Judge: Craig Griffin, Case: Williams v. Yasuda, Date: 2022-11-07 Tentative Ruling
The Special Motion to Strike under Code of Civil Procedure §425.16 brought by Real Party In Interest Austin Lumbard against Petitioner Ronald Williams is GRANTED.
Civil Procedure Code section 425.16(b) provides in relevant part: “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 or 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.” (Civil Proc. Code § 425.16, subd. (b).) This section is to be construed broadly. (See Civil Proc. Code § 425.16, subd. (a).)
The trial court engages in a two-step process to determine whether a special motion to strike should be granted. (Code Civ. Proc., § 425.16, subd. (b)(1); Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1065.) First, “the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.” (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1065 [quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061].) The Court finds Lumbard met this burden as the allegations in the Petition contested the accuracy of the ballot statement. (See, Vogel v. Felice (2005) 127 Cal. App. 4th 1006, 1015 – “The character and qualifications of a candidate for public office constitutes a “public issue or an issue of public interest.”; see also, Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 825.)
After the Real Party In Interest makes the required showing, the burden shifts to the Petitioner to demonstrate the merit of the claim by establishing a probability of success. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) Petitioner has not, and cannot, carry that burden in this instance. Petitioner has not submitted any evidence to establish a probability of success. CCP §425.16(b)(2) requires submission of affidavits upon which liability is based. Further, the Court has already denied Petitioner’s writ petition in its entirety, finding it to be without merit.
The Court finds that CCP 425.17(d)(2) bars the application of CCP §425.17(b) in this action.
In opposition, Petitioner contends:
“The present action was not brought ‘against’ Lumbard and does not ‘arise from’ his actions in seeking public office. The Petition here was brought against the Tustin City Clerk and arises from her action and interpretation of the Elections Code.”
The Court disagrees. The writ petition at issue falls squarely within the purposes of the Anti-Slapp statute. Running for office involves “participation in matter of public significance,” and the subject writ petition seeking to strike a candidate designation would certainly have a chilling effect. Even though the writ petition did not expressly assert a cause of action “against” Lombard as real party, it effectively did so.
In considering whether a real party in interest falls within the scope of “a cause of action against a person,” the Court of Appeal in Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th 1062, 1072 observed:
“[B]y definition a “real party in interest” in a mandamus proceeding is a “‘“person or entity whose interest will be directly affected by the proceeding.”’” [Citaitons.] By identifying Real Parties in Interest in their Petition as real parties in interest, Petitioners therefore necessarily alleged that Real Parties in Interest had a direct interest in the proceedings”
True, §425.16(c)(1) allows a prevailing “defendant” to recover attorney fees. CCP §425.16(h) defines a “defendant” to include “cross-defendant” and “respondent.” Although subdivision (c)(1) does not expressly include “real party interest,” Petitioner does not provide a cogent explanation why a real party in interest should be precluded from recovering attorney fees. Moreover, subdivision (a)(1) directs that the statute “is to be construed broadly.”
Finally, the Court of Appeal in Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, determined in a case remarkably similar to the one at hand, that a real party in interest in an election case can recover attorney fees as a defendant. The present case is not distinguishable.
However, Lumbard’s request for $5,000 in attorney’s fees was raised for the first time in the reply. The Court declines to consider new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Thus, Lumbard must seek attorney fees by separate noticed motion.
Court orders moving party to give notice.