Judge: Gail Killefer, Case: 22STCV08788, Date: 2023-01-10 Tentative Ruling
Case Number: 22STCV08788 Hearing Date: January 10, 2023 Dept: 37
HEARING DATE: September 29, 2022
CASE NUMBER: 22STCV08788
CASE NAME: Jeffrey J. Olin v. Commissioner Glenda Veasey, et al.
MOVING PARTIES: Defendants, Hon. Judge
Lawrence P. Riff; Commissioner Glenda Veasey; and the Superior Court of
California, County of Los Angeles (the “Judicial Defendants”)
OPPOSING PARTY: Plaintiff, Jeffrey J. Olin
TRIAL
DATE: Not Set
PROOF OF SERVICE: OK
MOTION: Defendants’ Special Motion to Strike
pursuant to CCP § 425.16
OPPOSITION: December 7, 2022
REPLY: December 13,
2022
TENTATIVE: Judicial
Defendants’ Special Motion to Strike is granted, and Judicial Defendants are
awarded attorney fees in part. Judicial Defendants are to provide notice.
Background
This action arises out of an
alleged conspiracy to violate the rights of Jeffrey J. Olin (“Plaintiff”), who
is an alleged victim of parental alienation. Plaintiff claims that a conspiracy
began three and a half years ago to commit these violations of Plaintiff’s
constitutional and statutory rights. Plaintiff names as Defendants Commissioner
Glenda Veasey, Judge Lawrence Riff, the Superior Court of California County of
Los Angeles, Deputy David Wing, Detective David Wing, Los Angeles County
Sheriff’s Department [“LASD”], Kelley Rene Olin (“Kelley”) [Plaintiff’s
ex-wife], Rombro & Manley, LLP (a law firm), Roger Rombro, Melinda A
Manley, and Does 1-50.
Plaintiff’s complaint
alleges the conspiracy began shortly after Plaintiff sent ex parte notice to
Kelley via text message of the parental alienation on July 21, 2018. Plaintiff further
alleges the conspiracy grew to include LASD detectives and judicial officers.
On October 3, 2019, a restraining order was filed against Plaintiff. Plaintiff
alleges the conspirators plotted to have Plaintiff involuntarily committed
(“5150 Hold”). On October 4, 2019, Plaintiff was put under a 72-hour 5150 Hold,
and his property was allegedly seized and converted.
Plaintiff’s Complaint includes the
following causes of action: (1) publication of private facts,
concerning the 5150 hold, (2) intrusion into private matters, (3) false
imprisonment, (4) intentional infliction of emotional distress, (5) intentional
interference with parent-child relationship (Civ. Code § 49), (6) denial of due
process, (7) violation of civil rights (42 USC § 1983), (8) interference with
exercise of civil rights (Civ. Code § 52.1), and (9) Monell liability. The
caption lists the 8th cause of action for interference with exercise of civil
rights (Civ. Code § 52.1), as the 7th cause of action, and lists the 7th cause of
action for violation of civil rights (42 USC § 1983), as the 8th cause of
action.
On September 29,
2022, RM Defendants’ demurrer to the entirety of the Complaint was sustained,
and the court granted RM Defendants’ Special Motion to Strike as well. (“September
29 Order”) The court also awarded RM Defendants attorney fees in part.
On October 4, 2022,
Plaintiff filed the operative First Amended Complaint (“FAC”) including the
following causes of action: (1) unlawful disclosure concerning the 5150 hold; (2)
publication of private facts concerning the 5150 hold; (3) intrusion into
private matters; (4) false imprisonment; (5) intentional infliction of
emotional distress; (6) intentional interference with parent-child relationship
(Civ. Code § 49); (7) denial of due process; (8) violation of civil rights (42 USC § 1983); and (9) Monell liability.
Judicial Defendants now specially move to strike portions of
the Complaint, specifically the first, second, third, and fifth causes of
action, pursuant to CCP § 425.16. Plaintiff opposes the motion.
