

But in a calm and very readable reply, attorneys John Kucera, Alison Anderson, and Maxwell Pritt remind the court that at this early stage, the plaintiffs merely need to properly allege the incidents of intimidation and harassment. Further proof will come later in discovery and for a jury.

It’s so refreshing to read this kind of simple and clear explanation of the case after Scientology’s cynicism. It only helps to illustrate how desperate this appeal was, and clearly intended by the church just to slow the case down. Well, it has done that, but we have a feeling that the appeals court will see this for the shellacking that it looks like to us.

(On Sunday we’ll have TX Lawyer’s assessment of the brief. And this post is way too long for your email provider, so please come to tonyortega.substack.com to see it in its entirety.)

BRIEF OF RESPONDENTS

INTRODUCTION

This appeal arises from the trial court’s denial of Defendants’ anti-SLAPP motion, which ruling rests squarely on a straight-forward and thorough application of the California Supreme Court’s “functional relationship” test articulated in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150 (FilmOn).) The trial court’s order is not only correct as a matter of law, but it is also a model of careful, context-driven analysis.

Defendants and their co-conspirators engaged in a campaign to silence, punish, and terrorize Plaintiffs after reporting to and cooperating with law enforcement regarding numerous instances of forcible rape and sexual assault by defendant Daniel Masterson, a prominent member of the Church of Scientology who, on May 31, 2023, was convicted of multiple counts of forcible rape of certain Plaintiffs. After reporting these crimes to law enforcement, Plaintiffs—Chrissie Carnell Bixler, Cedric Bixler-Zavala, Jane Doe #1, Jane Doe #2, and Marie Bobette Riales—were subjected to a relentless campaign of harassment, surveillance, threats, and defamation, both online and offline.

In rejecting Defendants’ efforts to recast this campaign as protected speech, the trial court meticulously parsed the challenged conduct, distinguishing between protected and unprotected activity, and—most critically—correctly applied the FilmOn test in rejecting Defendants’ attempt to shield this harassment. The trial court’s reasoning is sound, its factual findings are well-supported, and its legal conclusions are compelled by binding precedent. Defendants’ arguments to the contrary are unavailing, as the trial court’s order demonstrates with clarity and precision.

STATEMENT OF THE CASE

Background and Parties

This action arises from a pattern of egregious misconduct perpetrated by Defendants—Church of Scientology Celebrity Centre International, Church of Scientology International, Religious Technology Center, and Daniel Masterson—against Plaintiffs, who reported defendant Masterson’s sexual assaults to law enforcement and subsequently became the targets of a coordinated campaign of harassment and intimidation.

Defendants are institutions and individuals with the means, motive, and opportunity to orchestrate a campaign of retaliation designed to silence dissent and obstruct justice.

Pertinent Allegations

The allegations at the heart of this appeal are neither speculative nor isolated. They are detailed, corroborated, and consistent across multiple Plaintiffs, each of whom describes a pattern of conduct that, when viewed in its totality, reveals a deliberate and systematic effort to punish and deter those who challenge the authority of the Church of Scientology and its prominent members.

Direct Threats and Intimidation

Plaintiffs allege that, following their reports to law enforcement, they were subjected to a barrage of threatening communications, both direct and indirect. For example, Plaintiff Bixler received a letter from Masterson’s publicist, Jenni Weinman, containing abusive and harassing language, including threats to release false and malicious information unless Bixler and her husband ceased speaking publicly and reporting to law enforcement. Weinman further accused Bixler and Jane Doe #1 of “extortion” and sought to dissuade them from pursuing their claims.

Surveillance and Stalking

Plaintiffs describe repeated incidents of being followed, surveilled, and harassed in public and private spaces. Vehicles and individuals associated with Scientology were observed near Plaintiffs’ homes and workplaces, often engaging in conduct designed to instill fear and uncertainty.

Plaintiffs reported late-night phone calls referencing their home addresses, being chased by vehicles, and finding evidence of tampering with their property, including open car doors and stolen mail.

Online Harassment and Defamation

The campaign extended to the digital realm, where Plaintiffs were targeted by false and defamatory statements on social media and other online platforms. Agents and associates of Scientology published posts accusing Plaintiffs of fabricating their allegations, engaging in criminal conduct, and being motivated by religious bigotry. Plaintiffs’ reputations were attacked, and their businesses were targeted with false reviews and disparaging comments.

Witness Intimidation and Obstruction

Defendants’ agents contacted witnesses and reporters, seeking to dissuade them from cooperating with law enforcement or supporting Plaintiffs’ claims. Michelle Miskovich, acting as an agent of Scientology, contacted a reporter to assert that Plaintiffs were fabricating their claims and reached out to a witness to deter her from speaking to the police. Vanessa Mooney, another purported agent, attempted to persuade a witness that Jane Doe #1 was lying.

Coordinated Campaign and Institutional Ratification

The conduct described was not random or isolated. It was coordinated, persistent, and reinforced by Scientology’s hierarchical structure and internal disciplinary mechanisms.

Scientology’s failure to repudiate or discipline those responsible, despite clear notice of their conduct, supports a strong inference of ratification and agency.

STANDARD OF REVIEW

A trial court’s order denying an anti-SLAPP motion is reviewed de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) Evidentiary challenges are reviewed only for abuse of discretion, and the appellate court will not overturn an evidentiary ruling on appeal unless “the trial court exceeded the bounds of reason, all of the circumstances before it being considered.’ (Public Employees’ Retirement System v. Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th 643, 683.)

LEGAL STANDARD

California’s anti-SLAPP statute 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 or 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. (Code Civ. Proc. § 425.16, subd. (b)(1).)

The anti-SLAPP statute requires courts to engage in a two-pronged analysis. (Equilon Enters. v. Cons. Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the court must determine whether an defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Ibid.) To make this threshold showing, the defendant must demonstrate that the conduct at issue falls within one of the four categories of protected activity described in Civ. Proc. Code § 425.16, subd. (e), which includes, as pertinent here, statements made in public forums on matters of public interest, and (conduct supporting the constitutional rights of free speech or petition in connection with public issues. (Id. at pp. 66–67.)

The protected activity must “supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at p. 1063.) The court must distinguish between activities that form the basis for a claim and those that merely provide evidentiary support. (Id. at p. 1064.) A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of wrongful conduct. (Id. at p. 1060.)

Similarly, it is not enough that a claim “was filed after, or because of, protected activity,” or that protected activity merely provides “context for the claim.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 622 (Rand).)

The burden is on the party invoking the anti-SLAPP statute 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 v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) If the movant fails to identify how the speech or conduct underlying the claims is protected activity, it does not meet its burden under the first prong. (Id. at p. 1011.)

