Judge Bruce G. Iwasaki, Case 22STCV32840 2023-01-12 Tentative Ruling

Tentative Ruling: The motion to strike is granted as to the first, second, third, fourth, fifth, sixth, ninth, tenth, eleventh, and twelfth causes of action.

Aladdin Dinaali (Plaintiff) sues Bridge Property Management, LC (Bridge), Nevada Attorney General, and James E. Murphy (Murphy) for unfair business practices, conspiracy, fraud, intrusion into private affairs, slander per se, intentional interference with a contract, gross negligence, intentional/negligent infliction of emotional distress, abuse of process, and injunction.

The basis of this lawsuit is that in April 2022, Bridge, through its counsel, Murphy, sued Plaintiff in Nevada for defamation and business disparagement (Nevada Case). In the Nevada Case, Bridge alleged that Plaintiff damaged its reputation by creating two websites that falsely stated that criminals resided in Bridge’s property and that the company is racist. Plaintiff allegedly sent e-mails to Bridge’s employees directing them to visit the websites.

In October 2022, six months later, Plaintiff brought this lawsuit. He argues that he was wrongfully sued in the Nevada case, Bridge allegedly filed a false police report against him for criminal prosecution, Bridge conspired with its attorney and employees to falsely accuse him of violating various statutes, and that his website constitutes protected activities.

Bridge and Murphy (Defendants) now bring a special motion to strike the claims of unfair business practices, conspiracy, fraud (concealment), fraud (false promise), intrusion into private affairs, slander per se, intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, and injunction as a strategic lawsuit against public participation (SLAPP). They argue that the claims arise from the filing of the Nevada Case and a related cease-and-desist letter that was sent to Plaintiff. Moreover, they argue that Plaintiff cannot show any likelihood of success because his claims are barred by the litigation privilege.

Plaintiff failed to file any opposition, which may be deemed a consent to granting the Motion. (Cal. Rules of Court, rule 8.54(c) [“A failure to oppose a motion may be deemed a consent to the granting of the motion”].)

Defendants’ request for judicial notice of the complaint filed in Clark County, Nevada and Case Information Statement of that case is granted. (Evid. Code, § 452, subd. (c).)

A special motion to strike may be filed “within 60 days of the service of the complaint” or, in the court’s discretion, at any later time. (Code Civ. Proc., § 425.16, subd. (f).)

Plaintiff has not yet filed a valid Proof of Service.[1] However, Defendants’ filing of this motion waives any objection to personal jurisdiction. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 213-214.) Thus, the Court reaches the merits of the motion.

Courts employ a two-step process to evaluate special motions to strike strategic lawsuits against public participation (SLAPP). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396)

In the first step of the analysis, Defendants must demonstrate that Plaintiff’s claims arise from protected activity. That is, it must be that “defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . ‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must itself have been an act in furtherance of the right of petition or free speech.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63 (internal citations omitted).)

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ 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.” (Code Civ. Proc., § 425.16, subd. (e).) This right of petition includes the act of filing a lawsuit and statements and pleadings made in or in preparation for civil litigation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] … [T]he focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.]” (Park v. Board of Trustees of Cal. State Univ. (2017) 2 Cal.5th 1057, 1062–1063.) At the first step of the anti-SLAPP inquiry, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability” (Id. at p. 1063.)

Here, the targeted claims are based on protected activity. The fraud claims allege concealment and false promise. The acts underlying those allegations consist of a purportedly false police report and a cease-and-desist letter that Plaintiff received from Defendants that alleged Plaintiff sent the defamatory websites to various employees. (Complaint, ¶ 45.) Defendants then allegedly concealed the names of those employees when requested by Plaintiff. (Id. at ¶ 47.) The “false promise” allegations are uncertain because those seem to be directed at the Nevada Attorney General. However, Plaintiff also alleges that because of the Attorney General’s inaction, “Bridge took advantage . . . and retaliated against Plaintiff” through filing the lawsuit. (Id. at ¶¶ 55, 56, 111.)

