Judge Elaine W. Mandel, Case 21STCV25467 2022-12-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 21STCV25467, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV25467 Hearing Date: December 6, 2022 Dept: P

Tentative Ruling
Pinto v. Visconti, Case No. 21STCV25467
Hearing Date December 6, 2022
Cross-Defendant Pinto’s Special Motion to Strike (Anti-SLAPP Motion)

Attorney plaintiff Pinto represented defendant Visconti in multiple matters, including a child custody case. Visconti alleges Pinto used his position as her attorney to obtain improper loans and cash transfers from her and was physically abusive during an intimate relationship with her. Visconti claims Pinto made a false domestic violence report against her, leading to her arrest. Pinto allegedly used Visconti’s arrest to extort her into dropping domestic violence allegations against him. Pinto moves to strike the cross-complaint under the anti-SLAPP statute, arguing the domestic violence police report constitutes protected activity.

Evidentiary Objections

All Pinto objections to exhibits SUSTAINED for lack of authentication. Pinto objections to Murphy declaration OVERRULED.

Anti-SLAPP motion

Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, supra, 31 Cal.4th at 733.

Under the second prong, the burden shifts to plaintiff to show a legally sufficient claim and to prove with admissible evidence a reasonable probability plaintiff will prevail. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88. To fulfill prong two, plaintiff cannot rely on the allegations of the complaint but must produce evidence admissible at trial. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

An anti-SLAPP motion can target a “mixed” cause of action – one that combines allegations of protected and nonprotected activity under one cause of action. Baral, supra, at 392. Such motion, if successful, can strike claims arising out of protected activity while allowing other claims to proceed, even if both appear within a single cause of action. Id.

The motion argues the cross-complaint arises out of allegations Pinto made a false police report. Pinto argues that even an allegedly false police report constitutes protected activity under the ant-SLAPP statute as a matter of law. Per Kenne v. Stennis, 230 Cal.App.4th 953, 966, filing a police report constitutes protected activity even if the parties dispute whether the report was false. Pinto does not concede the report was false and is correct that allegations regarding the police report arise out of protected activity.

However, the police report is not the sole allegation of wrongdoing in the cross-complaint, as it alleges Pinto pursued an improper relationship with Visconti, did legal work he was unqualified to perform, wrongfully borrowed or stole money and physically abused her. Pinto does not argue any of these allegations constitutes protected activity. The non-protected allegations, not the false police report, form the gravamen of most causes of action in the cross-complaint. Outside of the statement of facts, which mentions the police report as background to other allegations, the sections of the cross-complaint dedicated to the first, third, fourth, fifth, sixth, seventh, eighth and ninth causes of action do not mention the report. None of these causes of action is based on protected activity, and the first prong of the anti-SLAPP statute is not fulfilled as to them.

The portion of the cross-complaint dedicated to the second cause of action for fraud includes an allegation that Pinto “made false statements to police and investigators,” and those statements “were a misrepresentation of the truth.” Cross-complaint ¶¶59-60. The fraud claim contains additional allegations, so is a “mixed cause of action” under Baral. As a police report is protected activity, Pinto fulfilled the first prong of the anti-SLAPP statute as to the portion of the fraud claim based on the police report. The burden shifts to Visconti to prove a reasonable likelihood of success on this narrow issue.

Visconti provides two exhibit lists in support of her opposition to the motion. None of the exhibits is authenticated, making them inadmissible under Cal. Evid. Code §1401. Even if they were admissible, none appears to relate directly to the allegedly false police report. Visconti failed to carry her burden as to the second prong.

In reply, Pinto argues Visconti’s opposition, which refers to Pinto’s alleged lies to police officers, demonstrates the cross-complaint arises out of protected activity. This argument is unavailing, since the court may not look outside the four corners of the cross-complaint to determine whether it should be struck under the anti-SLAPP statute.

GRANTED in part. Paragraphs 59 and 60 – which reference Pinto’s police report in support of the fraud cause of action -- are stricken from the cross-complaint. DENIED as to the remainder of the cross-complaint.