If, and only if, the Appellants establish that the anti-SLAPP statute applies under prong one, then the burden shifts to plaintiff to demonstrate a “prima facie factual showing sufficient to sustain a favorable judgment.” (Urick v. Urick (2017) 15 Cal.App.5th 1182, 1191.) This step is akin to a summary judgment procedure: the court does not weigh evidence or resolve factual disputes but determines only “whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” (Ibid. [quotations and citations omitted].) The court “accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the Respondent’s claim as a matter of law. [C]laims with the requisite minimal merit may proceed.” (Ibid. [quotations and citations omitted]; Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 52; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

When claims involve a pattern of harmful conduct, courts must evaluate the totality of that conduct and refrain from analyzing whether single incidents are sufficient to support a claim. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499 (Harris).) This is particularly true in cases of conspiratorial harassment, where separate acts may gain sinister meaning only in context. (FilmOn, supra, 7 Cal.5th at pp. 149–51.) If there is conflicting evidence, the court must credit the plaintiffs’ evidence, and the anti-SLAPP motion should be denied. (Citizens of Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598.)

In sum and substance, “[o]nly 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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

ARGUMENT

I. APPELLANTS MAY ONLY FILE AN ANTI-SLAPP MOTION IF THEIR OWN PROTECTED ACTIVITY IS IMPLICATED

The anti-SLAPP statute only applies to claims arising out of protected statements of a defendant. (See ibid. [“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...” (emphasis added).]; Shekhter v. Fin. Indem. Co. (2001), 89 Cal. App. 4th 141, 152 [Statutory language requires that the defendant “be the individual who is or was being sued for exercise of ‘that person[’s]” right of petition or free expression.’”].)

Here, Appellants moved to strike two claims that are based, in part, on the statements of third parties. Because Respondents alleged that the third parties either acted as agents of Appellants or conspired with Appellants to carry on their acts, including the statements, Appellants seemingly had standing to brings their anti-SLAPP motion. However, in its opening Brief, Appellants argue that they can escape liability because Respondents have not yet proved the agency relationship between Appellants and the third parties.

But Appellants cannot have their cake and eat it too. If Appellants maintain that the third parties were not their agent and there was no conspiracy between them and Appellants, Appellants cannot avail themselves of the protections of the anti-SLAPP statute, which applies only to claims arising out of Appellants’ protected conduct. Therefore, the Court should affirm the trial court’s ruling: either Appellants are not entitled to anti-SLAPP protections at all, or they must concede agency/conspiracy relationship with the parties, on whose statements the liability is based.

II. RESPONDENTS’ CLAIMS DO NOT ARISE FROM PROTECTED ACTIVITY UNDER PRONG ONE OF THE ANTI-SLAPP ANALYSIS

A. Legal Standard

California’s anti-SLAPP statute protects conduct “arising from any act . . . in furtherance of the person’s right of petition or free speech . . . in connection with a public issue.” (Code Civ. Proc. § 425.16, subd. (b)(1).) Subdivision (e) of the statute enumerates four categories of protected activity. (Id. at § 425.16(e).) At the first step of the anti-SLAPP analysis, the defendant bears the burden of demonstrating that the challenged allegations arise from one of these categories. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

Subdivision (e)(4), commonly referred to as the “catchall” provision, extends protection to “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.” (Code Civ. Proc., § 425.16, subd. (e)(4).) To determine whether conduct is “in connection with a public issue or an issue of public interest” under subdivision (e)(4), courts apply the two-step framework articulated by the California Supreme Court in FilmOn. (FilmOn, supra, 7 Cal. 5th at pp. 149– 150.)

First, courts must examine whether the conduct, in light of its content and context, implicates a public issue. (FilmOn, supra, 7 Cal.5th at p. 149.) If this threshold is met, the court proceeds to the second step, which asks whether there is a “functional relationship” between the conduct and public discourse—that is, whether the conduct meaningfully contributes to public debate. (Id. at pp. 149–50.) In making this assessment, courts must consider the context of the speech, including the identity of the speaker, the purpose of the speech, the nature and intended audience, and the timing and location of the communication. (Ibid.) “It is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Id. at 150.) The movant’s beliefs, motivations, or characterizations may be relevant and, if objectively reasonable, will inform the analysis. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1254 (Geiser).)

The Supreme Court has clarified that the threshold for step one is not onerous. (FilmOn, supra, 7 Cal.5th at p. 149.) Virtually any statement that can reasonably be construed as implicating a matter of public interest will suffice—even if it arises from a private dispute. (Ibid.; Geiser, supra, 13 Cal.5th at pp. 1253–1254.) Here, the trial court found that the first FilmOn step was satisfied as the statements at issue implicated “issues relating to domestic violence, sexual abuse and the ‘Me Too’ movement, allegations that a Hollywood celebrity engaged in sexual misconduct and was subject to an ongoing criminal investigations.” [1. As the California Supreme Court recently explained, “virtually always” does not mean “always”; “a defendant may fail to meet its first-step burden.” (Geiser v. Kuhns (2022), 13 Cal. 5th 1238, 1250.) “And where the first step is satisfied, it performs an important function in the inquiry: It operates as a lens that focuses the analysis at the second step” by requiring the court to “identify some public issue that the challenged activity purports to address.” (Ibid.)] As such, step one is not the point of contention, and Respondents focus their argument on the step-two analysis.

B. Appellants’ Reliance on Protected Conduct Is a Strategic Distraction and Irrelevant to the Issues on Appeal

This appeal concerns only the trial court’s denial of anti-SLAPP protection for a narrow set of private, threatening communications. The trial court conducted a detailed, claim-by-claim analysis and distinguished between public-facing speech— such as social media posts and press statements—and private efforts to intimidate or silence Respondents. Only the latter are at issue here. Specifically, the court properly found that the following actions do not constitute protected speech or petitioning activity: [2. In contrast, the trial court found that the following statements do qualify as protected activity under the statute: (1) Social media posts and online harassment, to the extent they involve public commentary (2) Public online reviews and (3) Communications with a reporter. Despite Appellant’s unnecessary arguments, these three categories of statements are not subject to this appeal.]

• Threatening communications from Masterson’s publicist, Jenni Weinman, aimed at dissuading Bixler from reporting or speaking publicly.

• Private outreach by Weinman to Jane Doe #1, urging her not to pursue her allegations.

• Efforts to interfere with law enforcement, including Miskovich’s attempt to dissuade a witness from cooperating with police.

• Witness manipulation, such as Mooney’s attempt to undermine Jane Doe #1’s credibility to another witness.

