| ...... |
Filed 10/4/12
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DARREN D. CHAKER,
Plaintiff and Appellant,
v.
WENDY MATEO,
Defendant and Respondent.
D058753 (Super. Ct. No. 37-2010-00094816-CU-DF-
CTL)
APPEAL from an order of the Superior Court of San
Diego County, Timothy Taylor, Judge. Affirmed.
Mataele Law Office and Isileli Tupou Manaia Mataele for
Plaintiff and Appellant.
The McMillan Law Firm and Scott A. McMillan for
Defendant and Respondent.
In this Anti-SLAPP Law case, the
trial court determined plaintiff's
complaint, which alleges a single
defamation cause of action, arises
from defendant's exercise of her
constitutional right of free
speech and that plaintiff failed to
establish a probability he would
prevail on those claims.
We agree with the trial court that plaintiff's
claims arise from the exercise of defendant's
right of free speech. We also agree that plaintiff
failed to establish a probability of success on the
merits of his defamation claim. Thus, the trial
court did not err in granting defendant's
motion to strike plaintiff's complaint.
1 Code of Civil Procedure section 425.16 sets for the
California Anti-SLAPP Law (Anti-SLAPP Law). (See Code
Civ. Proc., § 425.17, subd. (a).)
FACTUAL AND PROCEDURAL BACKGROUND
The record indicates plaintiff and appellant Darren D.
Chaker had a brief romantic relationship with Nicole
Mateo (Nicole), who resides in Texas. During the
relationship, Nicole became pregnant and delivered
Chaker's child. The record also indicates that following
the birth of the child, Chaker and Nicole engaged in a
contentious paternity and child support dispute in the
Texas courts.
In 2010 a series of derogatory statements about Chaker,
and his forensics business, appeared on an Internet
Web site where members of the public may comment on
the reliability and honesty of various providers of goods
and services and on another social networking Web site
which provided an open forum for members of the public
to comment on a variety of subjects. The following are
statements which refer to Chaker and appeared on one
of the sites: "You should be scared. This guy is a criminal
and a deadbeat dad. As you can see, I am the child's
grandma so I know. If you should eve [sic] come across
this person, be very careful. He may be taking steroids
so who knows what could happen." "I would be very
careful dealing with this guy. He uses people, is into
illegal activities, etc. I wouldn't let him into my house if I
wanted to keep my possessions or my sanity." Chaker
attributes both of these statements, as well as others
which accuse him of fraud, deceit and picking up street
walkers and homeless drug addicts, to defendant and
respondent Wendy Mateo (Wendy), Nicole's mother and
the grandmother of his child. The Internet Web sites
contained other derogatory statements apparently
posted by other defendants, including Nicole.
On June 22, 2010, Chaker filed a complaint against
Wendy and Nicole, among others. As we indicated,
Chaker's complaint alleges a single cause for defamation
based on the statements which appeared on the Internet
Web sites.
Wendy appeared in the action and moved to strike
the complaint under the Anti-SLAPP Law. (Code Civ.
Proc.,3 § 425.16.) Among other matters, Wendy argued
that Chaker has been previously determined to be a
vexatious litigant. Wendy also submitted excerpts from a
number of Web sites on which Wendy asserted Chaker
had made derogatory statements about Nicole and
Nicole's attorney. The trial court granted her motion and,
as to her, struck the complaint. Chaker filed a timely
notice of appeal.
I
"[S]ection 425.16[ fn. 4 ] requires the trial court
to undertake a two-step process in determining
whether to grant a SLAPP motion.
We deny plaintiff's request for judicial notice. The records he asks us to
notice were not presented in the trial court. (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 379, fn. 2.)
'First, the court decides whether the defendant
has made a threshold prima facie showing that the defendant's
acts, of which {Slip Opn. Page 5} the plaintiff complains, were
ones taken in furtherance of the defendant's constitutional rights
of petition or free speech in connection with a public issue.'
[Citation.]
"If the court finds the defendant has made the requisite showing,
the burden then shifts to the plaintiff to establish a 'probability' of
prevailing on the claim by making a prima facie showing of facts
that would, if proved, support a judgment in the plaintiff's favor.
[Citation.] The court also considers the defendant's opposing
evidence, but only to determine if it defeats the plaintiff's showing
as a matter of law. [Citation.] That is, the court does not weigh the
evidence or make credibility determinations. [Citations.] Finally, in
assessing the probability the plaintiff will prevail, the court
considers only the evidence that would be admissible at trial.
[Citations.]
"Whether section 425.16 applies, and whether the plaintiff has
shown a probability of prevailing, are both questions we review
independently on appeal. [Citation.]" (Kashian v. Harriman, supra,
98 Cal.App.4th at p. 906.)
II
....Initially, Chaker claims that because Wendy allegedly
posted her statements on Internet Web sites and they
were about matters which concerned his dispute with her
daughter, they were not statements which implicated her
right of free speech. Like the trial court, we reject this
contention.
The leading case with respect to Internet postings on
consumer oriented Web sites, such as the ones where
Wendy allegedly posted her statements, is Wilbanks v.
Wolk (2004) 121 Cal.App.4th 883, 900 (Wilbanks). In
Wilbanks the plaintiff was an insurance broker who
specialized in viaticals, an arrangement by which a
viatical firm purchases life insurance policies from
individuals who are near death. The defendant in
Wilbanks, Wolk, was a former insurance agent who,
acting as a "consumer watchdog," established her own
Web site which provided the public information about
viaticals and the insurance brokers who provide them.
Wolk posted a statement highly critical of the plaintiff's
business practices and reported the plaintiff was under
investigation by the California Department of Insurance.
On appeal from an order striking the plaintiff's
defamation complaint, the court found that the Web site
statements were made in a public forum and were of
public interest.
In finding that the Internet was a public forum, the court
stated: "In our view, whether a statement is 'made in a
place open to the public or in a public forum' depends on
whether the means of communicating the statement
permits open debate. We agree that Wolk's Web site—
and most newspapers—are not public forums in and of
themselves. It does not follow, however, that statements
made on a Web site or in a newspaper are not made in a
public forum. Where the newspaper is but one source of
information on an issue, and other sources are easily
accessible to interested persons, the newspaper is but
one source of information in a larger public forum.
"In a sense, the Web, as a whole, can be analogized to a
public bulletin board. A public bulletin board does not
lose its character as a public forum simply because each
statement posted there expresses only the views of the
person writing that statement. It is public because it posts
statements that can be read by anyone who is
interested, and because others who choose to do so,
can post a message through the same medium that
interested persons can read. Here, while Wolk controls
her Web site, she does not control the Web. Others can
create their own Web sites or publish letters or articles
through the same medium, making their information and
beliefs accessible to anyone interested in the topics
discussed in Wolk's Web site.
"We conclude, therefore, that Wolk's statements were
made in a public forum." (Wilbanks, supra, 121 Cal.App.
4th at pp. 896-897.)
In finding Wolk's statements were in the public interest,
the court stated: "That the information provided here is in
the nature of consumer protection information
distinguishes this case from others recognizing that a
publication does not become connected with an issue in
the public interest simply because it is widely
disseminated, or because it can be used as an example
of bad practices or of how to combat bad practices. The
statements made by Wolk were not simply a report of
one broker's business practices, of interest only to that
broker and to those who had been affected by those
practices. Wolk's statements were a warning not to use
plaintiffs' services. In the context of information ostensibly
provided to aid consumers choosing among brokers, the
statements, therefore, were directly connected to an
issue of public concern." (Wilbanks, supra, 121 Cal.App.
4th at p. 900, fns. omitted.)
More recently, cases which have considered the public
interest requirement of the Anti-SLAPP Law have
emphasized that the public interest may extend to
statements about conduct between private individuals.
(See Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 467
(Hecimovich); Terry v. Davis
8
Community Church (2005) 131 Cal.App.4th 1534, 1538-
1539, 1547 (Terry).) In finding a public interest within the
meaning of the statute in statements criticizing a
volunteer basketball coach's treatment of his players, the
court in Hecimovich noted: "Like the SLAPP statute itself,
the question whether something is an issue of public
interest must be ' " 'construed broadly.' " ' [Citations.] An '
" 'issue of public interest' " ' is ' "any issue in which the
public is interested." ' [Citation.] A matter of ' " 'public
interest should be something of concern to a substantial
number of people. [Citation.] . . . [T]here should be some
degree of closeness between the challenged statements
and the asserted public interest [citation].
. . .' "[T]he focus of the speaker's conduct should be the
public interest . . . .' " [Citation.] Nevertheless, it may
encompass activity between private people.' [Citation.]
"We look for 'the principal thrust or gravamen of the
plaintiff's cause of action.' [Citation.] We 'do not evaluate
the first prong of the anti-SLAPP test solely through the
lens of a plaintiff's cause of action.' [Citation.] The 'critical
consideration' is what the cause of action is 'based on.'
[Citation.]" (Hecimovich, supra, 203 Cal.App.4th at pp.
464-465.)
In concluding statements about the coach's style were a
matter of public interest to the parents of players, the
court stated: "[I]t would appear that plaintiff essentially
agrees that the suitability of his coaching style was a
matter of public interest among the parents. As plaintiff
testified, he himself urged the team parents to join in an
investigation of his suitability to coach the young players
because it involved 'the well being of our kids.' In his
words: 'Please, if you would, take the time to answer
[Perri's] questions fully and truthfully, and don't hold
anything back on the grounds that it might be hurtful to
me. I think that if the PTO wants to ensure the well being
of our kids (at least in this one, highly-selective occasion)
everyone should be forthcoming.'
"In sum, we conclude that safety in youth sports, not to
mention problem coaches/problem parents in youth
sports, is another issue of public interest within the
SLAPP law. [Citations.]" (Hecimovich, supra, 203 Cal.App.
