Filed 12/21/21 Bleckman v. Katzenbach CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

GAIL BLECKMAN,

Plaintiff and Appellant,

v.

RYAN KATZENBACH,

Defendant and Respondent.

 B308819

 (Los Angeles County

 Super. Ct. No. 

 19STLC01640)

APPEAL from an order of the Superior Court of 

Los Angeles County. Laura A. Seigle, Judge. Affirmed.

The Kernan Law Firm, S. Michael Kernan and R. Paul 

Katrinak for Plaintiff and Appellant.

Ryan Katzenbach, in pro. per., for Defendant and 

Respondent.

_________________________
2

Gail Bleckman (appellant) appeals from the denial of her

Code of Civil Procedure section 425.161 motion to dismiss the

cross-complaint filed by Ryan Katzenbach (respondent). He 

alleged that appellant made false statements that clouded title to 

a film he was trying to relicense to a cable network for further 

broadcast. We find no error and affirm because appellant failed 

to establish that her statements were either made in anticipation 

of litigation or were an exercise of free speech in connection with 

a matter of public interest.

FACTS

The Complaint

In a complaint filed February 13, 2019, appellant sued 

respondent for an accounting.

As alleged: Appellant was introduced to respondent in 

2010 while he was in the early stages of developing a film about 

the 1974 murders committed by Ronald DeFeo, Jr., (DeFeo) in 

Amityville, New York (Amityville Project). The project led to the 

development of three films, a special aired on television by 

REELZChannel (REELZ), and a DVD interview with DeFeo.

Based on information and belief, (1) appellant and respondent are 

co-owners of the Amityville Project, and (2) they “orally agreed 

that [appellant] was to receive 5 [percent] of any gross receipts 

from the Amityville Project, and as consideration [appellant] 

would conduct research and perform other work for the 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated. 

Section 425.16 is known and referred to as the anti-SLAPP 

statute. (Guessous v. Chrome Hearts, LLC (2009) 179 

Cal.App.4th 1177, 1180.) “SLAPP is an acronym for strategic 

lawsuit against public participation.” (Id. at p. 1180, fn. 1.)
3

Amityville Project as an independent producer and at her own 

expense[.]”

On April 20, 2018, appellant obtained a judgment ordering 

respondent to pay her $4,806.80 related to the Amityville Project. 

Respondent paid the judgment. Since that time, respondent has 

continued to license or sell “the film in question,” and he has 

failed to account for the monies received. Without an accounting, 

appellant does not know whether respondent owes her any 

money.

The Cross-Complaint

Respondent filed a cross-complaint that alleged causes of 

action against appellant for intentional interference with 

prospective economic advantage, negligent interference with 

prospective economic advantage, defamation, and violation of 

Business and Professions Code section 17200. He alleged the 

following facts.

In 2010, respondent was working on an independent film 

about the Amityville murders (Film). Appellant represented that 

she could secure distribution for the Film and work as a 

researcher. They entered a verbal agreement that would entitle 

appellant to a 5 percent royalty of the Film’s adjusted gross 

income. The parties understood that the verbal agreement was 

to be reduced to a written contract. When appellant was 

presented with the written contract in October 2012, she did not 

sign it. Rather, she proceeded to disappear for two years. She 

resurfaced in October 2014 after learning that respondent had 

licensed the Film to REELZ. Though she never performed her 

duties, she demanded to be paid. Respondent promised to pay 

her if she signed the contract. She disappeared again. Then, in 

2016, she sued respondent and sought contract damages as well 
4

as punitive damages. That action was classified as a limited 

jurisdiction case, and then she dismissed it in favor of seeking 

$10,000 in small claims court. In April 2018, she obtained a 

judgment for about $4,800.

After the license expired, respondent entered negotiations 

with REELZ for a renewal in a deal worth $50,000. 

Subsequently, in July or August 2018, respondent “received a 

phone call from REELZ advising him that the deal was off the 

table because [appellant] had personally contacted the network 

and advised them that [respondent] ‘did not have the right to sell 

the film because he did not have clear rights or he did not own 

the rights.’” Appellant may have communicated with REELZ 

executives through e-mails and other written correspondence.

Notice and Acknowledgment of Receipt

Appellant’s counsel completed a Notice and 

Acknowledgement of Receipt stating, “This acknowledges receipt 

of . . . [¶] . . . [¶] Cross-complaint of [respondent], which was 

never served.”