• Direct confrontation and intimidation, including Urbinati’s in-person pressure on Jane Doe #2 to recant her allegations

C. Appellants’ Conduct Fails Under FilmOn’s Functional Relationship Test

1. The Trial Court Correctly Found the Challenged Statements Were Private and Did Not Contribute to Public Debate

Appellants argue that the above statements are protected under Section 425.16(e)(4) of California’s anti-SLAPP statute because they purportedly relate to “an issue of public interest,” such as the #MeToo movement and celebrity misconduct. [3. Appellants also reference Section 425.16(e)(3) in their description of the legal standard (AB at p. 21), but they do not argue that any of the challenged conduct qualifies under that provision. Accordingly, any argument under (e)(3) is forfeited. See, e.g., Kime v. Dignity Health, Inc. (2024) 101 Cal.App.5th 708, 721.] Appellants arguments here merely seek to recast tortious conduct as protected speech. (Appellants’ Brief (“AB”) at p. 27.)

The conduct at issue, as established in the trial court’s findings and the operative complaint, consists of a series of private, targeted communications by Appellants and their agents. These include efforts to intimidate witnesses, dissuade victims from reporting sexual assaults to law enforcement, and pressure individuals to retract or remain silent about criminal behavior.

For example, the record details that Masterson’s publicist, Jenni Weinman, contacted Respondents Bixler and Jane Doe #1 privately, threatening that “things are about to get serious [for you and your family]” and attempting to convince them not to report to law enforcement. Other agents, such as Michelle Miskovich and Vanessa Mooney, privately contacted witnesses to dissuade them from cooperating with police or to undermine the credibility of the victims. These communications were not public statements, nor were they disseminated to a broader audience, but were calculated, one-on-one acts of intimidation and suppression.

Appellants’ reliance on Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547–1548 (Terry) is misplaced. In Terry, the communications at issue were part of a transparent, good-faith discussion among church leaders and parents about the safety of children, a matter of genuine public concern that was ultimately referred to law enforcement. (Ibid.) The context was collective and community-focused, not secretive or coercive. Terry did not concern a private conversation between two individuals, but a discussion among an entire community, albeit a small one. Here, by contrast, the communications were not part of any public or community dialogue, but were instead private threats and intimidation, designed to prevent information from reaching the public and to silence those who might expose wrongdoing.

Appellants’ reliance on Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 906 (Wilbanks) and Navellier v. Sletten (2002) 29 Cal.4th 82, 94 (Navellier) is equally inapposite. (AB at pp. 21–23, 62.) In Wilbanks, the speech at issue was published on a public website and addressed to a broad audience, directly contributing to public discourse about financial advisors. (Wilbanks, supra, 121 Cal.App.4th at p. 906.) In Navellier, the conduct involved the filing of counterclaims in court—classic petitioning activity. (Navellier, supra, 29 Cal.4th at p. 94.) Neither case involved the kind of private, coercive, and retaliatory communications present here.

The trial court correctly distinguished these authorities and instead relied on Bishop v. The Bishop’s School (2022) 86 Cal.App.5th 893, 906–907 (Bishop). In Bishop, the court held that a private termination letter, even if it referenced an issue of public interest, did not contribute to public discourse and was not protected activity. (Ibid.) The trial court here found the same reasoning dispositive, concluding that the challenged statements were private, directed to specific individuals, and not intended to inform or engage the public.

Appellants have not cited—and no court has recognized—any case where a private apology, a threat to withdraw a police report, or a coercive communication to a victim or witness was found to contribute to public discourse or qualify as protected activity under section 425.16(e)(4). In every case Appellants cite, the speech was either public-facing, part of a legitimate public debate, or directed to a broad audience. None involved the kind of private, coercive efforts to suppress allegations or intimidate witnesses present here.

The Supreme Court unequivocally held that when assessing whether a functional relationship exists, courts must consider the context of the speech, including the identity of the speaker, the purpose of the speech, the nature and intended audience, and the timing and location of the communication. (FilmOn, supra, 7 Cal.5th at pp. 149–150.)

Here the context is clear: Appellants are not private citizens engaging in civic dialogue but are part of a powerful institution facing serious allegations of harassment in an effort to conceal criminal acts of sexual misconduct. The intended audience was not the broader public engaged in debate about sexual assault or the #MeToo movement, but specific individuals—victims, witnesses, and those cooperating with law enforcement. These communications were not disseminated to inform or engage the public, but to silence and punish those who challenged the institution. Critically, the purpose of Appellants’ communications had nothing to do with informing the public about the #MeToo movement or celebrity misconduct. These were not efforts to engage in or advance public discourse on sexual violence or institutional accountability. Rather, the communications were calculated acts of suppression—designed to intimidate victims, deter cooperation with law enforcement, and retaliate against those who spoke out.

Appellants’ attempt to sanitize this campaign of harassment by pointing to isolated public-facing statements is unavailing. The law requires courts to assess the full pattern and context of the conduct, not to dissect individual statements in isolation. (See Baral, supra, 1 Cal.5th at p. 396; FilmOn, supra, 7 Cal.5th at pp. 149–151.)

2. Appellants’ Reading of the Anti-SLAPP Statute Would Subvert Public Policy and Legitimize Harassment as Protected Speech

If the Court were to accept Appellants’ argument that even private threats “contribute” to a public debate because they seek to influence the victim’s public conduct, any statement would pass the step two rendering it superfluous.

Moreover, Appellants’ effort to recast private threats and coercive conduct as protected contributions to public debate intended to change a victim’s public stance is not only legally insupportable, but profoundly dangerous. Appellants’ proposed interpretation of section 425.16(e)(4) would erase the critical boundary between protected speech and unprotected misconduct. Appellants’ preferred interpretation would effectively transform the anti-SLAPP statute from a safeguard for free expression into a weapon used to intimidate, silence, and retaliate against victims and witnesses under the pretense of engaging in matters of public interest. Appellants would have this Court adopt an interpretation the Legislature never intended and one that is contrary to what the California Supreme Court has held.

The anti-SLAPP statute was designed to protect authentic participation in public discourse—not to immunize private acts of intimidation, harassment, or retaliation. The trial court’s analysis, rooted in FilmOn and Bishop, strikes the correct balance: protecting legitimate engagement in public debate while permitting consideration of claims based on private, noncontributory conduct. That is the line the Legislature drew, and it is the line this Court must enforce. The trial court’s ruling should be affirmed.

III. RESPONDENTS HAVE ESTABLISHED A PROBABILITY OF PREVAILING ON THE MERITS OF THEIR CLAIMS UNDER PRONG TWO OF THE ANTISLAPP ANALYSIS

A. Legal Standard

“The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech.” (Baral v. Schnitt (2016), 1 Cal.5th 376, 384 (Baral) [emphasis in original].) “It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Ibid. [emphasis in original].)

