Judge Gail Killefer, Case Number: 24STCV11609, Date: 2024-08-14 Tentative Ruling

PROCEEDING: Special Motion to Strike (CCP, § 425.16.) and Demurrer to Complaint

TENTATIVE: Defendant Acosta’s special motion to strike is denied and the demurrer is continued. Defendant Acosta is ordered to file a declaration showing compliance with the meet and confer requirement.

MOVING PARTY: Defendants Jeffrey C. Bigelow; Manuel Corral, Diana Corral, and Henry Gambill.

TENTATIVE: Defendants’ special motion to strike is denied. Defendants to give notice.

On May 8, 2024, Andreas Jung (“Jung”) and Maribel Alvarenga (“Alvarenga”) (collectively “Plaintiffs”), filed a Complaint against Adam Acosta, Jeffrey C. Bigelow (“Bigelow”); Manny Corral (“M. Corral”); Diana Corral (“D. Corral”); Henry Gambill (“Gambill”) (collectively “Defendants’); and Does 1 to 100.

2) Breach of the Implied Covenant of Good Faith and Fair Dealing (by Plaintiff Jung against Defendant Acosta);

3) Breach of Contract – Third Party Beneficiary (by Plaintiff Alvarenga against Adam Acosta);

5) Intentional Inference with Contract (Plaintiff Junga against Defendants Bigelow, M. Corral, D. Corral, and Gambill.)

6) Intentional Interference with Economic Relations (Plaintiff Alvarenga against all Defendants);

7) Intentional Inference with Prospective Economic Advantage (Plaintiff Alvarenga against all Defendants);

8) Fraud – Promise Made without Intention to Perform (Plaintiff Jung against Defendant Acosta.)

9) Fraud – Suppression of Fact Perform (Plaintiff Jung against Defendant Acosta); and

On June 13, 2024, Defendants Jeffrey C. Bigelow; Manuel Corral, Diana Corral, and Henry Gambill (hereinafter “Defendants”) filed a Special Motion to Strike under CCP § 425.16. Defendant Acosta filed a joiner to the Motion.

On July 15, 2024, Defendant Acosta filed a Special Motion to Strike under CCP § 425.16 and a demurrer to the Complaint

CCP § 425.16 sets forth the procedure governing anti-SLAPP motions.¿ In pertinent part, the statute provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (CCP § 425.16(b)(1).) “[A]n anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded.” (Baral v. Schnitt¿(2016) 1 Cal.5th 376, 393.) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)¿¿¿¿

Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61 (Equilon).) To invoke the statute's protections, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.¿ It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (CCP, § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)¿¿¿

dEFENDANT aDAM ACOSTA’S ANTI-SLAPP MOTION

Defendant Acosta filed this special motion to strike because he asserts that even if the allegations in the Complaint are true, they arise from protected activity because they were made in connection to an official proceeding and matters of public interest.

The Complaint alleges that on August 8, 2019, Defendant Acosta sued his former employer, District Counsel 36 the American Federation of State, County and Municipal Employees (AFL-CIO) (hereinafter “DC 36”), Vice-President Rodney Fowler and DC 26 President, Plaintiff Jung in the LASC Case No. 19STCV28149 entitled Acosta v. DC 36. (Compl., ¶ 36.) The Parties, including Acosta, Jung, and DC 36, all agreed to mediate the matter. (Compl., ¶ 12.)

The Parties, through their counsels of record, signed the Mediation Confidentiality Agreement (“MCA”) on May 23, 2021, when the mediation began. (Compl., ¶¶ 12, 14, Ex. A.) The Complaint alleges that as part of the mediation, Acosta submitted a mediation brief that contained text messages between Jung and Alvarenga that were produced as part of the discovery in the underlying litigation. (Compl., ¶ 13.) The mediation resulted in the Confidential Settlement Agreement (“CSA”) signed on or about July 14, 2021, by Acosta, DC 26, Jung, and Fowler. (Compl. ¶ 15.)

The Complaint alleges that after signing the MCA, Acosta contacted Defendant Bigelow, provided Bigelow with a copy of the mediation brief and its exhibits, and falsely represented that the materials were non-confidential. (Compl., ¶ 29.) The Complaint further asserts that after entering into the CSA, Acosta discussed the settlement with Bigelow. (Compl., ¶ 30.)

