Filed 4/22/15 Rosen v. Nelson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

SAMUEL ROSEN, Plaintiff and Appellant,

v. BEATRICE NELSON, Defendant and Respondent. D065658

(Super. Ct. No. 37-2012-00052830- CU-DF-NC)

APPEAL from an order of the Superior Court of San Di ego County, Earl H. Maas III, Judge. Affirmed. Samuel Rosen, in pro. per., for Plaintiff and Appellant. North County Law Firm and Anton C. Gerschler for Defendant and Respondent. In this defamation case plaintiff Samuel Rosen, appearing in propria persona as he did in both the trial court a nd this court in his unsuccessful prior appeal in this matter ( Rosen v. Nelson (July 25, 2013, D0625 01 [nonpub. opn.] ( Rosen I ), appeals an award of attorney fees and costs ($45,081 in fees and $2,473 in other costs) that the court granted in favor of defendant and pr evailing party Beatrice Nelson after it granted her Code of2 Civil Procedure 1 section 425.16 motion
─ commonly known as an anti-SLAPP (strategic lawsuit against public participation) motion
─

to strike the defamation complaint Rosen filed against her. In Rosen I , Rosen unsuccessfully challenged the order granting Nelson's anti-SLAPP motion. In this new appeal, Rosen's principal cont ention is that the award of fees and costs in favor of Nelson under the anti-SLAPP statute (§ 425.16) should be reversed because the court erroneously granted her anti-SLAPP mo tion to strike his complaint. As the lawof-the-case doctrine bars Rosen from relitigating in this appeal his unsuccessful claim in
Rosen I that the court erred in granting Nelson's motion to strike the complaint, we affirm the award of fees and costs.
FACTUAL AND PROCEDURAL BACKGROUND 2 At all times relevant, Rosen and Ne lson were residents of a mobilehome community known as San Luis Rey Homes (SLRH), where Rosen and another SLRH resident, Phil Hauser, 3 were paid in connection with a project to upgrade SLRH's utility infrastructure.

1 All further statutory references ar e to the Code of Civil Procedure.
2 The following background is derived in part from this court's unpublished opinion in Rosen I