SPECIAL MOTION
TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
Request
for Judicial Notice
Judicial
Defendants request judicial notice of the following in support of their motion:
Judicial Defendants’ request
is granted. The existence and legal significance of
this document is a proper matter for judicial notice. (Evidence Code § 452(h).)
However, the court may not take judicial notice of the truth of the contents of
the documents. (Herrera v. Deutsche Bank National Trust Co. (2011)
196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to
show their existence and what orders were made. The truth of the facts
and findings within the documents are not judicially noticeable. (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885.)
Discussion
CCP § 425.16 permits the Court to strike causes of action
arising from an act in furtherance of the defendant's right of free speech or
petition, unless the plaintiff establishes that there is a probability that the
plaintiff will prevail on the claim. There
is a two-step process for analyzing most anti-SLAPP motions.
First, the defendant bears the initial burden of showing
that the challenged claims fall plead matters subject to a motion to strike
under CCP § 425.16, i.e., that plaintiff's claim is based on an act
of defendant in furtherance of his right to free speech or to petition
government. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89
Cal. App.4th 294, 304.) Under section 425.16(b)(2), in determining whether
defendant has sustained its initial burden, the court considers the pleadings,
declarations and matters that may be judicially noticed. [Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal. App. 4th
324, 329, 339. A defendant meets his initial burden by demonstrating that the
act underlying the plaintiff’s claim fits one of the categories identified in
section 425.16(e). (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78. CCP § 425.16(e) defines the protected acts as the
following:
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.
The
anti-SLAPP motion need not address what the complaint alleges in an entire
cause of action and may seek to strike only those portions which describe
protected activity. [Baral v. Schnitt
(2016) 1 Cal. 5th 376, 395-396 (Baral).]
A
defendant meets its burden by showing that the act underlying the claim fits
one of the categories enumerated in CCP § 425.16(e). [City of Cotati v. Cashman, supra, 29 C4th at 78, 124 CR2d at 527; Baral v. Schnitt (2016) 1 C5th 376, 396,
205 CR3d 475, 490—at first step, defendant has “burden of identifying all
allegations of protected activity, and the claims for relief supported by
them”]
Where
there are “mixed” causes of action involving both protected and nonprotected
activity, it is the moving party's burden to identify in the motion the
allegations of protected activity and the claims arising from it. A motion
directed only to an entire complaint may be denied if some claims involve
nonprotected activity. [Baral v. Schnitt,
supra, 1 C5th at 391, 205 CR3d at 486]
Allegations
of “protected activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute.” [Baral v. Schnitt, supra, 1 Cal.5th at
394; see Park v. Board of Trustees of
Calif. State Univ. (2017) 2 Cal.5th 1057, 1060—claim struck only if the
protected activity is itself the wrong complained of, and is not just an
allegation that is evidence of liability or a step leading to some different
act for which liability is asserted]
(Cal. Prac. Guide Civ. Pro. Before Trial, 
(Rutter Group 2020).)
Second, if the defendant meets this initial burden, the
plaintiff then has the burden of demonstrating a probability of prevailing on
the claim. (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 741.) Plaintiff must show that there is admissible
evidence that, if credited, would be sufficient to sustain a favorable judgment.
(McGarry v. University of San Diego
(2007) 154 Cal. App. 4th 97, 108.) (Id.) Under CCP § 425.16(b)(2),
a plaintiff may use pleadings, declarations and matters subject to judicial
notice, as well as evidence submitted by defendant, to meet the plaintiff’s
burden.
I.
First Prong: Arising from Protected Activity
“[T]he
statutory phrase “cause of action ... arising from” means simply that the
defendant's act underlying the plaintiff's cause of action must itself have
been an act in furtherance of the right of petition or free speech.” (City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In the anti-SLAPP context,
the critical point is whether the plaintiff's cause of action itself was based
on an act in furtherance of the defendant's right of petition or free
speech.” (Id.)