4th at pp. 467-468.)
In Terry, which the court in Hecimovich relied upon, the
plaintiffs, church youth group leaders, were accused by
the defendants of having an inappropriate sexual
relationship with a minor female member of the youth
group. In rejecting the plaintiffs' contention their
relationship with the minor was solely a private matter,
the court stated: "Plaintiffs characterize the issue in this
case as a private relationship between George Terry and
the girl. Not so. The issue as to whether or not an adult
who interacts with minors in a church youth program has
engaged in an inappropriate relationship with any of the
minors is clearly a matter of public interest. The public
interest is society's interest in protecting minors from
predators, particularly in places such as church
programs that are supposed to be safe. It need not be
proved that a particular adult is in actuality a sexual
predator in order for the matter to be a legitimate subject
of discussion." (Terry, supra, 131 Cal.App.4th at p.
1547.)
In light of the principles and holdings in Wilbanks,
Hecimovich and Terry, we have little difficulty concluding
Wendy's statements were made in a public forum. Like
the court in Wilbanks, we view the Internet as an
electronic bulletin board open to literally billions of
people all over the world. (See Wilbanks, supra, 121 Cal.
App.4th at p. 897.) The Internet is a classic public forum
which permits an exchange of views in public about
everything from the great issues of war, peace, and
economic development to the relative quality of the
chicken pot pies served at competing family restaurants
in a single small neighborhood.
We also have little difficulty finding the statements were
of public interest. The statements posted to the "Ripoff
Report" Web site about Chaker's character and business
practices plainly fall within in the rubric of consumer
information about Chaker's "Counterforensics" business
and were intended to serve as a warning to consumers
about his trustworthiness. The remaining statements
were posted to the "topix" Web site, which identified itself
as a social networking site ("Join the Topix Community")
and permitted users to create their own profile and post
information on its forum. These statements also fall within
the broad parameters of public interest within the
meaning of section 425.16. Of particular significance is
the fact that it appears from the record Chaker became
the subject of statements on the "topix" Web site
only after he posted a profile on the Web site and it
generated responses from other members of the
community, including apparently statements from
Wendy. Having elected to join the topix Web site,
Chaker clearly must have recognized that other
participants in the Web site would have a
legitimate interest in knowing about his character
before engaging him on the Web site.
11
Thus, here Chaker himself made his character a
matter of public interest as the term has been
interpreted.
Because the record shows the statements which give rise
to Chaker's defamation claim were made in a public
forum with respect to a matter of public interest within the
meaning of section 425.16, subdivision (e)(3), Chaker
bore the burden of showing a probability of prevailing on
his defamation claim. (§ 425.16, subd. (b)(1).)
...
DISPOSITION
The order striking Chaker's complaint is affirmed. Mateo
to recover her costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.I
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DARREN D. CHAKER,
Plaintiff and Appellant,
v.
WENDY MATEO,
Defendant and Respondent.
D058753 (Super. Ct. No. 37-2010-00094816-CU-DF-
CTL)
APPEAL from an order of the Superior Court of San
Diego County, Timothy Taylor, Judge. Affirmed.
Mataele Law Office and Isileli Tupou Manaia Mataele for
Plaintiff and Appellant.
The McMillan Law Firm and Scott A. McMillan for
Defendant and Respondent.
In this Anti-SLAPP Law case, the
trial court determined plaintiff's
complaint, which alleges a single
defamation cause of action, arises
from defendant's exercise of her
constitutional right of free
speech and that plaintiff failed to
establish a probability he would
prevail on those claims.
We agree with the trial court that plaintiff's
claims arise from the exercise of defendant's
right of free speech. We also agree that plaintiff
failed to establish a probability of success on the
merits of his defamation claim. Thus, the trial
court did not err in granting defendant's
motion to strike plaintiff's complaint.
1 Code of Civil Procedure section 425.16 sets for the
California Anti-SLAPP Law (Anti-SLAPP Law). (See Code
Civ. Proc., § 425.17, subd. (a).)
FACTUAL AND PROCEDURAL BACKGROUND
The record indicates plaintiff and appellant Darren D.
Chaker had a brief romantic relationship with Nicole
Mateo (Nicole), who resides in Texas. During the
relationship, Nicole became pregnant and delivered
Chaker's child. The record also indicates that following
the birth of the child, Chaker and Nicole engaged in a
contentious paternity and child support dispute in the
Texas courts.
In 2010 a series of derogatory statements about Chaker,
and his forensics business, appeared on an Internet
Web site where members of the public may comment on
the reliability and honesty of various providers of goods
and services and on another social networking Web site
which provided an open forum for members of the public
to comment on a variety of subjects. The following are
statements which refer to Chaker and appeared on one
of the sites: "You should be scared. This guy is a criminal
and a deadbeat dad. As you can see, I am the child's
grandma so I know. If you should eve [sic] come across
this person, be very careful. He may be taking steroids
so who knows what could happen." "I would be very
careful dealing with this guy. He uses people, is into
illegal activities, etc. I wouldn't let him into my house if I
wanted to keep my possessions or my sanity." Chaker
attributes both of these statements, as well as others
which accuse him of fraud, deceit and picking up street
walkers and homeless drug addicts, to defendant and
respondent Wendy Mateo (Wendy), Nicole's mother and
the grandmother of his child. The Internet Web sites
contained other derogatory statements apparently
posted by other defendants, including Nicole.
On June 22, 2010, Chaker filed a complaint against
Wendy and Nicole, among others. As we indicated,
Chaker's complaint alleges a single cause for defamation
based on the statements which appeared on the Internet
Web sites.
Wendy appeared in the action and moved to strike
the complaint under the Anti-SLAPP Law. (Code Civ.
Proc.,3 § 425.16.) Among other matters, Wendy argued
that Chaker has been previously determined to be a
vexatious litigant. Wendy also submitted excerpts from a
number of Web sites on which Wendy asserted Chaker
had made derogatory statements about Nicole and
Nicole's attorney. The trial court granted her motion and,
as to her, struck the complaint. Chaker filed a timely
notice of appeal.
I
"[S]ection 425.16[ fn. 4 ] requires the trial court
to undertake a two-step process in determining
whether to grant a SLAPP motion.
We deny plaintiff's request for judicial notice. The records he asks us to
notice were not presented in the trial court. (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 379, fn. 2.)
'First, the court decides whether the defendant
has made a threshold prima facie showing that the defendant's
acts, of which {Slip Opn. Page 5} the plaintiff complains, were
ones taken in furtherance of the defendant's constitutional rights
of petition or free speech in connection with a public issue.'
[Citation.]
"If the court finds the defendant has made the requisite showing,
the burden then shifts to the plaintiff to establish a 'probability' of
prevailing on the claim by making a prima facie showing of facts
that would, if proved, support a judgment in the plaintiff's favor.
[Citation.] The court also considers the defendant's opposing
evidence, but only to determine if it defeats the plaintiff's showing
as a matter of law. [Citation.] That is, the court does not weigh the
evidence or make credibility determinations. [Citations.] Finally, in
assessing the probability the plaintiff will prevail, the court
considers only the evidence that would be admissible at trial.
[Citations.]
"Whether section 425.16 applies, and whether the plaintiff has
shown a probability of prevailing, are both questions we review
independently on appeal. [Citation.]" (Kashian v. Harriman, supra,
98 Cal.App.4th at p. 906.)
II
....Initially, Chaker claims that because Wendy allegedly
posted her statements on Internet Web sites and they
were about matters which concerned his dispute with her
daughter, they were not statements which implicated her
right of free speech. Like the trial court, we reject this
contention.
The leading case with respect to Internet postings on
consumer oriented Web sites, such as the ones where
Wendy allegedly posted her statements, is Wilbanks v.
Wolk (2004) 121 Cal.App.4th 883, 900 (Wilbanks). In
Wilbanks the plaintiff was an insurance broker who
specialized in viaticals, an arrangement by which a
viatical firm purchases life insurance policies from
individuals who are near death. The defendant in
Wilbanks, Wolk, was a former insurance agent who,
acting as a "consumer watchdog," established her own
Web site which provided the public information about
viaticals and the insurance brokers who provide them.
Wolk posted a statement highly critical of the plaintiff's
business practices and reported the plaintiff was under
investigation by the California Department of Insurance.
On appeal from an order striking the plaintiff's
defamation complaint, the court found that the Web site
statements were made in a public forum and were of
public interest.
In finding that the Internet was a public forum, the court
stated: "In our view, whether a statement is 'made in a
place open to the public or in a public forum' depends on
whether the means of communicating the statement
permits open debate. We agree that Wolk's Web site—
and most newspapers—are not public forums in and of
themselves. It does not follow, however, that statements
made on a Web site or in a newspaper are not made in a
public forum. Where the newspaper is but one source of
information on an issue, and other sources are easily
accessible to interested persons, the newspaper is but
one source of information in a larger public forum.
"In a sense, the Web, as a whole, can be analogized to a
public bulletin board. A public bulletin board does not
lose its character as a public forum simply because each
statement posted there expresses only the views of the
person writing that statement. It is public because it posts
statements that can be read by anyone who is
interested, and because others who choose to do so,
can post a message through the same medium that
interested persons can read. Here, while Wolk controls
her Web site, she does not control the Web. Others can
create their own Web sites or publish letters or articles
through the same medium, making their information and
beliefs accessible to anyone interested in the topics
discussed in Wolk's Web site.
"We conclude, therefore, that Wolk's statements were
made in a public forum." (Wilbanks, supra, 121 Cal.App.
4th at pp. 896-897.)
