Judge Bruce G. Iwasaki, Case Number: 24STCV06891, Date: 2024-06-27 Tentative Ruling

This is a defamation action. Plaintiff Alejandro Rios (Plaintiff) sued Defendants Anthony Lazo and Yvette Lazo (Defendants) for their statements falsely accusing Plaintiff of sending inappropriate text messages to Defendants in Plaintiff’s capacity as their Lyft driver. The Complaint alleges causes of action for (1.) defamation, and (2.) defamation “based on lack of identity.”

On April 26, 2024, Defendants filed a Special Motion to Strike the Complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). Plaintiff opposed the anti-SLAPP motion.[1]

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

“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 (Soukup).)

“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.)

As outlined above, in the first step of the analysis, Defendants 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 v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063].)

In their moving papers, Defendants argue that both of Plaintiff’s claims arise from protected activity under Code of Civil Procedure section 425.16 because the allegations arise from statements made by Defendants in connection with a judicial proceeding.

The Complaint’s allegations are convoluted. Despite their near unintelligibility, the allegations are sufficiently clear for the Court to find that Plaintiff’s defamation claims are based on Defendants seeking a restraining order in the San Bernardino Superior Court, case number CIVSB2320392, in an effort to stop “inappropriate text messages” that Defendants claim Plaintiff was sending. (Compl., ¶¶ 24, 36.) The Complaint further alleges that Defendants’ accusations were false and caused damage to 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 alleged defamatory statements were made for the purposes of litigation as they were specifically made to the court to obtain a restraining order and, thus, clearly satisfy Code of Civil Procedure section 425.16, subdivision (e)(2).

Statements made to Lyft reporting the allegedly improper conduct also constitutes protected activity. That is, courts have routinely held that “communications in connection with anticipated litigation are considered to be ‘under consideration or review by a ... judicial body’ ” under section 425.16, subdivision (e)(2). (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 [prelitigation letter covered as communication “preparatory to or in anticipation of the bringing of an action or other official proceeding”]; Gallanis–Politis v. Medina (2007) 152 Cal.App.4th 600, 612 [protecting investigation and report prepared by employee at request of counsel]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285.)

For example, in Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, defendant employer sued its former employee for misappropriating customer lists and starting a competing business. (Neville, supra, 160 Cal.App.4th at p. 1259.) Four months before the litigation commenced, an attorney for the employer sent a letter to its customers accusing the employee of misconduct. (Ibid.) The employee sued the employer and the attorney for defamation. (Ibid.) The Court of Appeal affirmed the grant of the attorney’s anti-SLAPP motion, holding that the statute protects statements made “in connection with” litigation where the statement “relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Id. at p. 1266.) “ ‘[C]ourts have adopted “a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16” [Citation.]’ ” The court concluded that the statement was made “in anticipation of litigation ‘contemplated in good faith and under serious consideration’ ” and was therefore protected. (Id. at p. 1268.)

Courts regularly apply the anti-SLAPP statute to protect non-attorney conduct as well. (See, e.g., Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043 [email sent by company president to clients regarding litigation with competitor]; Coretronic Corp. v. Cozen O'Connor (2011) 192 Cal.App.4th 1381, 1388 [anti-SLAPP statute protects both litigants and “their attorneys’ litigation-related statements”]; Gallanis–Politis v. Medina, supra, 152 Cal.App.4th at p. 612.)

Thus, all the allegations in the Complaint arise from Defendants’ protected conduct.]

Accordingly, Defendants have met their burden of showing that Plaintiff’s claims arise from protected activity. Thus, the first prong of Section 425.16 has been satisfied.

As noted, in the second step, Plaintiff must show a reasonable probability of success on the merits. In this 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.)

Here, the Court must determine whether Plaintiff has met his burden of demonstrating minimal merit for the defamation causes of action. “Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.)

In arguing that Plaintiff’s claims have no merit, Defendants contend that all the claims are barred by the litigation privilege.

“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.” (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.)

Here, the allegations in the Complaint were made during the judicial proceeding itself. The allegations regarding reporting the alleged misconduct to Lyft – Plaintiff’s employer -- occurred days before the filing of the request for a restraining order. (5/24/24 Opp., Exs. [Request for Civil Harassment Restraining Orders filed on August 28, 2023], [Lyft Email on August 19, 2023, notifying Plaintiff that Lyft was investigating a complaint against brought against Plaintiff].)

Moreover, “communications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920.) Thus, to the extent that Plaintiff argues that Defendants knew the text messages did not originate from Plaintiff, Defendants’ statements are still protected by the privilege.

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted. Plaintiff’s motion for leave to amend the Complaint is taken off calendar. Plaintiff may not frustrate the hearing of the anti-SLAPP motion by amending the complaint. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4^th 1068, 1073.) Defendants are entitled to reasonable attorneys’ fees and costs and may file a separately noticed motion seeking fees.

[1] On May 24, 2024, Plaintiff filed “Plaintiff [sic] Answer Motion to Dismiss with Prejudice.” On June 11, 2024, Plaintiff also filed a “Motion for leave to file Amended Complaint” and declaration. Both filings appear to act as oppositions to the anti-SLAPP. While the filings both clearly violate California Rules of Court, Rule 3.1113, the Court will, nonetheless, consider all the “opposition” papers.

Department 58