Judge Douglas W. Stern, Case 22STCV35210 2023-01-12 Tentative Ruling

Marlyn Paredes vs. Majestic Ventures, LLC, dba Vacation Homes 365, et al.

Moving Party: Plaintiff/Cross-Defendant Marlyn Paredes (Cross-Defendant)

Responding Parties: Majestic Ventures LLC and Steven Barbarich (Cross-Complainants)

On June 13, 2022, Cross-Defendant filed her complaint for )1 Breach of Contract; 2) Violation of Labor Code § 1102.5; 3) Wrongful termination in Violation of Public Policy; 4) Failure to timely pay earned wages; 5) Violation of Labor Code § 2802; and 6) Violation of Labor Code § 226.8. She filed this complaint after her employment with Cross-Complainants ended.

On November 14, 2022, Cross-Complainants filed their Cross-Complaint stating causes of action for 1) Tortious Intentional Interference with Contract; 2) Tortious Interference with Prospective Economic Advantage and 3) Defamation. Their Cross-Complaint was based on statements that Cross-Defendant posted about them online on message boards, which Cross-Defendant later allegedly sent to clients of Cross-Complainants using contact information for those clients that she would have had access to during her employment. Cross-Complainants allege that Cross-Defendant’s actions cost them current and potential clients and resulted in monetary damages for Cross-Complainants. (See Cross-Complaint.)

Cross-Defendant filed this special motion to strike on December 15, 2022, claiming that her alleged statements were protected speech under CCP § 425.16, which is the anti-SLAPP statute. Cross-Complainants filed their opposition on December 29, 2022, and Cross-Defendant filed her reply on January 5, 2023.

CCP § 425.16 (b)(1), the anti-SLAPP statute, provides: “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.”

The protected conduct is defined under CCP § 425.16 (e) (1) –(4) which states: “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.”

Therefore, regardless of the label assigned to a cause of action, “[i]f the supporting allegations include conduct furthering the defendant's exercise of the constitutional rights of free speech or petition, the pleaded cause of action ‘arises from’ protected activity, at least in part, and is subject to [a] special motion to strike.” (Baral v. Schnitt (2016) 1 Cal.5th 376 at 381- 382 (Baral) quote marks omitted.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. 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. We have 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 legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. Claims with the requisite minimal merit may proceed.” (Baral at 384-85, citations omitted.)

“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)

Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.] “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” [Citations.] Instead, the focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.] “The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....” [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.

Here, Cross-Defendant only mentions the message board comments in her anti-SLAPP motion. She does not mention Cross-Complainants’ allegations that she kept client contact information after the termination of her employment and sent her message board statements to some of Cross-Complainants’ clients.

Further, Cross-Defendant makes the claim that her statements were protected because the statements were made in anticipation of litigation. (Motion at p. 6.) However, there is nothing in the statements to indicate that they were made with litigation in mind. Nor is there any indication that, as Cross-Defendant argues in her reply (Reply at p. 7), the statements that were sent to Cross-Complainants’ clients had anything to do with the litigation that Cross-Defendant had filed and would therefore be protected by the alleged litigation privilege. (Reply at p. 8.)

The statements that were sent to Cross-Complainants’ clients would also not count as statements made in a public place or public forum. Additionally, the circumstances of Cross-Defendant’s termination would not be the subject of public interest.

Accordingly, Cross-Defendant has not made a threshold showing that the statements at issue were made in connection with an issue of public interest. As such, her anti-SLAPP motion as to Cross-Complainant’s Cross-Complaint will be denied.

Because Plaintiff did not make a threshold showing sufficient to get past the first step, it is not necessary for the Court to address the second step. However, the Court will briefly discuss it here.

The second step requires a prima facie showing of facts which, if proven at trial, would support a judgment in favor of the Cross-Complainants. As the court in Navellier v. Sletton (2002) 29 Cal.4th 82, 94, noted, claims must have only “minimal merit” to avoid dismissal. (See also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 64 (“the proponent of a speech-burdening claim may avoid an anti-SLAPP dismissal by submitting an affidavit substantiating the claim’s legal sufficiency”).)

The elements of this cause of action are (1) a valid and existing contract between the plaintiff and a third party, (2) the defendant’s knowledge of the contract, (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Pacific Gas & Elec. Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

Here, from the facts alleged in the Cross-Complaint and Cross-Complainants’ declarations, Cross-Complainants have alleged that (1) client relationships existed with the parties to whom Cross-Defendant sent the statements (Barbarich Decl. at ¶¶ 14-18); (2) Cross-Defendant knew of the client relationship (Barbarich Decl. at ¶¶ 4-5); (3) Cross-Defendant likely intended a disruption of these relationships by sending her message board statements to at least one of them (Paredes Decl. at ¶ 18); (4) at least 3 of the clients have since terminated their relationship with Cross-Complainants (Opposition at p. 11); (5) resulting in damages to Cross-Complainants of at least $155,000 (Opposition at p. 11).

The elements of this tort are similar to those for tortious interference with contract, except the interference is with a prospective economic relationship that will likely provide a benefit to the plaintiff. (See Della Penna v. Toyota Motor Sales USA, Inc. (1995) 11 Cal.4th 376, 380 fn. 1.)

Here, these elements apply to prospective client Margaret Hurst. Hurst had expressed interest in having Majestic manage her Agoura Hills property to the point of meeting with Barbarich so he could view the property. (Barbarich Decl. at ¶ 20 & Exhibit J.) Paredes had access to confidential contact information for prospective clients of Majestic, of which Hurst was one. (Barbarich Decl. at ¶¶ 4, 20.) Paredes sent Hurst one of her statements from the online message board. (Barbarich Decl., Ex. J.) Paredes’s intent to disrupt the relationship between Hurst and Majestic can be inferred from the nature of the message she sent to Hurst, and she succeeded in dissuading Hurst from contracting with Majestic (Barbarich Decl. at ¶ 20.) Cross-Complainants allege that they suffered damages in the form of the lost profits it would have earned had Hurst executed its property management agreement. (Opposition at p. 11.)

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civil Code § 45.) A corporation can be libeled by statements which injure its business reputation. (ZL Technologies, Inc. v. Does (2017) 13 Cal.App.5th 603, 623.) While generally a statement must contain a provable falsehood to be actionable defamation, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. (Id. at 624.) Where statements declare or imply provably false assertions of fact, they provide a legally sufficient basis for a defamation cause of action. (Id. at 625.)

Here, Cross-Complainants maintain that several of the statements made by Cross-Defendant on the message boards and in the statements allegedly sent to the clients were false, or indicative of expressions of opinion which implied a false assertion of fact.

Cross-Complainants’ three causes of action all have at least minimal merit based on a prima facie showing of facts which, if proven at trial, would support a judgment in favor of Cross-Complainants.