Bigelow then provided a copy of the mediation brief to the other Defendants, which was then used to draft charges under the AFL-CIO (AFSCME) International Constitution to expel Plaintiff Jung from union membership and terminate Plaintiff Alvarenga. (Compl, ¶¶ 30-32.) Plaintiffs were presented with the charges against them and on May 5, 2022, the AFSCME Judicial Panel hearing officer rendered a decision and removed Jung from his office as President of DC 36 and ordered Alvarenga’s termination. (Compl., ¶ 36.) Plaintiffs appealed to the AFSCME Judicial Panel, but the appeal was denied on June 8, 2022. (Compl., ¶ 38.)

On May 8, 2024, the Plaintiffs brought this action in relation to the Defendants’ breach of the MCA and the CSA. Defendant Acosta along with the other Defendants now seek to strike the Complaint pursuant to CCP § 425.16.

The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

Plaintiffs assert Defendants’ Motions are untimely. Even if Defendants’ Motions are untimely, section 425.15 “vests the trial court with discretion to entertain an anti–SLAPP motion proffered after expiration of the 60–day period.” (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1187.) The Court exercises its discretion to consider this anti-SLAPP motion.

B. Step 1: Does Defendants Alleged Wrongful Conduct Arise for a Protected Activity?

“In ruling on a defendant's anti-SLAPP motion, the trial court engages in a two-step analysis.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the court determines “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity,” which includes the defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest. (Ibid; CCP, § 425.16.) “[T]he moving defendant must identify the acts alleged in the complaint that it asserts are protected and what claims for relief are predicated on them. In turn, a court should examine whether those acts are protected and supply the basis for any claims.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)

By giving a copy of the Non-Confidential Mediation Brief to Mr. Bigelow prior to the execution of the Confidential Mediation Agreement (“CMA”) and the Confidential Settlement Agreement (“CSA”), Mr. Acosta was providing a written statement that would eventually be used in connection with an official proceeding. This proceeding was the AFSCME International Judicial Panel (“Judicial Panel”), an official hearing mandated by federal law and the AFSCME International’s constitution.

(Acosta Anti-SLAPP, at p. 1:18-23.) In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (Briggs), the California Supreme Court found that “‘communications preparatory or in anticipation of bringing an action or other official proceeding’” are protected by section 425.16. (Id. at p. 115.)

At issue is whether the sharing of a mediation brief is a protected activity if the disclosure is made in connection to “an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” or “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.” (CCP § 425.16(e).) The court finds that unless an exception applies, the mediation privilege applies to prevent the disclosure of the mediation brief even if the brief is disclosed in connection to an official proceeding concerning the public interest. To hold otherwise, would be to create an exception to the mediation privilege where none is provided. (See Foxgate Homeowners' Ass'n, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 15 [“To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme, which includes sections 703.5, 1119, and 1121, unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.”].)

Defendant Acosta asserts that the mediation brief was non-confidential because he provided a copy of the brief before he signed the MCA on May 23, 2021. (Acosta Decl., ¶ 2; see also Compl., Ex. 1.) “Mediation confidentiality is to be applied where the writing, or statement would not have existed but for a mediation communication, negotiation, or settlement discussion.” (Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 160 (Wimsatt); see also Evid. Code, § 1119.) The fact that the mediation brief was disclosed before the start of mediation and before Acosta signed the MCA, does not make the mediation brief non-confidential because the brief was produced in anticipation of mediation and would not have exited but for the mediation.

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

The mediation brief was not produced during the regular course of litigation but pursuant to a mediation and is therefore confidential and subject to the mediation privilege. There is no evidence supporting Acosta’s assertion that the mediation brief was non-confidential. “Mediation briefs epitomize the types of writings which the mediation confidentiality statutes have been designed to protect from disclosure.” (Wimsatt, supra, 152 Cal.App.4th at p. 160, 158.)