The Anti-SLAPP Motion

Appellant filed an anti-SLAPP motion and respondent 

opposed the motion.

In his declaration, respondent stated that when appellant

was awarded about $4,800 in small claims court, he paid the 

judgment and informed REELZ. They proceeded to speak about 

renewing the license to the Film. In mid-2018, Steve Cheskin 

(Cheskin) from REELZ called respondent to tell him that 

appellant had contacted the network and said something “to the 

effect[] that ‘[REELZ] needed to compensate her because 

[respondent] did not have the right to license the film from the 

start[,]’ and that if [REELZ] didn’t pay up, she was going to sue 
5

them next.’ She made it very clear . . . that the chain of title had 

issues.” Cheskin informed respondent that the license renewal 

deal was dead.

The Ruling

In its minute order on the matter, the trial court noted the 

following facts: Respondent never served the cross-complaint. 

Appellant’s counsel, nonetheless, e-mailed respondent and stated, 

“You filed a cross-complaint but never served it. We downloaded 

it from the court website today. We will deem it served today and 

have a response within 30 days.” Appellant filed a Notice and 

Acknowledgement of Receipt of the cross-complaint. Two days 

later, respondent e-mailed appellant’s counsel, averring, “This 

counterclaim was withdrawn in early August—I have no idea, in 

checking the Court docket, why this hasn’t been reflected. This is 

why the cross-complaint was never served. I will dismiss it via a 

fax filing yet again. . . . Two hours later, at 4:10 p.m., [appellant] 

filed her anti-SLAPP motion. . . . [Appellant] does not contest 

these facts.”2

The trial court stated, “The anti-SLAPP motion . . . [is] 

unnecessary and a waste of time and resources. [Respondent] 

never served the cross-complaint and had decided not to serve it, 

so there was no reason for [appellant] to proactively accept 

service. [Respondent] told [appellant’s] counsel he had tried to 

2 The trial court did not mention the parties’ subsequent 

communications. On January 24, 2020, appellant’s counsel 

e-mailed respondent, stating, “Just dismiss your cross-complaint 

as you said you would do. Send me the dismissal.” Respondent 

e-mailed back, “You either dismiss your case with prejudice or I 

will seek my legal remedies. [¶] You dismiss and I will dismiss 

my [cross-complaint].” 
6

dismiss the cross-complaint and would submit the dismissal 

again, [and] there was no reason for [appellant] to immediately 

file the anti-SLAPP motion without first giving [respondent] the 

time to dismiss the cross-complaint.” According to the trial court, 

appellant did not display the cooperation that is expected of 

parties during litigation. Under the circumstances, “the filing of 

the anti-SLAPP motion was unnecessary and appears to have 

been filed only to gain an advantage and seek attorney fees.” The 

trial court ruled: “Accordingly, subject to [respondent] dismissing 

the cross-complaint, the anti-SLAPP motion is [denied][.] . . . If 

[respondent] does not dismiss the cross-complaint within 20 days 

of the date of this order, the [trial court] will put the anti-SLAPP 

motion . . . back on calendar for a hearing on the merits.”

This appeal followed.

DISCUSSION

I. Anti-SLAPP Law.

Section 425.16, subdivision (b)(1) 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 Constitution or the 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.”

The speech and conduct protected by the anti-SLAPP 

statute are: “(1) any written or oral statement or writing made 

before a legislative, executive, or judicial proceeding, or any other 

official proceeding authorized by law, (2) any written or oral 

statement or writing made in connection with an issue under 

consideration or review by a legislative, executive, or judicial 
7

body, or any other official proceeding authorized by law, (3) any 

written or oral statement or writing made in a place open to the 

public or a public forum in connection with an issue of public 

interest, or (4) 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.” (§ 425.16, subd. (e).)

Statements made in anticipation of litigation are protected 

under section 425.15, subdivision (e), clause (2). (Briggs v. Eden 

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) 

They must concern “‘the subject of the dispute’” and the future

litigation must be “‘“contemplated in good faith and under serious 

consideration”’ [citation][.]”3 (Neville v. Chudacoff (2008) 160 

Cal.App.4th 1255, 1268 (Chudacoff).) The statute applies even if 

the statements are made to “persons who are not parties or 

potential parties to litigation[.]” (Id. at p. 1270.)

