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Free Speech

Slander Suit After "Two Wealthy … Men … Got Into a Fistfight While Trick or Treating with Their Families"

"Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party."


From Justice Brian Hofstadt's opinion Wednesday in Kaplan v. Gimelstob, joined by Justices Victoria Chavez and Patricia Benke:

In a display that a trial court characterized as "junior high and high school" conduct, two wealthy, middle-aged men—one [Gimelstob] a former professional [tennis player, and later a coach and "broadcaster, producer, talent representative, and brand ambassador"] and the other [Kaplan] a venture capitalist—got into a fistfight while trick or treating with their families on Halloween night 2018. The men have now moved their spat into the court system….

Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party….

{Consistent with the applicable standard of review governing anti-SLAPP motions, we set forth [the following] facts in the light most favorable to Kaplan, as the nonmoving party.} On Halloween night in 2018, both Gimelstob and Kaplan were out trick or treating in Brentwood, which is an upscale neighborhood on the west side of Los Angeles, California. Kaplan was with his wife and their two-year-old daughter; Gimelstob, with his girlfriend and his five-year-old son. Gimelstob was dressed up as "Maverick" from Top Gun.

As Kaplan's wife and child were watching, Gimelstob "ambushed" Kaplan from behind and—"unprovoked and entirely without warning"—knocked Kaplan to the ground. Gimelstob mounted Kaplan's prone body, and proceeded to punch him 50 to 100 times. The attack lasted three minutes and ended only when a passerby pulled Gimelstob off of Kaplan….

The Los Angeles County District Attorney charged Gimelstob with committing a battery inflicting serious bodily injury, which is a crime that can be charged as a felony or a misdemeanor. The District Attorney charged it as a felony.

After the trial court expressed its tentative inclination to reduce the offense to a misdemeanor if Gimelstob entered a plea to the charge as a felony, the court allowed Kaplan and Kaplan's wife to read their victim impact statements to the court. While Kaplan was speaking, Gimelstob repeatedly shook his head and said "not true," made facial expressions and otherwise engaged in "demonstration[s] of frustration," tried to get the trial court judge's attention, and glanced back at the press assembled in the courtroom gallery.

Given what the trial court perceived to be petulant and sophomoric antics by Gimelstob while Kaplan spoke, the court expressed concern that Gimelstob did not really want to accept responsibility for the charged crime and might be better suited to proceed to trial on the felony battery charge. After Gimelstob assured the court that he wanted to accept responsibility for the crime, Gimelstob entered a no contest plea to the battery crime as a felony. Consistent with its prior indication, the trial court then reduced the felony to a misdemeanor, and placed Gimelstob on probation for three years; as conditions of probation, Gimelstob was ordered to complete 60 days of community labor and take a one-year anger management course. Gimelstob thereafter was ordered to pay Kaplan $15,204.42 in restitution, which was comprised of $268 to replace the clothing Kaplan was wearing during the incident, $875 for medical expenses, $2,325 for physical therapy, and the remainder for mental health therapy….

On January 19, 2021, Gimelstob appeared on a tennis-focused podcast entitled "Control the Controllables," which was hosted by Dan Kiernan. The host asked Gimelstob for "the truth" about the Halloween 2018 incident. In response, Gimelstob stated:

  • He "neither provoked [n]or initiated any incident that evening," either "verbally or physically." According to Gimelstob, it was Kaplan who "initiated physical contact," and only after Kaplan "engaged and initiated" did Gimelstob lose "restraint." Consistent with Kaplan being the aggressor and assailant, Gimelstob stated that there was "absolutely not 100ths of the damage" Kaplan had reported suffering; this was confirmed, Gimelstob pointed out, by the police report, in which the police had checked a box indicating "no physical damage." Gimelstob nevertheless bragged—not once, but twice—that he "got the better" of Kaplan in the fight. Gimelstob characterized his plea to the felony battery crime as the "legal system" "[u]nfortunately" "hav[ing] its blind spots," including Marsy's Law allowing "a victim … to say whatever they want."
  • Kaplan had "threatened to help [Gimelstob's] ex-wife take custody of [his] son," which included "l[ying]" and "misrepresenting" the truth about the altercation as part of their joint "mission to manipulate … the legal process."