In finding Wolk's statements were in the public interest,
the court stated: "That the information provided here is in
the nature of consumer protection information
distinguishes this case from others recognizing that a
publication does not become connected with an issue in
the public interest simply because it is widely
disseminated, or because it can be used as an example
of bad practices or of how to combat bad practices. The
statements made by Wolk were not simply a report of
one broker's business practices, of interest only to that
broker and to those who had been affected by those
practices. Wolk's statements were a warning not to use
plaintiffs' services. In the context of information ostensibly
provided to aid consumers choosing among brokers, the
statements, therefore, were directly connected to an
issue of public concern." (Wilbanks, supra, 121 Cal.App.
4th at p. 900, fns. omitted.)
More recently, cases which have considered the public
interest requirement of the Anti-SLAPP Law have
emphasized that the public interest may extend to
statements about conduct between private individuals.
(See Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 467
(Hecimovich); Terry v. Davis
8
Community Church (2005) 131 Cal.App.4th 1534, 1538-
1539, 1547 (Terry).) In finding a public interest within the
meaning of the statute in statements criticizing a
volunteer basketball coach's treatment of his players, the
court in Hecimovich noted: "Like the SLAPP statute itself,
the question whether something is an issue of public
interest must be ' " 'construed broadly.' " ' [Citations.] An '
" 'issue of public interest' " ' is ' "any issue in which the
public is interested." ' [Citation.] A matter of ' " 'public
interest should be something of concern to a substantial
number of people. [Citation.] . . . [T]here should be some
degree of closeness between the challenged statements
and the asserted public interest [citation].
. . .' "[T]he focus of the speaker's conduct should be the
public interest . . . .' " [Citation.] Nevertheless, it may
encompass activity between private people.' [Citation.]
"We look for 'the principal thrust or gravamen of the
plaintiff's cause of action.' [Citation.] We 'do not evaluate
the first prong of the anti-SLAPP test solely through the
lens of a plaintiff's cause of action.' [Citation.] The 'critical
consideration' is what the cause of action is 'based on.'
[Citation.]" (Hecimovich, supra, 203 Cal.App.4th at pp.
464-465.)
In concluding statements about the coach's style were a
matter of public interest to the parents of players, the
court stated: "[I]t would appear that plaintiff essentially
agrees that the suitability of his coaching style was a
matter of public interest among the parents. As plaintiff
testified, he himself urged the team parents to join in an
investigation of his suitability to coach the young players
because it involved 'the well being of our kids.' In his
words: 'Please, if you would, take the time to answer
[Perri's] questions fully and truthfully, and don't hold
anything back on the grounds that it might be hurtful to
me. I think that if the PTO wants to ensure the well being
of our kids (at least in this one, highly-selective occasion)
everyone should be forthcoming.'
"In sum, we conclude that safety in youth sports, not to
mention problem coaches/problem parents in youth
sports, is another issue of public interest within the
SLAPP law. [Citations.]" (Hecimovich, supra, 203 Cal.App.
4th at pp. 467-468.)
In Terry, which the court in Hecimovich relied upon, the
plaintiffs, church youth group leaders, were accused by
the defendants of having an inappropriate sexual
relationship with a minor female member of the youth
group. In rejecting the plaintiffs' contention their
relationship with the minor was solely a private matter,
the court stated: "Plaintiffs characterize the issue in this
case as a private relationship between George Terry and
the girl. Not so. The issue as to whether or not an adult
who interacts with minors in a church youth program has
engaged in an inappropriate relationship with any of the
minors is clearly a matter of public interest. The public
interest is society's interest in protecting minors from
predators, particularly in places such as church
programs that are supposed to be safe. It need not be
proved that a particular adult is in actuality a sexual
predator in order for the matter to be a legitimate subject
of discussion." (Terry, supra, 131 Cal.App.4th at p.
1547.)
In light of the principles and holdings in Wilbanks,
Hecimovich and Terry, we have little difficulty concluding
Wendy's statements were made in a public forum. Like
the court in Wilbanks, we view the Internet as an
electronic bulletin board open to literally billions of
people all over the world. (See Wilbanks, supra, 121 Cal.
App.4th at p. 897.) The Internet is a classic public forum
which permits an exchange of views in public about
everything from the great issues of war, peace, and
economic development to the relative quality of the
chicken pot pies served at competing family restaurants
in a single small neighborhood.
We also have little difficulty finding the statements were
of public interest. The statements posted to the "Ripoff
Report" Web site about Chaker's character and business
practices plainly fall within in the rubric of consumer
information about Chaker's "Counterforensics" business
and were intended to serve as a warning to consumers
about his trustworthiness. The remaining statements
were posted to the "topix" Web site, which identified itself
as a social networking site ("Join the Topix Community")
and permitted users to create their own profile and post
information on its forum. These statements also fall within
the broad parameters of public interest within the
meaning of section 425.16. Of particular significance is
the fact that it appears from the record Chaker became
the subject of statements on the "topix" Web site
only after he posted a profile on the Web site and it
generated responses from other members of the
community, including apparently statements from
Wendy. Having elected to join the topix Web site,
Chaker clearly must have recognized that other
participants in the Web site would have a
legitimate interest in knowing about his character
before engaging him on the Web site.
11
Thus, here Chaker himself made his character a
matter of public interest as the term has been
interpreted.
Because the record shows the statements which give rise
to Chaker's defamation claim were made in a public
forum with respect to a matter of public interest within the
meaning of section 425.16, subdivision (e)(3), Chaker
bore the burden of showing a probability of prevailing on
his defamation claim. (§ 425.16, subd. (b)(1).)
...
DISPOSITION
The order striking Chaker's complaint is affirmed. Mateo
to recover her costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.I
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
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Gilbert v. Sykes
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
Cases and Links
Anti-SLAPP motion ends Chaker v. Mateo defamation suit against
the mother and grandmother of Chaker's child
the mother and grandmother of Chaker's child
Behind nullified law, a man's fight
He feels vindicated by reversal of
state statute shielding officers
By Greg Moran
SDUT
November 13, 2005
For most people, a misdemeanor
arrest nearly a decade ago wouldn't
be that big of a deal.
NELVIN CEPEDA / Union-Tribune
Darren Chaker was convicted in 1999
of knowingly filing a false complaint
against El Cajon police officers. The
9th Circuit Court of Appeals reversed
the conviction Nov. 3.
For Darren Chaker, his 1996 arrest in
El Cajon was much more than that.
Eventually, he made a federal case
out of it.
And, in a ruling that has sent a minor
tremor through police officer groups
and civil libertarians, he won.
A three-judge panel of the federal 9th
Circuit Court of Appeals ruled Nov. 3
that a state law making it a crime to
knowingly make a false complaint
against a police officer was
unconstitutional.
The panel said the law was flawed
because it unfairly punished the
content of speech. Specifically, the
court found that the law targets only
those who knowingly make a false
complaint about a police officer while
leaving unpunished someone who
knowingly makes a false report
praising an officer.
The justices said a law that punishes
only people who engage in knowingly
false speech that is critical of police
officers – and does not sanction
people who make knowningly false
comments supportive of police –
"turns the First Amendment on its
head."
After years of trying to get his
conviction overturned, Chaker said
he feels vindicated and is pleased
that the ruling could benefit others.
"I was so determined to vindicate
myself, because I felt the conviction
was improper," he said.
But the case is probably not over.
San Diego Deputy District Attorney
Kelly Rand said her office might ask a
larger panel of the circuit court to
review the ruling by the three judges.
If that fails, the case could go the U.S.
Supreme Court.
"This case is not over yet," she said.
The state law at issue was enacted in
1995 in the wake of what legislators
said were a flood of complaints
against police after the Rodney King
beating in 1991.
Rand noted that the law was
unanimously upheld in 2002 by the
state Supreme Court, ruling in a case
from Oxnard in Ventura County. She
said it does not infringe on free
speech because people with
complaints against police can still
protest on the street, in forums, or in
writings.
Instead, she said, the law specifically
targets those who knowingly file a
false official complaint with the
department. Police agencies are
required to investigate such
allegations, which takes up time and
resources.
"If you file a formal complaint against
the police that requires an
investigation," she said, "and you
know from the beginning it is false,
then there is no utility to that
complaint other than to waste public
tax dollars."
That is not how Chaker sees it. He
said that because he made a
complaint about how he was arrested
by El Cajon police in April 1996, he
was subsequently branded a criminal.
Chaker, of Beverly Hills, represented
himself throughout most of the legal
battle, which took him to state and
federal courts several times. But he
enlisted the assistance of the
American Civil Liberties Union for the
appeal in front of the 9th Circuit panel.
Chaker is no stranger to courtrooms.
He has filed numerous suits over the
years, and in 1996 was declared a
"vexatious litigant" in San Diego
County. That is a finding made by
courts against people who repeatedly
file lawsuits that are deemed to be
lacking in merit or otherwise
unfounded. The designation means
no further suits from such a person
can be filed without the permission of
the court.
Chaker said his lawsuit-filing days are
behind him. He was able to pursue
this case because it was an appeal
from a criminal conviction and not
subject to the vexatious-litigant rules.
The case began when Chaker was
arrested on a misdemeanor theft-of-
services charge in April 1996, for
getting his car from a repair shop
without paying for it.
Those charges were eventually
dismissed by the court.
Chaker filed a complaint with El Cajon
police, saying his wrist was twisted
and he was struck twice in the ribs
when he was arrested. El Cajon
police investigated and found the
complaint unwarranted.
Then, 11 months after the disputed
arrest, prosecutors charged Chaker
with knowingly filing a false complaint.
After one jury deadlocked, a second
convicted him in February 1999. He
was sentenced to two days in jail, 15
days of public service and three
years on probation.
To this day Chaker stands by his
complaint. "He twisted my wrist," he
said. "In my mind, no, I did not make a
false complaint because he used
excessive force."