As part
of the September 29 Order, this court found:
“RM Defendants first contend
that the claims against them in Plaintiff’s Complaint are barred entirely by
the litigation privilege as defined by Civ. Code, §47. (Demurrer, 10-11.) RM Defendants contend
“each of Plaintiff’s causes of action against the R&M Defendants is
predicated upon the privileged conduct of preparing and filing the Kelly
Declaration,” and as such, “the litigation privilege bars each cause of
action.” (Id.)
Litigation
privilege applies to communications made in a judicial proceeding and confers
absolute immunity on to defendants as to all tort suits with the
exception of malicious prosecution. (Civ. Code §¿47(b); Silberg v.
Anderson (1990) 50 Cal.3d 205, 215-16.)
Further, RM Defendants
contend the “only allegations referencing the R&M Defendants involve
assisting Defendant Kelly Olin in preparing and filing the ‘Kelly Declaration”
in the underlying family law case...” (Demurrer, 12.) Defendants contend the
litigation privilege applies here as “the filing of the Kelly Declaration is a
‘privileged publication’ in a ‘judicial proceeding,’ and therefore, each cause
of action asserted against the R&M Defendants fails as a matter of law.” (Id.;
citing Albertson v. Raboff (1956) 46 Cal.2d 375, 381 [holding the
litigation privilege includes and extends beyond “the pleadings, the oral or
written evidence, to publications in open court or in briefs or affidavits”].)
RM Defendants further cite Jacob B. v. County of Shasta, (2007) 40
Cal.4th 948, 952-960 as support to
show that the litigation privilege has not only been broadly applied to
encourage “full communication with the courts,” but has also applied
specifically to family law proceedings. (Demurrer, 12-13.)...
RM Defendants also contend
any assertion that any alleged disclosure of 5150 records were an improper
disclosure of confidential information is also not persuasive as Welfare
and Institutions Code section 5328, subdivision (a)(6) provides for a specific
exception when such disclosures are made before a court “as necessary to the
administration of justice,” which they were here in the underlying family law
matters.
...
In their reply, RM Defendants correctly explain section 5328’s definition
to include “information and records obtained in the course of providing
services,” and thus correctly contend that the Kelly Declaration did not
disclose any information that would have been obtained in the course of
providing services, assuming arguendo that such an alleged disclosure
even took place. (Reply, 6-7.) Further, RM Defendants then correctly contend
that even if such a disclosure took place, the subdivision (a)(6) exception
“allowed Kelly to disclose to the family law court all information relevant to
the issue of whether a forensic psychiatrist should be appointed to ‘evaluate
what had been done to Plaintiff’s relationship with his son.’” (Reply, 7.) RM
Defendants also point to Julian v. Mission Community Hospital (2017) 11
Cal.App.5th 360, 380 to finally contend that section 5328 “does not create a
private cause of action.” (Reply, 8.)
...
...Further, as Plaintiff has
failed to explain how Welfare and Institutions Code section 5328,
subdivision (a)(6) does not specifically empower RM Defendants to have acted as
alleged in representing their client, any claims against RM Defendants
regarding the preparation of their client’s declaration must also fail as a
matter of law.
...
RM
Defendants contend that each of the Complaint’s causes of action against them
arise from protected activity because “the conduct alleged against the R&M
Defendants in support of each cause of action were acts taken in furtherance of
their client’s right to petition by filing or assisting in the filing of documents
in a judicial proceeding. (Motion, 2.) RM Defendants correctly rely on Cabral
v. Martins (2009) 177 Cal.App.4th 471, 479- 483 to contend “all
communicative acts performed by attorneys as part of their representation of a
client in a judicial proceeding or other petitioning context are per se
protected as petitioning activity by the anti-SLAPP statute.” (Motion, 13.) As
such, RM Defendants affirm their conduct “arose out of the exercise of the
right of petition,” as they “acting as advocates, assisted their client to
present evidence and arguments in the Dissolution Action.” (Id.; citing G.R.
v. Intelligator (2010) 185 Cal.App.4th 606, 612-616.) The court agrees, and
as such concludes the first prong has been established.