Mediation briefs are designed to facilitate an open and frank dialogue with the hope that the case can be resolved in the mediation. When written, the authors expect the briefs will always be kept confidential and used only in mediation by the mediator and the parties. Thus, mediation briefs are an integral part of the mediation process and are “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” and are to remain confidential. (Evid.Code, § 1119, subd. (b).)

Even in the absence of a protective order, the mediation brief remained confidential, and the confidentiality does not end merely because the mediation ended. (See Wimsatt, supra, 152 Cal.App.4th at p. 159.)

By statute, “any writing that is inadmissible, protected from disclosure, and confidential under” the mediation confidentiality provisions “before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.” (§ 1126.)

(Rojas v. Superior Court (2004) 33 Cal.4th 407, 416.) Accordingly, it is immaterial that Defendant Acosta asserts that disclosure of the mediation brief occurred before the CSA became effective because the mediation brief was confidential since it was made for the purpose of mediation.

Defendant Acosta fails to cite case law finding that mediation briefs are not confidential and are not protected for disclosure if the brief is submitted in furtherance of a party’s right to petition or as part of a judicial proceeding. On the contrary, the Evidence Code is quite clear that the use of mediation materials is not permitted, even if it is submitted to an adjudicative body:

Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.

Defendant Acosta fails to show that disclosure of the mediation brief was permissible because it occurred under one of the four exceptions expressly outlined in Evid. Code section 1123. “The [California Supreme Court] has refused to judicially create exceptions to the statutory scheme, even in situations where justice seems to call for a different result.” (Wimsatt, supra, 152 Cal.App.4th at p. 152.) “The Courts of Appeal also strictly construe the mediation confidentiality statutes, even when the equities in the case suggest contrary results.” (Id. at p. 155.)

The Wimsatt Court explained that the mediation confidentiality rule applied even in legal malpractice suits because “when clients, such as Kausch, participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel.” (Wimsatt, supra, 152 Cal.Ap.4th at p. 163.) Therefore, even if a party is engaging in a petitioning activity by filing a lawsuit, the mediation privilege applies and prevents disclosures related to the mediation. “[T]he parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, then they should ‘make [it] clear at the outset that something other than a mediation is intended.’ ” (Id. at p. 164.)

Because the mediation privilege applied, the mediation brief was confidential, and any disclosure of the brief was a violation of privilege and was not protected activity as outlined in Evidence Code § 1121. To hold that the mediation privilege must yield to disclosures made in an official proceeding or made in furtherance of the right to petition or the “constitutional right of free speech in connection with a public issue or an issue of public interest” would create an exception to the mediation privilege where none exits.

Therefore, the court finds that Defendant Acosta fails to show that this lawsuit arose out of a protected activity.

The mediation privilege does not apply to documents or exhibits, such as text messages, produced as part of discovery in the underlying litigation, provided that such evidence is not subject to a protective order. (See Compl.,¶ 13.) “Thus, if parties use facts in mediation, mediation confidentiality does not necessarily preclude disclosure of those facts.” (Wimsatt, at p. 158.) “Under Evidence Code section 1120, a writing that is otherwise admissible or subject to discovery outside of a mediation does not ‘become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.’ ” (Lappe v. Superior Court (2014) 232 Cal.App.4th 774, 784

Defendant Acosta would not have violated the mediation privilege if he had disclosed the contents of Plaintiffs’ text messages and other evidence produced during discovery in the underlying litigation. Moreover, the signing of the MCA precludes the finding that Acosta was entitled to waive the confidentiality of his mediation brief. (See Evid. Code, § 1122(a)(2)[1].) Therefore, the disclosure of the mediation brief is a violation of the mediation privilege, and the disclosure is not a protected activity for the purpose of this Motion.

Even if the court found that this action arose from Defendant Acosta engaging in a protected activity, Plaintiffs can show that they have a probability of succeeding on the merits.