. 3 Phil Hauser separately sued Nelson for defamation based on the same alleged defamatory statements that are the subject of the instant case. (See Hauser v. Nelson (Super. Ct. San Diego County, 2012, No. 37-2012-00053288-CU-DF -NC).) The trial court in that action also issued an or der granting an anti-SLAPP motion brought by Nelson, and this court affirmed that order. (See Hauser v. Nelson (Nov. 15, 2013, D062611) [nonp ub. opn.].)3 A. Rosen's Complaint In his complaint, Rosen alleged that in early February 2012 , when he was the revitalization project director of SLRH, Nelson made libel ous statements about him by "publish[ing] a four-page written statement to Owners/Members of [SLRH]" in which she falsely stated (among other things): "There was nothing about [Rosen's ] qualifications, his background, education, work history, his expe rience to qualify him to be in charge of any revitalization project, and inquiry indicates there is no resume on file at our office." "At the December meeting, Russ Burns asked [Rosen]: '[H]ow much time do you and Phil [Hauser] ta ke to do the research, reading, and evaluation for our benefit? [R osen's] reply: 'Phil and I work about 100 hours a week each . . . on th is.' That would leave less than 10 hours a day to eat, sleep and all else.' When someone tells that humongous a whopper, who would belie ve anything that person ever said?"; and "[Rosen] is very charismatic, with a gift of persuasive speech, but his bullying a member at the [Feb ruary] meeting by putting him in a vice-like grip under his left ar m was humiliating and not funny! Would you like this if he did it to you? One has to be either brave or foolhardy to speak at a meeting." Rosen also alleged in hi s complaint that Nelson made libelous statements about him by "publish[ing] a three- page written statement to th e Board of Governors and Owners/Members of [SLRH]" in which she falsely stated (among other things): "Our reserve funds may be used on ly for the repair, restoration, replacement, or maintenance of major components for which the fund was established. It was not established to support Sam Rosen or Phil Hauser neither of whom have the background or qualifications in what our un derground utilities revitalization requires."4 "It has reached the point where a member is either brave or foolhardy to speak or ask ques tions, as demonstrated by Sam Rosen's bullying and humiliating a memb er at our February meeting. This was not cute nor funny! How would you feel if this was done to you?" In his cause of action for slander per se, Rosen alleged the same three-page written statement to the board of governors and th e owners/members of SLRH falsely stated: "I also want to inform the Board th at I have been in contact with the San Diego District Attorney's office , and have sent them copies of all my documentation. If anyone ag ain threatens to 'murder' me, I expect the Board to follow necessa ry action as set forth in our Bylaws. I am now going to read some of our facts and concerns, which may possibly qualify as Fina ncial Abuse of the Elderly." Rosen further alleged "these statemen ts are defamatory because the language carries a meaning that [his] conduct wa s criminal and harmful to others."
B. Nelson's Opposed Anti-SLAPP Motio n To Strike Rosen's Complaint In her anti-SLAPP motion, which Rosen o pposed, Nelson argued the court should strike Rosen's complaint under section 425 .16 "on the grounds that [her] allegedly libelous and slanderous statemen ts . . . sued upon . . . aros e from [her] exercise of her 'right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issu e,' to wit, her questioning the Board of Governors of the mobilehome park association, San Luis Rey Homes, Inc., . . . about its expenditure of the association's monies to co mpensate other park residents, [Rosen] and Phil Hauser, as paid consultants on the park's utility revitalization project."5 1. Order granting Nelson's anti-SLAPP motion The court granted Nelson's anti-SLAPP moti on and struck Rosen's complaint. In granting the motion, the court found Rosen had failed to meet his burden of establishing a reasonable probability of prevailing on hi s defamation claims. The court stated: "Almost all of these statements by [Nelson] are statements of opinion or concern [about] inaction of the Board. [Nelson's] speech concerns the failure of the Board to require [Rosen] to account for his time and whether [Rosen] is pa id too much. Ev en though the statement allegedly made by [Nels on] that the Board is not paying [Rosen] for his 'extra-c urricular activity' could be interpreted as an insinuation that [Rosen] is not doing the work he is paid to do, the statement really concerns the Board' s lack of supervision or failure to account for members' money paid to [Rosen] when it is read in conjunction with the rest of the allegations. Again, the statement concerns the Board[,] not [Rosen]. "With regard to the allegations that [Nelson] informed everyone that [Rosen] put a member in a 'vice-grip,' [Rosen] has not sufficiently alleged defamation. [Rosen] allege s this statement was made to the Board, distributed in the minutes, and the alleged actions took place at a meeting. Defamation requires that the statement be published to a third person. Arguably, the member s are not third persons . . . . [Rosen] even produced numerous Declarations from those present that support his position that he di d not put the member in a 'vice grip' but was demonstrating how someone had put an arm around him. This illustrates the members were pres ent when the conduct occurred. Whether the conduct was t oo aggressive or not is a matter of opinion and without more sp ecific allegations[,] such as identification of the people that r eceived [Nelson's] statement that were not present when the conduct occurred, [Rosen] has not alleged publication. "Lastly, [Rosen] also alleges statements made by [Nelson] concerning financial elder abuse. [Nelson] indicates that these were published to the District Attorn ey's Office along with all other statements including the statement that [Rosen] put a member in a 'vice-grip[.]' [¶] Defamation is not the appropriate cause of action with regard to these statements because any statements to the6 District Attorney, especially those concerning financial or physical elder abuse[,] would be pr otected by privilege."
D. Rosen's Prior Appeal ( Rosen I )
In Rosen I , Rosen challenged the order grantin g Nelson's anti-SLAPP motion. This court affirmed the order, concluding that "Rosen ha[d] not met his burden of overcoming the presumed correctness of the challenged order by affirmatively demonstrating error because he ha[d] failed to provide this court with an adequate record on appeal." This court thereafter denied Rosen's petiti on for rehearing. On October 2, 2013, the California Supreme Court denied his petition for review ( Rosen v. Nelson , S212757).
E. Court's Award of Attorney Fees and Costs in Favor of Nelson, and Rosen's New Appeal As the prevailing party, Nelson thereafter brought a motion to recover her attorney fees and costs under the anti-SLAPP statute (§ 425.16, subd. (c) (hereafter § 425.16(c)). The court awarded Nelson reasonable attorney fees in the amount of $45,081 and other costs in the amount of $2,473. Rosen's a ppeal challenging that award followed.
DISCUSSION In challenging the award of attorney fees and costs awarded to Nelson under section 425.16(c), Rosen's principal c ontention in this new appeal is that
─ despite the trial court's finding to the contrary in granting Nelson's anti-SLAPP motion
─

he "established a probability of prevailing on his defamation/sl ander/libel claims," and, thus, Nelson's award of fees must be reve rsed "because they do not ar ise from [Nelson's] protected speech." In support of this contention, he asserts Nelson's counsel "abuse[d] the Anti-7 SLAPP Motion jurisprudence" in order to "enr ich his practice." Rosen also asserts that "[Nelson's] statements concer ning [him] are not protected political speech about public figures in the performance of their public dutie s, and were not made in the furtherance of her right of petition or free speech under the United States or Calif ornia Constitution." He complains that this court "allowed [Nelson' s] meretricious attemp t to insulate alleged torturous conduct behind a procedural gimmick in the misuse of the Anti-SLAPP statute by ruling that [Nelson's] Anti-SL APP Motion is affirmed in its July 25, 2013 [opinion]." We conclude Rosen's main contention
─ that the award of fees and costs in favor of Nelson should be reversed because the court erroneously granted her anti-SLAPP motion
─ is unavailing.
A. Applicable Legal Principles ( Fees Awarded Under § 425.16, subd. ( c )( 1 )) Section 425.16, subdivisi on (c)(1), provides that "in any action subject to [a special motion to strike under section 425.16] , a prevailing defendant . . . shall be entitled to recover his or her attorney's fees and costs. " An award of attorney fees to a defendant who brings a successful special motion to strike
─ or so-called anti-SLAPP motion
─

