Judge Daniel M. Crowley, Case Number: 23STCV12216, Date: 2024-01-04 Tentative Ruling

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Defendant Jessica Cook’s special motion to strike Plaintiff Alexander Frankian’s complaint as a whole is denied. Defendant’s special motion to strike is granted as to the 4th cause of action and 5th cause of action as it pertains to the threat of prosecution as leverage to extort money from Plaintiff. Defendant may separately move for an award of attorneys’ fees and costs.

Defendant Jessica Cook (“Cook”) (“Defendant”) moves to strike the complaint (“Complaint”) of Plaintiff Alexander Frankian (“Frankian”) (“Plaintiff”) on the grounds that Plaintiff’s Complaint is based entirely on allegations that arise from conduct that occurred during a family law legal proceeding between the parties and is therefore unlawfully based on Defendant’s act in furtherance of her right under the First Amendment of the United States Constitution. (Notice of Motion, pgs. 1-2; C.C.P. §425.16.)

Defendant’s 11/7/23 request for judicial notice of (1) Defendant’s temporary against Plaintiff (D-RJN, Exh. A); (2) Defendant’s application for an emergency protective order against Plaintiff (D-RJN, Exh. B); and (3) Plaintiff’s petition for custody and visitation of the child (D-RJN, Exh. C), is granted.

This matter arises from Plaintiff’s and Defendant’s former romantic relationship; cohabitation at 1140 W. Lancaster Blvd., Lancaster, California 93534 (“Lancaster Residence”), which was leased by Plaintiff; and Plaintiff’s and Defendant’s parentage of two minor children together. (See Complaint ¶¶6-7.) Plaintiff alleges his relationship with Defendant ended on May 16, 2022. (See Complaint ¶6.)

Plaintiff alleges during the last year of their relationship, Defendant requested Plaintiff pay for Defendant’s personal expenses and promised to repay Plaintiff for amounts he loaned to her for such expenses in the approximate sum of at least $41,600, which, to date, Defendant has not repaid. (Complaint ¶8.)

Plaintiff alleges on May 16, 2022, Defendant made a false report of domestic violence against Plaintiff, which resulted in Plaintiff’s arrest by the Los Angeles County Sheriff’s Department. (Complaint ¶9.) Plaintiff alleges on May 18, 2022, Defendant filed a request for Domestic Violence Restraining Order without giving notice to Plaintiff, and as a result, the court issued a temporary restraining order (“TRO”), which only included the limited orders to “not abuse.” (Complaint ¶10.) Plaintiff alleges after his arrest, the district attorney’s office declined to prosecute any charges against him arising from Defendant’s allegations. (Complaint ¶11.)

Plaintiff alleges after May 16, 2022, Plaintiff did not return to the Lancaster Residence until Defendant confirmed that she had moved out. (Complaint ¶12.) Plaintiff alleges on information and belief that Cook moved out of the Lancaster Residence sometime between May 28 and May 30, 2022. (Complaint ¶13.)

Plaintiff alleges during the move-out from the Lancaster Residence, Defendant, without Plaintiff’s authorization or permission, unlawfully opened the safe in the Lancaster Residence and took $49,000.00 in cash, valuable watches, jewelry, passports, and important personal, business, and financial documents that belonged to Plaintiff. (Complaint ¶14.) Plaintiff alleges Defendant also removed, without Plaintiff’s authorization or permission, furniture, furnishings, and high-end designer clothing, handbags, and accessories that belonged to Plaintiff. (Complaint ¶14.)

Plaintiff alleges after May 16, 2023, Defendant published by making false oral statements to third parties, including but not limited to Hollis McClard (“Hollis”), Kelly McClard (“Kelly”), Avedis Oksazian (“Oksazian”), and Thomas

Galloway (“Galloway”), about Plaintiff claiming that he committed acts of domestic violence on Defendant, including, but not limited to, allegations that Plaintiff physically abused Defendant, threatened to kill Defendant, and threatened to physically harm Defendant. (Complaint ¶15.)

On May 30, 2023, Plaintiff filed his complaint against Defendant alleging five causes of action: (1) conversion; (2) defamation; (3) breach of oral contract; (4) civil extortion; and (5) intentional infliction of emotional distress.

