Judge: Craig Griffin, Case: Way v. Austin, Date: 2023-05-15 Tentative Ruling
The Motion for a Continuance and Relief of Stay for Specified Discovery brought by Plaintiff David Way is DENIED.
Pursuant to C.C.P. §425.16(g), all discovery proceedings are stayed upon the filing of an anti-SLAPP motion. (C.C.P. §425.16(g).) “The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.” (Id.) “The court, on notice motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Id.)
As explained by the Court in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, “[i]f the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated.” (Id. at 868 [superseded by statute on other grounds as stated in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 477.]) “The trial court, therefore, must liberally exercise its discretion by authorizing reasonable and specified discovery timely petitioned for by a plaintiff…when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees.” (Id.)
“The showing should include some explanation of ‘what additional facts [plaintiff] expects to uncover…” (1-800 Contracts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.) “Only in these circumstances is the discretion under section 425.16, subdivision (g) to be ‘liberally exercise[d].’” (Id.)
Within this motion, Plaintiff David Way requests an order from the court continuing the anti-SLAPP filed by Defendant Swanzy and granting leave to conduct discovery, to assist in his opposition of the same. (ROA No. 100.) Plaintiff indicates that additional time is necessary, to permit him to obtain a copy of a citation from the Contractors State Licensing Board. (Motion: 4:1-8.) Plaintiff asserts the citation will assist him in demonstrating “the defamation claims do not qualify as privilege and were made to harm future employment prospects.” (Motion: 4:21-24.) “Plaintiff will show the Defendant’s complaint to the CSLB is identical to the first client’s for the sole purpose of attacking the Plaintiff.” (Motion: 4:23-24.)
The Court finds that Plaintiff failed to sufficiently establish “good cause” to justify a continuance and discovery.
As noted by the Court in Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, discovery proponents are required “to make a prima facie showing the [alleged statement] was libelous.” (Id. at 1349.) “Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism.” (Id.)
Here, Plaintiff has not established a prima facie case for defamation, nor sufficiently demonstrated the citation from the CSLB is necessary to establish an element of the defamation claim. Indeed, this is all the clearer, given the Complaint does not reference a publication by the moving Defendant, to the CSLB. (SAC: 6:10-7:2.) Additionally, Plaintiff has not submitted a declaration which asserts the falsity of any statements made by Defendant.
Based on all of the above, the motion is denied.
The Special Motion to Strike brought by Defendant Anissa Swanzy is DENIED, on the basis Defendant has not established the relevant claim arises from protected activity.
Pursuant to C.C.P. §425.16(b)(1), “[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.” (C.C.P. §425.16(b)(1).)
“As used in this section, ‘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.” (C.C.P. §425.16(e).)
“The analysis of an anti-SLAPP motion proceeds in two steps: ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute…is a SLAPP, subject to being stricken under the statute.’” (Id.)
Within this motion, Defendant asserts Plaintiff’s Fourth Cause of Action arises from Defendant’s filing of a complaint with the Contractors State Licensing Board (“CSLB”). (Motion: 2:7-9 and 6:25-26.) Defendant asserts the complaint with the CLSB constitutes a written statement “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); See also Motion: 6:26-7:2.)
The fundamental premise of the motion fails, however, as there are no allegations in the Complaint which indicate the defamatory statement allegedly made by Defendant was made to or before the Contractors State Licensing Board.
“[A]t this first step of the anti-SLAPP analysis, ‘the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217.) “[T]he question is what is pled – not what is proven.” (Id.)
Here, Defendant identified no relevant allegations of protected activity. Indeed, Defendant concedes that “Plaintiff’s SAC identifies no specific alleged false statement made by Swanzy…” (Motion: 10: 16-19.) A review of the complaint confirms this statement. While the Complaint alleges multiple complaints made by Plaintiff, the allegations do not refer to any such complaints by Defendant. (SAC: 6:12-20.) The Complaint simply concludes that “Plaintiff has been slandered, libeled, defamed, and damaged as a direct result of the actions of all of the Defendants,” without further specification. (SAC: 6:21-7:2.)
As noted by the Court in Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, “[i]f there are no acts alleged, there can be no showing that alleged acts arise from protected activity.” (Id. at 218.) Indeed, this action appears wholly analogous to Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, wherein the Court similarly found moving Defendants failed to meet their initial burden and explained: “Indeed, it is difficult, if not impossible, to see how defendants could have met this burden with plaintiff’s failure to specifically plead the allegedly defamatory statements…However, section 425.16 has no mechanism for simply skipping over the first prong – defendants’ burden to show the statements were protected, and go directly to the second prong – plaintiff’s burden to show a probability of prevailing.” (Id. at 627-628.)
Similarly, as explained by the Court in Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602: “It is not our role to engage in what would amount to a redrafting of the first amended complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.” (Id. at 621.) “Where, as here, the operative complaint alleges no act on the part of the moving defendants in support of the claim or claims for relief that those defendants seek to strike from the complaint, defendants are not entitled to strike those claims for relief pursuant to the anti-SLAPP statute, although they may have other remedies available to them to address deficiencies in the pleading.” (Id.)
Based on all of the above, as the allegations which Defendant asserts constitute protected activity are not, in fact, included in the Complaint, Defendant failed to meet her moving burden and the instant motion is DENIED, without prejudice to renewal if Plaintiff amends the Fourth Cause of Action to include allegations falling within the Anti-SLAPP statute.
The Demurrer brought by Defendants Sherry M. Austin, the individual, Sherry M. Austin, Trustee of the Sherry M. Austin Exempt Sub-Trust of the Josette Kluth Living Trust dated April 28, 2010 and Sherry M. Austin, Trustee of the Josette Kluth Living Trust dated April 28, 2010 is SUSTAINED, with 20 days leave to amend.
Within the Fourth Cause of Action, Plaintiff asserts a claim for “defamation and privacy” arising from his allegation that “Plaintiff has been slandered, libeled, defamed, and, damaged as a direct result of the actions of all of the Defendants listed in this lawsuit…” (SAC: 7:1-2.) The Complaint does not include any further substantive allegations, identifying the defamatory statements or the alleged invasion of privacy.
“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862.) “’The sine qua non of recovery for defamation…is the existence of falsehood.’ [Citation.] Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (Id.).
“The general rule is that words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 884.)
Here, Plaintiff’s claim for Defamation fails, given Plaintiff has not identified the alleged defamatory statements made by Defendants. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 884.) Additionally, the claim does not expressly allege falsity or publication, as required. (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862.)
Similarly, as explained by the California Supreme Court in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, “a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Id. at 39-40.)
Here, Plaintiff has not alleged a legally protected privacy interest, a reasonable expectation of privacy nor “conduct by defendant constituting a serious invasion of privacy,” as required. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.)
Based on all of the above, the Demurrer is SUSTAINED; however, as this is Plaintiff’s first attempt at pleading this claim and the first challenge thereto, leave to amend is granted.