Judge Edward B. Moreton, Jr., Case 22SMCV02030 2023-02-22 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22SMCV02030, Date: 2023-02-22 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

JANE DOE,

Plaintiff,

JACK DWOSH,

Defendant.

Case No.: 21SMCV02030

Hearing Date: February 22, 2023

[TENTATIVE] ORDER RE:

DEFENDANT’S SPECIAL MOTION TO

STRIKE (CODE OF CIVIL PROCEDURE

425.16)

MOVING PARTY: Defendant Jack Dwosh

RESPONDING PARTY: Plaintiff Jane Doe

This case arises from a domestic dispute that has a long litigation history. Former defendant David Danon (now dismissed) and Plaintiff Jane Doe were in a relationship, and Danon is alleged to have violently attacked Plaintiff “dozens of times.” (Compl. ¶8.) Plaintiff alleges that in July 2018, Danon and his attorney, Defendant Jack Dwosh (“Defendant”), “began a years long campaign of filing cases against Plaintiff.” (Compl. ¶6.) The first case was a request for a restraining order which was dismissed after a two-day hearing. In that case, the judge concluded that Danon failed to meet the minimum burden of proof, had no evidence, and Danon’s testimony contradicted his pleadings. (Compl. ¶7.)

Plaintiff then filed a restraining order against Danon which was granted and subsequently renewed. (Compl. ¶¶11-12.) In July 2020, Danon and Defendant filed a second request for a restraining order based on the same allegations as the first request. (Compl. ¶13.) Danon and Defendant lost on their second request. (Ibid.) This second request is the basis for Plaintiff’s Complaint for malicious prosecution in this case. (Ibid.)

This hearing is on Defendant’s special motion to strike pursuant to Code Civ. Proc. §425.16(e)(1). Defendant contends that none of the conduct alleged in the Complaint is actionable because his filing of a request for a restraining order constitutes protected activity under the anti-SLAPP statute. Defendant also argues that Plaintiff’s malicious prosecution action has no merit because a malicious prosecution claim cannot arise from the filing and pursuit of a domestic violence restraining order.

REQUEST FOR JUDICIAL NOTICE

Defendant requests judicial notice of court records relating to Case No. 20SMRO00171, pursuant to Cal. Evid. Code §452. Defendant does not explain the relevance of these records, and the Court, therefore, denies his request for judicial notice.

TIMELINESS AND MEET AND CONFER

Defendant sought an automatic 30 day extension of his time to respond to the Complaint. In support of the request, his counsel filed a declaration, which avers that he had not been able to meet and confer with Plaintiff prior to the filing of a responsive pleading, entitling him to an automatic 30 day extension. Specifically, the declaration states “[o]n May 12, 2022, my office initiated a meet and confer with plaintiff by sending a letter which set forth the deficiencies in plaintiff’s complaint in a good faith attempt to avoid the need to file a motion to strike. Since the meet and confer effort just started, it is unlikely to be completed by the current May 19, 2022 deadline for defendant to respond to plaintiff’s complaint.”

Plaintiff moves to strike the declaration, claiming it contains numerous falsehoods. She claims Defendant’s counsel never sent her a letter or contacted her through other means. And when she called counsel, he never returned her calls. (Doe Decl. ¶¶7, 10-12.) Absent the declaration, there would be no right to an automatic extension, and Defendant’s motion to strike would be untimely.

This is a classic case of he said-she said. The court cannot determine, based on the papers, whether Defendant’s counsel or Plaintiff is telling the truth. In any event, the Court notes that the meet and confer requirements set forth in Code Civ. Proc. 435.5 do not apply to a special motion to strike. (Code Civ. Proc. 435.5(d)(3).) Further, even if the special motion to strike was untimely filed, the Court has discretion to consider an untimely motion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, citing McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280, citing Code Civ. Proc. § 473(a)(1): “The court may, in furtherance of justice, and on any terms as may be proper... enlarge the time for answer or demurrer.”) Under the circumstances, the Court will consider the special motion to strike on its merits.

“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 arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

Plaintiff’s First Amended Complaint

After Defendant’s anti-SLAPP motion was filed but before a hearing on those motions, Plaintiff filed a first amended complaint (“FAC”). The Court must first consider whether the FAC moots the anti-SLAPP motions.