Courts employ a two-prong analysis when analyzing an 

anti-SLAPP motion. (Navellier v. Sletten (2002) 29 Cal.4th 82, 

88.) First, the moving party must make an initial showing that 

the anti-SLAPP statute applies to the claims that are the subject 

of the motion. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 

809, 819.) If the moving party does so, the motion will be granted 

unless the court determines that the plaintiff has established a 

probability of prevailing on the claim. (DuPont Merck 

Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 

567–568.) 

3 Good faith refers to a good faith intention to file a lawsuit 

rather than a good faith belief in the truth of the communication. 

(Digerati Holdings, LLC v. Young Money Entertainment, LLC

(2011) 194 Cal.App.4th 873, 887.)
8

II. Standard of Review.

We independently review the denial of an anti-SLAPP 

motion. (Park v. Board of Trustees of California State University 

(2017) 2 Cal.5th 1057, 1067.) If the record supports the trial 

court’s order, it will be upheld regardless of the grounds relied 

upon by the trial court. (Becerra v. County of Santa Cruz (1998) 

68 Cal.App.4th 1450, 1457.)

III. First Prong Analysis.

Appellant argues that the statements she allegedly made

are protected because they: (1) were made in anticipation of

litigation and fell within section 425.16, subdivision (e), 

clause (2); and (2) stemmed from the exercise of free speech in 

connection with a public issue or a matter of public interest and 

are protected by section 425.16, subdivision (e), clause (4).

The law is not on her side.

A. Whether the Statements were Made in Anticipation of

Litigation.

In her opening brief, appellant asserts that Feldman v. 

1110 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1481

(Feldman) supports the conclusion that the statements she made 

to REELZ disparaging respondent’s title to the Film were made 

in anticipation of litigation.

In Feldman, an agent of an apartment building told 

subtenants of a unit that their sublease had not been approved 

and they had to either pay higher rent or move out. According to 

one of the subtenants, the agent made these threatening 

comments: “‘(A) That he has done hundreds of evictions, so he 

knows the landlord will win, and how many had we done? [¶] 

(B) That regardless of the outcome of the current case, my wife

and I will never be able to rent another apartment in 
9

San Francisco; [¶] (C) That he understands the law and has 

discussed the case with his uncle, who is a federal judge; [¶] 

(D) That we will not be able to file suit against them because they 

will win; [and] [¶] (E) That we could not have read the 

Addendum properly.’” (Feldman, supra, 160 Cal.App.4th at 

pp. 1474–1475.) The apartment building filed an unlawful 

detainer action against the subtenants who, in turn, filed a crosscomplaint alleging causes of action for contract and tort damages

arising out of the dispute. The trial court granted the apartment 

building’s anti-SLAPP motion as to one cause of action,

retaliatory eviction. (Id. at pp. 1475–1477.)

The Feldman court held that the agent’s “threats” were 

“within the scope of the anti-SLAPP statute” because they were 

“communications in connection with an ongoing dispute and in 

anticipation of litigation. [Citation.]” (Feldman, supra, 160 

Cal.App.4th at pp. 1474–1475.)

There is no analogy between this case and Feldman. The 

threats in Feldman concerned the subject of the dispute over the 

subtenants’ occupancy of a unit in the apartment building. Given 

that the apartment building filed an unlawful detainer action, it 

is apparent that the threats were made in anticipation of 

litigation contemplated in good faith and under serious 

consideration. (Chudacoff, supra, 160 Cal.App.4th at p. 1268.) 

Here, in contrast, the statements disparaging respondent’s title 

to the Film did not concern the contract dispute between 

appellant and respondent over whether she was entitled to a 

percentage of the proceeds earned by the Film. Also, appellant 

did not sue respondent over ownership of the Film or otherwise 

challenge his right to either license or sell the Film, so there is no 

basis to infer that she was seriously and in good faith 
10

contemplating such litigation. The one sentence in the complaint 

alleging that appellant believes that she and respondent are

co-owners of the Amityville Project does not shore up the 

deficiency. The complaint offers no factual basis for her belief, 

and, in any event, it is superfluous. Even assuming the 

allegation is somehow relevant to appellant’s claim for an 

accounting, it does not implicate litigation over whether

respondent lacked title or the right to sell or license the Film.