As RM
Defendants correctly point out in their reply, “all communicative acts
performed by attorneys as part of their representation of a client in any
petitioning context are per se protected as petitioning activity...” (Reply,
6.) As RM Defendants have established their conduct here revolved around their
representation of their client, Defendant Kelly, then the first prong is
conclusively established. The court is not persuaded by any contentions by
Plaintiff that such conduct was illegal as the analysis of RM Defendants’
demurrer above shows any alleged release of any alleged information by RM
Defendants would have been for the administration of justice, and necessarily
allowed by statute. (Reply, 8-9.)
For these
reasons, the court finds that RM Defendants have met their burden under the
first prong of demonstrating that the Complaint’s causes of action against them
arose from protected activity...” (September 29 Order, 3-5, 8-9.)
Judicial Defendants contend the FAC’s first, second, third,
and fifth causes of action against them arise from protected activity as
defined by CCP §§425.16(e)(1), (2), and (4). (Motion, 7.) Here, Judicial
Defendants first point out the first cause of action is based on “Commissioner
Veasey’s purported disclosure of private information, i.e.,” Plaintiff’s 5150
hold. (Id.) The FAC “alleges three disclosures by Commissioner Veasy[:]
1) to Superior Court Administration; 2) in the petition for the WVRO; and 3) at
the hearing of the WVRO.” (Id.) Judicial Defendants contend any
statements made by the Commissioner in the WVRO petition and during the WVRO
“fit squarely within Commissioner Veasey’s right to petition courts for redress
pursuant to” subsection (1). (Motion, 7-8.)
Judicial
Defendants also correctly explain that the Veasey Declaration attached to the
FAC provides important context for any disclosures made to the Superior Court
Administration. (Id.) The Veasey Declaration makes clear that “[a]s a
result of [Plaintiff’s] actions and course of conduct over a fifteen (15) month
period, including his threats of violence, [Veasey was] in grave fear for [her
and her family’s] safety.” (FAC, Exh. 2, ¶16.) Therefore, Judicial Defendants
contend any disclosure made by the Commissioner was a protected activity “[f]irst,
to the extent that the communication was made in connection with
Commissioner Veasey’s decision to recuse herself from presiding over the family
law case” as “a statement made in connection with an issue under consideration
by a judicial body.” (Motion, 8.) Second, Judicial Defendants contend any
disclosure was also a protected activity “as a communication made preparatory
to or in anticipation of bringing an action or official proceeding.” (Id.,
citing Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th
1532, 1537; Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924,
940.) Judicial Defendants argue the second cause of action similarly arises
from the same protected activity with regards to Commissioner Veasey. (Motion,
9.)
Judicial
Defendants further contend the claims involved in the FAC’s third cause of
action arise from protected activities since the FAC contends Commissioner
Veasey intruded on Plaintiff’s private information as LASD Deputy Wing notified
Commissioner Veasey of the 5150 “during the time that Commissioner Veasey
presided over the family law case.” (Motion, 10; FAC ¶¶17-20, 162-168.)
Judicial Defendants correctly point out that statements regarding Plaintiff’s
5150 were part of a broader context given by the Commissioner as “she decided
to recuse herself from hearing the family law case.” (Motion, 10.) Therefore,
Judicial Defendants contend the statements regarding the 5150 are “an oral
statement made in connection with an issue under consideration or review by a
judicial body,” as included in subsection (2). (Id.)
Judicial
Defendants also contend the first, second, and third causes of action are pled
against all defendants but “allege[] no facts concerning Judge Riff or the
Superior Court.” (Motion, 8-9.)