Defendant filed the instant motion on November 8, 2023. Plaintiff filed his opposition on December 20, 2023. As of this hearing, no reply has been filed, however, Defendant’s counsel filed a declaration in reply on December 26, 2023.

“Litigation of an anti-SLAPP motion involves a two-step process. 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.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ [Citation.]” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009, citations omitted.) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940, citations omitted.)

A defendant opposing a special motion to strike has the burden to “state [] and substantiate [] a legally sufficient claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 & 93.) “‘Put another way, the defendant “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 defendant is credited.”’ [Citations.]” (Id. at pgs. 88-89.) To that end, the defendant must present competent evidence, “that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) “[D]eclarations may not be based upon ‘information and belief’ [citation]” and documents submitted without the proper foundation will not be considered. (Id.) The complaint, even if verified, is insufficient to carry the plaintiff’s shifted burden. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 614; Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354 [“pleadings do not constitute evidence”]; see also Burke, Anti-SLAPP Litigation (The Rutter Group, Civil Litigation Series 2018 § 5:13) [“To satisfy prong two, the plaintiff must submit admissible evidence that if credited is sufficient to sustain a favorable judgment against the legal theories asserted by the defendant.”].)

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. [Citations.]” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.)

“An ‘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’ is defined by statute to include ‘(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.’ [Citation.] If the defendant shows that the cause of action arises from a statement described in clause (1) or (2) of section 425.16, subdivision (e), the defendant is not required to separately demonstrate that the statement was made in connection with a ‘public issue.’ [Citation.]” (Id.)

“A cause of action is one ‘arising from’ protected activity within the meaning of section 425.16, subdivision (b)(1) only if the defendant’s act on which the cause of action is based was an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. [Citation.] In deciding whether the ‘arising from’ requirement is satisfied, ‘the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [(C.C.P. §425.16(b)(2).)] Whether the ‘arising from’ requirement is satisfied depends on the ‘gravamen or principal thrust’ of the claim. [Citations.] A cause of action does not arise from protected activity for purposes of the anti-SLAPP statute if the protected activity is merely incidental to the cause of action. [Citations.]” (Digerati Holdings, LLC, 194 Cal.App.4th at pgs. 883-884, citations omitted.) To show that a claim arises from protected activity under §425.16(b)(1), it is not sufficient to show that the claim “was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.) “Rather, the protected activity must ‘supply elements of the challenged claim.’ [Citation.]” (Id., citations omitted.)

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the plaintiff, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, emphasis added.)

The burden is on the plaintiff to produce evidence that would be admissible at trial—i.e., to proffer a prima facie showing of facts supporting a judgment in plaintiff’s favor. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

Defendant argues Plaintiff’s entire Complaint is based on actions that are being litigated by the parties (Family Court Case No. 22DVRO00174, and LASC Case No. 22STFL0637), and is therefore based solely on protected activity, to wit, oral or written statements made by Defendant before a judicial body, and the statement that underlies Plaintiff’s allegations is absolutely privileged pursuant to Civil Code §47(b), and thus cannot support liability. (Motion, pgs. 1-2; see C.C.P. §425.16(e)(1).)

Statements Made in Connection with Issue under Judicial Review (C.C.P. §425.16(e)(1))

Defendant failed to meet her burden to show the entirety of the causes of action alleged in Plaintiff’s Complaint arises from an “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.” (C.C.P. §§425.16(b), (e).)

Defendant’s 1st cause of action for conversion does not supply an element of the challenged claim, as the claim for conversion is not based on the filing of the TRO or emergency restraining order; therefore, the protected activity is merely incidental to the cause of action. (See Digerati Holdings, LLC, 194 Cal.App.4th at pgs. 883-884; Rand Resources, LLC, 6 Cal.5th at pg. 621.) Similarly, with regard to the 3rd cause of action for breach of oral contract, the protected activity is merely incidental to the cause of action; no element of the cause of action implicates the TRO or emergency petition. Finally, the 2nd cause of action explicitly states its allegations pertain to Defendant’s publication to third parties Hollis, Kelly, Oksazian, and Galloway about Plaintiff’s alleged domestic violence against Defendant and not Defendant’s TRO or emergency petition. (Complaint ¶¶23, 27.) Therefore, Defendant has not met her burden on the 1st, 2nd, and 3rd causes of action.

