Judge: Frank M. Tavelman, Case: 22STCV12789, Date: 2023-04-28 Tentative Ruling

Case Number: 22STCV12789    Hearing Date: April 28, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

SPECIAL MOTION TO STRIKE

ALLEGATIONS: 

On April 14, 2022 Video Symphony, LLC (“Plaintiff”) filed suit against Meyghan Hill (“Defendant”), asserting a single cause of action for breach of the covenant of good faith and fair dealing. Plaintiff claims Defendant and her attorney made misrepresentations to a court in a prior proceeding which violated the terms of the settlement agreement between them. Defendant now moves to strike the complaint as a Strategic Lawsuit Against Public Participation (“SLAPP”).

HISTORY: 

On September 1, 2022, Defendant filed this special motion to strike. On November 11, 2022, Plaintiff filed its opposition. On November 7, 2022, Defendant filed her Reply.

ANALYSIS:

I.                LEGAL STANDARD 

“An anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity… If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ ‘Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2006) 136 Cal.App.4th 464, 472 (Citations 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. [Citation.] 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.’[Citation.] 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.” (Baral v. Schnitt (2016) 1 Cal.5th 375, 384-85 (Baral).) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 (Sweetwater).)

II.              MERITS

Arising from Protected Activity

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim.”  (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883 (Citations Omitted).)

“An ‘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’ is defined by statute to include ‘(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.’  If the defendant shows that the cause of action arises from a statement described in clause (1) or (2) of section 425.16, subdivision (e), the defendant is not required to separately demonstrate that the statement was made in connection with a ‘public issue.’”  (Id. (Citations Omitted).)

“A cause of action is one ‘arising from’ protected activity within the meaning of section 425.16, subdivision (b)(1) only if the defendant's act on which the cause of action is based was an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue. In deciding whether the ‘arising from’ requirement is satisfied, ‘the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ Whether the ‘arising from’ requirement is satisfied depends on the ‘gravamen or principal thrust’ of the claim. A cause of action does not arise from protected activity for purposes of the anti-SLAPP statute if the protected activity is merely incidental to the cause of action.”  (Id. at 883-884 (Citations Omitted).)

Defendant argues Plaintiff’s claim arises from Defendant’s engagement in protected activity. At issue is Defendant’s moving to dismiss certain claims in a previous Los Angeles Superior Court matter EC066501. (Wolf Decl. ¶ 3.) This previous action was filed by Plaintiff to collect a balance on a student loan owed by Defendant. (Id. ¶ 5.) Plaintiff and Defendant reached a settlement in that case which included a provision for Plaintiff’s release of claims. (Id. ¶ 11.) However, after settlement the parties disagreed as to whether Plaintiff was obligated by the settlement agreement to release claims as against Defendants cosigner, James Scott (“Scott”). (Id.) The parties engaged in various communications, ultimately culminating in the order to show cause (“OSC”) to dismiss the action in April 2018. (Id. ¶ 15.) Defendant states the court agreed the claims should be released as against Scott. (Id.) Thereafter Plaintiff filed a motion to set aside the dismissal and the matter was set for another OSC. (Id. ¶¶ 18-22.) The Court again ruled Plaintiff must release claims against Scott and Plaintiff thereafter appealed. (Id.) The ruling was confirmed upon appeal. (Id.) Defendant argues Plaintiff’s claim arises out of Defendant’s engagement in her constitutional right to petition. Defendant further argues the statements she made which are alleged to have breached the covenant are absolutely privileged.

Plaintiff argues their claim does not arise from Defendant’s protected activity, and that Defendant’s activity is merely incidental to this action. Plaintiff cites several cases in which courts have found protected activity was only incidental to a breach of contract claim. The Court finds these cases factually inapposite.

Plaintiff first cites to Oakland Bulk and Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738. Oakland Bulk concerned a breach of contract action against the City of Oakland for refusing to issue a construction permit. The City of Oakland claimed it was engaging in protected activity by virtue of engaging in protected speech central to a public issue. (Oakland Bulk supra, 54 Cal.App.5th 738 at 757.) The City claimed its officials endorsement or disparagement of the permit constituted such protected activity. (Id.) The Court of Appeal held the breach of contract claim against the City included claims for breach which extended far beyond statements made in connection with a public issue. (Id.) Here, the protected activity claimed is for statements in made in furtherance of Defendants constitutional right to petition, not to constitutionally protected speech in connection with a public issue. The Court finds Oakland Bulk to be uninstructive in this matter.