Lastly,
Judicial Defendants contend the fifth cause of action only regards “certain
nonjudicial acts taken by Commissioner Veasey, Judge Riff, and the Superior
Court,” as the FAC concedes entitlement to judicial immunity for acts taken in
their judicial capacity. (Motion, 10; FAC ¶222.) Judicial Defendants further
contend that any nonjudicial conduct of Commissioner Veasey regarding
disclosure of Plaintiff’s 5150 are protected activity as discussed previously.
(Motion, 11.) Judicial Defendants also contend any claims regarding Hon. Judge
Riff’s CRC Rule 10.703 response concluding no judicial misconduct by
Commissioner Veasey is also protected activity as it regards an issue of
“public interest” as defined by CCP § 425.16, stating:
“whether
a judicial officer has violated judicial canons is a matter of public interest.
The public has a right to have confidence in its judiciary.” (Id.)
Further,
as CRC rule 10.703 sets the “official complaint process for complaints made
against subordinate judicial officers, including court commissioners,” Judge
Riff’s response is a protected activity as an official proceeding, internal
investigation, and administrative review of an officer of the court, included
in subsections (1) and (2). (Motion, 12-13; citing Lee v. Fick
(2005) 135 Cal.App.4th 89; Hansen v. California Dept. of Corrections and
Rehabilitation (2008) 171 Cal.App.4th 1537; Jeffra v. California State
Lottery (2019) 39 Cal.App.5th 471.)
Thus, Judicial Defendants contend the first, second, third, and fifth causes of
action are subject to this special motion to strike. (Motion, 13.)
In
opposition, Plaintiff contends the FAC’s claims “do not pertain to the type of
speech” this statute and special motion to strike are intended to protect.
(Opp., 3-4.) Specifically, Plaintiff cites Swanson v. County of
Riverside (2019) 36 Cal.App.5th, 361, 372 (“Swanson”) where the
court found,
“Because
proceedings under the LPS Act [Welfare & Institutions Code 5000, et seq.]
are not presumptively public in nature, speech in connection with it is not the
type of speech the anti-SLAPP statute is designed to protect.” (Swanson,
supra, 36 Cal.App.5th at 372 .)
Plaintiff
cites Swanson to contend that since the Swanson court found LPS
proceedings to not be “presumptively public” matters, therefore, all alleged
speech regarding Plaintiff’s 5150 hold by Judicial Defendants are not protected
activities. (Opp., 2-4.) Plaintiff’s series of inferences do not hold water.
Namely, the court here, sua sponte, notes the Swanson court specifically
dealt with the question of whether a 5150 proceeding was itself an “official
proceeding,” therefore included in CCP § 425.16(e)(1) and (2). (Swanson,
supra, 36 Cal.App.5th at 364-5.)
This
court is not faced with the same question. The alleged activities that form the
bases of Plaintiff’s claims against Judicial Defendants involve disclosures
and/or statements made by several judicial officers in response to petitions,
during family law hearings, in declarations involving the consideration of
recusal, or an investigation following the administrative procedures set forth
by CRC Rule 10.703. (FAC ¶¶ 17-20, 127-200, Exh. 2.). Therefore, the court finds Swanson to
not be binding precedent over these circumstances. Statements regarding
Plaintiff’s 5150 were made either in or regarding judicial proceedings, and
this court is now faced with determining whether the statements regarding
Plaintiff’s 5150, and not the 5150 itself, are protected activities.
Plaintiff
again proffers the assertion that section 5328 of the Welfare &
Institutions Code makes all disclosures of 5150 status confidential and
prohibits public disclosures. (Opp., 4-8.) However, this court has already
found that no “information and records obtained in the course of providing
services” subject to Welfare & Institutions Code Divisions 4, 4.1, 4.5, 5,
6, or 7 were disclosed here; in the alternative, this court has also found
section 5328(a)(6)’s “as necessary to the administration of justice” to provide
broad powers of disclosure during the underlying family law matter which forms
the heart of this present litigation. (September 29 Order, 5-6.) In order to
maintain consistency with prior rulings, the court therefore finds Plaintiff’s repeated
arguments regarding section 5328 moot as they deal with Judicial Defendants as
well.
