Judge: Carolyn M. Caietti, Case: 37-2023-00000382-CU-PN-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Professional Negligence SLAPP / SLAPPback Motion Hearing 37-2023-00000382-CU-PN-CTL ONTIVEROS VS ENLOE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Elizabeth Ann Enloe and Preferred Group Properties Inc., dba Harcourts Prime Properties' Special Motion to Strike the First Amended Complaint is GRANTED IN PART AND DENIED IN PART.

Preliminary Matters Defendants' request for judicial notice (ROA 15) of the Complaint filed in San Diego Superior Court Case No. 2021-1675 Mike's Limited Investments, LLC v. Ontiveros is granted and notice will be taken to the extent permitted. (See, Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 ['while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.'].) Plaintiffs' objections to the Declaration of Kevin Sanchez (ROA 35) are overruled.

Plaintiffs' objections to the Declaration of Elizabeth Enlow (ROA 36) are overruled.

Defendants' reply objections to the Declaration of Norma Valverde (ROA 40) are overruled.

Defendants' reply objections to the Declaration of Robert Harvey (ROA 41) are overruled.

Discussion A special motion to strike involves a two-step process. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1161.) First, the defendant must establish the challenged claim arises from activity protected by C.C.P.

section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) When a cause of action is 'mixed' by alleging both protected and unprotected activity, it may be subject to an anti-SLAPP motion. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. (Id., at p. 396.) '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.) If the court determines relief is sought based on allegations arising from activity protected by the statute, Calendar No.: Event ID:  TENTATIVE RULINGS

2975649  38 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL the second step is reached. (Ibid.) There, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Ibid.) Here, Defendants seeks to strike Causes of Action Nos. 1-7 of the First Amended Complaint (FAC) and paragraphs 21 and 22 incorporated into the eighth cause of action for negligent misrepresentation and nineth cause of action for fraudulent concealment.

Generally and critical to this motion, the FAC alleges: 21. In or about late January 2021 and thereafter, Plaintiffs are informed and believe that, in retaliation for Plaintiffs cancelling the escrow, Defendants made false allegations of misconduct and illegal activities against Plaintiff Valverde in the Subject Transaction to the California Department of Real Estate, San Diego Police Department, the San Diego District Attorney's office, San Diego City Attorney's office, and the Ethics Commission. Plaintiffs are informed and believe that Defendants made similar allegations against Ontiveros to the San Diego Police Department, San Diego District Attorney's office, San Diego City Attorney's Office and Ethics Commission. The allegations were false and were slanderous statements made by Defendants against Plaintiffs.

22. No charges were ever filed by the authorities and the Department of Real Estate investigation opened against Valverde as a result of Enloe's complaint was dropped after the Department of Real Estate determined there was no wrong doing by Valverde.

(FAC, at ¶¶ 21-22 (emphasis added).) First Step Defendants maintains their conduct is protected under C.C.P. section 425.16(e)(1) and (2).

C.C.P. section 425.16(e)(1) states '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 'any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.' Similarly under section 425.16(e)(2), such a qualifying act also 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.' (C.C.P., § 425.16(e)(2).) '[I]f a communication falls within either of the 'official proceeding' clauses, the anti-SLAPP statute applies without a separate showing that a public issue or an issue of public interest is present.

(Citations.) In drafting the statute, the Legislature concluded that authorized official proceedings necessarily involve a public issue or an issue of public interest.' (Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1540, citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-21.) Defendants do not provide complete analysis of how either section applies. Rather, Defendants conclude, 'each of the causes of action in the Complaint are based upon and reliant upon allegations by Plaintiffs that both Defendant Harcourts and Defendant Enloe reported alleged misconduct and illegal activities against Plaintiffs Valverde and Ontiveros to the San Diego Police Department, the San Diego District Attorney's office, San Diego City Attorney's office, and the City of San Diego Ethics Commission.' (Memo., at p. 6:5-10.) Similarly, Plaintiffs do not argue how these sections do not apply and focus instead on how 'the claims for liability against Defendants for their misconduct during the Subject Transaction have no connection to the alleged protected activity that occurred after the cancellation thereof.' (Opp., at p. 6:24-26.) Here, the statements to the government agencies as described in paragraph 21 are protected. As explained in Comstock v. Aber (2012) 212 Cal.App.4th 931, the 'law is that communications to the police are within SLAPP.' (Id. at p. 941-42, citing Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 (stating Calendar No.: Event ID:  TENTATIVE RULINGS