Under the anti-SLAPP framework, if defendants satisfy the first step of the analysis, the burden shifts to plaintiffs to demonstrate a probability of prevailing on the merits. (Ibid.) The standard is not onerous; plaintiffs need only show that their claims possess “minimal merit.” (Briganti v. Chow (2019) 42 Cal.App.5th 504, 510.)

At this stage, the court does not weigh evidence or resolve factual disputes; rather, it accepts as true all evidence favorable to Plaintiffs and draws all reasonable inferences in their favor. (Baral, supra, 1 Cal.5th at pp. 384–385.) Courts may consider affidavits, declarations, and similar evidence at this stage, so long as it is reasonably possible the proffered evidence will be admissible at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949 (Sweetwater).)

The inquiry is limited to whether Respondents have stated legally sufficient claims and made a prima facie factual showing capable of sustaining a favorable judgment. (Baral, supra, 1 Cal.5th at p. 385) A defendant’s evidence is considered only to the extent it conclusively defeats a plaintiff’s claims as a matter of law. (Id. at p. 395.) Unless a defendant can establish that a plaintiff cannot prevail under any circumstances, the motion must be denied. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269–270.)

In cases involving pattern-based torts such as stalking or intentional infliction of emotional distress, courts may consider the cumulative effect of the alleged conduct when evaluating whether the plaintiff has demonstrated a probability of prevailing. (See Park, supra, 2 Cal.5th at p. 1064 [there is “a careful distinction between a cause of action based squarely on a privileged communication, such as an action for defamation, and one based upon an underlying course of conduct evidenced by the communication.”].) Where liability is premised on a course of conduct, courts are not required to isolate each act in a vacuum but may evaluate the totality of the behavior to determine whether the claim, as a whole, is supported by sufficient evidence. (Harris, 248 Cal.App.4th at p. 499.)

B. The Appellate Court Should Affirm the Trial Court’s Finding of Conspiracy as a Theory of Liability

It is a bedrock principle of appellate review that a trial court’s judgment must be affirmed if it is correct on any legal ground supported by the record, regardless of the reasoning articulated by the trial court. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 (D’Amico).) This doctrine ensures that appellate review is focused on the correctness of the result, not the path taken to reach it. Thus, even if the trial court’s rationale is debatable, the judgment must stand if it is legally supportable.

Appellants’ challenges to the trial court’s finding of conspiracy as a basis for liability are both unfounded and unsupported by the record or controlling California law. Here, consistent with the trial court’s ruling, Respondents adequately pleaded conspiracy in their FAC, setting forth detailed factual allegations and the trial court properly evaluated both the pleadings and the evidentiary record in accordance with legal standards. Appellants’ extraneous arguments related to agency are irrelevant at this stage (and without merit). For these reasons, this Court should affirm the trial court’s decision and reject Appellants’ arguments concerning conspiracy and agency.

1. Respondents Have Sufficiently Alleged and Supported Conspiracy Under California Law

Appellants argue that Respondents failed to produce direct evidence of an explicit conspiratorial agreement. (AB at p. 56.) This argument misconstrues the law.

California courts have long recognized that conspiracy may be proven by circumstantial evidence and that direct evidence of an express agreement is rarely available. (Spencer v. Mowat (2020) 46 Cal.App.5th 1024, 1037 (Spencer); In re Banks (2023) 97 Cal.App.5th 463, 468.) Moreover, at the anti-SLAPP stage, plaintiffs need only demonstrate a minimal probability of prevailing. (Baral, supra, 1 Cal.5th at p. 396.)

In this context, the following evidence—drawn from the detailed declarations of multiple Respondents—demonstrates a pattern of coordinated conduct, mutual reinforcement, and ongoing campaigns of harassment and intimidation. These facts, taken together, provide compelling circumstantial evidence of a conspiracy, as they show not only repeated acts by multiple individuals, but also a shared objective, common tactics, and the absence of any repudiation or corrective action by the Appellants.

• Coordinated surveillance and identification of the same agent by multiple plaintiffs

“In or around August 2018, I saw a man in a white truck parked outside of my home for several hours . . . The man and I got into a verbal altercation, and the man ultimately spat on me. I called the police and the man was later identified as Steve Miller, another of Defendants’ agents. Steve Miller and his vehicle were later identified by Plaintiff Jane Doe #1 and others as the same person who had surveilled them in front of their homes.”

• Public threats and intimidation by a known agent, reinforced across multiple plaintiffs

“In or around September and October 2018, Defendants’ agent Kathy Gold started publicly threatening me and the other Plaintiffs, and their relatives. Gold accused me and the other Plaintiffs of being religious bigots and liars and threatened to commit serious and violent crimes against us, including murder. Gold threatened to report me to Child Services to have our then five-year-old twins taken away from us and further threatened that the children would be drugged and raped.”

• Acts by multiple individuals in furtherance of a common objective, including armed surveillance and intimidation

“On one occasion, my neighbor observed one of Defendants' agents in my driveway taking pictures of my food truck, car, license plates, and home and looking into the windows of the home. It appeared that the man was armed with a firearm. My neighbor confronted him, and he fled. Based on my neighbor's description of the man, I believe the man was a known affiliate of Defendants. That night, at approximately 1:00 a.m., in a room where my 12 year-old child slept, a window was shattered.”

• Mutual reinforcement and public shaming by multiple agents, with no disavowal

“Later that day, the same known agent of Scientology tweeted: ‘Since these women live in LA and there are thousands of Scientologists in every walk of life in LA, the three women who lied in the Danny Masterson case will get spit on a lot . . . But the 4 women will live in hell, now and for the rest of their lives.’”

“In or around June 2023, shortly after Defendant Masterson was convicted, a known agent of Scientology tweeted about me and the other Plaintiffs: ‘Because those 3 women implied drug use by Masterson, every Scientologist in LA now knows they were lying. Scientologists just don’t use drugs. Every Scientologist who recognizes these women will spit on them, for the rest of their lives. I sure wouldn't want to be them.’”

Respondents submitted admissible evidence that the alleged acts occurred. At this stage this is all what is required: a trier of fact may infer from the totality of circumstances that conspiracy existed.

Indeed, the record details a pattern of harassment— including surveillance, threats, online defamation, and witness intimidation—carried out by multiple individuals acting in furtherance of Scientology’s interests. The timing, similarity, and mutual reinforcement of these acts, as well as the invocation of Scientology’s policies such as “Fair Game,” demonstrate a strong showing of conspiracy. (Spencer, supra, 46 Cal.App.5th at p. 1037.) Even if Respondents did not directly order every act, conspiracy still can be inferred from the collective pursuit of a common objective, mutual ratification, and the absence of any disavowal or discipline of the actors. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 (Wyatt).)