Lastly,
Plaintiff makes conclusory statements that “Veasey and Riff’s own statements
show that they have been major players in engaging in the wrongdoing alleged in
the FAC” and “Veasey broke the law,” but such conclusions provide little
support to Plaintiff’s claims that the conduct alleged were not protected
activities. (Opp., 8-9.)
Judicial
Defendants correctly contend,
“The
issue here is not breach of duty, or whether Welfare & Institutions Code
section 5152 constitutes an official proceeding. None of the causes of action
which are the subject of this motion concern section 5152 or any aspect of the
evaluation, treatment, or care of plaintiff during the time of his 5150. Nor do
defendants contend that the involuntary commitment of plaintiff is an official
proceeding. Even had defendants made this claim, which they did not do, the
court in Swanson did not reach a determination on that issue.” (Reply, 4.)
Judicial
Defendants again repeat contentions in their moving papers that any disclosures
made by Commissioner Veasey or Judge Riff involved official proceedings,
judicial hearings, considerations of issues before the court, or matters of
public interest as defined by the subsections of section 425.15(e). (Reply,
4-6.) As Judicial Defendants have established their conduct here revolved
around their involvement in official proceedings or matters of public interest,
then the first prong is conclusively established. The court is again not
persuaded by any contentions by Plaintiff that such conduct was illegal as the September
29 Order and review of Judicial Defendants’ conduct at issue shows any alleged
release of any alleged information by Defendants would have been for the
administration of justice, and necessarily allowed by statute. (Reply, 6-7.)
For
these reasons, the court finds that Judicial Defendants have met their burden
under the first prong of demonstrating that the Complaint’s first, second,
third, and fifth causes of action against them arose from protected activity.
The court will turn towards the parties’ arguments regarding the second prong.
II.
Second Prong: Likelihood of Success on Merits
Judicial Defendants here contend Plaintiff fails to
meet his burden of showing a likelihood of prevailing on the merits as
Plaintiff fails to show how any alleged disclosure of information does not fall
within the express exceptions provided pursuant to section 5328 of the
Welfare and Institutions Code. (Motion, 13-16.) Judicial Defendants also
contend Plaintiff fails to show a likelihood of success as “the communications
at issue are privileged pursuant to Civil Code section 47.” (Motion, 14-16.)
Further, Judicial Defendants contend Plaintiff also fails to show a likelihood of
prevailing against Judicial Defendants as co-conspirators, as
“[t]here is no agreement, common
plan, or actual knowledge of an unlawful violation of Welfare &
Institutions Code section 5330, the violation of private facts, the intrusion
into private matters, or the intentional infliction of emotional distress.”
(Motion, 17.)
Civil Code § 47(b) provides an absolute privilege
for communications made in any legislative proceeding, in any judicial
proceeding, in any other official proceeding authorized by law, or in the
initiation or course of any other proceeding authorized by law. (See Civ. Code
§ 47(b); Hagberg v. California Federal Bank FSB (2004) 32
Cal.4th 350, 360 (Hagberg).) Section 47(b) bars all tort causes of
action except malicious prosecution. (Hagberg, supra, 32 Cal.4th at
360.) Section 47(b) only applies to communicative acts, not tortious conduct. (Buchanan
v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418,
423.) “The threshold issue in determining whether the litigation privilege
applies is whether the defendant’s conduct was communicative or
noncommunicative.” (Id.)
In opposition, Plaintiff
reiterates earlier arguments addressed by the September 29 Order and further
relies on section 5328 as an alleged “preemption” of any litigation privilege.
(Opp., 9-13.) As the court has already considered these arguments, they are now
disregarded. (September 29 Order, 3-9.) Plaintiff also makes several conclusory
statements regarding a conspiracy between Defendants Veasey and Judge Riff.
(Opp., 13-14.) Lastly, Plaintiff requests Judicial Defendants be sanctioned in
the amount of $14,000 “to a charity protecting men falsely accused of domestic
violence.” (Opp., 14-15.)
