Judge Barbara M. Scheper, Case Number: 24STCV07875, Date: 2024-11-19 Tentative Ruling

Judge: Barbara M. Scheper, Case: 24STCV07875, Date: 2024-11-19 Tentative Ruling

Case Number: 24STCV07875 Hearing Date: November 19, 2024 Dept: 30

Dept. 30

Calendar No.

O.A., by and through his Guardian ad Litem, J.A., J.A., and M.A v. Devita, et. al., Case No. 24STCV07875

Tentative Ruling re: Defendant’s Special Motion to Strike

Jessica Devita (Defendant) moves to strike all causes of action from the complaint of O.A., J.A., and M.A. (Plaintiffs) pursuant to Code of Civil Procedure section 425.16. Defendant’s motion is granted with respect to Plaintiffs’ second cause of action and denied with respect to Plaintiffs’ first and third causes of action.

The anti-SLAPP statute provides a procedure for weeding out meritless claims arising from protected activity at an early litigation stage. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Resolution of anti-SLAPP motions is a two-step process. First, the moving party must establish that the challenged causes of action arise from activity protected by section 425.16. (Taus v. Loftus (2007) 40 Cal.4th 683, 712.) On a successful showing, the burden shifts to the responding party to demonstrate the claim’s merit by establishing a probability of success on the merits. (Baral, supra, at p. 384.) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” (Id. at p. 384–85.) The responding party’s evidence is accepted as true, and the moving party’s evidence is considered only to determine if it defeats the responding party’s claim as a matter of law. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.)

Activities protected by anti-SLAPP motions to strike include any acts “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, subd. (b)(1).) This includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Id., § 425.16, subd. (e).)

The moving party meets its burden of showing its activity is protected by demonstrating that the act underlying the responding party’s cause of action fits one of the categories in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Park v. Board of Trustees, (2017) 2 Cal.5th 1057, 1063.) “A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Verceles v. Los Angeles Unified School District (2021) 63 Cal.App.5th 776, 784.)

“When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at [the first] stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral, supra, 1 Cal.5th at 396.) However, “if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.” (Scott v. Metabolife International, Inc. (2004) 115 Cal.App.4th 404, 414.)

Defendant argues that the allegations in Plaintiffs’ complaint pertain to Defendant’s protected activities. Defendant further contends that Plaintiffs cannot show a probability of success on the merits with respect to each claim. The Court finds that while some of Defendant’s activities are protected, only Plaintiffs’ second cause of action is based on such activity.

Plaintiffs’ second cause of action is based on protected activity.

First, Defendant contends that any allegations arising out of Defendant’s temporary restraining order (TRO) are subject to anti-SLAPP because seeking a TRO is protected activity. “[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other proceeding authorized by law,” is protected activity. (Code Civ. Proc., § 425.16, subd. (e)(1).) Indeed, “the constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647–648.) Abuse of process claims are subject to an anti-SLAPP motion as they inherently touch on protected activity. (Booker v. Rountree (2007) 155 Cal.App.4th 1366, 1370 (Booker).)

Here, Defendant is correct in that seeking a TRO constitutes protected activity under Booker. However, only Plaintiffs’ second cause of action for abuse of process directly hinges on this protected activity: Plaintiffs allege that Defendant wrongfully requested a restraining order with an improper purpose. (Compl. ¶ 96.) Such a request is petitioning activity protected under anti-SLAPP. Plaintiffs’ first cause of action only references the TRO documentation’s dissemination to a third party, rather than the TRO itself. (Id. ¶ 76.) Plaintiffs’ third cause of action does not rest on the TRO at all. Thus, only Plaintiffs’ second cause of action is based on this protected activity.

Defendant argues that her communications on Twitter constitute protected activity. “[A]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest” is protected activity. (Code Civ. Proc., § 425.16, subd. (e)(3).) Websites accessible to the public designed for public discussion, are public forums for the purposes of anti-SLAPP. (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.) Thus, Twitter fits the definition of a public forum.

