Judge: Daniel S. Murphy, Case: 22STCV29054, Date: 2023-01-06 Tentative Ruling

Case Number: 22STCV29054    Hearing Date: January 6, 2023    Dept: 32

BACKGROUND

            On September 7, 2022, Plaintiff Robert Garber filed this action against Defendants Rex Danyluk, Karen Danyluk, Sumie Bates, and Duane Doyle Smith. The complaint alleges causes of action for malicious prosecution, abuse of process, false imprisonment, elder abuse, harassment, conspiracy, and intentional infliction of emotional distress.

            Defendants are neighbors residing in Reseda, California. The action arises from confrontations between Plaintiff and Defendants, which ended in Plaintiff’s arrest and incarceration. According to the complaint, Plaintiff was friends with Defendant Bates and in January 2019 began to help Bates with a lawsuit that Bates was involved in. This required Plaintiff to work at Bates’ home on a daily basis. Bates rented out part of her premises to Defendant Smith. Plaintiff alleges that throughout his time working at Bates’ house, Smith continuously harassed him, which included making homosexual advances.

            Plaintiff also parked his SUV in the neighborhood. Plaintiff alleges that Defendants, specifically Karen Danyluk, disapproved of Plaintiff parking his SUV and painting it. After Smith confronted Plaintiff about this, Plaintiff confronted the Danyluks at their home. Defendants allegedly sought to have Plaintiff’s SUV impounded. Plaintiff showed Rex Danyluk a BB gun that he had in his bag. Upon returning to Bates’ home, Plaintiff confronted Smith and also pulled out the BB gun. Plaintiff allegedly left and returned again, when he was arrested. According to the complaint, Plaintiff was incarcerated from March 28, 2020 to August 5, 2022. Plaintiff alleges that Defendants conspired against him out of hatred for his Israeli heritage.    

            On December 5, 2022, Bates filed the instant special motion to strike. Plaintiff has not filed an opposition.

LEGAL STANDARD

A special motion to strike under Code of Civil Procedure section 425.16 allows a defendant to seek early dismissal of a lawsuit that qualifies as a strategic lawsuit against public participation. A SLAPP is “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (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. (Code Civ. Proc., § 425.16, sub. (e).)

Evaluation of an anti-SLAPP motion requires a two-prong 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. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) If both prongs are met—(1) the defendant is being sued for protected activity, and (2) the plaintiff has no reasonable probability of success—then the lawsuit is subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

DISCUSSION

I. Protected Activity

To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.)

The causes of action against Bates are based on the filing of a police report and Plaintiff’s subsequent incarceration. “The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) A complaint to the police is “made in connection with an official proceeding authorized by law.” (See Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439.) Therefore, Defendant has met the first prong.

II. Probability of Success

A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff's favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-14.) Rather than weighing the evidence, the court must “accept as true the evidence favorable to the plaintiff . . . The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP . . . .” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.¿) The defendant’s showing is only analyzed “to determine if it defeats the plaintiff’s claim as a matter of law.” (Area 55, LLC v. Nicholas & Tomasevic (2021) LLP, 61 Cal.App.5th 136, 151.)

Civil Code section 47, subdivision (b) makes privileged any communication made in a judicial proceeding or in the initiation or course of any proceeding authorized by law. The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) The privilege “has been interpreted broadly to protect communications to or from governmental officials which may precede the initiation of formal proceedings.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 156.) Where alleged wrongful conduct is privileged under Section 47, the court may correctly find that the plaintiff has no probability of success. (Rusheen, supra, 37 Cal.4th at p. 1065.)

As discussed above, Plaintiff’s causes of action are based on Defendants’ filing of a police report. Section 47 was amended, effective January 2021, to exclude false police reports from the privilege. (Civ. Code, § 47(b)(5).) However, the amendment is not retroactive, and where a police report is made prior to January 2021, it falls under the prior absolute privilege rule. (See King v. City of Sacramento (E.D.Cal. Jan. 3, 2022, No. 2:20-cv-01326-KJM-DB) 2022 U.S.Dist.LEXIS 1631, at *8; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364.) Here, the police report and Plaintiff’s arrest occurred in March 2020. (Compl. ¶¶ 13-14, 22-24.) Additionally, Plaintiff admitted in his complaint that he brandished a BB gun at Defendants, thus Defendants did not make a false police report. (See Compl. ¶¶ 17, 20.)   

