Judge: Elaine W. Mandel, Case: 22SMCV01690, Date: 2023-05-04 Tentative Ruling

Case Number: 22SMCV01690    Hearing Date: May 4, 2023    Dept: P

Tentative Ruling

Bailey Care Homes, Inc. v. Byers, et al., Case No. 22SMCV01690

Hearing Date May 4, 2023

Cross-Defendant Bailey Care Homes’ Anti-SLAPP Motion to Cross-Complaint

Plaintiff Bailey Care Homes alleges defendants Ronald Byers and Mari Sharon Harris embezzled money while working as Bailey Care Homes’s CFO and HR manager. Byers and Harris cross-complain, alleging Bailey Care Homes failed to pay wages under their employment contracts and that Bailey Care Homes’ owner Shawn Bailey defamed them.

Bailey Care Homes files this anti-SLAPP motion as to the fourth, fifth, sixth, seventh, and eighth causes of action for defamation, invasion of privacy, intentional interference with contract, intentional infliction of emotional distress and declaratory relief.

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 the prong one, the court determines whether 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. The anti-SLAPP statute covers litigation-related activities, with statement or writing made in “connection with” litigation receiving protection. Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962. The litigation privilege is not limited to statements made during a trial or other proceedings but may extend to steps taken prior thereto or afterwards. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.

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.

The causes of action at issue arise out of Mr. Bailey’s alleged statement to James Williams, a mutual acquaintance, that Byers and Harris embezzled money. The Bailey cross-defendants argue this was protected litigation activity. The Bailey defendants argue Mr. Bailey’s conversation with Williams was connected with potential resolution of the parties’ legal dispute, and he told Williams about the embezzlement as part of an attempt to settle the dispute. The conversation took place before any lawsuit was filed, but this is not dispositive, since pre-litigation activity can be protected under the anti-SLAPP statute.

However, a connection to litigation is remote and tenuous. Neither Byers nor Harris was present during the conversation with Williams, undermining the claim that the meeting was part of settlement discussions. The Bailey parties fail to explain why a discussion with third party Williams was necessary for (or even relevant to) settlement negotiations. Williams was not counsel to either party or a witness to any relevant acts. There is no clear connection to protected litigation activity. The first prong is not fulfilled. DENIED.