Gimelstob lamented that he had "lost everything" due to the Halloween 2018 incident and its fallout, but said, "you know what? It just makes for a better comeback." …

Kaplan sued for slander, arguing [in relevant part]:

  • Gimelstob had falsely accused Kaplan "of committing an assault upon him" on Halloween 2018, while falsely denying that Gimelstob was responsible for the attack and that Kaplan had "suffered any injuries in the assault."
  • Gimelstob had "falsely accused Kaplan of conspiring with Gimelstob's ex-wife to 'manipulate the legal process' to damage Gimelstob." …

Gimelstob filed an anti-SLAPP motion to strike … Kaplan's slander per se claim. In support of his motion, Gimelstob submitted declaration and deposition testimony (given in Gimelstob's dissolution case) from himself, from his girlfriend, and from Kaplan's former housekeeper. This testimony paints a very different picture of what happened on Halloween 2018: Kaplan approached Gimelstob, and told him, "I heard your dad just dropped dead and he was an even bigger asshole than you." Shocked and angry, Gimelstob asked Kaplan, "What the fuck is wrong with you?"

After Kaplan walked away, Gimelstob ran to catch up to Kaplan and demanded to know, "What is your fucking problem with me?" When Kaplan responded, "Fuck you" and pushed Gimelstob "hard in the chest," Gimelstob responded by "clotheslin[ing]" Kaplan with his "left arm" and thereby knocking Kaplan down to the grass, where the two got into a "wrestling scrap" as Gimelstob sat astride Kaplan "swinging" his fists for 20 to 30 seconds. In support of his motion, Gimelstob also included the police report from the incident. Although the report noted that Gimelstob had "approached victim from behind, [and] punched [him]," the reporting officer also checked the box for "no serious injury to victim."

Kaplan opposed the motion. In support of the opposition, Kaplan submitted a declaration laying out his version of what happened during the Halloween 2018 incident (and his wife submitted a similar declaration), as well as the fact that he had spoken with Gimelstob's ex-wife only on the night of the incident as well as once before in the prior five years; on neither occasion, Kaplan attested, had he "coordinate[d] or conspire[d]" with her "to help her custody case or cause harm to" Gimelstob.

The Court of Appeal concluded (I oversimplify here slightly) that the trial court was correct to deny the anti-SLAPP motion, and to allow Kaplan's claim to go forward, because "his slander per se claim had the minimal merit necessary to withstand dismissal under the anti-SLAPP statute":

Both statements made by Gimelstob on the podcast qualify as slander per se because they "[c]harge[]" Kaplan "with [a] crime." … With regard to the Halloween 2018 incident, Gimelstob stated that he "neither provoked nor initiated" and it was Kaplan who "initiated physical contact," and that it came to blows that Kaplan exaggerated. Because the only other participant in the melee was Kaplan, Gimelstob's statements insinuated that Kaplan provoked and initiated a "fight" that involved an exchange of punches. The conduct Gimelstob attributes to Kaplan constitutes both an assault and a battery. Gimelstob contends that he never used the words "assault" or "battery" and only accused Kaplan of "initiat[ing] physical contact," but this contention ignores the context of his statement and rests upon precisely the type of "'hair-splitting analysis of language'" that the courts have rejected.

With regard to Kaplan's coordination with Gimelstob's ex-wife, Gimelstob stated that the two were on a "mission to manipulate … the legal process," including through "l[ying]" and "misrepresent[ation]," to obtain a court order granting "custody of [Gimelstob's] son" to his ex-wife. This constitutes the crime of "conspir[ing]" to "[f]alsely … maintain any suit, action, or proceeding." …

Because slander does not reach "privileged" statements (§ 46), a person's statements that fall within the so-called "litigation privilege" are not actionable. The litigation privilege applies to any communication made in a judicial or quasi-judicial proceeding that (1) is made by authorized participants, (2) is made to achieve the objects of litigation, and (3) has a logical connection to the action. Gimelstob's statements regarding the Halloween 2018 incident and Kaplan's alleged conspiracy with his ex-wife are not covered by the litigation privilege because Gimelstob published those statements during a podcast wholly divorced from any litigation….

Kaplan also made a prima facie factual showing that Gimelstob's statements on the podcast were false. Both Kaplan and his wife offered declarations recounting that Kaplan did not assault or batter Gimelstob; rather, they declared, it was Gimelstob who engaged in an "unprovoked attack" by "ambushing" Kaplan from behind and without any prior "interaction or discussion" between the two men. Kaplan also declared that he did not "coordinate or conspire" with Gimelstob's ex-wife "to help her custody case or to cause harm to Gimelstob," and only contacted the ex-wife on the night of the assault "to obtain information relative to Gimelstob's whereabouts and state of mind," such as whether he possessed a gun…. Kaplan only needed to show that the claim has "minimal merit," and this standard views the evidence through a prism friendly to the plaintiff/nonmoving party…. [T]he conflicting evidence Gimelstob offers does not defeat Kaplan's evidence "'"as a matter of law"'" …

Congratulations to Matthew G. Kleiner, Norvik Azarian, and Scott W. McCaskill (Gordon Rees Scully Mansukhani), who represented plaintiff.