Numerous appellate courts have held that the filing of an amended complaint after an anti-SLAPP motion is filed does not moot the anti-SLAPP motion. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1294; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772-773 (plaintiff cannot use “eleventh-hour amendment” to plead around an anti-SLAPP motion); accord PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1209-1210 (citing cases).)

In Salma, the cross-defendant filed an anti-SLAPP motion to strike certain causes of action from a cross-complaint. In response to the anti-SLAPP motion, and before the hearing on that motion, the cross-complainant amended the cross-complaint to revise those causes of action. (Salma, 161 Cal.App.4th at 1281-1282.) The trial court ruled that the anti-SLAPP motion was not mooted by the filing of the amended cross-complaint, and the appellate court affirmed, relying on Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068.

In Simmons, the Court of Appeal noted that the anti-SLAPP statute made no provision for amendments and that the absence of such a provision was consistent with legislative policy: “In enacting the anti-SLAPP statute, the Legislature set up a mechanism through which complaints that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’ and resolved expeditiously. [Citation.] . . . Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. . . . This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits.” (Simmons, 92 Cal.App.4th at 1073-1074.)

Although Simmons involved the propriety of the plaintiff's amendment after the trial court had found that a prima facie showing had been made under section 425.16, the appellate court in Salma applied the Simmons court’s rationale to support “automatic dismissal” of the amended claims, reasoning as follows: “Requiring the trial court to analyze the amended claims under section 425.16 simply because the claims were amended before the court ruled on the first motion to strike would cause all of the evils identified in Simmons and would undermine the legislative policy of early evaluation and expeditious resolution of claims arising from protected activity.” (Salma, 161 Cal.App.4th at 1294.)

Sylmar involved an amended cross-complaint filed three days before the hearing on a demurrer and an anti-SLAPP motion directed against the cross-complainant's fraud cause of action. (Id. at 1053.) The trial court granted the anti-SLAPP motion, struck the fraud cause of action in the original complaint, awarded attorney fees and costs, and took the demurrer off calendar as moot. (Id.) On appeal, the cross-complainant argued that the filing of its amended cross-complaint was a matter of right under section 472, and that the trial court should not have ruled on the anti-SLAPP motion and awarded attorney fees against it. (Id. at 1054.) The Court of Appeal rejected that argument, applying Simmons’ reasoning and holding that appellant could not avoid liability for attorney fees by filing an amended cross-complaint. (Id. at 1055-1056.)

The Court finds the courts’ reasoning in Sylmar and Salma to be persuasive and apply it here. Plaintiff's filing of an FAC did not render Defendant’s anti-SLAPP motions moot.

The Court turns now to the two-step analysis to determine whether Plaintiff’s sole claim for malicious prosecution falls within the scope of the anti-SLAPP statute. On the first prong, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni, 11 Cal.5th at 1009.) “A defendant need only make a prima facie showing at this stage.” (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)

Here, there can be no serious dispute that the filing of a restraining order is a protected activity under the anti-SLAPP statute. (S.A. v. Maiden (2014) 229 Cal. App. 4th 27, 35 (initiating and maintaining requests for domestic violence restraining orders are protected activity, satisfying the first prong of the anti-SLAPP statute); Schrader v. Sangha, 2021 Cal. Super. LEXIS 39418 at *4 (same).) An act in furtherance of a person’s right of petition or free speech 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,” and “(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.” Code Civ. Proc. §425.16(e)(1)-(2). The filing of a restraining order falls within the scope of either of these subdivisions.

Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show 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 plaintiff is credited. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)

The SLAPP statute’s second element--a “probability of prevailing”--means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply a “summary-judgment-like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)

Defendant argues that Plaintiff cannot meet her burden of showing a probability of prevailing on her sole claim for malicious prosecution because California courts have refused to extend the tort of malicious prosecution to restraining orders. The Court agrees.

In Bidna v. Rosen (1993) 19 Cal.App.4th 27, the court refused to extend the tort of malicious prosecution to motions and orders to show cause in family law proceedings. Bidna identified four good reasons for drawing this bright-line rule, three of which are applicable here. First, family law proceedings have “a unique propensity for bitterness” that makes it difficult to distinguish a malicious motion from an ordinary one. Second, the family law court has authority to discourage frivolous tactics within the underlying litigation by imposing attorney fee awards as sanctions for frivolous conduct. Third, family law matters often require a special sensitivity and flexibility in crafting remedies. The threat that a litigant will be subject to a malicious prosecution action increases the risk of asking for any particular remedy and decreases the likelihood of obtaining effective relief. (Id. at 35.)

Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 applied the reasoning of Bidna to hold that the unsuccessful filing of a petition for a restraining order pursuant to §527.6 cannot form the basis of a malicious prosecution claim. The reasons articulated in Bidna applied equally to a §527.6 restraining order, which normally involve highly charged circumstances where it is difficult to distinguish a malicious motion from an ordinary one. Further, just as in family law matters, § 527.6 provides for attorney fees as sanctions for a frivolous petition, which counsels against the need for a further malicious prosecution action to police against meritless claims. (§ 527.6, subd. (i).)

Siam acknowledged that by declining to extend the malicious prosecution tort to unsuccessful section 527.6 petitions the court deprives an aggrieved defendant of a remedy for some of the harm she has suffered as a result of a malicious petition. However, any harm should be fairly minimal. Section 527.6 was passed to provide quick relief to harassment victims threatened with great or irreparable injury. (Siam, 130 Cal.App.4th at 1573.) A section 527.6 petition is designed to be processed simply and expeditiously. A petition is filed, a hearing is held, normally within a few weeks, and an order is made or not made. (§ 527.6, subd. (d).) As a result of this expedited process a defendant is not usually likely to incur substantial legal fees. And to the extent the defendant has grievances of her own, section 527.6 expressly permits a cross-complaint. (§ 527.6, subd. (d).)

The Court finds that Bidna’s and Siam’s reasoning persuasive and applies it to this case, even though the restraining order here was a domestic violence restraining order pursuant to Family Code §6300, et seq. instead of a civil harassment restraining order pursuant to Civ. Code §527.6. (Dwosh Decl. ¶3.) The same policy reasons articulated in Bidna are applicable here, most importantly, that domestic violence restraining orders have a propensity for bitterness and anger, and it can often be difficult to distinguish a malicious motion from an ordinary one.

Plaintiff’s sole argument against a finding that her claim is without merit is that Judge Cowan concluded her claim had merit and allowed her to file her Complaint. Judge Cowan’s pre-filing order was issued as Plaintiff has been deemed a vexatious litigant by the Court, and is permitted to file new litigation “only if it appears that the litigation has merit and has not been filed for purposes of harassment or delay.” (Code Civ. Proc. § 391.7.) In making his ruling, however, Judge Cowan did not consider the arguments raised here, including the holdings in Bidna and Siam, and accordingly, his ruling has no persuasive authority in the context of these proceedings. (See March 7, 2022 Order.) “Opinions are not authority for issues they do not consider.” (Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 539.)

The prevailing party on an anti-SLAPP motion is entitled to an award of fees and costs. (Code Civ. Proc., § 425.16, subd. (c) (providing in part, “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney’s fees and costs” (italics added)); see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum) (a "SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees").)

Anti-SLAPP fee awards “should be fully compensatory,” and “absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Ketchum, supra, 24 Cal.4th at 1133.) However, the defendant may recover fees and costs only for the special motion to strike, and not for the entire litigation. (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.) And “reasonably spent” means that time spent in the form of inefficient or duplicative efforts is not subject to compensation.

Although a fee award under section 425.16 is mandatory, the trial court possesses broad authority to determine the reasonable amount of attorney fees. (Ketchum, 24 Cal.4th at 1131; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, 95 Cal. Rptr. 2d 198, 997 P.2d 511 (the experienced trial judge is the best judge of the value of the professional services rendered for cases in the court’s community).) The Supreme Court has approved the use of the lodestar method for anti-SLAPP fee awards. (Ketchum, 24 Cal.4th at 1131-1132.) The lodestar tabulation consists simply of “the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation. . . .” (Id. at 1133, italics omitted.)

Here, the Court finds that Defendant is the prevailing party on the anti-SLAPP motion. Defense counsel sets forth the basis for the fee award in the declaration in support of the motions. (Yee Decl., ¶ 8.) Defendant’s counsel seeks $5,915, which consists of 8 hours at an hourly rate of $265, 15 hours at an hourly rate of $220, a $435 first appearance fee and $60 filing fee. (Yee Decl. ¶ 8.) The fees requested by Defendant appear to include fees unrelated to the special motion to strike and appear excessive. (See, e.g., Yee Decl. ¶4.) Defendant also seeks a first appearance fee that is unrelated to the special motion to strike. (Yee Decl. ¶ 6.) Accordingly, the Court reduces the fees requested by Defendant to $2,760 plus costs in the amount of $60.