Moreover, Appellants’ argument that Respondents “forfeited” the conspiracy theory by not re-arguing it their opposition is meritless. (AB at p. 54.) A party need not reiterate in briefing a theory already stated in the complaint, especially where those theories are never challenged. (See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768–770.)

2. The Trial Court Properly Considered and Applied Conspiracy as a Theory of Liability

The trial court’s consideration of conspiracy was not, as Appellants suggest, an act of “improper advocacy,” but rather a faithful execution of its duty under California law to evaluate all theories of liability supported by the pleadings and evidence. (AB at p. 55.) The California Supreme Court has made clear that courts must assess the entirety of the record—including all well-pleaded allegations—when determining the viability of a claim. (Baral, supra, 1 Cal.5th at p. 396; Bonni, supra, 11 Cal.5th at p. 1011.) Under the anti-SLAPP framework, the trial court was obligated to consider all viable theories of liability supported by the record, including conspiracy. (Baral, supra, 1 Cal.5th at pp. 384–385.)

Conspiracy is a recognized doctrine of vicarious liability that permits the imposition of liability on all participants in a wrongful scheme. (IG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.) Where, as here, the complaint alleges and sets forth specific facts supporting a conspiracy, the court is not only permitted but required to consider that theory in its analysis of liability. (Adams v. Paul (1995) 11 Cal.4th 583, 593.)

California courts consistently reject efforts to misuse the anti-SLAPP statute as a shield against well-pleaded claims. (See Golden Gate Land Holdings, LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 85, 97–99 (Golden Gate).) In Golden Gate, the court reaffirmed that anti-SLAPP protections do not insulate defendants from liability where the plaintiff alleges specific, nonconclusory facts tying the defendant to unlawful conduct. (Ibid.) The court held that detailed factual allegations of direct participation or ratification are more than adequate to warrant judicial consideration. (Ibid.)

This distinction is dispositive: Respondents allege with particularity that Scientology, acting in concert with Masterson, orchestrated and executed a coordinated campaign of harassment and intimidation against Respondents. The First Amended Complaint specifically alleges that “Defendants conspired to and systematically stalked, harassed, invaded privacy, and intentionally inflicted emotional distress” on Plaintiffs following their reports of Masterson’s crimes. Each substantive cause of action incorporates these conspiracy allegations by reference, providing clear notice to appellants that liability is premised on both direct misconduct and collective action.

Further, Appellants cannot credibly claim surprise or prejudice simply because Plaintiffs did not reiterate in their opposition briefing a particular theory pleaded in the FAC. The pleadings themselves provided ample notice, and the court’s consideration of conspiracy was both proper and necessary under California law. Additionally, during the hearing on Defendants’ anti-SLAPP motions, the trial court heard arguments on theories of liability including agency and conspiracy, and Defendants then asserted their arguments on the insufficiency of the pleadings with respect to conspiracy and insufficient notice to Defendants. (See Reporter’s Transcript, included as Exhibit to Respondent’s Motion to Augment the Record. The trial court went so far as to offer Defendants—several times—the opportunity to further brief the issue if they desired. Defendants declined the trial court’s offers to brief any issue regarding the adequacy of conspiracy as one of Plaintiffs’ theories of liability. By declining further briefing on the issue, Defendants forfeited any appellate argument that the trial court improperly considered conspiracy as a theory of liability.

A party that expressly declines an opportunity in the trial court to cure a defect or develop an argument cannot later raise that issue on appeal. (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 861 [plaintiff who expressly declined leave to amend forfeited any claim of error and could not seek such relief on appeal].) The same principle applies here. Appellants were given several clear opportunities to address any perceived deficiencies in the conspiracy theory, including the chance to submit further briefing. They declined. Having chosen not to pursue the issue when invited, Appellants cannot now claim error on appeal.

Because Respondents have properly pleaded conspiracy and the trial court properly considered and ruled on those allegations, this Court is thereby bound to apply well-established precedent and affirm the trial court’s ruling. Under D'Amico, the correctness of the result—not the reasoning—controls, and the trial court’s decision must be affirmed on this basis. (D’Amico, supra, 11 Cal.3d at p. 19.)

3. Appellants’ Agency Arguments Are Immaterial in Light of Conspiracy Liability

Because conspiracy liability attaches to all participants in the wrongful scheme, the question of whether each individual was a formal agent of Scientology is not determinative. (Wyatt, supra, 24 Cal.3d at p. 784.) The conspiracy claim alone suffices to support the trial court’s ruling. (Ibid.) As the trial court recognized, “the elements of the conspiracy can be inferred from the character of the acts alone,” and the shared characteristics and timing of the conduct are sufficient to establish a prima facie case of conspiracy. (Spencer, supra, 46 Cal.App.5th at p. 1037.)

Moreover, Appellants’ attempt to disavow agency while seeking the protections of the anti-SLAPP statute is logically inconsistent. The anti-SLAPP statute allows a defendant to move to strike only if the claims arise from the defendant’s own protected acts. (Baral, supra, 1 Cal.5th at pp. 384–385.) Therefore, if Appellants maintain that the third parties whose statements give rise to liability were not their agents, then Appellants cannot invoke the anti-SLAPP statute, as none of their own acts— protected or otherwise—would be the basis for liability. Appellants must either concede that the third parties were their agents or concede that a special motion to strike is not available to them.

In sum, the trial court’s recognition and application of conspiracy as a theory of liability was correct, fully supported by the record, and consistent with California law. Accordingly, this Court must therefore affirm the ruling.

C. Appellants Improperly Urge the Court to Exceed Statutory Evidentiary Standards and Engage in Premature Fact-Weighing

Appellants’ assertion that Respondents have failed to present competent evidence of the alleged online statements is unavailing under the controlling legal standard. (AB at p. 46.) They contend that Respondents’ declarations simply echo the allegations of the complaint and therefore lack independent evidentiary value. (Ibid.) This argument, however, is foreclosed by well-established authority governing Step Two of the anti-SLAPP analysis.

Under California’s anti-SLAPP statute, plaintiffs are not required to prove their claims in full or produce every item of evidence that might ultimately be presented at trial. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 740 fn. 8.) A plaintiff’s burden at this juncture “is not high.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454, 458.) Plaintiffs need only demonstrate that their claims possess “minimal merit.” (Navellier, supra, 29 Cal.4th at p. 94.) Requiring more would improperly deprive plaintiffs of their right to a jury trial and would contravene the purpose of the anti-SLAPP framework. (Wilbanks, supra, 121 Cal.App.4th at p. 906.) Appellants attack the strength of Respondents’ declarations by implying that Respondents were obligated to produce copies of the offending statements or at least describe detail of each statement, including platforms where they were published. But Appellants’ argument goes into strength of Respondents’ evidence and not admissibility.

