Judge Christopher K. Lui, Case Number: 23STCV13469, Date: 2023-12-12 Tentative Ruling

Plaintiffs allege that Defendant has defamed and harassed Plaintiffs after they moved in as tenant on the property which neighbors Defendant’s.

Defendant Joan Elise Slater brings an anti-SLAPP special motion to strike as to the Complaint.

Defendant Joan Elise Slater’s anti-SLAPP special motion to strike is DENIED as to the first and second causes of action in the Complaint.

Plaintiffs request that the Court take judicial notice of the following: (1) Accusation by Department of Real Estate, State of California Discussion; (2) Order Accepting Voluntary Surrender of Real Estate License by California Bureau of Real Estate. Requests Nos. 1 and 2 are DENIED.

The Court need only take judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The Court may deny a request for judicial notice of material unnecessary to its decision. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.)

Defendant Joan Elise Slater brings an anti-SLAPP special motion to strike as to the Complaint.

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue. (Code Civ. Proc., § 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations 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(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

The Defendant’s act underlying the cause of action must itself have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16, subdivision (e) categories: (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., § 425.16(e).)

If such a showing is made, the burden now shifts to Plaintiff to show a probability of prevailing on the claim. (Code Civ. Proc., § 425.16(b)(1).) To establish a probability of prevailing on the merits, 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. (Matson v. Dvorak (1995) 40 Cal.App.4^th 539, 548.) In making this assessment it is the court’s responsibility to accept as true the evidence favorable to the plaintiff. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal. App. 4^th 204, 212.) The Complaint needs only to establish that his or her claim has minimal merit (Navellier v. Sletten (2002) 29 Cal.4^th 82, 89) to avoid being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4^th728, 738.)

“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.’ (Citation omitted.)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Assertions that are “merely incidental” or “collateral” are not subject to section 425.16. (Citations omitted].) Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.

(Baral v. Schnitt (2016) 1 Cal.5th 376, 394 [bold emphasis and underlining added].)

A. First Cause of Action (Intentional Interference With Contractual Relations); Second Cause of Action (Defamation).

Defendant argues that her speech concerns petition to the government—the Los Angeles Fire Department—and thus concerns the public interest or a public issue due to the fire risk in an area prone to catastrophic wildfires.

Defendant is mistaken. The Complaint does not allege that Defendant made a report to the LAFD and Plaintiffs thereby suffered some injury due to that LAFD report. Nor does Defendant cite any statement in connection with a matter of public interest or a public issue, as Defendant is just alleged to have been complaining to an individual via text and directing harassing messages toward Plaintiffs.

Here, the Complaint is based on the following statements attributed to Defendant:

14. Slater has told neighbors and the Landlords that Ms. Martinucci and Mr. Garcia must be part of a Mexican drug cartel because they drive jeeps like those used by the Mexican drug cartels. . . .

15. On one occasion, Slater texted one of the Landlords (Teresa Marco) stating, in

“Are you doing anything pro-active about your tenants???...they need a 3 day notice…I had an ex cia agent check things out and he also believes something suspicious is going on! Are there men living at the house a few days ago

16. On another occasion, Slater texted Landlord Teresa Marco stating, in pertinent part:

“Did some investigating, your tenant is really Robert Garcia, he lived at 2900 Piedmont, Glendale…It took the last landlord 4 years to evict him! Just a heads up! This guy is really something. He called me a whore when I ask him not to park in front on my house. Threatening Audry Brooks, and god knows what he said to the ministers wife. He was yelling at her, then it was in Spanish. He is very

“Omg! I know they are going to be a real problem !...Cars in front yard, and all the trash, oil drums and tires and gas cans! I am going to fire dept with cookies and see if they will right (sic) them up! Have Stephanie call me, I maybe able to

18. Slater also told a neighbor that she was contacting “inside contacts” at the CIA and FBI and at the City and that she will “get this taken care of.” She has indicated that she has relatives on the police force who she says she will force Plaintiffs to leave the Property.

19. On another occasion, Slater taped signs to 4 cars belonging to Ms. Martinucci and Mr. Garcia, and one car belonging to a housekeeper for the Property, causing damage to the cars, in an attempt to prevent Plaintiffs from parking on the street in front of Slater’s house. The signs read, in part:

“To: The New Tenants at 10081 McBroom St. Please remove ALL OF YOUR CARS, TRUCKS, TRAILERS PARKED ON STREET!”

20. Slater also placed cones and police tape on the street in front of her house to prevent Plaintiffs from parking there. When the cones and tape were removed, Slater texted Landlord Teresa Marco stating:

“I put traffic cones out in front of my house and your tenant just moved them. They are a BIG problem in our neighborhood!!!!

21. Slater has falsely told the Landlords and neighbors that Ms. Martinucci and Mr. Garcia had 15 Mexican men hanging around the Property.

22. As a result of the concerted slanderous and harassing actions of Slater, Ms. Brown texted Ms. Martinucci, stating that she was giving Ms. Martinucci a three day notice.

Here, the Complaint alleges only that Defendant was ranting and raving in the course of a personal vendetta against Plaintiffs. There is no allegation that Defendant actually made a report to the fire department or a law enforcement agency, and that Plaintiff suffered injury as a result of that report (which would be protected under the anti-SLAPP statute—Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941-42.) The alleged statements by Defendant made to Plaintiffs’ landlord and neighbors regarding a fire hazard, background investigations, contacting the CIA, FBI and the City are incidental and merely provide context[1] to the gist of Plaintiffs’ allegations—that Defendant was trying to influence Plaintiffs’ landlord to evict them and neighbors to ostracize (or harass) them. Nothing in Defendant’s alleged statements contributed to a larger public debate about wildfires in the area, nor to drug cartels, loitering or parking on the streets.

The most commonly articulated definitions of “statements made in connection with a public issue” focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. (Citations omitted.) As to the latter, it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 [1 Cal. Rptr. 3d 501] (Du Charme) [report that an employee was removed for financial mismanagement was informational, but not connected to any discussion, debate or controversy]; Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 [132 Cal. Rptr. 2d 191] [advertisements about a pill offering a natural alternative to breast implants are not about the general topic of herbal supplements]; Rivero, supra, 105 Cal.App.4th at p. 924 [reports that a particular supervisor was fired after union members complained of his activities are not a discussion of policies against unlawful workplace activities].)

§ 425.16(e)(4)—also known as the “catchall provision”—may apply to private communications concerning issues of public interest.(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 146. However:

The inquiry under the catchall provision . . . calls for a two-part analysis rooted in the statute's purpose and internal logic. First, we ask what “public issue or … issue of public interest” the speech in question implicates—a question we answer by looking to the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what functional relationship exists [*150] between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.

Under the catchall provision, there must be “some degree of closeness” between the challenged statements and the asserted public interest, more than just a reference; the statement must in some manner itself contribute to the public debate. (Id. at 150.)

What it means to “contribute to the public debate” (Wilbanks, supra, 121 Cal.App.4th at p. 898) will perhaps differ based on the state of public [*151] discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest. (Citations omitted.) . . . But the inquiry of whether a statement [*152] contributes to the public debate is one a court can hardly undertake without incorporating considerations of context—including audience, speaker, and purpose.

T]he focus of our inquiry must be on “the specific nature of the speech,” rather than on any “generalities that might be abstracted from it.” (Citation omitted.) Defendants cannot merely offer a “synecdoche theory” of public interest, defining their narrow dispute by its slight reference to the broader public issue. (Ibid.)

So the second part of the test moves from a focus on identifying the relevant matters of public interest to addressing the specific nature of defendant's speech and its relationship to the matters of public interest. We cannot answer this second question simply by looking at the content of the challenged statements—though no doubt in some cases that content will prove illuminating. . . .. Instead, a court must consider whether a statement—including the identity of its speaker, for example, or the audience sought—contributes to or furthers the public conversation on an issue of public interest. It is by carefully observing this wedding of content and context that we can discern if conduct is “in furtherance of” free speech “in connection with” a public issue or issue of public interest. (§ 425.16, subd. (e)(4).) What this union of content and context lets us discern in this case is that DoubleVerify's report does not qualify for protection under the catchall provision of the anti-SLAPP statute.

Because Defendant does not satisfy the first prong on the anti-SLAPP analysis, the Court need not—and does not—proceed to the second prong. “If the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step. (Citations omitted.)” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271.)

The anti-SLAPP special motion to strike is DENIED as to the first and second causes of action. Defendant is ordered to answer Complaint within 10 days.

[1] (Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)