Alternatively, appellant cites Graham-Sult v. Clainos

(9th Cir. 2014) 756 F.3d 724 (Graham-Sult) and argues that her 

statements categorially qualify as protected activity under the 

anti-SLAPP statute because they were made to REELZ, an entity 

that had at least “some interest” in past and future litigation 

between appellant and respondent. Graham-Sult is not the 

panacea appellant hopes.

The case arose out of the probate of the estate of a 

successful rock and roll concert promoter who was survived by 

two sons. The executor of the estate (who doubled as trustee of 

the sons’ testamentary trusts) and his attorneys made 

statements that deceived the sons and probate court into 

thinking the decedent had assigned away his intellectual 

property (copyrights and a trademark), and the executor 

promised to distribute scrapbooks to the sons but never fulfilled 

that promise. Further, the attorneys prepared, and the executor 

signed, an assignment confirming that the intellectual property 

was owned by a corporation the decedent had founded. Following 

the probate court’s final order of distribution, the sons sued the 

executor and his attorneys for breach of fiduciary duty, aiding 

and abetting breach of fiduciary duty, breach of trust, fraud, 

promissory estoppel, conversion, aiding and abetting conversion, 
11

and unjust enrichment, claiming they had been cheated out of a 

pro rata distribution of the intellectual property, the scrapbooks, 

and a series of original posters. The defendants filed an antiSLAPP motion, which was granted. (Graham-Sult, supra, 756 

F.3d at pp. 731–740.) 

In its first prong analysis, the Ninth Circuit concluded that 

the conversion and unjust enrichment causes of action did not 

implicate protected activities of the executor. It reached the 

opposite conclusion as to breach of fiduciary duty, aiding and 

abetting breach of fiduciary duty, breach of trust, aiding and 

abetting conversion, fraud and promissory estoppel. (GrahamSult, supra, 756 F.3d at pp. 735–740.) 

With respect to breach of fiduciary duty and aiding and 

abetting breach of fiduciary duty, the court explained that the 

defendants’ activity was protected “to the extent it involve[d]

making representations to the probate court, or preparing 

documents for filing in court. [Citation.]” (Graham-Sult, supra, 

756 F.3d at p. 736.) Also, it was protected “to the extent it

involve[d] statements made to the [sons], who had ‘some interest’ 

in the probate proceedings. [Citation.]” (Ibid.) To support this 

latter point, the court cited Fremont Reorganizing Corp. v. Faigin

(2011) 198 Cal.App.4th 1153, 1167 (Fremont), a case explaining

that a “‘statement is ‘in connection with’ an issue under 

consideration by a court in a judicial proceeding [within the 

meaning of clause (2) of section 425.16, subdivision (e)] if it 

relates to a substantive issue in the proceeding and is directed to 

a person having some interest in the proceeding.’” (Graham-Sult, 

supra, 756 F.3d at p. 736.) By citing Fremont, Graham-Sult

impliedly concluded that the deceptive statements that the 
12

defendants made to the sons related to substantive breach of 

fiduciary duty issues.4 

Regarding breach of trust, the sons alleged that the 

executor “‘breached . . . duties in his ‘characterization, valuation 

and distribution of assets,’ and that the trusts received reduced 

distribution[.]” (Graham-Sult, supra, 756 F.3d at p. 737.) The 

court concluded that “these activities were all preparatory to 

probate court filings, or required the probate court’s approval. 

Accordingly, [the son’s] [c]ause of [a]ction arises from protected 

activity. [Citation.]” (Ibid.)

The sons alleged that the attorneys aided and abetted the 

executor’s conversion of property by “(1) falsifying probate court 

filings, (2) concealing information from [the sons] and the probate 

court, (3) making false statements to [the sons] and the probate 

court, and (4) assisting with the preparation of the [a]ssignment.” 

(Graham-Sult, supra, 756 F.3d at p. 739.) This was a mixed 

cause of action but the anti-SLAPP benefits applied because the 

representations made to the sons and the court filings “could 

have constituted independent acts of aiding and abetting 

. . . conversion.” (Ibid.)

Turning to fraud, the court concluded that misleading 

statements and omissions “made to persons with an interest in a 

4 The breach of fiduciary duty and aiding and abetting 

breach of fiduciary duty were mixed causes of action because they 

contained allegations of both protected activity (misleading 

statements and court filings) and unprotected activity (selfdealing and preparation and execution of the assignment). AntiSLAPP benefits applied to the protected activity because it was 

not merely incidental to the unprotected activity. (Graham-Sult, 

supra, 756 F.3d at pp. 735–736.)
13

court proceeding are categorically protected activity under the 

anti-SLAPP statute. [Citation.]” (Graham-Sult, supra, 756 F.3d 

at p. 739.) Once again, the court cited Fremont in support of its 

conclusion. Thus, the court implied that the statements and 

omissions related to substantive issues in the case. (Ibid.)

