Judge: Deborah C. Servino, Case: 30-2021-01177056, Date: 2022-09-16 Tentative Ruling
Defendant Carlos Lopez’s unopposed special motion to strike Plaintiff Salvador Jurado’s Complaint, is granted.
Applicable Law
Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The purpose of the anti-SLAPP law is “not [to] insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc., § 425.16, subd. (e)):
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].) 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. (Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) “If a count pleaded in the complaint encompasses multiple claims and the moving party fails to identify how the acts underlying some of those claims are protected activity, then the moving party has not met its burden with respect to those unidentified claims.” (Pech v. Doniger (2022) 75 Cal.App.5th 443, 459 [quoting Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1010]; see Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 48.)
“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.’” (Verceles v. Los Angeles Unified School District (2021) 63 Cal.App.5th 776, 784 [quoting Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884, emphasis in original].) A cause of action does not “arise from” protected activity simply because it is filed after protected activity took place. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76–77.) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily entail that it arises from such activity. (Id. at p. 78.)
Second, if the defendant makes the required showing, the burden shifts to the plaintiff 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.) The California Supreme Court has described this second step as a summary judgment like procedure. “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legal sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384-385.) 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 Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 940 [quoting San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 95].) For each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’” (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1065 [quoting Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1061].) If the plaintiff cannot make this showing, the court will strike the claim. (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1065.)
Merits
“‘To determine whether a claim arises from protected activity, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.”’” (Verceles v. Los Angeles Unified School District, supra, 63 Cal.App.5th at p. 784 [quoting Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 884 and citing Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1063].)
Here, the Complaint alleges Defendants falsely reported to staff at CHOC Children’s hospital, that Plaintiff abused minor children. (Complaint, at ¶¶ 38, 45, 50.) Additionally, the Complaint alleges Defendants “published, by oral utterance . . . to [the] Fullerton Police Department that [Plaintiff] had abused the minor children.” (Complaint, at ¶ 44; see Complaint, at ¶ 49.) The statements form the basis of Plaintiff’s claims for defamation, conspiracy and intentional infliction of emotional distress (first, third, and fourth causes of action). (See Complaint, at ¶¶ 44-45, 63, 72.) Similarly, the second cause of action for abuse of process arises from Defendants alleged “fraudulent initiation of the criminal process by false reporting to law enforcement, the suppression of evidence, the obstruction of justice, and the unprivileged defamation of plaintiff’s reputation.” (Complaint, at ¶ 58.) While the second cause of action refers to the “suppression of evidence” and “obstruction of justice,” no other conduct is identified in the allegations, beyond the alleged false reports. Consequently, the identified reports form the basis of all claims asserted by plaintiff. The alleged conduct qualifies for protection pursuant to Code of Civil Procedure section 425.16.
“The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) “[A] communication concerning possible wrongdoing, made to an official governmental agency, such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a communication made after an official investigation has commenced.” (Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 526.) Similarly, mandated reports to Child Protective Services constitute actions “preparatory to or in anticipation of official proceedings, namely, an investigation by child protective services,” which are subject to protection pursuant to Code of Civil Procedure section 425.16, subdivision (e)(2). (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.)
Reports made to medical staff who are mandated reporters, qualify for protection. Where statements have been made “to people who were legally required to report any child abuse allegations . . . the statements were designed to prompt action by law enforcement or child welfare agencies.” (Comstock v. Aber, supra, 212 Cal.App.4th at p. 943.) “Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute.” (Ibid.) “Thus, defendant’s reports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the authorities are protected by statute.” (Ibid.; see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570.)
While the Complaint does not identify the position of the staff defendant reported to, the Complaint indicates that Child Protective Services was engaged, based on that report. (Complaint, at ¶ 38.) Thus, the report directly led to an official investigation. Moreover, Defendant Carlos Lopez submits a Declaration wherein he clearly indicates he spoke to the doctor and nurse at CHOC who examined the children. Similarly, he declares that it was his understanding that reporting the child abuse to a medical provider would trigger a police investigation. (Lopez Decl., at ¶ 5.) Physicians, surgeons, residents, interns, licensed nurses, emergency medical technicians and paramedics are all “mandated reporters.” (Pen. Code, § 11165.7, subds. (a)(21), (a)(22).) Further, pursuant to Penal Code section 11165.9, mandated reporters shall report suspected child abuse to the appropriate authorities. Based on the above, reports of child abuse made to a doctor and nurse, qualify for protection under Code of Civil Procedure section 425.16.
The Complaint alleges the reports were false. (Complaint, at ¶ 47.) But this alone is insufficient to defeat protection under Code of Civil Procedure section 425.16. (Dwight R. v. Christy B., supra, 212 Cal.App.4th at p. 712.) “Unlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute.” (Id. at p. 711.) However, “when the defendant’s assertedly protected activity may or may not be unlawful, the defendant may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law.” (Ibid.) “An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful.” (Id. at p. 712.) The mere allegation activity was unlawful is insufficient to render the actions unlawful as a matter of law and outside the protection of Code of Civil Procedure section 425.16. (Ibid.) In this case, Defendant Carlos Lopez disputes the characterization of the reports as false and declares that, based on a conversation with his grandchildren, “it is my belief that [Plaintiff] has abused them.” (Lopez Decl., at ¶ 4.)
Based on all of the above, Defendant Carlos Lopez has met his burden and established the claims asserted by Plaintiff fall within the protections of Code of Civil Procedure section 425.16. As the motion is unopposed, Plaintiff has not shown a probability of prevailing.
Additionally, the undisputed evidence demonstrates Defendants’ alleged statements were privileged. Pursuant to Penal Code section 11172, subdivision (a), “[a]ny other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.”
Similarly, a “privileged publication,” pursuant to Civil Code section 47, subdivision (b), includes a statement made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law. . . .” “This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that report is false, or with reckless disregard for the truth or falsity of the report.” (Civ. Code, §47, subd. (b)(5).)
As indicated above, Defendant Carlos Lopez disputes the characterization of the reports as false and declares that, based on a conversation with his grandchildren, “it is my belief that Jurado has abused them.” (Lopez Decl., at ¶ 4.)
As the above is uncontested, the alleged statements which form the basis of Plaintiff’s claims appear privileged.
Accordingly, the motion is granted. The Complaint is stricken as to Carlos Lopez, pursuant to Code of Civil Procedure section 425.16.
The court hereby vacates the March 27, 2023 trial date and sets a case management conference for December 23, 2022 at 9 am in Department C21.
Carlos Lopez shall give notice of the ruling. Plaintiff shall give notice of the December 23, 2022 case management conference to all parties who have been served with the summons and Complaint, but who have not yet appeared in this matter.