In reply, Judicial Defendants
contend:
“Plaintiff failed to meet his burden
because he failed to produce competent, admissible evidence sufficient to
sustain a favorable judgment on the First, Second, Third and Fifth Causes of
Action. That plaintiff has verified under the penalty of perjury the entire opposition
does not make the statements contained therein facts or admissible evidence.
Instead of setting forth facts within plaintiff’s personal knowledge in the
opposition, or producing any other type of evidence to demonstrate a prima
facie case, plaintiff supports his causes of action with conclusory assertions,
conjecture, and a misrepresentation of the substance of the exhibits attached
to the FAC.” (Reply, 8-9.)
Judicial
Defendants correctly explain the Veasey Declaration does not admit “that she
communicated the fact of Plaintiff’s 5150 to court administration, or to anyone.”
Further, Judicial Defendants also correctly point out Plaintiff fails to point
to any factual basis for the contention that Veasey communicated the 5150 hold
to Judge Riff, or that the two Defendants were in conspiracy to deprive
Plaintiff of his rights. (Reply, 9.) Lastly, Judicial Defendants correctly
explained as for Defendant Superior Court:
“[P]laintiff does not set forth any
facts or evidence at all. Plaintiff’s sole contention against the Superior
Court is that the Superior Court covered-up purported wrongdoing of
Commissioner Veasey. This claim is not a fact, and it is not evidence.” (Id.)
The court agrees. As explained
in the September 29 Order, the court finds that the absolute litigation
privilege applies to Plaintiff’s claims. Further, the court agrees with
Judicial Defendants’ contention that Plaintiff has failed to meet his burden of
showing a likelihood of succeeding on his claims against judicial officers,
given the litigation privilege and exceptions of section 5328. Thus, Judicial Defendants
have shown Plaintiff’s claims to fail as a matter of law here since Plaintiff
can avail himself of no exception to the litigation privilege and can provide
no explanation as to how any alleged disclosure made by Judicial Defendants
were not done so in order to promote the administration of justice.
For these reasons, the court
finds that Plaintiff has failed to demonstrate a likelihood of success on the
merits under the second prong.
Judicial Defendants’ motion is
granted.
Pursuant to CCP § 425.16(c)(1), “[e]xcept as
provided in paragraph (2), in any action subject to subdivision (b), a
prevailing defendant on a special motion to strike shall be entitled to recover
his or her attorney’s fees and costs. If the court finds that a special motion
to strike is frivolous or is solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney’s fees to a plaintiff
prevailing on the motion, pursuant to Section 128.5.”
Judicial Defendants request $13,275.00 in
connection with the instant motion. (Motion, 17-18.) Counsel for Judicial
Defendants attests she has spent 43 hours in the preparation of this motion,
and anticipated spending another 16 in preparing a reply and attending the
hearing. (Id.; Declaration of Sarah L. Overton (“Overton Decl.”), ¶6.)
According to Defendant’s counsel, her hours were incurred at a rate of $435.00
per hour and her associate’s hours were incurred at a rate of $225.00 per hour.
(Id.)
““A party who partially prevails on an anti-SLAPP
motion must generally be considered a prevailing party unless the results of
the motion were so insignificant that the party did not achieve any practical
benefit from bringing the motion. The determination whether a party prevailed
on an anti-SLAPP motion lies within the broad discretion of a trial court.”” (Lin
v. City of Pleasanton (2009) 176 Cal.App.4th 408, 426.)
However, the court deducts 6 hours of attorney time
from counsel and will award a total of $11,925 in attorney’s fees and costs. Generally,
the court has deducted these hours estimated time for drafting a reply and
preparing for and appearing at the hearing because less time than budgeted is
required to complete these tasks.
Conclusion
Judicial Defendants’ Special Motion to Strike is granted, and Judicial Defendants are awarded
attorney fees in part. Judicial Defendants are to provide notice.