The officers involved in the case
could not be reached for comment.
After the conviction, he appealed and
lost, then filed a series of habeas
corpus petitions in the state Supreme
Court. None was granted. He also
filed a petition in federal court in San
Diego, and lost there, also.
Around that time he enlisted the
support of the ACLU, which argued
the bulk of the appeal. Mark
Rosenbaum, legal director of the
ACLU in Los Angeles, said the ruling
affirms the principle that "citizens
should not be stifled."
False complaints can be handled
through perjury prosecutions, he
said, and not by punishing speech.
"The public should not be gagged
from bringing legitimate concerns
about police officers," he said. "A
core purpose of the First Amendment
is to encourage close scrutiny of the
workings of government."
He feels vindicated by reversal of
state statute shielding officers
By Greg Moran
SDUT
November 13, 2005
For most people, a misdemeanor
arrest nearly a decade ago wouldn't
be that big of a deal.
NELVIN CEPEDA / Union-Tribune
Darren Chaker was convicted in 1999
of knowingly filing a false complaint
against El Cajon police officers. The
9th Circuit Court of Appeals reversed
the conviction Nov. 3.
For Darren Chaker, his 1996 arrest in
El Cajon was much more than that.
Eventually, he made a federal case
out of it.
And, in a ruling that has sent a minor
tremor through police officer groups
and civil libertarians, he won.
A three-judge panel of the federal 9th
Circuit Court of Appeals ruled Nov. 3
that a state law making it a crime to
knowingly make a false complaint
against a police officer was
unconstitutional.
The panel said the law was flawed
because it unfairly punished the
content of speech. Specifically, the
court found that the law targets only
those who knowingly make a false
complaint about a police officer while
leaving unpunished someone who
knowingly makes a false report
praising an officer.
The justices said a law that punishes
only people who engage in knowingly
false speech that is critical of police
officers – and does not sanction
people who make knowningly false
comments supportive of police –
"turns the First Amendment on its
head."
After years of trying to get his
conviction overturned, Chaker said
he feels vindicated and is pleased
that the ruling could benefit others.
"I was so determined to vindicate
myself, because I felt the conviction
was improper," he said.
But the case is probably not over.
San Diego Deputy District Attorney
Kelly Rand said her office might ask a
larger panel of the circuit court to
review the ruling by the three judges.
If that fails, the case could go the U.S.
Supreme Court.
"This case is not over yet," she said.
The state law at issue was enacted in
1995 in the wake of what legislators
said were a flood of complaints
against police after the Rodney King
beating in 1991.
Rand noted that the law was
unanimously upheld in 2002 by the
state Supreme Court, ruling in a case
from Oxnard in Ventura County. She
said it does not infringe on free
speech because people with
complaints against police can still
protest on the street, in forums, or in
writings.
Instead, she said, the law specifically
targets those who knowingly file a
false official complaint with the
department. Police agencies are
required to investigate such
allegations, which takes up time and
resources.
"If you file a formal complaint against
the police that requires an
investigation," she said, "and you
know from the beginning it is false,
then there is no utility to that
complaint other than to waste public
tax dollars."
That is not how Chaker sees it. He
said that because he made a
complaint about how he was arrested
by El Cajon police in April 1996, he
was subsequently branded a criminal.
Chaker, of Beverly Hills, represented
himself throughout most of the legal
battle, which took him to state and
federal courts several times. But he
enlisted the assistance of the
American Civil Liberties Union for the
appeal in front of the 9th Circuit panel.
Chaker is no stranger to courtrooms.
He has filed numerous suits over the
years, and in 1996 was declared a
"vexatious litigant" in San Diego
County. That is a finding made by
courts against people who repeatedly
file lawsuits that are deemed to be
lacking in merit or otherwise
unfounded. The designation means
no further suits from such a person
can be filed without the permission of
the court.
Chaker said his lawsuit-filing days are
behind him. He was able to pursue
this case because it was an appeal
from a criminal conviction and not
subject to the vexatious-litigant rules.
The case began when Chaker was
arrested on a misdemeanor theft-of-
services charge in April 1996, for
getting his car from a repair shop
without paying for it.
Those charges were eventually
dismissed by the court.
Chaker filed a complaint with El Cajon
police, saying his wrist was twisted
and he was struck twice in the ribs
when he was arrested. El Cajon
police investigated and found the
complaint unwarranted.
Then, 11 months after the disputed
arrest, prosecutors charged Chaker
with knowingly filing a false complaint.
After one jury deadlocked, a second
convicted him in February 1999. He
was sentenced to two days in jail, 15
days of public service and three
years on probation.
To this day Chaker stands by his
complaint. "He twisted my wrist," he
said. "In my mind, no, I did not make a
false complaint because he used
excessive force."
The officers involved in the case
could not be reached for comment.
After the conviction, he appealed and
lost, then filed a series of habeas
corpus petitions in the state Supreme
Court. None was granted. He also
filed a petition in federal court in San
Diego, and lost there, also.
Around that time he enlisted the
support of the ACLU, which argued
the bulk of the appeal. Mark
Rosenbaum, legal director of the
ACLU in Los Angeles, said the ruling
affirms the principle that "citizens
should not be stifled."
False complaints can be handled
through perjury prosecutions, he
said, and not by punishing speech.
"The public should not be gagged
from bringing legitimate concerns
about police officers," he said. "A
core purpose of the First Amendment
is to encourage close scrutiny of the
workings of government."
Other interesting
events involving Darren
Chaker and freedom of
speech
events involving Darren
Chaker and freedom of
speech
Mr. Chaker came to my Court of
Appeal hearing
Freedom of speech for me, but not
for you seems to be the guiding
principle for Mr. Chaker and ACLU
attorney David Loy.
Appeal hearing
Freedom of speech for me, but not
for you seems to be the guiding
principle for Mr. Chaker and ACLU
attorney David Loy.
Darren Chaker cases
Recently released from federal prison for fraud on the
court (see below), Chaker has a love-hate relationship
with free speech: he defames others, but wants to stifle
those who tell the truth
Recently released from federal prison for fraud on the
court (see below), Chaker has a love-hate relationship
with free speech: he defames others, but wants to stifle
those who tell the truth
Darren Chaker and the ACLU
demand free speech for themselves
and their allies, but want to deny it
to others.
demand free speech for themselves
and their allies, but want to deny it
to others.
Panel Says Online
Comments by Mother,
Grandmother of Plaintiff’s
Child Were Opinions
Defamation Suit Over ‘Deadbeat Dad’ Reference
Held SLAPP
By KENNETH OFGANG
Metropolitan News-Enterprise
October 5, 2012
Two women who referred to a San Diego man, in an
online posting, as a “criminal and a deadbeat dad”
who “may be taking steroids” were expressing
protected opinions and cannot be liable for
defamation, the Fourth District Court of Appeal
ruled yesterday. Div. One affirmed a San Diego
Superior Court judge’s ruling that the suit by Darren
D. Chaker against Wendy and Nicole Mateo was a
strategic lawsuit against public participation. The
justices agreed with Judge Timothy Taylor that the
suit arose from speech on a public issue, and that
the action is barred by the First Amendment.
The evidence, Justice Patricia Benke explained,
showed that Nicole Mateo became pregnant during
a brief relationship with Chaker, resulting in
contentious paternity and child support litigation in
Mateo’s home state of Texas. In 2010, comments
about Chaker and his forensics business, including
claims that he was involved in fraud and
prostitution, as well as the deadbeat dad and
steroid references, began showing up in the
comments sections of websites such as Topix,
where he had posted a profile, and the Ripoff
Report.
Anti-SLAPP Motion
Chaker attributed some of those statements to
Nicole Mateo and her mother Wendy Mateo, and
sued both of them, as well as others. Wendy Mateo
brought an anti-SLAPP motion, which the judge
granted.
Benke, like the trial judge, rejected Chaker’s
argument that the allegedly defamatory statements
related to a purely private dispute, thus falling
outside the scope of the statute. The justice cited
Wilbanks v. Wolk (2004) 121 Cal.App.4th 883,
which held that the Internet is a public forum, as well
as cases holding that public statements about
private conduct—such as criticism of the treatment
of young athletes by their coaches— may be
matters of public interest for purposes of Code of
Civil Procedure Sec. 425.16.
“Like the court in Wilbanks, we view the Internet as
an electronic bulletin board open to literally billions
of people all over the world,” the jurist wrote. “...The
Internet is a classic public forum which permits an
exchange of views in public about everything from
the great issues of war, peace, and economic
development to the relative quality of the chicken
pot pies served at competing family restaurants in a
single small neighborhood.”
She went on to say:
“The statements posted to the ‘Ripoff Report’ Web
site about Chaker’s character and business
practices plainly fall within in the rubric of consumer
information about Chaker’s ‘Counterforensics’
business and were intended to serve as a warning
to consumers about his trustworthiness.”
By posting his profile on Topix, she added, Chaker
“made his character a matter of public interest as
the term has been interpreted.”
Because the comments deal with a matter of public
interest, Benke wrote, the burden shifted to Chaker
to show that he was likely to prevail. But because
the First Amendment protects opinion, she said, he
could not make such a showing.
Opinion, Not Fact
Citing a number of recent cases holding similar
online comments to be opinion, rather than
assertions of fact, the justice said the statements
challenged by Chaker had to be understood in the
context of the litigation between him and Nicole
Mateo, particularly since they “were made on
Internet Web sites which plainly invited the sort of
exaggerated and insulting criticisms of businesses
and individuals which occurred here.”
Attacking Chaker as “dishonest and scary,” the
justice said, “is on its face nothing more than a
negative, but nonactionable opinion.