Appellants attempt to defeat Respondents’ showing by submitting self-serving declarations and inviting the Court to weigh competing evidence is improper. (AB at p. 44.) The California Supreme Court has made clear that, at this stage, the Court “do[es] not, however, weigh the evidence, but accept[s] the plaintiff’s submissions as true and considers only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law.” (Park, supra, 2 Cal.5th at p. 1067.) Where, as here, the parties submit conflicting declarations, the Court must credit Respondents’ submissions and refrain from resolving factual disputes. (Sweetwater, supra, 6 Cal.5th at p. 940; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)

Appellants’ demand for heightened specificity—such as precise dates, names, or direct communications—imposes an evidentiary standard that is inconsistent with the law. (AB at p. 46.) The anti-SLAPP statute does not require Plaintiffs to plead or prove the exact words of the challenged statements; it is sufficient that Plaintiffs describe the substance of the statements, particularly where the claims involve harassment, stalking, or intentional infliction of emotional distress. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 888.)

Respondents have submitted sworn declarations detailing a coordinated campaign of online and offline harassment, including specific factual assertions supporting their claims. These declarations are not conclusory; they describe the substance and context of the statements and conduct at issue. Under controlling precedent such declarations constitute competent evidence sufficient to satisfy Plaintiffs’ burden at Step Two. (See e.g., Sweetwater, supra, 6 Cal.5th at p. 940; Musero, supra, 2 Cal.App.5th at p. 816.)

Appellants’ effort to impose a heightened evidentiary standard and to have the Court weigh the evidence at this preliminary stage should be rejected.

D. Respondents Have Established a Probability of Prevailing on the Their Stalking Claims

1. Legal Standard

To establish a stalking claim under California law, the plaintiff must demonstrate that the defendant engaged in a pattern of conduct specifically intended to follow, harass, alarm, or place them under surveillance. (Civ. Code § 1708.7, subd. (a)(1).) This pattern of conduct must be substantiated by independent corroborating evidence. (Ibid.) In addition, a plaintiff must also show that this course of conduct resulted in either (1) a reasonable fear for their own safety or that of an immediate family member, or (2) substantial emotional distress of a kind that a reasonable person would experience under similar circumstances. (Id. at § 1708.7(a)(2)(A)–(B).) The statute further mandates that the defendant must have made a credible threat—one that places the plaintiff in reasonable fear for their safety and appears to be intended to be carried out. (Id. at § 1708.7(a)(3)(A).) Finally, unless exigent circumstances rendered it unsafe or impractical, a plaintiff must have made a demand that the defendant cease and abate the conduct. (Ibid.)

2. Respondents’ Satisfy the Demand to Cease Element

Appellants argue that Respondents Bixler, Riales, and Jane Doe #2 failed to satisfy the “demand to cease” requirement of California’s civil stalking statute, Civil Code § 1708.7. (AB at p. 47.) Specifically, Appellants contend that Respondents did not make a clear, direct, or sufficient demand to cease the alleged conduct, and that, without such a demand, Respondents cannot establish a necessary element of their stalking claim. (Ibid.)

Appellants urge this Court to impose a burden far beyond what the law requires. The statute does not demand a rigid, formulaic, or hyper-technical approach to the demand element— especially where the record demonstrates that making such a demand would be dangerous, futile, or would expose the victim to further harm. (Terry, supra, 131 Cal.App.4th at pp. 1547–1548.) Indeed, the purpose of the demand requirement is to ensure the alleged harasser is unmistakably on notice that the conduct is unwelcome and must stop, not to require a victim to recite “magic words” or to confront their harassers in perilous circumstances. (Ibid.)

California courts have repeatedly recognized that the law does not elevate form over substance; what matters is whether the defendant was unmistakably put on notice that the conduct was unwelcome and must end. (Uecker v. Zentil (2013) 220 Cal.App.4th 131, 149 (Zentil); People v. Uecker (1997) 52 Cal.App.4th 287, 297–298 (Uecker).) Avoidance behavior, changes in routine, and repeated reports to law enforcement can collectively support an inference that the plaintiff demanded the defendant cease the offending conduct, even in the absence of an explicit verbal request. (See Ibid.) The rationale is clear: where the nature of the relationship, the power dynamics, or the pattern of harassment makes a direct demand impractical or unsafe, the law does not require a victim to expose herself to further risk or futility. (Lopez v. Smith (2015) 240 Cal.App.4th 436, 454 (Lopez).)

Here, Respondents’ declarations and supporting evidence are more than sufficient. Each Respondent explicitly attested that they demanded the harassment stop and reported the conduct to law enforcement The fact that their declarations use similar language does not render the statements boilerplate; rather, each declaration corroborates the other and the shared reality of a coordinated campaign of harassment and intimidation. Their statements are grounded in detailed, individualized factual narratives spanning years. The consistency in their responses reinforces, rather than undermines, the credibility and seriousness of their claims.

The trial court found that each Plaintiff testified to having told individuals to stop the harassing behavior, and that, in the context of the ongoing and pervasive harassment, further demands would have been impractical or unsafe. The court recognized that the statute allows for the demand to be excused if making such a demand would be impractical or unsafe due to exigent circumstances. The court also rejected Defendants’ efforts to isolate each discrete allegation to see if it alone constituted a credible threat or satisfied the demand requirement, explaining that stalking is a continuous course of conduct crime and must be evaluated in the context of the entire pattern of behavior.

At this preliminary stage, the anti-SLAPP framework only requires a prima facie showing, not trial-level proof or granular detail (Baral, supra, 1 Cal.5th at pp. 384–385.) Respondents more than surpass that burden here. Accordingly, Appellants’ argument that Respondents failed to satisfy the “demand to cease” requirement is unsupported. Respondents’ evidence, viewed in context and under the applicable legal standards, is more than adequate to proceed.

3. Appellants Mischaracterize the Exigent Circumstances Exception

Appellants argue that prolonged harassment cannot, by definition, create the urgency required to invoke the “exigent circumstances” exception. (AB at p. 49.) They are wrong.

The relevant stalking statute provides that a plaintiff must, “on at least one occasion, clearly and definitively demand[] that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff’s communication of the demand impractical or unsafe.” (Civ. Code § 1708.7, subd. (a)(3)(A).) The exception is necessity-based: it applies where making a demand would be dangerous, futile, or would expose the victim to further harm.