However, Defendant met her burden to demonstrate the 4th cause of action for civil extortion and 5th cause of action for intentional infliction of emotional distress, as it pertains to civil extortion, arises from her statement made in connection with an issue under judicial review, specifically, reporting Plaintiff to law enforcement for committing alleged acts of domestic violence against her and threatening to have Plaintiff prosecuted for the crime of domestic violence. (Complaint ¶¶38, 43; D-RJN, Exhs. A, B; Decl. of Cook ¶¶3-4, Exhs. 1-2.)

“The constitutional right to petition, as we have seen, includes the basic act of filing litigation or otherwise seeking administrative action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19.) The right of petition includes access to the courts. (Briggs, 19 Cal.4th at pg. 1115 [“[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) . . . such statements are equally entitled to the benefits of section 425.16.”].) Defendant argues the filing of the TRO and emergency petition are protected activity under the anti-SLAPP statute as well as protected under the litigation privilege. (Motion, pg. 2.) However, the issue of litigation privilege is not relevant to the first prong of an anti-SLAPP, but rather the second prong. Defendant’s alleged wrongful act of filing and prosecuting a TRO and emergency petition are indisputably protected activity under the anti-SLAPP statute.

Plaintiff’s argument that the 4th cause of action for civil extortion is not protected by the anti-SLAPP statute and therefore Defendant cannot shift the burden to Plaintiff on the second prong is misplaced. (Opposition, pg. 13; Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In Flatley, this State’s Supreme Court cautioned that its discussion of what constitutes “extortion as a matter of law” was “limited to the specific facts of this case.” (Id. at pg. 333 n.16.) It further “emphasize[d] that the question of whether the defendant’s underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s second prong showing of probability of prevailing.” (Id. at pg. 320.) Here, there is no such concession by Defendant or uncontroverted or conclusive evidence of civil extortion before the Court to preclude Defendant’s filing of a TRO or emergency petition to preclude anti-SLAPP protections from attaching. (See Decl. of Cook ¶¶3-9, Exhs. 1-4.)

Therefore, Defendant met her burden of demonstrating the 4th and portions of the 5th causes of action in Plaintiff’s Complaint against her arises from protected activity. The burden shifts to Plaintiff to demonstrate a probability of prevailing on the 4th and portions of the 5th cause of action against Defendant. Plaintiff met his burden as to the 4th cause of action and failed to meet his burden as to the relevant portions of the 5th cause of action.

“‘Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . . .’ (Pen.Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]’ (Pen.Code, § 519.) ‘Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.’ (Pen.Code, § 523.).” (Flatley, 39 Cal.4th at pg. 326.)

money from Plaintiff to which Defendant was not entitled. (Complaint ¶38.) Plaintiff alleges Defendant falsely reported to law enforcement that Plaintiff committed acts of domestic violence against her and had him arrested. (Complaint ¶38.) Plaintiff alleges Defendant then demanded money from Plaintiff, to which she was not entitled, in order to drop the criminal case against him. (Complaint ¶38.)

Plaintiff alleges Defendant’s intentional acts as described in Paragraph 38 above constitute extortion as defined by Penal Code §519. (Complaint ¶39.) Plaintiff alleges each act of extortion as described in Paragraph 38 above is punishable by a fine of up to ten thousand dollars ($10,000) under Penal Code §524. (Complaint ¶39.) Plaintiff alleges as a direct and proximate result of Defendant’s threats, Plaintiff has been injured both financially and emotionally in a sum to be proven at trial. (Complaint ¶40.) Plaintiff alleges in doing the acts alleged in this Complaint, Defendant acted with oppression, fraud, and malice as defined in Civil Code §3284 and Plaintiff is entitled to an award of exemplary or punitive damages. (Complaint ¶41.)