A different result might have been reached, Benke
suggested, if, instead of mere generalized attacks
on the plaintiff’s character, the defendants made
allegations of specific wrongdoing at specified times
and places.
The reference to Chaker as a “criminal,” the justice
added, was arguably defamatory, but is
nonactionable because Chaker was convicted of a
crime, although the conviction was expunged.
The case is Chaker v. Mateo, D058753
Comments by Mother,
Grandmother of Plaintiff’s
Child Were Opinions
Defamation Suit Over ‘Deadbeat Dad’ Reference
Held SLAPP
By KENNETH OFGANG
Metropolitan News-Enterprise
October 5, 2012
Two women who referred to a San Diego man, in an
online posting, as a “criminal and a deadbeat dad”
who “may be taking steroids” were expressing
protected opinions and cannot be liable for
defamation, the Fourth District Court of Appeal
ruled yesterday. Div. One affirmed a San Diego
Superior Court judge’s ruling that the suit by Darren
D. Chaker against Wendy and Nicole Mateo was a
strategic lawsuit against public participation. The
justices agreed with Judge Timothy Taylor that the
suit arose from speech on a public issue, and that
the action is barred by the First Amendment.
The evidence, Justice Patricia Benke explained,
showed that Nicole Mateo became pregnant during
a brief relationship with Chaker, resulting in
contentious paternity and child support litigation in
Mateo’s home state of Texas. In 2010, comments
about Chaker and his forensics business, including
claims that he was involved in fraud and
prostitution, as well as the deadbeat dad and
steroid references, began showing up in the
comments sections of websites such as Topix,
where he had posted a profile, and the Ripoff
Report.
Anti-SLAPP Motion
Chaker attributed some of those statements to
Nicole Mateo and her mother Wendy Mateo, and
sued both of them, as well as others. Wendy Mateo
brought an anti-SLAPP motion, which the judge
granted.
Benke, like the trial judge, rejected Chaker’s
argument that the allegedly defamatory statements
related to a purely private dispute, thus falling
outside the scope of the statute. The justice cited
Wilbanks v. Wolk (2004) 121 Cal.App.4th 883,
which held that the Internet is a public forum, as well
as cases holding that public statements about
private conduct—such as criticism of the treatment
of young athletes by their coaches— may be
matters of public interest for purposes of Code of
Civil Procedure Sec. 425.16.
“Like the court in Wilbanks, we view the Internet as
an electronic bulletin board open to literally billions
of people all over the world,” the jurist wrote. “...The
Internet is a classic public forum which permits an
exchange of views in public about everything from
the great issues of war, peace, and economic
development to the relative quality of the chicken
pot pies served at competing family restaurants in a
single small neighborhood.”
She went on to say:
“The statements posted to the ‘Ripoff Report’ Web
site about Chaker’s character and business
practices plainly fall within in the rubric of consumer
information about Chaker’s ‘Counterforensics’
business and were intended to serve as a warning
to consumers about his trustworthiness.”
By posting his profile on Topix, she added, Chaker
“made his character a matter of public interest as
the term has been interpreted.”
Because the comments deal with a matter of public
interest, Benke wrote, the burden shifted to Chaker
to show that he was likely to prevail. But because
the First Amendment protects opinion, she said, he
could not make such a showing.
Opinion, Not Fact
Citing a number of recent cases holding similar
online comments to be opinion, rather than
assertions of fact, the justice said the statements
challenged by Chaker had to be understood in the
context of the litigation between him and Nicole
Mateo, particularly since they “were made on
Internet Web sites which plainly invited the sort of
exaggerated and insulting criticisms of businesses
and individuals which occurred here.”
Attacking Chaker as “dishonest and scary,” the
justice said, “is on its face nothing more than a
negative, but nonactionable opinion.
A different result might have been reached, Benke
suggested, if, instead of mere generalized attacks
on the plaintiff’s character, the defendants made
allegations of specific wrongdoing at specified times
and places.
The reference to Chaker as a “criminal,” the justice
added, was arguably defamatory, but is
nonactionable because Chaker was convicted of a
crime, although the conviction was expunged.
The case is Chaker v. Mateo, D058753
Blog post about Darren Chaker
and the San Diego ACLU.
and the San Diego ACLU.
See also: Why is Darren Chaker stalking Maura Larkins even though his conditions
for release from federal prison forbid it?
Chaker has retaliated against Scott McMillan, the lawyer who beat him in court.
Chaker pretends that he is Scott McMillan.
for release from federal prison forbid it?
Chaker has retaliated against Scott McMillan, the lawyer who beat him in court.
Chaker pretends that he is Scott McMillan.
Download decision from Scott McMillan law firm
| News, information and ideas about our education system, courts and health care by Maura Larkins |
ZAYA v. CHAKER D052817
NADINE ZAYA,
Plaintiff and Respondent,
v.
DARREN D. CHAKER,
Defendant and Appellant.
Court of Appeals of California, Fourth Appellate
District, Division One
Not to be Published in Official Reports
McINTYRE, J.
In July 2005, the superior court issued a
restraining order against Darren D.
Chaker pursuant to the Domestic
Violence Protection Act (Fam. Code, §
6200 et. seq. (the Act)), requiring him to
stay away from Nadine Zaya for a
five-year period. He appealed from that
order on various grounds, contending in
part that Zaya's evidence was insufficient
to support its issuance; this court,
however, rejected his arguments and
affirmed the order.
On remand, Chaker moved to dismiss the order,
contending that it resulted from intrinsic fraud, and
moved for reconsideration after the dismissal motion
was denied. He now appeals these orders,
contending that the superior court improperly (1)
denied him an evidentiary hearing on the motion to
dismiss, (2) failed to rule on his challenge to its
jurisdiction to hear this case, and (3) disregarded
substantial evidence establishing that the restraining
order resulted from fraud. We reject Chaker's
arguments, as well as Zaya's request for sanctions,
and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2006, Zaya filed a request for a
temporary restraining order under the Act against
Chaker. (All further dates are in 2006 except as
otherwise specified.) In her request, Zaya stated
under penalty of perjury that Chaker made
threatening calls to her and told her he would harm
her or her family if she testified in a pending criminal
matter against him. (Zaya v. Chaker (Oct. 19, 2007,
D049874) [nonpub. opn.].)
The court issued the temporary restraining order
that, among other things, prohibited Chaker from
harassing, threatening or contacting Zaya and
ordered him to stay at least 100 yards away from
her. The order set a July 5 hearing date on Zaya's
request that the order be extended for up to five
years. After Zaya had Chaker served, an attorney
who was apparently representing Chaker in the
criminal proceeding sent a courtesy facsimile
transmission to the court informing the court that
Chaker was in custody and would thus be
unavailable to attend the July 5 hearing. (Zaya v.
Chaker, supra.)
At the hearing on the extension of the restraining
order, the court noted that Chaker had been served
with the restraining order and that it had received a
letter from an attorney on his behalf indicating that
he would not be appearing. Zaya testified that
Chaker made threats directly to her to persuade her
not to testify in the pending criminal proceeding
against him. Based on the evidence before it, the
court issued an order extending the expiration date
of the restraining order until July 5, 2011. (Zaya v.
Chaker, supra.)
Two days later, the attorney sent another facsimile
transmission to the court, noting that the hearing had
occurred and attaching the original transmission
regarding Chaker's incarceration, but not raising any
objection to the court's order or making any request
for relief. Shortly thereafter, Chaker moved to have
the court vacate the five-year restraining order,
arguing in part that he was entitled to a continuance
of the hearing, that he had been unable to attend the
hearing as a result of his incarceration and that the
court erred in holding the hearing in his absence.
While his motion was pending, Chaker filed a notice
of appeal from the court's July 5 order, thus
eliminating the court's jurisdiction to rule on the
motion. (Zaya v. Chaker, supra., citing Copley v.
Copley (1981) 126 Cal.App.3d 248, 298 & Hollister
Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d
660, 666.)
On appeal, Chaker contended that the superior court
erred in not granting him a continuance of the
hearing and in issuing the order based in part on the
insufficiency of the evidence to support it. This court
rejected his contentions based on the absence of
any evidence in the record that he had ever
requested that the trial court grant him a continuance
of the hearing and based on the evidence submitted
by Zaya in support of her application for the
restraining order. (Zaya v. Chaker, supra.)
On remand, Chaker moved to dismiss the restraining
order on the ground that it was obtained based on
intrinsic fraud. Prior to the hearing on the motion,
Chaker appeared ex parte, apparently requesting
that he be permitted to subpoena witnesses to testify
at the hearing. His request was denied. At the
hearing, the court denied Chaker's motion to dismiss,
concluding that he had not met his burden to
establish intrinsic fraud and, even if he had, such
fraud did not support a dismissal of the restraining
order. Chaker thereafter moved for reconsideration,
to which Zaya responded by making a motion for
sanctions. The court denied both requests. Chaker
appeals and Zaya requests sanctions on the ground
that the appeal is frivolous.
DISCUSSION
1. General Principles Governing Attacks on Final
Judgments
The doctrine of res judicata generally ensures that a
final judgment rendered in an action has conclusive
effect and will not be subject to challenge or attack
except by a motion, an appeal or the exercise of
some other procedural request for relief made in that
action. (Armstrong v. Armstrong (1976) 15 Cal.3d
942, 951.) Once such a judgment is entered, the trial
court has limited statutory authority to change it
within a period of time after its entry. (Rochin v. Pat
Johnson Manufacturing Co. (1998) 67 Cal.App.4th
1228, 1237 & statutory provisions cited therein.)
After the expiration of that time, the grounds on
which a party may properly seek to attack a
judgment, either by motion or by an independent
action, are generally limited to challenges that the
judgment is void on its face for lack of personal or
subject matter jurisdiction, that the court granted
relief in excess of its jurisdiction or that the judgment
was obtained as a result of extrinsic fraud or mistake.