The other claims also relate to the Nevada Case or letter. The “intrusion into private affairs” claim is based on the allegation that “Bridge and Murphy hired a private investigation agency” to investigate Plaintiff to serve legal documents in the Nevada Case. (Id. at ¶ 57.) The libel/slander per se cause of action is based on the cease-and-desist letter accusing Plaintiff of libel, harassment, and extortion. (Id. at ¶ 61.) As to both inflictions of emotional distress claims, Plaintiff alleges that Bridge “fabricated outrageous grounds for criminal prosecution of Plaintiff whi[l]e suing him to force the removal of Websites” and sent him a “menacing letter” which was “deliberately and maliciously designed to instill fear in Plaintiff.” (Id. at ¶¶ 72, 162.) In the “abuse of process” claim, Plaintiff alleges that “Bridge and Murphy intentionally used this legal procedure [in the Nevada Case] to harass and extort Plaintiff so that Websites would be removed from the internet.” (Complaint, ¶¶ 192, 196.) Finally, the request for injunctive relief seeks this Court to declare Plaintiff a “legal resident of California” and to enjoin Defendants from “Plaintiff’s malicious prosecution in a different forum state.” (Id. at ¶¶ 1, 198, 199.)

These claims are all based upon protected activities. That is, but for the Defendants’ Nevada Case, the claims above would have no basis. (Navellier v. Sletten, supra, 29 Cal.4th at p. 90; see also O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 567 [“the challenged cross-claims are founded upon and would not exist in absence of the protected settlement activity; the cross-claims thus ‘“arise from”’ and are ‘“based on”’ the settlement agreement, making them subject to the provisions of the anti-SLAPP statute”].) For example, if the cease-and-desist letter were never sent, then there would be no basis for the libel per se claim, which depend upon the “false and defamatory statements” within the letter. (Complaint, ¶ 127; Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293 [“Ordinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity that is protected under section 425.16”].) Similarly, the “intrusion into private affairs” is predicated upon the actions of Defendant in serving Plaintiff in the Nevada Case. (Id. at ¶ 115-120.) The unfair business practices and conspiracy claims are tethered to the other claims. (Id. at ¶¶ 87, 90, 91, 93.) Finally, the injunctive relief is implicates the right to petition because Plaintiff seeks an order restricting Defendants’ ability to pursue their defamation claims in the Nevada Case. (Id. at ¶ 22, 199.)

The Court finds that Defendants have made a prima facie showing that the causes of action arise from protected activity under Code of Civil Procedure section 425.16. The burden now shifts to Plaintiff to show that his claims have minimal merit.

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) The Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.) Plaintiff must demonstrate that the complaint is both “ ‘legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ ” (Ibid.)

“The litigation privilege is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 323.) The “absolute” privilege generally applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 215.) The “principal purpose of [the litigation privilege] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id. at p. 213.)

Statements made in anticipation of litigation are subject to the litigation privilege. (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.) “[W]here the cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1052.)

As earlier noted, Plaintiff did not file an opposition, so he fails to meet his burden.

In addition, none of Plaintiff’s allegations could support a legally sufficient claim. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31 [“If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the [anti-SLAPP] motion”].) For example, the fraud claims are uncertain – it is unclear what specific omissions or misrepresentations constitute the claims. Plaintiff alleges Bridge failed to identify its employees that he supposedly harassed, but he does not allege that the company had a duty to disclose this information or that it intended to defraud him. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Similar deficiencies plague the other causes of action.

Furthermore, to the extent that Plaintiff may argue that his claims have merit, he has not

addressed why the litigation privilege is inapplicable. For example, some of his allegations rely upon a cease-and-desist letter that he received prior to Bridge filing the Nevada Case. (Complaint, ¶¶ 45, 81, 127.) That letter is protected under the litigation privilege. (Lerette v. Dean Witter Organization (1976) 60 Cal.App.3d 573, 575-577.)

Lastly, the conspiracy claim alleges that Murphy conspired with his client, Bridge. (Complaint, ¶ 91.) Plaintiff must first seek a court order before pleading such a claim. (Civ. Code, § 1714.10, subd. (a) [“No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action”].) Failure to obtain a court order operates as a defense to the claim. (Civ. Code, § 1714.10, subd. (b).) This is a separate, independent ground for finding that the conspiracy cause of action lacks minimal merit.

The Court concludes that Plaintiff has not met his burden to show that any of his claims have minimal merit. (Civ. Code, § 47.) Thus, the special motion to strike is granted in its entirety.

[1] On October 14, 2022, Plaintiff filed forms POS-040. Notably, that form states “Do not use this form to show service of a summons and complaint or for electronic service.” No other valid proof of service has been filed.

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