Because the police report is privileged under Section 47, Plaintiff has no probability of success. Therefore, the claims against Defendant Bates are stricken.

III. Attorneys’ Fees

“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16(c).) Defendant Bates requests attorneys’ fees as part of her motion. (Mtn. 9:17-10:2; Grossman Decl. ¶¶ 9-12.) Given the simplicity of the motion and lack of opposition, the reasonable amount is $1,460, representing 4 hours at $350 per hour, plus a $60 filing fee.  

CONCLUSION

            Defendant Sumi Bates’ special motion to strike is GRANTED. The first, second, third, fourth, sixth, and seventh causes of action are stricken as against Sumi Bates. Plaintiff is to pay costs of $1,460 within 30 days.

BACKGROUND

            On September 7, 2022, Plaintiff Robert Garber filed this action against Defendants Rex Danyluk, Karen Danyluk, Sumie Bates, and Duane Doyle Smith. The complaint alleges causes of action for malicious prosecution, abuse of process, false imprisonment, elder abuse, harassment, conspiracy, and intentional infliction of emotional distress.

            Defendants are neighbors residing in Reseda, California. The action arises from confrontations between Plaintiff and Defendants, which ended in Plaintiff’s arrest and incarceration. According to the complaint, Plaintiff was friends with Defendant Bates and in January 2019 began to help Bates with a lawsuit that Bates was involved in. This required Plaintiff to work at Bates’ home on a daily basis. Bates rented out part of her premises to Defendant Smith. Plaintiff alleges that throughout his time working at Bates’ house, Smith continuously harassed him, which included making homosexual advances.

            Plaintiff also parked his SUV in the neighborhood. Plaintiff alleges that Defendants, specifically Karen Danyluk, disapproved of Plaintiff parking his SUV and painting it. After Smith confronted Plaintiff about this, Plaintiff confronted the Danyluks at their home. Defendants allegedly sought to have Plaintiff’s SUV impounded. Plaintiff showed Rex Danyluk a BB gun that he had in his bag. Upon returning to Bates’ home, Plaintiff confronted Smith and also pulled out the BB gun. Plaintiff allegedly left and returned again, when he was arrested. According to the complaint, Plaintiff was incarcerated from March 28, 2020 to August 5, 2022. Plaintiff alleges that Defendants conspired against him out of hatred for his Israeli heritage.    

            On December 5, 2022, Bates filed the instant motion to declare Plaintiff a vexatious litigant. Plaintiff has not filed an opposition.

LEGAL STANDARD

            A vexatious litigant is defined as a pro per plaintiff who has done any of the following: (1) in the last seven years has commenced at least five litigations outside of small claims that have been adversely determined against the person or unjustifiably permitted to remain pending for two years without being brought to trial; (2) repeatedly relitigates the validity of a determination against the same defendant; (3) repeatedly files unmeritorious motions or pleadings to cause unnecessary delay; or (4) has been previously declared a vexatious litigant in any action based on the same or substantially similar facts. (Code Civ. Proc., § 391(b).)

“[T]he court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.” (Code Civ. Proc., § 391.7(a).)

DISCUSSION

            “‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Code Civ. Proc., § 391(a).) Defendant relies on eight lawsuits and appeals filed by Plaintiff from August 31, 2015 to October 31, 2019 to satisfy the five litigations rule in Section 391(b)(1). (Mtn. 4:1-21.) It should be noted that the present action was filed September 7, 2022. Therefore, Case No. 8, filed August 31, 2015, does not appear to have been filed “[i]n the immediately preceding seven-year period . . . .” (See Code Civ. Proc., § 391(b)(1).) Nonetheless, this leaves at least seven lawsuits or appeals that were deemed frivolous, dismissed for other reasons such as failure to prosecute, or concluded with a ruling against Plaintiff. (See Def.’s RJN, Ex. 1-15.) Without an opposition, Plaintiff does not dispute that he has filed at least five litigations within the past seven years that were determined adversely against him as defined in Section 391. Therefore, Plaintiff falls within the definition of vexatious litigant.

            Defendant’s request for $50,000 bond is moot because the causes of action against her have been stricken pursuant to the Court’s concurrent ruling on Defendant’s anti-SLAPP motion.

CONCLUSION

            Defendant Sumi Bates’ motion to declare vexatious litigant is GRANTED. Plaintiff Robert Garber is prohibited from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. (Code Civ. Proc., § 391.7(a).) Defendant’s request for bond is DENIED as moot.