(Estate of Beard (1999) 71 Cal.App.4th 753,
774-775; Armstrong v. Armstrong, supra, 15 Cal.3d
at p. 950; 8 Witkin, Cal. Procedure (4th ed. 1997)
Attack on Judgment in Trial Court, §§ 222-236, pp.
726-750.)
Family Code section 6345, subdivision (a) authorizes
the superior court to modify or terminate a
restraining order issued pursuant to the Act on the
motion of a party subject thereto. Chaker, however,
did not seek relief under that statutory provision;
instead he sought to challenge the credibility of the
evidence offered in support of the restraining order
against him, arguing that the order should be
dismissed on the basis of intrinsic fraud. The parties
and the superior court have proceeded on the
assumption that the principles cited above are
applicable here despite the absence of a final
judgment; we accept this assumption, without
deciding the point, in resolving this appeal.
2. Denial of an Evidentiary Hearing on the Motion to
Dismiss
Chaker contends that the superior court denied his
due process rights in refusing to allow him to call
witnesses at the hearing on his motion to dismiss the
restraining order. In particular, he contends that
when the court denied his ex parte request to
subpoena witnesses, it did so because it knew he
was entitled to call such witnesses without the
necessity of an order.
On appeal, "'[a] judgment or order of the lower court
is presumed correct . . .'" and "[a]ll intendments and
presumptions are indulged to support it on matters
as to which the record is silent . . . ." (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564, italics in
original.) "This is not only a general principle of
appellate practice but an ingredient of the
constitutional doctrine of reversible error.'
[Citations.]" (Ibid.) Thus, an appellant must overcome
the presumption of correctness of a court's judgment
or order and is responsible for providing a record
adequate to establish that error occurred. (In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327,
337; Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 132.)
Here, the record before us does not include Chaker's
ex parte papers submitted in support of what
appears to have been a request by him to subpoena
witnesses to testify at the dismissal motion hearing,
nor does the ex parte minute order set forth the
basis on which the court denied his request.
Moreover, the record does not include a reporter's
transcript of the ex parte hearing.
Chaker, however, points to a memorandum that he
submitted to the court, unrelated to any pending
hearing and lacking any court file stamp, as support
for his contention about what happened at the ex
parte hearing. Given that the court may never have
even seen this memorandum and that it certainly was
never asked to verify the memorandum's content,
that document is not competent to establish what
actually happened at the hearing. Absent any
indication in the record as to what Chaker specifically
requested or the basis for the court's denial of that
request, we must presume that the superior court
acted properly in making its ruling.
3. Chaker's Jurisdictional Challenge
A judgment or order is void where the issuing court
lacked jurisdiction in the "fundamental sense" (that
is, the court lacked subject matter jurisdiction over
the cause and/or personal jurisdiction over a party to
the dispute). (Conservatorship of O'Connor (1996)
48 Cal.App.4th 1076, 1088 & cases cited therein;
see generally Armstrong v. Armstrong, supra, 15
Cal.3d at p. 950.) Chaker contends that the superior
court lacked jurisdiction to rule on Zaya's request for
a restraining order because, despite Zaya's
declaration to the contrary, he did not reside in the
eastern judicial district of San Diego County at that
time.
We cannot discern Chaker's precise argument, i.e.,
whether he is contending that Zaya should have filed
her application in some other branch of the San
Diego Superior Court or in the superior court in some
other county in California. Either way, however,
Chaker's argument confuses the issue of whether
the superior court in this case had subject matter
jurisdiction over Zaya's application and personal
jurisdiction over him, on one hand, with the issue of
where the proceeding should have occurred (i.e.,
one of venue), on the other.
Here, the superior court clearly had subject matter
jurisdiction over Zaya's application for a restraining
order (Fam. Code, § 6300) and, as a result of
Chaker's general appearance in the action, it also
had personal jurisdiction over him. (Code Civ. Proc.,
§ 410.50, subd. (b); Dial 800 v. Fesbinder (2004)
118 Cal.App.4th 32, 52.) By failing to seek to transfer
this action in a timely fashion, Chaker essentially
consented to venue in the superior court where Zaya
filed her application (Code Civ. Proc., § 396b, subd.
(a); 3 Witkin, Cal. Procedure (5th ed. 2008) Actions,
§ 840, pp. 1065-1066); even if he had not impliedly
consented, he cites no authority establishing that a
defect relating to venue of the action would support a
reversal of the restraining order. Accordingly, there
is no need to remand the matter to the trial court to
consider the jurisdictional issue.
4. Sufficiency of the Evidence to Establish Fraud
A. Request for Judicial Notice
As a preliminary matter, Chaker requests that we
take judicial notice of two transcripts of testimony by
Zaya, which he contends show that Zaya's
statements in support of her application for the
restraining order were perjurious. However, this court
has previously issued an order granting Chaker's
request to lodge these same transcripts in support of
his appeal. Consequently, his current request for
judicial notice of these documents is moot.
B. The Merits of Chaker's Fraud Challenge
Although a court has equitable jurisdiction to set
aside a judgment based on extrinsic fraud (Olivera v.
Grace (1942) 19 Cal.2d 570, 575), one who
challenges a judgment on that basis must show that
by virtue of the fraud he was "' . . . deliberately kept
in ignorance of the action or proceeding, or in some
other way fraudulently prevented from presenting his
claim or defense.' [Citation.]" (Parage v. Couedel
(1997) 60 Cal.App.4th 1037, 1044.) "Fraud is
intrinsic and not a valid ground for setting aside a
judgment when the party has been given notice of
the action and has had an opportunity to present his
case and to protect himself from any mistake or fraud
of his adversary . . . ." (In re Marriage of Varner
(1997) 55 Cal.App.4th 128, 140, quoting In re
Marriage of Stevenot (1984) 154 Cal.App.3d 1051,
1069.) Except in limited circumstances not present
here, a party's introduction of perjured testimony or
false documents or its concealment of material
evidence constitutes intrinsic rather than extrinsic
fraud and thus will not support a collateral attack on
the resulting judgment or order. (E.g., Parsons v.
Tickner (1995) 31 Cal.App.4th 1513, 1532; Kachig v.
Boothe (1971) 22 Cal.App.3d 626, 634; Jorgensen v.
Jorgensen (1948) 32 Cal.2d 13, 19-20.)
Here, Chaker's motion to dismiss the restraining
order against him was based on the contention that
the order was obtained by "intrinsic fraud," i.e.,
Zaya's introduction of allegedly perjured testimony,
not that any fraud by Zaya precluded him from
appearing at the hearing on her application for a
restraining order. In accordance with the principles
discussed above, however, intrinsic fraud does not
provide a basis for setting aside the order. (See also
In re Marriage of Melton (1994) 28 Cal.App.4th 931,
937-938 ["Fraud is intrinsic and not a valid ground
for setting aside a judgment when the party has been
given notice of the action and has had an
opportunity to present his case and to protect himself
from any mistake or fraud of his adversary, but has
unreasonably neglected to do so"].) Accordingly, the
superior court did not err in denying Chaker's motion
to dismiss the restraining order against him.
5. Zaya's Request for Monetary Sanctions
Pursuant to Code of Civil Procedure section 907 and
California Rules of Court, rule 8.276(e), Zaya asks
this court to award her monetary sanctions of $4,500
(which includes $1,500 Zaya incurred in opposing
Chaker's motions in the superior court) against
Chaker for pursuing a frivolous appeal. Generally,
"[a]n appeal is sanctionable as frivolous when it is
prosecuted for an improper motive to harass the
respondents or delay the effect of an adverse
judgment, or where it indisputably is totally and
completely without merit." (Weber v. Willard (1989)
207 Cal.App.3d 1006, 1009-1010.)
The first test for frivolousness is subjective, requiring
a determination as to whether the appeal is being
prosecuted solely for an improper motive, such as to
harass the respondent or delay the effect of an
adverse judgment. (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 649-650.) The second test is
objective, requiring a determination of whether the
appeal is so indisputably without basis "that any
reasonable attorney would agree it was totally devoid
of merit[.]" (Tomaselli v. Transamerica Ins. Co.
(1994) 25 Cal.App.4th 1766, 1773.)
Sanctions are to be used sparingly, only to deter the
most egregious conduct, "so as to avoid a serious
chilling effect on the assertion of litigants' rights on
appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d
at p. 650.) While we agree with Zaya that Chaker's
appeal lacks merit, and that certain aspects of the
appeal could well be deemed frivolous, we are
unable to conclude that the appeal as a whole is "so
utterly devoid of potential merit as to justify
sanctions." (Abdallah v. United Savings Bank (1996)
43 Cal.App.4th 1101, 1112.)
DISPOSITION
The orders are affirmed. The motion for sanctions is
denied. Zaya is awarded her costs of appeal.
WE CONCUR:
BENKE, Acting P.J.
NARES, J.
NADINE ZAYA,
Plaintiff and Respondent,
v.
DARREN D. CHAKER,
Defendant and Appellant.
Court of Appeals of California, Fourth Appellate
District, Division One
Not to be Published in Official Reports
McINTYRE, J.
In July 2005, the superior court issued a
restraining order against Darren D.
Chaker pursuant to the Domestic
Violence Protection Act (Fam. Code, §
6200 et. seq. (the Act)), requiring him to
stay away from Nadine Zaya for a
five-year period. He appealed from that
order on various grounds, contending in
part that Zaya's evidence was insufficient
to support its issuance; this court,
however, rejected his arguments and
affirmed the order.