under section 425.16 is mandatory. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fee award to the prevailing defendan t "may include not only the fe es incurred with respect to the underlying claim, but also the fees incurre d in enforcing the righ t to mandatory fees under . . . section 425.16. . . . '[A]bsent circumstances re ndering the award unjust, fees recoverable . . . ordinarily include compensa tion for all hours reasonably spent, including those necessary to establish an d defend the fee claim.'" ( Ketchum, at p. 1141.)8 1. Standard of review "We review the amount of attorney fe es awarded for abuse of discretion. [Citation.] An attorney fee award will not be set aside 'a bsent a showing that it is manifestly excessive in the circumstances.'" ( Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544.) "A ruling amounts to an abuse of discretion when it exceeds the bounds of reason, an d the burden is on the party co mplaining to establish that discretion was abused." ( Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450 ( Gerbosi ).)
B. Analysis As already discussed, Rosen's principal contention is that the award of fees and costs in favor of Nelson should be reversed because the court erroneously granted her anti-SLAPP motion and, thus (h e suggests), Nelson is not entitle d to recover her fees and costs under section 425.16(c). However, Rosen is barred by the law-of-the -case doctrine from relitigating in this new appeal his unsuccessful claim in Rosen I that the court erred in granting Nelson's motion to strike the complaint. "The rule of 'law of the case' gene rally precludes multiple appellate review of the same issue in a single case." ( Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) "The primary purpo se served by the law-of-the-case rule is one of judicial economy." ( Id . at p. 435.) Here, Rosen litigated to finality in Rosen I the propriety of the court's order granting Ne lson's special anti-SLAPP motion to strike Rosen's defamation complaint. In Rosen I , as already discussed, this court affirmed that order, we denied Rosen's petition for rehear ing, and the Supreme Court denied his9 petition for review. Thus, under the law- of-the-case doctrine Rosen is barred from relitigating in this new appeal his unsuccessful claim in Rosen I that the court erred in granting Nelson's special motion to strike his complaint. (See Searle , at p. 434.) Thus, Rosen's challenge to the award of fees and costs fails to the extent it is based on his already-litigated unsuccessful claim that th e order granting Nelson' s special anti-SLAPP motion was erroneous. Rosen also appears to ch allenge the amount of the award of attorney fees ($45,081) by stating that "a defend ant should not be entitled to obtain as a matter of right . . . her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney's work on those claims was overla pping. [His] claims were never completely addressed." However, in asserti ng that the defamation claims alleged in his complaint "were never complete ly addressed," Rosen is again attempting to relitigate in this new appeal his unsuccessful claim in Rosen I that the court erred in granting Nelson's special motion to strike his complaint. We ha ve already concluded that he may not do so in this new appeal. In any event, as already discussed, "the burden is on the party complaining to establish that discretion was abused." ( Gerbosi , supra , 193 Cal.App.4th at p. 450.) We conclude that, to the exte nt Rosen complains about the amount of the award of attorney fees, he has failed to meet his burden of establis hing the court abused its discretion. Rosen also complains that the trial court "did not allo w for Discovery necessary to allow [him] the opportunity to prevail on his complaint." Once again, he is attempting to relitigate his unsuccessful claim in Rosen I that the court erred in granting Nelson's10 special motion to strike his complaint. He is barred under the law-of-the-case doctrine from doing so. (See Searle v. Allstate Life Ins. Co., supra, 38 Cal.3d at p. 434.) Citing a motion for injunctive relief he f iled in the trial court in January 2014, Rosen also complains th at the trial court "has seen fit to ignore [his] request to stop [Nelson] from continuing slandering and libel ing [him] to the public, police departments, and Oceanside City employees." He asks this court to "compel the lower court to hear [his] Motion for Injunctive Relief." However, Rosen's notice of appeal shows he appeals only from the award of attorney fees and costs. Any claim that the court erroneously refused to hear Rosen's motion for injunctive relief is not justicia ble in this appeal.
DISPOSITION The order awarding fees and cost in fa vor of Nelson is affirmed. Nelson shall recover her costs on appeal.

NARES, Acting P. J.
WE CONCUR:

O'ROURKE, J.

AARON, J.