“The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291.) “The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward.” (HMS Capital, Inc. v. Lawyers Title Co.¿(2004) 118 Cal.App.4th 204, 212.) “The court considers the pleadings and evidence submitted by both sides but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff¿[citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.¿[Citation.] The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward.”¿(Id. at p. 212.)¿¿

Plaintiffs can show that on May 23, 2021, Defendant Acosta signed the MCA, agreeing to keep the contents of the mediation confidential. (Compl., Ex. 1; Plaintiffs’ Compendium of Evidence “PCOE” Ex. 2.) Plaintiffs further provide transcripts from the AFSCME’s Judicial Panel hearing wherein Defendant Bigelow admits that Defendant Acosta gave him the mediation brief. (PCOE Ex. 8 [02/09/22 Trans. at p. 869:7-13]; Ex. 9 [03/08/22 Trans. at p. 1268:11-16].) Defendant Bigelow believed the brief was nonconfidential because Acosta had told him it was not. (PCOE Ex. 8 at p. 854:13-19.) Bigelow asserts that Acosta only shared the brief, not other discovery produced in the underlying litigation. (PCOE Ex. 9 at p. 1240:6-9.)

Bigelow then shared the brief with the other Defendants and relied on Exhibit 4 of the mediation brief to draft the charges against Plaintiffs. (PCOE Ex. 4 [mediation brief]; Ex. 8 at pp. 858:7-860:2; Ex. 9 at p. 1219:10-16.) Bigelow admitted that he knew the mediation brief was specially prepared for mediation and contained a summary of the text messages (Exhibit 4) that were part of the mediation brief. (PCOE Ex. 9 at p. 1236:2-14.) The Declaration of Jeffry Bigelow further confirms that he reviewed a document entitled “Non-Confidential Mediation Brief” that was provided by Defendant Acosta, which included the text messages sent between Plaintiff Jung and Plaintiff Alvarenga. (Bigelow Decl., ¶¶ 5-7)

Furthermore, even if the MCA did not expressly state the mediation brief was confidential, the mediation brief was nevertheless protected from disclosure under the mediation privilege. “We have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected.” (Cassel v. Superior Court (2011) 51 Cal.4th 113, 118.)

With specified statutory exceptions, neither “evidence of anything said,” nor any “writing,” is discoverable or admissible “in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which ... testimony can be compelled to be given,” if the statement was made, or the writing was prepared, “for the purpose of, in the course of, or pursuant to, a mediation....” (Evid.Code, § 1119, subds. (a), (b).)

Under the broad applicability of the mediation privilege, the court finds that Plaintiffs have a reasonable probability of succeeding on the merits. To the extent that Plaintiff Alvarenga asserts that under the Collective Bargaining Agreement (“CBA”), the AFSCME International Constitution did not apply to her as an employee of DC 36 and that the charges brought against her violated the CBA, the court finds that the allegation is irrelevant because the Complaint does not allege breach of the CBA. (See Alvarenga Decl., ¶ 4.)

The issue as framed by the pleadings and this Motion, is whether the disclosure of the mediation brief to an adjudicative body was a protected activity. As outlined above, the court finds it was not. Lastly, in ruling on the merits of this Motion, the court declines to consider whether Plaintiff Alvarenga lacks standing to sue because she is not a third-party beneficiary to the CMA or CSA as the issue is irrelevant because Defendants have failed to show this action arose from their engagement in a protected activity.

dEFENDANTS’ ANTI-SLAPP MOTION

Defendants object to Paragraph 12 of the Declaration of Plaintiff Andrew Jung on the basis that it discloses communications protected by the attorney-client and work product privilege. The objection is sustained.

Defendants Jeffrey C. Bigelow; Manuel Corral, Diana Corral, and Henry Gambill (hereinafter “Defendants”) seek to strike this action on the basis that this action arose from Defendants’ exercise of free speech and petition in the public interest under CCP § 425.16 and the litigation privilege under Civil Code § 47.

A. Disclosure and Submission of the Mediation Brief is Not Protected Activity

Defendants assert that they engaged in a protected activity by filing an internal labor union charge under the constitution of the AFSCME International Union (“AFSCME International”) and prosecuting charges of misconduct against Plaintiff Jung and Plaintiff Alvarenga. For purposes of this Motion, the court accepts that the AFSCME Judicial Panel proceeding was an official proceeding required under the Labor Management Reporting & Disclosure Act of 1959 (“LMRDA”). (See 29 U.S.C. § 401; see also §§ 417.3, 481(h).) Accordingly, the AFSCME Judicial proceeding is an “administrative adjudication, civil action, or other noncriminal proceeding” subject to the restrictions outlined in Evid. Code § 1119, which prohibits the disclosure of any writing made for the purpose of or pursuant to a mediation. (Evid. Code, § 1119.)