On remand, Chaker moved to dismiss the order,
contending that it resulted from intrinsic fraud, and
moved for reconsideration after the dismissal motion
was denied. He now appeals these orders,
contending that the superior court improperly (1)
denied him an evidentiary hearing on the motion to
dismiss, (2) failed to rule on his challenge to its
jurisdiction to hear this case, and (3) disregarded
substantial evidence establishing that the restraining
order resulted from fraud. We reject Chaker's
arguments, as well as Zaya's request for sanctions,
and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2006, Zaya filed a request for a
temporary restraining order under the Act against
Chaker. (All further dates are in 2006 except as
otherwise specified.) In her request, Zaya stated
under penalty of perjury that Chaker made
threatening calls to her and told her he would harm
her or her family if she testified in a pending criminal
matter against him. (Zaya v. Chaker (Oct. 19, 2007,
D049874) [nonpub. opn.].)
The court issued the temporary restraining order
that, among other things, prohibited Chaker from
harassing, threatening or contacting Zaya and
ordered him to stay at least 100 yards away from
her. The order set a July 5 hearing date on Zaya's
request that the order be extended for up to five
years. After Zaya had Chaker served, an attorney
who was apparently representing Chaker in the
criminal proceeding sent a courtesy facsimile
transmission to the court informing the court that
Chaker was in custody and would thus be
unavailable to attend the July 5 hearing. (Zaya v.
Chaker, supra.)
At the hearing on the extension of the restraining
order, the court noted that Chaker had been served
with the restraining order and that it had received a
letter from an attorney on his behalf indicating that
he would not be appearing. Zaya testified that
Chaker made threats directly to her to persuade her
not to testify in the pending criminal proceeding
against him. Based on the evidence before it, the
court issued an order extending the expiration date
of the restraining order until July 5, 2011. (Zaya v.
Chaker, supra.)
Two days later, the attorney sent another facsimile
transmission to the court, noting that the hearing had
occurred and attaching the original transmission
regarding Chaker's incarceration, but not raising any
objection to the court's order or making any request
for relief. Shortly thereafter, Chaker moved to have
the court vacate the five-year restraining order,
arguing in part that he was entitled to a continuance
of the hearing, that he had been unable to attend the
hearing as a result of his incarceration and that the
court erred in holding the hearing in his absence.
While his motion was pending, Chaker filed a notice
of appeal from the court's July 5 order, thus
eliminating the court's jurisdiction to rule on the
motion. (Zaya v. Chaker, supra., citing Copley v.
Copley (1981) 126 Cal.App.3d 248, 298 & Hollister
Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d
660, 666.)
On appeal, Chaker contended that the superior court
erred in not granting him a continuance of the
hearing and in issuing the order based in part on the
insufficiency of the evidence to support it. This court
rejected his contentions based on the absence of
any evidence in the record that he had ever
requested that the trial court grant him a continuance
of the hearing and based on the evidence submitted
by Zaya in support of her application for the
restraining order. (Zaya v. Chaker, supra.)
On remand, Chaker moved to dismiss the restraining
order on the ground that it was obtained based on
intrinsic fraud. Prior to the hearing on the motion,
Chaker appeared ex parte, apparently requesting
that he be permitted to subpoena witnesses to testify
at the hearing. His request was denied. At the
hearing, the court denied Chaker's motion to dismiss,
concluding that he had not met his burden to
establish intrinsic fraud and, even if he had, such
fraud did not support a dismissal of the restraining
order. Chaker thereafter moved for reconsideration,
to which Zaya responded by making a motion for
sanctions. The court denied both requests. Chaker
appeals and Zaya requests sanctions on the ground
that the appeal is frivolous.
DISCUSSION
1. General Principles Governing Attacks on Final
Judgments
The doctrine of res judicata generally ensures that a
final judgment rendered in an action has conclusive
effect and will not be subject to challenge or attack
except by a motion, an appeal or the exercise of
some other procedural request for relief made in that
action. (Armstrong v. Armstrong (1976) 15 Cal.3d
942, 951.) Once such a judgment is entered, the trial
court has limited statutory authority to change it
within a period of time after its entry. (Rochin v. Pat
Johnson Manufacturing Co. (1998) 67 Cal.App.4th
1228, 1237 & statutory provisions cited therein.)
After the expiration of that time, the grounds on
which a party may properly seek to attack a
judgment, either by motion or by an independent
action, are generally limited to challenges that the
judgment is void on its face for lack of personal or
subject matter jurisdiction, that the court granted
relief in excess of its jurisdiction or that the judgment
was obtained as a result of extrinsic fraud or mistake.
(Estate of Beard (1999) 71 Cal.App.4th 753,
774-775; Armstrong v. Armstrong, supra, 15 Cal.3d
at p. 950; 8 Witkin, Cal. Procedure (4th ed. 1997)
Attack on Judgment in Trial Court, §§ 222-236, pp.
726-750.)
Family Code section 6345, subdivision (a) authorizes
the superior court to modify or terminate a
restraining order issued pursuant to the Act on the
motion of a party subject thereto. Chaker, however,
did not seek relief under that statutory provision;
instead he sought to challenge the credibility of the
evidence offered in support of the restraining order
against him, arguing that the order should be
dismissed on the basis of intrinsic fraud. The parties
and the superior court have proceeded on the
assumption that the principles cited above are
applicable here despite the absence of a final
judgment; we accept this assumption, without
deciding the point, in resolving this appeal.
2. Denial of an Evidentiary Hearing on the Motion to
Dismiss
Chaker contends that the superior court denied his
due process rights in refusing to allow him to call
witnesses at the hearing on his motion to dismiss the
restraining order. In particular, he contends that
when the court denied his ex parte request to
subpoena witnesses, it did so because it knew he
was entitled to call such witnesses without the
necessity of an order.
On appeal, "'[a] judgment or order of the lower court
is presumed correct . . .'" and "[a]ll intendments and
presumptions are indulged to support it on matters
as to which the record is silent . . . ." (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564, italics in
original.) "This is not only a general principle of
appellate practice but an ingredient of the
constitutional doctrine of reversible error.'
[Citations.]" (Ibid.) Thus, an appellant must overcome
the presumption of correctness of a court's judgment
or order and is responsible for providing a record
adequate to establish that error occurred. (In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327,
337; Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 132.)
Here, the record before us does not include Chaker's
ex parte papers submitted in support of what
appears to have been a request by him to subpoena
witnesses to testify at the dismissal motion hearing,
nor does the ex parte minute order set forth the
basis on which the court denied his request.
Moreover, the record does not include a reporter's
transcript of the ex parte hearing.
Chaker, however, points to a memorandum that he
submitted to the court, unrelated to any pending
hearing and lacking any court file stamp, as support
for his contention about what happened at the ex
parte hearing. Given that the court may never have
even seen this memorandum and that it certainly was
never asked to verify the memorandum's content,
that document is not competent to establish what
actually happened at the hearing. Absent any
indication in the record as to what Chaker specifically
requested or the basis for the court's denial of that
request, we must presume that the superior court
acted properly in making its ruling.
3. Chaker's Jurisdictional Challenge
A judgment or order is void where the issuing court
lacked jurisdiction in the "fundamental sense" (that
is, the court lacked subject matter jurisdiction over
the cause and/or personal jurisdiction over a party to
the dispute). (Conservatorship of O'Connor (1996)
48 Cal.App.4th 1076, 1088 & cases cited therein;
see generally Armstrong v. Armstrong, supra, 15
Cal.3d at p. 950.) Chaker contends that the superior
court lacked jurisdiction to rule on Zaya's request for
a restraining order because, despite Zaya's
declaration to the contrary, he did not reside in the
eastern judicial district of San Diego County at that
time.
We cannot discern Chaker's precise argument, i.e.,
whether he is contending that Zaya should have filed
her application in some other branch of the San
Diego Superior Court or in the superior court in some
other county in California. Either way, however,
Chaker's argument confuses the issue of whether
the superior court in this case had subject matter
jurisdiction over Zaya's application and personal
jurisdiction over him, on one hand, with the issue of
where the proceeding should have occurred (i.e.,
one of venue), on the other.
Here, the superior court clearly had subject matter
jurisdiction over Zaya's application for a restraining
order (Fam. Code, § 6300) and, as a result of
Chaker's general appearance in the action, it also
had personal jurisdiction over him. (Code Civ. Proc.,
§ 410.50, subd. (b); Dial 800 v. Fesbinder (2004)
118 Cal.App.4th 32, 52.) By failing to seek to transfer
this action in a timely fashion, Chaker essentially
consented to venue in the superior court where Zaya
filed her application (Code Civ. Proc., § 396b, subd.
(a); 3 Witkin, Cal. Procedure (5th ed. 2008) Actions,
§ 840, pp. 1065-1066); even if he had not impliedly
consented, he cites no authority establishing that a
defect relating to venue of the action would support a
reversal of the restraining order. Accordingly, there
is no need to remand the matter to the trial court to
consider the jurisdictional issue.
4. Sufficiency of the Evidence to Establish Fraud
A. Request for Judicial Notice
As a preliminary matter, Chaker requests that we
take judicial notice of two transcripts of testimony by
Zaya, which he contends show that Zaya's
statements in support of her application for the
restraining order were perjurious. However, this court
has previously issued an order granting Chaker's
request to lodge these same transcripts in support of
his appeal. Consequently, his current request for
judicial notice of these documents is moot.
B. The Merits of Chaker's Fraud Challenge
Although a court has equitable jurisdiction to set
aside a judgment based on extrinsic fraud (Olivera v.