2975649  38 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL complaint to police is 'made in connection with an official proceeding authorized by law' and therefore falls within SLAPP); see also, ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 (filing a complaint with a government agency constitutes a 'statement before an official proceeding' within section 425.16(e)(1)); Lee v. Flick (2005) 135 Cal.App.4th 89,97 (complaint to the government is itself 'part of the official proceedings']' cf., Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703 (finding the record conclusively established the defendant's statements to police were illegal and holding the making of a false police report is not an act in furtherance of a constitutional right of petition or free speech).) Here, the allegations 'Defendants made false allegations of misconduct and illegal activities against [Plaintiffs] in the Subject Transaction to the California Department of Real Estate, San Diego Police Department, the San Diego District Attorney's office, San Diego City Attorney's office, and the Ethics Commission' (FAC, at ¶ 21) constitute acts in furtherance of Defendant Enloe's right of petition or free speech under section 425.16(e)(1) and (2). Cause of Action Nos. 1, 2, 3 and 7 are, in part, based on Defendants making false, inaccurate and unsubstantiated allegations against Plaintiffs to the CDRE, SDPD, SDDA, SDCA and the Ethics Commission. (FAC, at ¶¶ 26, 30, 35, 58.) Thus, to the extent the cause of action seeks relief based on the making of the false, inaccurate and unsubstantiated allegations against Plaintiffs to these entities, the acts are protected under C.C.P. section 425.16.

Cause of Action Nos. 4 (defamation by Plaintiff Valverde) and 6 (intentional infliction of emotional distress) are entirely based on protected activity alleged in paragraph 21. (FAC, at ¶¶ 21, 39, 53.) Plaintiffs implicitly concede as these causes of action are not addressed under the first step analysis in the opposition. (Opp., at p. 6:26-27 (stating, 'Notwithstanding the incorporation by reference, the 1st, 2nd, 3rd, 5th, 7th, 8th and 9th causes of action are all based on nonprotected activity and seek damages unrelated to the protected activity' and omitting reference to the fourth and sixth causes of action).) Despite the incorporation of previous paragraphs (FAC, at ¶¶ 47, 60, 67), Cause of Action Nos. 5 (breach of contract by Plaintiff Ontiveros), 8 (negligent misrepresentation) and 9 (fraudulent concealment), do not seek any relief based on the allegations made in paragraph 21 or any conduct of making false, inaccurate or unsubstantiated allegations to the Department of Real Estate, San Diego Police Department, San Diego District Attorney's office, San Diego City Attorney's office or the Ethics Commission. Thus, the motion is DENIED as to the fifth, eighth and ninth causes of action.

Moreover, paragraph 22 does not allege 'any written or oral statement or writing' taken by Defendants.

(FAC, at ¶ 22 ['No charges were ever filed by the authorities and the Department of Real Estate investigation opened against Valverde as a result of Enloe's complaint was dropped after the Department of Real Estate determined there was no wrong doing by Valverde.'].) The motion will be DENIED as to paragraph 22 as well.

Thus, the second step analysis is required for paragraph 21, the allegations regarding the making of false statements in Causes of Action Nos. 1, 2, 3 and 7 and for the entire Cause of Action Nos. 4 and 6.

Second Step The second step is a 'summary-judgment-like procedure.' (Baral, supra, 1 Cal.5th at p. 384.) The burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (Ibid.) The court does not weigh evidence or resolve conflicting factual claims. (Ibid.) 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 court accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Id. at p. 385.) If there is a conflict in the evidence (the existence of a disputed material fact), the motion should be denied. (See, Ovideo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 112.) Claims with the requisite 'minimal merit' may proceed. (Ibid.) The second step burden of establishing a probability of prevailing is not high.

(Issa v. Applegate (2019) 31 Cal.App.5th 689, 702.) Calendar No.: Event ID:  TENTATIVE RULINGS

2975649  38 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL Here, Plaintiffs did not establish a probability of prevailing on the merits.

In the moving papers, Defendants do not argue the facts do not constitute the causes of action alleged, but rather, that Defendant Enloe did not falsely report misconduct. However, Defendant Enloe herself declared she filed a complaint through the whistleblower portal of the City of San Diego's Ethics Commission regarding Plaintiffs' actions (Enloe Decl., at ¶ 10), communicated with a special investigator for the Department of Real Estate (id., at ¶¶ 12-13) and attended a Zoom meeting with the City of San Diego (id., at ¶ 14). In addition, Plaintiffs provided documents showing Defendant Enloe alleged misconduct and illegal activities to the San Diego City Attorney and individuals working at San Diego County, including the San Diego District Attorney. (ROA 32 – Declaration of Robert Harvey, at Ex. A-B.) Plaintiffs maintain these allegations are false. (ROA 34 – Declaration of Plaintiff Norma Valverde, at ¶¶ 21-28, 32.) However, Defendants also argue the litigation privilege applies. The 'litigation privilege' renders absolutely privileged communications that are (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. (Civ. Code, § 47(b); Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The litigation privilege applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 1057 [If the challenged action falls within the litigation privilege, the trial court should grant an anti-SLAPP motion to strike].) The litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.) 'The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action.' (Ibid.) The absolute privilege exists 'to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.' (Ibid.) The privilege is based on 'the importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.' (Ibid., citing Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.) Here, Plaintiffs do not address Defendants' litigation privilege argument in their opposition. While Defendants bear the burden of proving any affirmative defense, including the litigation privilege, Plaintiffs retain the burden to show, under the second-step of the anti-SLAPP analysis, that they have the probability of prevailing on the merits of the claim. (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 769.) Plaintiffs have not met their burden. The evidence shows Defendant Enloe's communications were to government agencies for the purpose of investigating Plaintiffs' actions and suspected illegal activity. Thus, the litigation privilege applies and Plaintiffs did not meet their burden on the second step. The motion is GRANTED as to paragraph 21 and the remaining causes of action.

Conclusion Thus, the Court will strike paragraph 21 in its entirety, reference to making false statements to the government agencies in the first, second and third causes of action, the fourth and sixth causes of action in their entirety and the seventh cause of action to the extent it incorporates by reference paragraph 21.

Paragraph 22 and the fifth, eighth and ninth causes of action will remain against both defendants.

Concluding Orders For these reasons, the motion is GRANTED IN PART AND DENIED IN PART.

The Court strikes: Calendar No.: Event ID:  TENTATIVE RULINGS

2975649  38 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL - Paragraph 21 in its entirety.

- First Cause of Action at Paragraph 26: 'by making false and erroneous complaints...after cancellation of the Subject Transaction.' - Second Cause of Action at Paragraph 30: 'by making false, inaccurate and unsubstantiated allegations against Plaintiff to ...the Ethics Commission.

- Third Cause of Action at Paragraph 35: 'by making false and erroneous complaints...after cancellation of the Subject Transaction.' - Fourth Cause of Action in its entirety.

- Sixth Cause of Action in its entirety.

- Seventh Cause of Action to the extent it incorporates by reference paragraph 21.

The fifth, eighth and ninth causes of action and paragraph 22 remain as plead.

Defendants are ordered to file and serve an answer to the FAC by November 30, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendants are ordered to serve written notice of the Court's final order on all appearing parties by November 14, 2023, unless all parties submit on the Court's tentative ruling or waive notice at the hearing.

All parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

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