Department 58

Hearing Date: March 19, 2024

Case Name: Hanna v. Stinn

Case No.: 24STCV00037

Matter: Anti-SLAPP Motion

Moving Party: Defendant Crystal Boultinghouse

Responding Party: Unopposed

Tentative Ruling: The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted.

Background

Plaintiff Bishoy Hanna brings this action against Defendants Crystal Boultinghouse (Boultinghouse) and Judge Josh Freeman Stinn (Stinn), alleging cause of action for (1.) conspiracy to violate 42 USC section 1983 and (2.) due process violation.

Defendant Boultinghouse now brings a special motion to strike the Complaint pursuant to Code of Civil Procedure section 425.16, arguing that the claims arise from petitioning conduct that is protected under section 425.16, subdivision (e). She further argues that Plaintiff cannot show any likelihood of success because the Complaint fails to state a claim and the claims are barred by the litigation privilege.

No opposition was filed. However, on March 7, 2024, Plaintiff filed a First Amended Complaint. The amended pleading does not moot out the anti-SLAPP motion where the anti-SLAPP motion was pending at the time the FAC was filed. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [explaining that “[a] plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.”].)

The special motion to strike is granted.

Legal Standard

“A cause of action against a person 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

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.) “The moving defendant bears the burden of identifying all allegations of protected activity, and the claims supported by them.” (Baral v. Schmitt (2016) 1 Cal.5^th 376, 396.) In the second step, it “ ‘is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Equilon, supra, 29 Cal.4^th at p. 61.) 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.)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)

Discussion

I. Arising from Protected Activity

As outlined above, in the first step of the analysis, Defendant must demonstrate that Plaintiff’s claims arise from one of four categories of protected activity. 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).)

“As our Supreme Court has recognized, ‘the “arising from” requirement is not always easily met.’ [Citation.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such.’ [Citation.] ‘A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Put another way, courts should first identify ‘the allegedly wrongful and injury-producing conduct that provides the foundation for the claims,’ and then determine whether that conduct itself constitutes protected activity. [Citations.]” (Callanan v. Grizzly Designs, LLC (2022) 81 Cal.App.5th 517, 526 (Callanan) [citing Park, supra, 2 Cal.5th at pp. 1062-1063].)

Defendant first argues that Plaintiff’s claims arise from protected activity under Code of Civil Procedure section 425.16 because the allegations are based on conduct undertaken by Defendant as part of her representation of her client in a judicial proceeding against Plaintiff.

As pertinent here, an analysis of whether a cause of action arises from statements or writings “made in connection with an issue under consideration or review by a ... judicial body” under Code of Civil Procedure section 425.16, subd. (e)(2) may “be broken down into three components: (a) was there an ‘issue under consideration or review by a ... judicial body’; (b) were [Defendant’s] statements [or writings] made ‘in connection with’ this issue; and (c) did the cause of action pleaded by [Plaintiff] ‘aris[e] from’ [Defendant’s] statements [or writings]?” (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 372-373.) A statement or writing is “in connection with” litigation if it “relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255.)

Here, the Complaint’s conspiracy to violate 42 USC section 1983 is based on allegations that Defendant Boultinghouse, an attorney, met with Defendant Stinn, a judicial officer, on multiple occasions outside the superior court to conspire to deny pleadings made by Plaintiff in his child custody hearing. (Compl., ¶¶ 6-7.) Plaintiff also challenges Defendant Stinn’s order to Plaintiff to empty his entire bank account and give all funds to Defendant Boultinghouse. Similarly, the due process violation claim is based on Defendant Stinn’s granting ex parte applications made by Defendant Boultinghouse. (Compl., ¶ 17.)

Accordingly, Plaintiff’s claims arise from Defendant Boultinghouse’s statements and writings made in connection to an issue under consideration by a judicial body. Defendant has met her burden of showing that Plaintiff’s claims arise from protected activity.

II. Demonstrating 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.)

All of Plaintiff’s causes of action incorporate his factual allegations from earlier and are therefore based on the same categories of conduct.

As a preliminary matter, none of the allegations in Plaintiff’s Complaint 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”].)

To state a claim under Section 1983, “ ‘a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.’ ” (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1472.) Because Section 1983 liability requires “a violation of the underlying constitutional right” (Daniels v. Williams (1986) 474 U.S. 327, 330), a threshold inquiry is whether the plaintiff has presented an adequate factual basis to establish a deprivation of the constitutional right. (Arce, supra, at pp. 1472–1473; Berman v. City of Daly City (1993) 21 Cal.App.4th 276, 286.) “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678.) Rather, “ ‘[s]ome particularized facts demonstrating a constitutional deprivation’ ” are required. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563–564.)

“In order to allege a conspiracy under § 1983, a plaintiff must show ‘an agreement or “meeting of the minds” to violate constitutional rights.’ [Citation.] ‘To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.’ ” (Steel v. City of San Diego (S.D.Cal.2010) 726 F.Supp.2d 1172, 1179 [finding conspiracy sufficiently pleaded where plaintiff alleged telephone conversations and other communications between defendants and identified testimony by defendants regarding the communications].) “[A]llegations of conspiracy must be supported by material facts, not merely conclusory statements.” (Woodrum v. Woodward County, Okl. (9th Cir.1989) 866 F.2d 1121, 1126.) Further, “A plaintiff must allege with particularity facts in the form of specific overt acts.” (Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 673.)

The violation of Section 1983 and the related conspiracy claim both require specific allegations of the factual basis to establish a deprivation of the constitutional right and the exact details of the conspiracy. The Complaint fails to plead such specific details.

Moreover, in addition to the Complaint’s incoherence, Plaintiff’s failure to file an opposition means that Plaintiff has not carried his burden on this second prong. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [To defeat the anti-SLAPP motion once the burden has shifted to the plaintiff, “the 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.’ [Citations.]”].) Plaintiff has submitted no evidence to make a prima facie showing of his claims against Defendant.

Further, in the absence of an opposition, Plaintiff fails to address Defendant’s arguments that the litigation privilege applies to Defendants’ conduct to defeat Plaintiff’s claims.

“Civil Code section 47, subdivision (b) defines what is commonly known as the ‘litigation privilege.’ ” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912.) The privilege typically “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.) “Thus, ‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege [citation].” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “Many cases have explained that [Civil Code] section 47(b) encompasses not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361; see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [“ ‘communications preparatory to or in anticipation of the bringing of an action ... are within the litigation privilege’ ”].)

The privilege presents “a substantive defense a plaintiff . . . must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)

To the extent that Plaintiff relies on Defendants’ statements regarding Plaintiff’s pleadings, oral arguments, or other litigation acts, these actions fall under the privilege. All of the alleged conduct occurred in relation to the filing and granting of a domestic violence restraining order and other requests in the family court. (Seltzer, supra, 182 Cal.App.4th at pp. 970-971.)

Thus, Plaintiff’s has failed to make a bare minimum prima facie showing for claims and not met his burden on the second prong.

Conclusion

The special motion to strike Plaintiff’s complaint against Defendant Boultinghouse pursuant to Code of Civil Procedure section 425.16 is granted.