Grace (1942) 19 Cal.2d 570, 575), one who
challenges a judgment on that basis must show that
by virtue of the fraud he was "' . . . deliberately kept
in ignorance of the action or proceeding, or in some
other way fraudulently prevented from presenting his
claim or defense.' [Citation.]" (Parage v. Couedel
(1997) 60 Cal.App.4th 1037, 1044.) "Fraud is
intrinsic and not a valid ground for setting aside a
judgment when the party has been given notice of
the action and has had an opportunity to present his
case and to protect himself from any mistake or fraud
of his adversary . . . ." (In re Marriage of Varner
(1997) 55 Cal.App.4th 128, 140, quoting In re
Marriage of Stevenot (1984) 154 Cal.App.3d 1051,
1069.) Except in limited circumstances not present
here, a party's introduction of perjured testimony or
false documents or its concealment of material
evidence constitutes intrinsic rather than extrinsic
fraud and thus will not support a collateral attack on
the resulting judgment or order. (E.g., Parsons v.
Tickner (1995) 31 Cal.App.4th 1513, 1532; Kachig v.
Boothe (1971) 22 Cal.App.3d 626, 634; Jorgensen v.
Jorgensen (1948) 32 Cal.2d 13, 19-20.)
Here, Chaker's motion to dismiss the restraining
order against him was based on the contention that
the order was obtained by "intrinsic fraud," i.e.,
Zaya's introduction of allegedly perjured testimony,
not that any fraud by Zaya precluded him from
appearing at the hearing on her application for a
restraining order. In accordance with the principles
discussed above, however, intrinsic fraud does not
provide a basis for setting aside the order. (See also
In re Marriage of Melton (1994) 28 Cal.App.4th 931,
937-938 ["Fraud is intrinsic and not a valid ground
for setting aside a judgment when the party has been
given notice of the action and has had an
opportunity to present his case and to protect himself
from any mistake or fraud of his adversary, but has
unreasonably neglected to do so"].) Accordingly, the
superior court did not err in denying Chaker's motion
to dismiss the restraining order against him.
5. Zaya's Request for Monetary Sanctions
Pursuant to Code of Civil Procedure section 907 and
California Rules of Court, rule 8.276(e), Zaya asks
this court to award her monetary sanctions of $4,500
(which includes $1,500 Zaya incurred in opposing
Chaker's motions in the superior court) against
Chaker for pursuing a frivolous appeal. Generally,
"[a]n appeal is sanctionable as frivolous when it is
prosecuted for an improper motive to harass the
respondents or delay the effect of an adverse
judgment, or where it indisputably is totally and
completely without merit." (Weber v. Willard (1989)
207 Cal.App.3d 1006, 1009-1010.)
The first test for frivolousness is subjective, requiring
a determination as to whether the appeal is being
prosecuted solely for an improper motive, such as to
harass the respondent or delay the effect of an
adverse judgment. (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 649-650.) The second test is
objective, requiring a determination of whether the
appeal is so indisputably without basis "that any
reasonable attorney would agree it was totally devoid
of merit[.]" (Tomaselli v. Transamerica Ins. Co.
(1994) 25 Cal.App.4th 1766, 1773.)
Sanctions are to be used sparingly, only to deter the
most egregious conduct, "so as to avoid a serious
chilling effect on the assertion of litigants' rights on
appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d
at p. 650.) While we agree with Zaya that Chaker's
appeal lacks merit, and that certain aspects of the
appeal could well be deemed frivolous, we are
unable to conclude that the appeal as a whole is "so
utterly devoid of potential merit as to justify
sanctions." (Abdallah v. United Savings Bank (1996)
43 Cal.App.4th 1101, 1112.)
DISPOSITION
The orders are affirmed. The motion for sanctions is
denied. Zaya is awarded her costs of appeal.
WE CONCUR:
BENKE, Acting P.J.
NARES, J.
Chaker v. Crogan
Darren Chaker filed false
charges against a police
officer under penalty of
perjury.
Interestingly, his case was used to
overturn a law that criminalized the
filing of false charges against police
officers. I agree that perjury should
be treated equally no matter who is
the target of the false charges.
Darren Chaker filed false
charges against a police
officer under penalty of
perjury.
Interestingly, his case was used to
overturn a law that criminalized the
filing of false charges against police
officers. I agree that perjury should
be treated equally no matter who is
the target of the false charges.
Man Sentenced to Federal Prison for
Bankruptcy Fraud
U.S. Attorney’s Office December 17,
2013
Southern District of Texas (713) 567-9000
HOUSTON—Darren David Chaker, 41, of
Beverly Hills, California, and Las Vegas,
Nevada, has been ordered to federal
prison following his conviction of
bankruptcy fraud, announced United States
Attorney Kenneth Magidson. Chaker was found guilty April 4,
2013, following a five-day bench trial before U.S. District
Judge Nancy Atlas.
Today, Judge Atlas sentenced Chaker to a term of 15 months
in prison, to be immediately followed by a three-year-term of
supervised release. He was further ordered to pay a $2,000
fine. As part of the sentencing, Judge Atlas
included special conditions that he not stalk
or harass anyone and obtain mental health
counseling and anger management. In handing
down the sentence, Judge Atlas noted that the bankruptcy
system depends on the reliability of those who petition for
bankruptcy relief and added that the case involved a
defendant who could not tell the truth to the court. She
rejected Chaker’s request for a sentence of probation, calling
this a significant crime and finding that a sentence of custody
is critical.
The evidence at trial showed that Chaker filed bankruptcy
under Chapter 13, in which a debtor is required to propose a
plan of reorganization to pay the debtor’s creditors over time.
The debtor is required to pay at least as much as the
creditors would receive if the debtor’s assets were liquidated
on the date of the filing of the bankruptcy petition. The
process is designed to achieve an orderly transfer of a debtor’
s assets to creditors from available assets truthfully and
accurately disclosed and to provide a “fresh start” to honest
debtors by allowing them to obtain a discharge or release of
debt incurred prior to filing bankruptcy.
According to the evidence, Chaker filed for bankruptcy under
Chapter 13 on March 6, 2007. Specifically, on or about March
26, 2007, during a bankruptcy hearing before the Honorable
Jeffrey Bohm, while under oath, Chaker falsely and
fraudulently represented to the court that the property was
never leased out prior to January 2007, when he had in fact
previously contracted with a realtor who secured at least two
rental contracts with Chaker personally. Chaker failed to
disclose income and the existence of past and present
residential leases of a residential property facing foreclosure
in Houston to his creditor, Saxon Mortgage in the hearing and
to the court.
In order for the bankruptcy system to work for all parties, it is
imperative for the debtor to be truthful and forthright in all
aspects of the bankruptcy process. The bankruptcy system is
based on an honor system—the debtor agrees to provide all
the necessary information requested by the trustee and to
assist the trustee in collecting all assets of debtors and
comply with the court’s orders to obtain the relief desired
under the chapter the case was filed.
Chaker will remain in custody pending transfer to a U.S.
Bureau of Prisons facility to be determined in the near future.
This case was investigated by the FBI, with assistance from
the United States Trustee’s Office and is being prosecuted by
Assistant United States Attorneys Carolyn Ferko and Sharad
Khandelwal.
This content has been reproduced from its original source.
Bankruptcy Fraud
U.S. Attorney’s Office December 17,
2013
Southern District of Texas (713) 567-9000
HOUSTON—Darren David Chaker, 41, of
Beverly Hills, California, and Las Vegas,
Nevada, has been ordered to federal
prison following his conviction of
bankruptcy fraud, announced United States
Attorney Kenneth Magidson. Chaker was found guilty April 4,
2013, following a five-day bench trial before U.S. District
Judge Nancy Atlas.
Today, Judge Atlas sentenced Chaker to a term of 15 months
in prison, to be immediately followed by a three-year-term of
supervised release. He was further ordered to pay a $2,000
fine. As part of the sentencing, Judge Atlas
included special conditions that he not stalk
or harass anyone and obtain mental health
counseling and anger management. In handing
down the sentence, Judge Atlas noted that the bankruptcy
system depends on the reliability of those who petition for
bankruptcy relief and added that the case involved a
defendant who could not tell the truth to the court. She
rejected Chaker’s request for a sentence of probation, calling
this a significant crime and finding that a sentence of custody
is critical.
The evidence at trial showed that Chaker filed bankruptcy
under Chapter 13, in which a debtor is required to propose a
plan of reorganization to pay the debtor’s creditors over time.
The debtor is required to pay at least as much as the
creditors would receive if the debtor’s assets were liquidated
on the date of the filing of the bankruptcy petition. The
process is designed to achieve an orderly transfer of a debtor’
s assets to creditors from available assets truthfully and
accurately disclosed and to provide a “fresh start” to honest
debtors by allowing them to obtain a discharge or release of
debt incurred prior to filing bankruptcy.
According to the evidence, Chaker filed for bankruptcy under
Chapter 13 on March 6, 2007. Specifically, on or about March
26, 2007, during a bankruptcy hearing before the Honorable
Jeffrey Bohm, while under oath, Chaker falsely and
fraudulently represented to the court that the property was
never leased out prior to January 2007, when he had in fact
previously contracted with a realtor who secured at least two
rental contracts with Chaker personally. Chaker failed to
disclose income and the existence of past and present
residential leases of a residential property facing foreclosure
in Houston to his creditor, Saxon Mortgage in the hearing and
to the court.
In order for the bankruptcy system to work for all parties, it is
imperative for the debtor to be truthful and forthright in all
aspects of the bankruptcy process. The bankruptcy system is
based on an honor system—the debtor agrees to provide all
the necessary information requested by the trustee and to
assist the trustee in collecting all assets of debtors and
comply with the court’s orders to obtain the relief desired
under the chapter the case was filed.
Chaker will remain in custody pending transfer to a U.S.
Bureau of Prisons facility to be determined in the near future.
This case was investigated by the FBI, with assistance from
the United States Trustee’s Office and is being prosecuted by
Assistant United States Attorneys Carolyn Ferko and Sharad
Khandelwal.
This content has been reproduced from its original source.