Judge: Edward B. Moreton, Jr., Case: 22SMCV02058, Date: 2023-01-24 Tentative Ruling

Case Number: 22SMCV02058    Hearing Date: January 24, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendants Joseph Campion and Samantha Georges

RESPONDING PARTY:         Plaintiffs Ruth Preven and Eric Preven

BACKGROUND

            This case arises from a dispute between members of a homeowners’ association (“HOA”).  Plaintiffs Ruth Preven and Eric Preven allege Defendants Joseph Campion and Samantha Georges have violated various provisions of “governing documents” by engaging in unapproved constructions on their property.  Plaintiffs also allege a pattern of harassment by Defendants including Defendants replacing Plaintiffs’ artwork with a pile of garbage; placing in the entryway a large plastic frame covered in excrement; placing garbage in the walkway, and pouring red paint on Plaintiffs’ front door.  The operative complaint alleges four causes of action for (1) declaratory and injunctive relief re breach of governing documents, (2) harassment, (3) misrepresentation/fraud and (4) intentional bodily injury. 

This hearing is on Defendants’ special motion to strike the third cause of action for misrepresentation/fraud pursuant to Code Civ. Proc. §425.16.  Defendants contend the claim is based on statements they made to a court in the context of a hearing on a temporary restraining order, and therefore the claim arises from protected activity.  Moreover, Defendants argue Plaintiffs cannot prove the claim has merit as the allegedly tortious statements are protected by the litigation privilege.  Plaintiffs are acting in pro per and have not filed an opposition.

LEGAL STANDARD

“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.) 

DISCUSSION

First Prong

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, Plaintiffs’ third cause of action for misrepresentation/fraud claim arises from statements made during a hearing on a temporary restraining order and a creditor’s claim filed in probate court.  The cause of action alleges: “Both Joseph Campion and Samantha Georges committed perjury and told egregious lies to a court in order to bring harm to Ruth Preven and Eric Preven.  The entire TRO episode that was malicious and fraudulent caused unspeakable stress and damage to the Preven family on top of Creditor’s claim filed in Probate court.”  This claim clearly arises from protected activity as defined under the anti-SLAPP statute.  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).  Statements made during the TRO hearing and the creditor’s claim clearly fall within the scope of either of these subdivisions.  (Digerati Holdings LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4^th 873, 888 (application for TRO and preliminary injunction constituted protected activity under anti-SLAPP statute.)

Second Prong

            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.)

            Defendants argue Plaintiffs cannot meet their burden of showing a probability of prevailing because their claims are barred by the litigation privilege under Civ. Code §47(b).  The Court agrees.  Litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”  (Feldman v. 1100 Park Lane Associates, 160 Cal.App.4^th 1467, 1485.)  The litigation privilege applies to all communications “(1) made in judicial or quasi judicial proceedings, (2) by litigants or other participants authorized by law, (3) to achieve the objects of the litigation, and (4) that have some connection or logical relation to the action.”  (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)  The principal purpose of the litigation privilege is to “afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  (Feldman, 160 Cal.App.4^th at 1485.)  The litigation privilege is an absolute affirmative defense to all tort causes of action, except the tort of malicious prosecution.  (Flatley v. Mauro (2006) 39 Cal.4^th 299, 322; see also Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375 (“[S]ection 47(b) operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution[.]”).)  The privilege is absolute in nature, applying to all communications, “irrespective of their maliciousness.”  (Feldman, 160 Cal.App.4^th at 1467.)  “Any doubt as to whether the privilege applies is resolved in favor of applying it.”  (Adams v. Superior Court (1992) 2 Cal.App.4^th 521, 529.)  Here, the litigation privilege operates to bar Plaintiffs’ misrepresentation/fraud claim as it is based on communications made in the context of judicial proceedings.  (Cf. Feldman, 160 Cal.App.4^th at 1467 (“litigation privilege has since been held to immunize defendants from tort liability based on theories of abuse of process, intentional infliction of emotional distress, intentional inducement of breach of contract, intentional interference with prospective economic advantage, negligent misrepresentation, invasion of privacy, negligence and fraud”).)   

CONCLUSION

            For the foregoing reasons, the Court GRANTS Defendants’ special motion to strike.  The Court strikes without leave to amend Plaintiffs’ third cause of action for misrepresentation/fraud.   

DATED: January 24, 2023                                                   ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court