Evid. Code § 1121 applies to “anyone” and prohibits the submission of “any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator” except for a report “that states only whether an agreement was reached[.]” (Evid. Code, § 1121.) The court finds that Defendants did not engage in a protected activity when they submitted the mediation brief to the AFSCME Judicial Panel because the mediation brief was confidential and protected from disclosure under the mediation privilege.

Defendants admit that when they submitted the charges against Plaintiffs, they submitted the mediation brief to the ASFCME Judicial Panel, in violation of Evid. Code §§ 1119 and 1121. (M. Corral Decl., ¶¶ 7-10, Ex. D-F.) The fact that the text messages were discoverable and capable of being made admissible because they were produced during the regular course of litigation rather than mediation, does not make the submission of the mediation brief permissible conduct under the Evidence Code. “Thus, for example, if a witness observed a car accident and the witness's statement prepared for a mediation was used by one party to support his or her position in mediation, the witness would not be precluded from testifying in a subsequent trial, even if the witness' statement was protected from disclosure.” (Wimsatt, 152 Cal.App.4th at p. 157.) Defendants’ conduct would have been excusable if they had just submitted the text messages that were produced in litigation rather than submitting the entire mediation brief.

The fact that the AFSCME Judicial Panel relied only on the text messages, which were capable of being discovered and made admissible, did not make the text messages automatically discoverable or admissible and did not excuse Defendants’ violation of the Evidence Code. Defendants fails to cite any case law holding that the mediation privilege is not violated if part of the privilege material submitted to an “administrative adjudication, civil action, or other noncriminal proceeding” is capable of being discovered and admitted outside of the mediation. (Evid. Code, § 1119.) The only submission permitted in relation to a mediation is “a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.” (Evid. Code, § 1121.)

B. The Litigation Privilege is Inapplicable to Disclosure and Submission of the Mediation Brief

Lastly, the court is unpersuaded that the disclosure and submission of the mediation brief is conduct protected by the litigation privilege. The litigation privilege “applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [italics added].) The disclosure and submission of the mediation brief to the AFSCME Judicial Panel was neither required nor permitted by law. “If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 381.) Because the disclosure and submission of the mediation brief were expressly forbidden by the Evidence Code, the Defendants conduct is not protected by the litigation privilege.

Accordingly, the litigation privilege does not apply to Defendants’ disclosure and submission of the mediation brief to the AFSCME Judicial Panel. “It is in the public interest for mediation to be encouraged and used where appropriate by the courts.” (CCP § 1775(c).) The public interest would not be served by allowing the mediation privilege to be eviscerated by the litigation privilege whereby any materials made for the purpose or pursuant to mediation may be used against that party in a subsequent litigation. As explained by the California Supreme Court:

We have repeatedly noted that the mediation confidentiality provisions of the Evidence Code were enacted to encourage mediation by permitting the parties to frankly exchange views, without fear that disclosures might be used against them in later proceedings. [Citations] Toward that end, ‘the statutory scheme ... unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.’

“[T]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Equilon, supra, 29 Cal.4th at p. 61.) Because Defendants have failed to meet their burden of showing that this action arose from Defendants’ constitutionally protected speech or petitioning activity, the court need not consider whether Plaintiffs’ will be able to prevail in their claims against Defendants.

The court notes that Defendant Acosta has not filed a declaration showing compliance with the mandatory requirements of CCP § 430.41 which requires the parties to meet and confer before filing a demurrer. The court “retains the discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356, fn. 3.)

The court continues the hearing on the demurrer until after Defense counsel submits a declaration showing compliance with the meet and confer requirement.

Defendant Acosta’s special motion to strike is denied and the demurrer is continued. Defendant Acosta is ordered to file a declaration showing compliance with the meet and confer requirement. Defendants’ special motion to strike is denied. Defendants to give notice.

[1] Evid. Code § 1222 states in the relevant part: “(a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if any of the following conditions are satisfied . . . (2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation. . . .”