The promissory estoppel cause of action alleged that the 

executor promised to give the scrapbooks to the sons as part of 

the distribution of the assets of the estate. The court concluded:

“Because [the executor] made this [promise]to parties with an 

interest in the litigation about the subject matter of the probate 

proceedings (the distribution of assets), we conclude under 

Fremont that [the promissory estoppel] cause of action arises 

from protected activity. [Citation.]” (Graham-Sult, supra, 756 

F.3d at p. 740.) 

In the second prong analysis, the question was whether the 

sons had a reasonable probability of prevailing “in the face of 

three substantive defenses: (i) the litigation privilege, (ii) the 

statute of limitations, and (iii) res judicata.” (Graham-Sult, 

supra, 756 F.3d at p. 741.) The Ninth Circuit concluded that all 

but one cause of action arising from protected activity were 

barred by defenses and properly dismissed. The exception was 

breach of fiduciary duty. The district court erred when it ruled 

that all the cause of action’s allegations implicated the litigation 

privilege. While some did (those related to statements made to 

the probate court or the sons), others (such as allegations of selfdealing) did not. (Id. at pp. 746–748, 753.) The case was 

remanded for the district court “to determine whether [the sons] 

can make an adequate showing to survive a motion to strike on 

the remainder of the claim.” (Id. at pp. 746–747.) 
14

The takeaway from Graham-Sult and Fremont for purposes 

of this appeal is that a statement made to a party with an 

interest in litigation is entitled to the benefits of the anti-SLAPP 

statute only if it passes the relatedness test. Appellant’s reliance 

on Graham-Sult fails because her statements were not related to 

a substantive issue in her accounting claim.

In her reply brief, appellant argues that her statements

qualified as protected activity because they “were made shortly 

before she initiated this lawsuit for an accounting;” REELZ was 

the main damages witness in the prior case and the current case; 

and “any statement to the effect that [respondent] did not acquire 

any rights to her copyrighted work would be completely protected 

as true . . . because one cannot acquire copyrighted works 

through an oral agreement.”5

We cannot agree. Once again, her statements were 

unrelated to a substantive issue in her complaint for an 

accounting. 

B. Whether the Statements were an Exercise of Free 

Speech Involving an Issue of Public Interest.

Taking a new tack, appellant posits that her statements to 

REELZ were an exercise of her right of free speech in connection 

with the creation, casting and broadcasting of the Film, and that 

the Film was a matter of public interest. (Tamkin v. CBS 

Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“The creation 

of a television show is an exercise of free speech,” and acts 

designed to assist in the creation, casting and broadcasting of the 

television show were in furtherance of its creation]; Daniel v. 

5 Appellant does not identify her “copyrighted works.” She 

implies that she alone owns the copyright to the Film but does 

not explain how that is possible. 
15

Wayans (2017) 8 Cal.App.5th 367, 383–384 [statements on a film 

set and in Internet promotions were made in furtherance of the 

creation of the film, an act of free speech]; Seelig v. Infinity 

Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807–808 [radio 

commentary about a participant on a television show called Who 

Wants to Marry a Multimillionaire was protected activity because 

it involved a matter of public interest].) 

This argument fails to land. There is no basis to conclude 

that appellant was assisting the Film’s creation or casting by 

disparaging respondent’s title many years after the Film was 

made and first broadcast. Furthermore, it is impossible for us to 

discern how appellant’s statements disparaging respondent’s title 

helped get the Film broadcast on REELZ when, in fact, the 

statements sabotaged the deal for renewal of the license. 

Because the statements were not connected to creating and 

distributing the Film, we reject appellant’s argument that they 

involved a matter of public interest.

IV. Other Issues.

The parties debate whether the trial court properly denied 

appellant’s motion because it was unnecessary and a waste of

resources, and whether respondent established a likelihood of 

success on the merits. These issues are moot because the crosscomplaint does not arise from activity that is protected by the 

anti-SLAPP statute.
16

DISPOSITION

The order is affirmed. Respondent shall recover his costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

LUI

____________________________, J.

CHAVEZ