Judge: Alison Mackenzie, Case: 24STCV01583, Date: 2024-04-22 Tentative Ruling
Case Number: 24STCV01583 Hearing Date: April 22, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Defendant Scarlet Sheppard’s Special Motion to Strike Plaintiff Gen Z Studios,
LLC’s Complaint Pursuant to Cal. Code Civ. Proc. § 425.16 and Request for
Attorney’s Fees in The Amount Of $31,500.00.
BACKGROUND
GEN Z STUDIOS, LLC (“Plaintiff”) filed a Complaint against
SCARLET SHEPPARD (“Defendant”) for breach of contract. Plaintiff alleges that the
parties entered into a contract for Defendant’s acting services. (Compl., ¶ 1,
Ex. A.) Defendant allegedly breached the contract by publishing behind-the-scenes
videos of her work on social media accounts, without written permission as
required by the contract. (Id., ¶¶ 3, 11.) Plaintiff further alleges
that Defendant admitted to breaching the contract at her deposition in another
case. (Id., ¶ 4, Ex. B.)
Defendant now moves to strike the Complaint pursuant
to Code of Civil Procedure Section 425.16, which extends protections to
strategic lawsuits against public participation (“SLAPP” actions). Defendants also seek $31,500.00 for attorneys’
fees. Plaintiff opposes the motion.
LEGAL STANDARD
A defendant opposing a “strategic lawsuit against
public participation” (“SLAPP”) claim may bring an “anti-SLAPP” special motion
to strike any cause of action “arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue…” Code Civ. Proc. § 425.16(b)(1).
Courts use a two-step process for considering
anti-SLAPP motions. First, the defendant must show that the acts of which the plaintiff
complains were protected activity, namely, that they were taken “in furtherance
of the [defendant’s] right of petition or free speech under the Unites States
or California Constitution in connection with a public issue.” Code Civ. Proc.
§ 425.16(b)(1).
“In determining whether the first step has been
established, i.e. the ‘arising from’ element of the anti-SLAPP statute, a court
must consider the pleadings and any supporting and opposing affidavits stating
the facts upon which alleged liability is based.” Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 443-44. Moving parties have the initial burden to
demonstrate that a cause of action is subject to a special motion to strike. Martinez v. Metabolife Inter. Ins.
(2003) 113 Cal.App.4th 181, 186. Specifically, courts decide whether
moving parties have made a prima facie showing that the attacked claims arise
from a protected activity, including defendants’ right of petition, or free
speech, under a constitution, in connection with issues of public
interest. Code Civ. Proc. §425.16(e); Healy
v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th
1, 5.
If moving parties successfully have shifted the
burden, then opposing parties must demonstrate a probability of prevailing on
the merits of the complaint. Equilon Ent., LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67. “The prima facie showing of merit must be
made with evidence that is admissible at trial.” Salma v. Capon (2008) 161 Cal.App.4th
1275, 1289. “The court cannot weigh the evidence, but must determine whether
the evidence is sufficient to support a judgment in the plaintiff's favor as a
matter of law.” JSJ Ltd. P'ship v. Mehrban (2012) 205 Cal. App. 4th
1512, 1521.
EVIDENTIARY RULINGS
The Court overrules Plaintiff’s evidentiary
objections.
The Court sustains Defendant’s evidentiary objection
number 16 (regarding paragraph 14:8-10 in the Lackey declaration) and otherwise
overrules the objections. See, e.g., Midland Funding LLC v. Romero
(2016) 5 Cal.App.5th Supp. 1, 8 (“‘The witness need not have been present at
every transaction to establish the business records exception; he or she need
only be familiar with the procedures followed ….’” ); Barnick v. Longs Drug
Stores, Inc. (1988) 203 Cal.App.3d 377, 380, fn. 3 (declaration sufficient
to authenticate deposition testimony, where declarant was present at the
deposition).
ANALYSIS
Step 1 – SLAPP
Applicability
Defendant asserts that Plaintiff’s breach of contract
claim is premised on Defendant’s protected deposition testimony given in the case,
Sheppard v. Gen Z, 21STCV28183.