The statute imposes no temporal limitation on what qualifies as an exigent circumstance. To the contrary, California courts have recognized that ongoing patterns of harassment give rise to the kind of danger that makes a direct demand impractical or unsafe. (See Uecker, supra, 52 Cal.App.4th at p. 299 [finding exigent circumstances where Appellant followed and left notes for the victim nearly every workday for approximately seven months]; Lopez, supra 240 Cal.App.4th at p. 454 [finding exigent circumstances where Appellant engaged in a years-long campaign of unwanted emails, packages, and in-person encounters].) The law is clear: when the nature, pattern, or intensity of the harassment makes a direct demand impractical or unsafe, the exigent circumstances exception applies.

Appellants argue that Respondents have not shown any immediate danger or impracticality that would excuse the demand requirement. (AB at p. 49.) This argument ignores the specific facts in the record demonstrating that Respondents faced credible threats of harm, retaliation for speaking out, and a power imbalance that rendered a direct demand unsafe or futile. For example:

• Jane Doe #1 was subjected to repeated, targeted intimidation, including being followed, spit on, harassed in public, and receiving hundreds of anonymous calls and texts. The persistent surveillance and physical intimidation created a credible threat of harm and a reasonable fear that confronting her harassers would escalate the danger.

• Bixler and Riales experienced surveillance, threats of violence, and both online and in-person intimidation. The coordinated nature of this harassment—carried out by individuals acting in concert and backed by the institutional power of Scientology—rendered a direct demand not only impractical, but potentially dangerous.

• Jane Doe #2 endured explicit threats of murder and religious retaliation, further supporting the conclusion that a demand would have been futile or would have exposed her to greater risk.

These are not mere allegations of “ongoing harassment.” Rather, they are specific, corroborated facts demonstrating a credible threat of immediate harm, retaliation, and a coercive environment in which a demand would be unsafe or meaningless. As Uecker and Lopez make clear, the law does not require a stalking victim to make a demand where doing so would be dangerous or futile. (See Uecker, supra, 52 Cal.App.4th at p. 299; Lopez, supra 240 Cal.App.4th at p. 454.)

Respondents have provided ample, specific evidence that their circumstances met this standard. The absence of a direct demand is not a failure of proof, but a reflection of the very danger the statute is designed to address. The “exigent circumstances” exception applies, and Appellants’ argument should be rejected.

4. Respondents Have Demonstrated a Credible Threat Sufficient to Support Liability

Appellants argue that the conduct attributed to Miskovich, Mooney, Urbinati, and various online actors does not rise to the level of a “credible threat” as required to support a stalking claim under Civil Code § 1708.7. (AB at p. 50.) They are wrong.

California law does not require an explicit or overt threat of violence. (Civ. Code § 1708.7, subd. (b)(2).) A “credible threat” may be implied through a pattern of conduct or a combination of verbal, written, or electronically communicated statements and behavior. (See Ibid; Uecker, supra, 52 Cal.App.4th at p. 299; Lopez, supra, 240 Cal.App.4th at p. 454.) Courts must evaluate the entire factual context, including the victim’s reaction and the surrounding circumstances. (People v. Falk (1997) 52 Cal.App.4th 287, 298 (Falk).)

Lopez, the court upheld a stalking conviction based on a years-long campaign of unwanted emails, packages, and in-person encounters. (Lopez, supra, 240 Cal.App.4th at p. 454.) The court emphasized that “a threat implied by a course of conduct involved communication of a threat.” (Ibid.) Similarly, in Uecker, the court found a credible threat where the Appellant repeatedly followed and contacted the victim over several months, despite her clear efforts to avoid him and police warnings to stop. (Uecker, supra, 52 Cal.App.4th at p. 299.) In both cases, the courts recognized that persistent, targeted conduct—especially when met with fear and avoidance—can reasonably be perceived as threatening.

Here, the record reflects a comparable—if not more severe— pattern of harassment than those found sufficient in other stalking cases. Respondents were subjected to a series of threatening and intrusive acts, including: (1) late-night phone calls referencing their home addresses; (2) being chased by vehicles; (3) repeated sightings of the same individuals and vehicles near their homes and workplaces; (4) tampering with vehicles and property, such as open car doors and stolen mail; and (5) the poisoning of their pets. These incidents, cited by the trial court, collectively support the inference of a deliberate and coordinated campaign of intimidation.

Each Respondent has attested to experiencing persistent harassment, surveillance, and intimidation, resulting in profound emotional distress and fear for their safety and that of their families. Their reluctance to leave home, need for therapy, and recurring nightmares are direct evidence of severe emotional harm. These fears are not speculative but are grounded in detailed declarations and corroborated by the record.

Courts have repeatedly held that threats need not name victims individually to be credible, so long as the victims reasonably believe they are targeted. (Lopez, supra, 240 Cal.App.4th at p. 451.)

Respondents have more than met their burden under the anti-SLAPP statute. When viewed in its totality, the conduct alleged constitutes a credible threat under California law. Appellants’ effort to isolate and minimize individual incidents ignores the cumulative pattern of intimidation that defines stalking. Their argument should be rejected.

E. Respondents Have Established a Probability of Prevailing on the Their IIED Claims

1. Legal Standard

In California, an IIED claim requires “(1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883.)

2. Respondents Have Established That Appellants’ Conduct is Extreme and Outrageous

Appellants’ assertion that the conduct alleged does not rise to the level of “extreme and outrageous” behavior required to sustain a claim IIED is meritless. (AB at p. 50.)

California courts do not require that threats be directed at victims by name to be actionable; what matters is whether the victims reasonably believe they are being targeted. (People v. Toledo (2001) 26 Cal.4th 221, 228.) Courts must consider the entire factual context, including the reaction of the listener, in determining whether a credible threat exists (Falk, supra, 52 Cal.App.4th at p. 298.)

Respondents have submitted detailed and corroborated evidence of a sustained campaign of harassment that caused them severe emotional and psychological harm. The emotional toll is not speculative; it is severe, ongoing, and well-documented. Bixler suffers from violent night terrors and lives in fear for her family’s safety. Jane Doe #1 is in constant fear for her safety and that of her children and has experienced repeated stalking and harassment. Jane Doe #2 has developed PTSD, agoraphobia, and numerous physical ailments. Riales suffers from anxiety, panic, depression, and insomnia, and lives in fear for her life and her family’s safety. These are not minor or subjective emotional responses—they are debilitating psychological injuries that courts have repeatedly found sufficient to support IIED claims.

When viewed in its full context, Appellants’ conduct clearly meets—and exceeds—the threshold for extreme and outrageous behavior under California law. Appellants’ attempt to downplay their conduct as mere “public narrative” or “protected speech” is not only legally baseless—it is patently absurd in light of the overwhelming evidence. The record is replete with corroborated accounts of sustained, targeted harassment that has left Respondents with serious, lasting psychological trauma. To suggest that such conduct falls short of “extreme and outrageous” is to ignore both the law and reality.