What is less apparent is whether Defendant’s allegations concerning O.A. made on Twitter were in connection with an issue of public interest. In deciding whether a matter constitutes a public interest, courts look to “whether the subject of the speech or activity ‘was a person or entity in the public eye’ or ‘could affect large numbers of people beyond the direct participants’ [citation]; and whether the activity ‘occur[red] in the context of an ongoing controversy, dispute or discussion’ [citation] or ‘affect[ed] a community in a manner similar to that of a governmental entity.’” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145–146 (FilmOn).) Importantly, “causes of action arising out of false allegations of criminal conduct . . . are not subject to the anti-SLAPP statute.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 (Weinberg).)

Here, Plaintiffs allege that Defendant accused O.A. of predatory rape and criminal acts. (Compl. ¶¶ 68–69.) Plaintiffs further allege that Defendant accused O.A. of being a predator in the special needs community and of committing an “autistic mate crime.” (Id. ¶¶ 71–72.) All these allegations concern potentially criminal conduct, and all are thus not in the public interest under Weinberg. Additionally, Defendant’s statements concerned a person outside of the public eye and the context of any ongoing controversy. This makes the statements outside the public interest under FilmOn. Thus, Defendant’s statements on Twitter on not protected activity.

Defendant argues that her communications with a youth sporting league’s parents and staff are protected activity. Any conduct “in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is protected activity. (Code Civ. Proc., § 425.16, subd. (e)(4).) Defendant’s activity included contacting the director of O.A.’s local sports program and relating that O.A. “had physically assaulted and raped M.S., had pulled a knife on/threatened M.S., and had verbally and physically harassed M.S. since elementary school.” (Compl. ¶ 75.) Such a statement does not relate to an issue of public interest for the same reasons as above, in that such statements constitute potentially false allegations of criminal conduct. Thus, Defendant’s statements to the director are not protected activity under Weinberg.

Defendant argues that all her communicative conduct is protected activity because it relates to an official proceeding. Protected speech includes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subd. (e)(2).) A statement is made in connection with a proceeding if it relates to substantive issues in the proceeding and is directed to persons with some interest in the proceeding. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055 (Staff Pro).)

Here, Defendant sought a TRO and filed a federal complaint regarding the alleged criminal conduct of O.A. (Compl. ¶¶ 48, 60.) Additionally, the Santa Monica Police Department and school district conducted their own investigations. (Id. ¶¶ 28, 29.) However, the fact that judicial proceedings were occurring, or official investigations were being conducted, at the time Defendant made her statements does not make them protected activity by default.

In Staff Pro, the defendant’s protected activity under section 425.16, subdivision (e)(2) included emails updating individuals involved in litigation matters about developments in those cases. The court considered such communications in connection with an issue under review by a judicial body. Here, Defendant’s posts and discussions with members of her community involved allegations of criminal conduct by O.A. but were not directly concerning the ongoing investigations. Even if they had been about the investigations themselves, Defendant’s Twitter followers and other community members did not have any direct involvement in Defendant’s litigation or the other investigations. Thus, Defendant’s statements are not protected activity under section 425.16, subdivision (e)(2).

The Court finds that only Defendant’s request for a TRO is protected activity under section 425.16, subdivision (e), and that Plaintiffs’ second cause of action is based on this protected activity. Accordingly, Defendant’s motion is denied with respect to Plaintiffs’ first and third causes of action which are not based on protected activity. The Court proceeds with a second step analysis regarding Plaintiffs’ second cause of action.

Plaintiffs have not established a probability of success on the merits with respect to their abuse of process claim.

Defendant argues that Plaintiffs cannot establish a probability of prevailing on their second cause of action for abuse of process. “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Yee v. Superior Court (2019) 31 Cal.App.5th 26, 34.)

Plaintiffs have not made a prima facie factual showing as required by Baral with respect to the first element of abuse of process. Plaintiffs make conclusory statements regarding Defendant’s “wrongful” misuse of her request for a TRO. (Compl. ¶¶ 96–97.) Plaintiffs also allege that Defendant “intentionally” delayed the dismissal of civil harassment proceedings until O.A. had made pre-trial disclosures. (Id. ¶ 98.) Such characterizations of Defendant’s seeking a TRO as wrongful and intentional misuse of process are conclusory in nature.