It’s certainly not unusual for at least one member of a formerly married couple to express hostile feelings after a divorce. But when this goes further and becomes abusive behavior, what options are available to the spouse being attacked?

Those were the questions raised in a case recently presented to the California Court of Appeal (Bassi v Bassi).

Susan and Robert Bassi obtained a dissolution of their marriage in 2018, six years after they initiated their divorce action. It was, according to court records, a “protracted and contentious marital dissolution.” Susan was declared a “vexatious litigant” by the Santa Clara County Superior Court after filing eight lawsuits related to the divorce and unsuccessfully challenging the outcome in a prior petition to the California Court of Appeal.

In 2021, Robert filed a petition for a Domestic Violence Restraining Order, or DVRO, against Susan. He cited a “barrage” of harassing and threatening emails from Susan which “make accusations that I have engaged in criminal acts, fraud, vast conspiracies, and threaten me directly.” He added that “the emails are often copied to business associates and customers, subjecting me to contempt, ridicule, and lost opportunities.”

Susan’s emails suggested that Robert’s company, which sells organic lettuce seeds, was engaged in racketeering. They likened him to criminal financier Bernie Madoff, claimed that he had involved his children and grandchildren in his “mob boss” activities, and referred to his girlfriend as a “RICO bookkeeper,” using the acronym for the federal Racketeer Influence and Corrupt Organization Act.

In one of her emails saying she hoped to “settle our issues,” Susan attached a 152-page draft of a RICO complaint she would otherwise file in federal court, causing publicity that would cause “further harm to the reputations” of all involved and “impact all of [their] children and grandchildren.”

Robert’s lawyer asked Susan’s attorney to have her stop sending emails to him, and instead have her attorney communicate with his, but the pace of her communications only increased. Susan then told the court she had dismissed her divorce attorney and would be representing herself.

Susan objected to Robert’s petition for a DVRO, arguing that her emails were protected free speech. She also filed what is known as an “anti-SLAPP” motion.

The acronym stands for “strategic lawsuit against public participation,” meaning a court filing that is aimed at using the threat of expensive, baseless legal proceedings to intimidate people who are exercising their First Amendment right. An anti-SLAPP motion asks the court to reject unwarranted litigation that is merely intended to intimidate an opponent.

In California, courts use a 3-prong test when considering whether to dismiss a case on anti-SLAPP grounds. A court must determine whether the lawsuit is aimed only at preventing someone from exercising their First Amendment rights; whether it concerns an issue of public interest; and whether the claim has any real likelihood of prevailing.

Susan argued that her emails were legally-protected speech. They were litigation-related communications, she said, because they involved the federal racketeering claim she was planning to file.

In addition, she argued, her allegations that Robert was engaged in racketeering to sell counterfeit “organic” lettuce seed meant that the dispute involved a matter of wide public interest to consumers and to other seed growers.

She also said her communications were protected by the First Amendment because she is an “investigative journalist who reports to the public on agricultural topics,” and Robert’s DVRO petition was an attempt to “restrain journalistic inquiry.”

Susan included a declaration from an attorney she had hired to represent her in her claims about the alleged agricultural racketeering scheme. This attorney told the court he believes “there is basis for probable cause to believe that the claims and allegations in the discussion draft RICO complaint … are true.”

Robert responded that the declarations of Susan and her attorney were “argumentative nonsense” containing no factual basis. He also argued that speech is not protected when it violates the Family Code’s Domestic Violence Protection Act (DVPA), noting that the Act defines “abuse” as including conduct that “destroys the mental or emotional calm of the other party.”

He argued that Susan’s emails did not qualify as prelitigation communication because of the lack of factual foundation for the proposed RICO action, which he said Susan had threatened only in an attempt to exact a settlement in the divorce proceedings.

After hearing from both sides, the trial court denied Susan’s anti-SLAPP motion. The judge rejected Robert’s argument that Susan’s RICO allegations were “mere empty threats,” but said other abusive or harassing emails she sent were not related to those claims.

Moreover, the court said, Robert had met his burden of demonstrating a probability of success on the merits of his petition. The court had already granted him a temporary personal conduct and stay-away order against Susan, and his petition was sufficient to establish a prima facie case for a permanent DVRO.

Susan appealed the trial court’s ruling, but was rebuffed by the higher court.

The appellate justices noted that, despite knowing that Robert had legal counsel, Susan repeatedly sent emails directly to him, intending to “get under the skin” and make him “upset, nervous, or worried.” She did not make threats of physical harm or violence, they said, but the DVPA defines “abuse” more broadly than physical acts.

The justices affirmed the trial court’s order denying Susan’s anti-SLAPP motion, and awarded Robert his costs on appeal.

By Jessica Stemple