Plaintiff then cites to Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581. Are 51 concerned a similar claim by a governmental entity that it was engaging in protected activity. The City of Alameda claimed its official communications encouraging the termination of a commercial lease was protected activity. (Area 51 supra, 20 Cal.App.5th 581 at 600.) The Court of Appeals found these communications were not protected because those who made them were not claimed to be parties to the lease and because the statements were not made in any official proceeding. (Id.) The Court finds Area 51 similarly inapposite.

In analyzing whether Defendants activity is protected the Court finds Vivian v. Labrucherie (2013) 153 Cal.Rptr.3d 707 instructive. In Vivian a police officer sued his ex-wife for breach of contract, claiming statements she made in an internal investigation of him violated the terms of a settlement agreement they reached on an action for permanent injunction. (Vivian supra, 153 Cal.Rptr.3d 707 at 709.) The defendant in Vivian argued the statements she made during an official investigation and to the Court were protected activity for the purposes of an Anti-SLAPP motion. (Id.) The plaintiff in Vivian claimed his action revolved around the breach of the settlement agreement, not the statements made to the court and investigators. (Id. at 711.) The plaintiff in Vivian relied upon the ruling in City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301. In Alhambra the Court of Appeals expressed that courts must distinguish between speech or petitioning activity that is merely evidence related to liability and liability that is based on speech or petitioning activity. (Alhambra supra, 193 Cal.App.4th 1301 at 1308.) The Court of Appeals rejected the application of Alhambra, finding that the plaintiff’s action for damages for alleged breach of a settlement agreement sought to impose liability on the defendant for making those statements. (Vivian supra, 153 Cal.Rptr.3d 707 at 711.)

Plaintiff’s argument that Defendant’s statements in the prior action are merely incidental to their cause of action is unconvincing. The entirety of factual allegations in Plaintiff’s Complaint concerns alleged misrepresentations made to the court in the prior proceeding. (See Complaint ¶¶ 37-48.) Plaintiff’s Complaint presents no other basis on which their cause of action for breach of the covenant of implied good faith and fair dealing may stand.  The liability which Plaintiff seeks to impose on Defendant is directly related to the statements she and her counsel made in the prior action. The Court finds these statements were protected activity pursuant to Code of Civil Procedure § 425.16.

Plaintiff further argues the statements are not protected activity because they are in violation of the law and ethical standards. Plaintiff cites to Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) 74 Cal.App.5th 506. In Falcon the Court of Appeals held statements which were extortionary in nature, and therefore a crime, were not protected activity.  Here Plaintiff claims the activity of Defendant’s counsel are in violation of ethical standards. In support of this argument, Plaintiff attaches email communication between himself and Defendant’s counsel after the settlement agreement was signed. (Flanagan Decl. Exh 2.) The Court does not find these email exchanges in which the parties discuss their different interpretations of the settlement terms to be indicative of a violation of ethical standards.

The Court finds Plaintiff’s cause of action arises from Defendant’s engagement in protected activity.

Probability of Prevailing

Defendant argues Plaintiff cannot prevail on their claim because the claim is barred as a matter of law. Defendant argues her statements in the previous action are protected by absolute litigation privilege.  

“The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 216.) “The usual formulation is that the privilege applies to any communication (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 [has] some connection or logical relation to the action.” (Id. at 212.) “The privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’(Citation)” (Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Citations)” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.)

Plaintiff offers no argument with respect to the litigation privilege, instead addressing the individual elements of their claim. As previously indicated, the Court finds the wrongful action upon which Plaintiff’s claim is based to be the statements made to the court in the previous action. The law is clear these statements are privileged and cannot be the basis for any tort save that of malicious prosecution. The Court finds Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing would be barred as a matter of law.  

Attorney’s Fees and Costs

Given the Court’s ruling on the motion, Defendant’s request for attorney’s fees and costs is GRANTED.

III.            CONCLUSION

The Court finds Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing is a SLAPP. Plaintiff’s cause of action arises from Defendant’s engagement in protected activity. Further, Plaintiff cannot demonstrate probability of prevailing because their claim is clearly barred by the litigation privilege. As such, the Special Motion to Strike is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Meyghan Hill’s Special Motion to Strike came on regularly for hearing on April 28, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, took the matter under submission and now rules as follows: 

THE SPECIAL MOTION TO STRIKE IS GRANTED.

IT IS SO ORDERED. 

DATE:  April 28, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles