Judge Christopher K. Lui, Case Number: 24STCV10534, Date: 2024-06-25 Tentative Ruling

Plaintiffs allege that Defendants made misrepresentations to a court during custody hearings in order to facilitate the kidnapping of Plaintiff’s son.

Defendant Tristina Cole brings an anti-SLAPP special motion to strike as to the First Amended Complaint.

Defendant Tristina Cole’s anti-SLAPP special motion to strike as to the First Amended Complaint is DENIED.

Plaintiff requests that the Court take judicial notice of the following: 1. (EXHIBIT 1) Court Filed DECLARATION OF BISHOY HANNA ATTACHING A SIGNED & NOTARIZED AFFIDAVIT OF SARAH GIANNELLA REVEALING FRAUD UPON THE COURT BY CRYSTAL BOULTINGHOUSE, FERNANDEZ & KARNEY, & TRISTINA COLE 2. (EXHIBIT 2) 44-page Superior Court Transcript of the recent trial of the Domestic

Violence Restraining Order Case that was dismissed against Bishoy Hanna. 3. (EXHIBIT 3) Deposition Transcript of Sarah Giannella.

Requests Nos. 1 – 3 are DENIED. These are not matters of which the Court may take judicial notice pursuant to Evid. Code, § 452.

Defendant Tristina Cole brings an anti-SLAPP special motion to strike as to the First Amended 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).

There are seven causes of action pled in the First Amended Complaint: (1) Quiet Title; (2) Violation of 28 U.S. Code, § 1738A; (3) False Imprisonment of a Child; (4) Conspiracy of False Imprisonment of a Child; (5) Fraud; (6) Malicious Prosecution; (7) Intentional Interference with Contract.

Resolution of an anti-SLAPP motion “requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate 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,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Citation omitted).) Since the trial court in this case denied LaMarche's anti-SLAPP motion on the ground that the statute's initial, “arising from,” prong does not encompass malicious prosecution claims, it did not reach the statute's second, “probability of prevailing,” prong. As noted, in reversing, the Court of Appeal ruled for defendants on both prongs.

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 [bold emphasis added].)

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 [bold emphasis added].)

Here, moving Defendant did not demonstrate that each of the seven causes of action arise from an act in furtherance of this moving Defendant’s right of petition or free speech. Defendant only makes the following conclusory statement, without having actually demonstrated that the first prong has been satisfied as to each of the seven causes of action.

Here, the first prong is satisfied because Ms. Cole has established [a] prima facie showing that Plaintiffs seven causes of action fall within the ambit of the anti-SLAPP statute and litigation privilege. Specifically, Plaintiffs lawsuit wholly arises from conduct relating to the preparation of pleadings, oral arguments, and other litigation acts in connection with Ms. Boultinghouse's representation of Sarah in the family law cases, and Ms. Cole's assistance in the litigation-based acts in those matters, against Plaintiff.

As such, because Defendant did not meet the burden on the first prong, the Court does not move on to the second prong.

The anti-SLAPP motion to strike is DENIED. Defendant is ordered to answer the First Amended Complaint within 10 days.

[1] The Court also notes that the merits arguments raised with regard to each claim, such as defects in the pleading of the quiet title claim, the lack of a private right of action under 28 U.S.C. § 1738A, insufficient pleading of a basis for a conspiracy claim, and so forth, (Mem. Pts & Auths at 6-10), may be the grounds for a demurrer or motion to strike, but do not speak to the first prong anti-SLAPP analysis as to moving Defendant Tristina Cole.