Plaintiff failed to demonstrate a likelihood of prevailing on the 4th cause of action for civil extortion as it pertains to committing domestic violence and threatening to have him prosecuted for the crime of domestic violence. Plaintiff submitted evidence that Defendant sent a text message to Plaintiff’s friend, Hollis, with a photo of IDs she found in Plaintiff’s safe that contained different names Plaintiff used in his youth, and followed up with a call to Hollis asking, “how much is this worth to you guys?” and for $100,000 from Plaintiff or she will “go to the newspapers and the internet and ruin [Plaintiff’s] life and reputation and that he would never see his kids again.” (Decl. of McClard ¶¶2-6; Decl. of Frankian ¶23.) Such evidence does not relate to Plaintiff’s allegations in his complaint pertaining to committing the crime of domestic violence and having Plaintiff prosecuted for the crime of domestic violence.

Plaintiff also submitted evidence that after Plaintiff was arrested, Defendant sent a text message to Plaintiff’s friend, Galloway, telling Galloway she was calling child protective services and that she was in contact with Mountain Enterprise, a local newspaper for the Lake Hughes area. (Decl. of Galloway ¶10; P-COE, Exh. 10.) However, this evidence does not demonstrate Defendant sought money from Plaintiff, but rather custody of her children, and does not implicate prosecution of the domestic violence charges. (See P-COE, Exh. 10.)

A cause of action for intentional infliction of emotional distress requires the following elements: (1) defendant’s conduct was outrageous; (2) defendant intended to cause plaintiff emotional distress, or defendant acted with reckless disregard of the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) plaintiff suffered severe emotional distress; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress. (CACI 1600.)

“A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Plaintiff alleges beginning from May 16, 2022, until the present, Defendant took specific action to cause Plaintiff emotional distress, as detailed in paragraphs 1 through 41 above, including the threat of prosecution as leverage to extort money from Plaintiff. (See Complaint ¶43.) Plaintiff alleges Defendant’s actions were outrageous, intentional, and malicious, and done with reckless disregard of the fact that the actions would certainly cause Plaintiff to suffer severe emotional and physical distress. (Complaint ¶44.)

Plaintiff alleges as a proximate result of the acts of Defendant, Plaintiff suffered severe emotional distress in the form of humiliation, mental anguish, anxiety, emotional distress, psychosis, and fear. (Complaint ¶45.) Plaintiff alleges Defendant’s acts injured Plaintiff in mind and body. (See Complaint ¶45.) Plaintiff alleges as a direct and proximate result of Defendant’s conduct, Plaintiff has suffered general damages in an amount to be determined by proof at trial. (Complaint ¶46.) Plaintiff alleges Defendant’s conduct was done knowingly, willfully, and with malicious intent, as defined by Civil Code §3284, and Plaintiff is entitled to exemplary or punitive damages. (Complaint ¶47.)

Plaintiff failed to submit evidence that demonstrates a probability of prevailing on his cause of action for intentional infliction of emotional distress. Specifically, Plaintiff submitted his own affidavit that merely states, “Defendant’s actions . . . have caused me unimaginable emotional distress. Going to social events and having people show me her posts about me being an abuser, or friends and associates asking me whether I abuse drugs has caused me stress and sleepless nights. In addition, her threats of taking our children away from me if I don’t pay her money demands are a different level of emotional distress that only a parent can understand.” (Decl. of Frankian ¶24.) First, such evidence does not demonstrate that the prosecution of the domestic violence charges was the cause of such alleged emotional distress. Second, Plaintiff failed to produce evidence demonstrating such emotional distress was so extreme as to exceed all bounds of that usually tolerated in a civilized community. Finally, Plaintiff failed to produce evidence demonstrating he suffered severe emotional distress.

Based on the foregoing, Defendant’s special motion to strike Plaintiff’s Complaint as a whole is denied. Defendant’s special motion to strike Plaintiff’s Complaint as it pertains to Plaintiff’s 4th cause of action for civil extortion and 5th cause of action as it pertains the threat of prosecution as leverage to extort money from Plaintiff is granted. Defendant may separately move for an award of attorneys’ fees and costs.

Hon. Daniel M. Crowley

Judge of the Superior Court