The SLAPP statute applies to claims for contract
breach, if the protected activity was not merely collateral to the contract,
but instead was of the essence of it, and the alleged breach necessarily
constitutes a protected activity. Midland Pacific Bldg. Corp. v. King (2007)
157 Cal.App.4th 264, 273. However, the SLAPP statute is inapposite where the
overall thrust of a complaint challenges the manner in which parties privately
dealt with each other in contractual relations and does not principally
challenge the collateral protected activity. Wang v. Wal-Mart Real Estate
Business Trust (2007) 153 Cal.App.4th 790, 809.
The Complaint reads like it is purely for breach, based
on private contract relations. Additionally, the declaration from Defendant’s manager
Joseph Lackey disclaims any hidden agenda to sue for any other reason. See Lackey
Decl., ¶ 13. Defendant has filed proof inferring Plaintiff’s possible motive to
sue based on Defendant’s deposition or filing employment litigation, but the
Court resolves the disputes to find that the instant Complaint is not actually based
upon protected conduct. The alleged deposition testimony of Defendant that is
referenced in the Complaint is merely evidence to use in support of the
Complaint and does not create a suit based on protected conduct. Compl., ¶ 4. The
SLAPP statute is inapplicable as to protected conduct that merely evidences claims
and is not itself the basis for them. Peregrine Funding, Inc. v. Sheppard
Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 673.
Further, Defendant’s argument that the Complaint
should have been a compulsory cross-complaint, supports finding against SLAPP
applicability. A compulsory cross-complaint ordinarily would not be subject to
a SLAPP unless the pleading alleges a cause of action arising from the
plaintiff’s act of filing the complaint, as opposed to a claim arising from the
underlying dispute alleged in the complaint. Third Laguna Hills Mutual v.
Joslin (2020) 49 Cal.App.5th 366, 371-372. Here, the Complaint is based on
the underlying contract dispute, not the litigation activity.
For all of these reasons, the Court finds that
Defendant has not met her burden of establishing the first step in the anti-SLAPP
motion analysis.
Step
2 – Probability of Prevailing
Even assuming the SLAPP statute applies such that the
Court proceeds to step two of the anti-SLAPP analysis, the Court determines
that Plaintiff sufficiently evidenced merit of the Complaint alleging contract
breach. The elements of a claim for breach of contract are (1) contract, (2) plaintiffs’
performance or excuse, (3) defendants’ breach, and (4) resulting damage. Wall
Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.
Plaintiff provided evidence that Defendant posted
behind-the-scenes videos without Plaintiff’s written permission, resulting in
damage to Plaintiff. Lackey Decl., ¶¶ 6-10, 14-15, Exs. B, D. The evidence is sufficient
to support a breach of contract claim. Defendant contends that Plaintiff waived
the “written permission” contract provision and provides evidence in support of
her contention. But such evidence is immaterial to resolve a SLAPP motion. “[A]n
action may not be dismissed under this statute if the plaintiff has presented
admissible evidence that, if believed by the trier of fact, would support a
cause of action against the defendant.” Taus v. Loftus (2007) 40
Cal.4th 683, 729.
Next, the inadmissibility of the deposition transcript
is not determinative because the transcript is potentially admissible depending
on factors. For motion purposes, proponents of former testimony from other
cases’ deposition transcripts have the burden to show potential
admissibility in a future trial, based on (1) the declarant is unavailable as a
witness, (2) former testimony is offered in a civil action and (3) the party
had the right and opportunity to cross-examine the declarant with a similar
interest and motive. Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co.
(2019) 6 Cal.5th 931, 949 (“at the second stage of an anti-SLAPP hearing, the
court may consider affidavits, declarations, and their equivalents if it is
reasonably possible the proffered evidence set out in those statements will be
admissible at trial.”). Even assuming the transcript is inadmissible,
Plaintiff’s filed declaration independently supports the elements of breach of
contract.
Finally, Plaintiff has objected to shortened notice as
to some motion documents. But Plaintiff effectively waived that by addressing
the merits. Objections to defects in motion service
are waived where an opposition addressed the merits. In re Marriage of
Falcone and Fyke (2008) 164
Cal.App.4th 814, 826.
CONCLUSION
The Court denies the motion.