F. Respondents Have Established a Probability of Prevailing on the Their Loss of Consortium Claims

A cause of action for loss of consortium requires: (1) a valid and lawful marriage between the plaintiff and the injured party at the time of injury; (2) tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) proximate causation between the defendant’s conduct and the loss. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 fn. 2.) Critically, a loss of consortium claim is derivative in nature and depends on the existence of a viable tort claim by the injured spouse. (Hahn, supra, 147 Cal.App.4th at p. 746 [“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”].)

Here, all elements of a loss of consortium claim are satisfied. Respondent Bixler and Bixler-Zavala were lawfully married at all relevant times. Respondent Bixler has asserted viable claims for stalking and intentional infliction of emotional distress (“IIED”), both of which arise from Appellants’ harassing and tortious conduct. As a direct result of this conduct, Bixler-Zavala has suffered a loss of consortium, including the loss of love, companionship, comfort, care, assistance, society, sexual relations, and moral support.

Appellants’ contention that Bixler-Zavala’s loss of consortium claim “necessarily arises from allegations of protected activity” is misplaced. As a matter of law, a loss of consortium claim is wholly derivative of the injured spouse’s underlying tort claims. (Hahn, supra, 147 Cal.App.4th at p. 746.) Here, Bixler's claims for stalking and IIED are predicated on unprotected, tortious conduct, not protected activity within the meaning of the anti-SLAPP statute. So long as these claims possess minimal merit, the derivative loss of consortium claim survives.

Moreover, Appellants’ argument that the loss of consortium claim fails because Bixler’s underlying claims lack minimal merit is unavailing. The trial court has already determined that Bixler’s claims for stalking and IIED meet the minimal merit standard required at this stage. Appellants have not identified any independent legal or factual basis to defeat the loss of consortium claim apart from their challenges to the underlying torts. identified any independent legal or factual basis to defeat the loss of consortium claim apart from their challenges to the underlying torts. Because the loss of consortium claim rises or falls with the underlying claims, and those claims have been found to possess minimal merit, the derivative claim is likewise viable.

In sum, the loss of consortium claim is properly before the Court. It is derivative of viable tort claims that have been found to possess minimal merit, and Appellants' arguments—whether directed at the nature of the claim or the supporting evidence—do not independently undermine its validity. The trial court's reasoning is sound and should be affirmed.

G. The Trial Court Interpreted Baral Correctly

Finally, Appellants argue that the trial court improperly considered evidence of unprotected activity when determining merits of Respondents’ claims. (See AB at pp. 59–63.) Appellants rely on Baral v. Schnitt (2016), 1 Cal. 5th 376 and Bonni v. St. Joseph Health System (2021), 11 Cal. 5th 995, 1012 for a preposition that, if both protected and unprotected activities underly a single claim, a court may not consider unprotected activity in the step-two analysis. Appellants arrive to this “preposition” by selectively citing sentences out of context.

Both Baral and Bonni concerned a so-called “mixed cause of action”—“that is, a cause of action that rests on allegations of multiple acts, some of which constitute protected activity and some of which do not.” (Bonni, supra, 11 Cal. 5th at p. 1010 [citing Baral, supra, 1 Cal. 5th at p. 382.]) Before Baral, courts often granted anti-SLAPP motions only if striking protected activity would dispose of the entire cause of action. (Baral, supra, 1 Cal. 5th at p. 385–391.) The California Supreme Court found this approach contrary to the legislative intend. (Id. at 391–395.)

Although Baral itself was “a second-step” case, the Baral analysis begins at step one. (Ibid. [“Baral was a second-step anti-SLAPP case, but our instructions for how to handle so-called mixed causes of action began with the first step.”] At step one, a court separates protected and unprotected activity and analyzes whether any of the protected activity supplies a basis for relief. (Ibid.) If the court finds that at least some protected activity supplies the basis, the court then analyzes “whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Ibid.) “How the plaintiff does that will vary from case to case, depending on the nature of the complaint and the thrust of the motion.” (Baral, supra, 1 Cal. 5th at p. 391.) “But when the defendant seeks to strike particular claims supported by allegations of protected activity that appear alongside other claims within a single cause of action, the motion cannot be defeated by showing a likelihood of success on the claims arising from unprotected activity.” (Ibid.)

It is evident that both Baral and Bonni addressed divisible causes of action containing multiple claims. However, Respondents’ cause of action for harassment requires a proof “a pattern of conduct the intent of which was to follow, alarm, place under surveillance or harass the plaintiff.” (Civ. Code § 1708.7, subd. (a).) Respondents cannot show a pattern by focusing on individual acts. Neither Baral, nor Bonni stand for a preposition that protected activity alone must establish merit of a claim that relies on both types of activity. Instead, if the plaintiff’s claim is meritless, only allegations of protected activity will survive. Indeed, the anti-SLAPP statute does not require a court to strike protected activity from the complaint if protected activity underlies a meritorious claim. (Baral, supra, 1 Cal. 5th at 384.) Once plaintiff establishes a minimal merit of the underlying claim, all allegations, including protected activity, stay in the complaint.

The claims at issue here—stalking, intentional infliction of emotional distress, and invasion of privacy—are by their nature predicated on a continuous course of conduct, not isolated acts. The trial court recognized that the “pattern of following, harassing, monitoring, surveilling, threatening, interfering, or damaging conduct” satisfied the requirement of an implied threat and supported the elements of stalking and related torts. The court further found that the “extent and pervasive nature of this course of conduct” reasonably supported the plaintiffs’ fears and emotional distress. Unlike the claims in Baral and Bonni, which could be parsed into discrete, independent acts, the claims here require the court to consider the totality of the circumstances and the cumulative effect of the Appellants’ conduct.

To excise all references to protected activity from such pattern-based claims would be to ignore the reality that the context, timing, and interrelationship of all acts—protected and unprotected—are essential to establishing the requisite elements of the torts alleged. As the trial court correctly observed, “stalking is repeatedly defined as a continuous course of conduct crime,” and the law does not require that each individual act, in isolation, constitute a credible threat. The reasoning of Baral and Bonni, which applies to claims that can be cleanly separated, does not compel a different result in the context of pattern-based torts.

CONCLUSION

For the foregoing reasons, Respondents respectfully request that this Court affirm the trial court’s order denying Appellants’ anti-SLAPP motion. Additionally, pursuant to Code of Civil Procedure section 425.16(c)(1), Respondents request an award of attorney’s fees and costs incurred in responding to this appeal, as the motion to strike was frivolous and intended to cause unnecessary delay.

Respectfully submitted,

BOIES SCHILLER FLEXNER LLP

John Jacob Kucera, Alison Lynn Anderson, Maxwell Vaughn Pritt

Attorneys for Respondents

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