Judge: Gail Killefer, Case: 24STCV21056, Date: 2025-02-24 Tentative Ruling
Case Number: 24STCV21056 Hearing Date: February 25, 2025 Dept: 37
HEARING DATE: Tuesday, February 25, 2025
CASE NUMBER: 24STCV21056
CASE NAME: John Jezzini v. Hillcrest Davidson and Associates, LLC et al.
MOVING PARTY: Defendants Hillcrest Davidson
and Associates, LLC and Kenny Williams
OPPOSING PARTY: Plaintiff John Jezzini
TRIAL DATE: Not set.
PROOF OF SERVICE: OK
PROCEEDING: Special Motion to
Strike (CCP, § 425.16.)
OPPOSITION: 6 February 2025
REPLY: 13
February 2025
TENTATIVE: Defendants’ special motion to strike is
denied. Defendants are to file a responsive pleading within 10 days. The Court sets an OSC Re: Responsive Pleading
for March 14, 2025, at 8:30 a.m., and continues the Case Management Conference
to the same date and time. Defendants to
give notice.
Background
On August 15, 2024, John Jezzini (“Plaintiff”) filed a Complaint
against Hillcrest Davidson and Associates, LLC (“Hillcrest”), and Kenny
Williams (“Williams”) (collectively “Defendants”), and Does 2 to 50. The
Complaint alleges two causes of action: (1) Libel; and (2) Civil Harassment.
On December 2, 2024, Defendants filed a Special Motion to Strike
under CCP § 425.16 (“Anti-SLAPP”). Plaintiff opposes the Motion. The matter is
now before the court.
I. Legal Standard
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. (CCP § 425.16(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.) 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.)¿¿¿¿¿
II. Evidentiary Objections
Defendants’ evidentiary objections are immaterial and not in
proper form. (See Vineyard Springs Estates v. Superior Court (2004) 120
Cal.App.4th 633, 642–643, [trial courts have a duty to rule on evidentiary
objections presented in proper form]; see also CRC, rule 3.1354.) Therefore,
the court declines to rule on the objections.
Plaintiff objects to the declaration of Kenny Williams and Keith
Burkett filed in support of Defendants’ special motion to strike due to lack of
relevance, lack of foundation, and improper witness testimony. Having reviewed
the declarations, the court agrees that the declarations offer an improper
legal opinion. (Evid. Code, § 803.) The court sustains the objection to the
Declaration of Kenny Williams as to Paragraphs 2 to 7 and Paragraphs 2 to 5 of
the Declaration of Keith Burkett.
III. Discussion
A. Plaintiff’s Untimely Opposition
Defendants assert that Plaintiff’s opposition papers were untimely
filed because they were filed a day late on February 6, 2025. Although
Plaintiff’s motion is untimely, Defendants fail to state that they have been
prejudiced by the delay. The court has
the discretion to consider Plaintiff’s untimely opposition. (CRC, rule 3.1300
[the court may entertain untimely opposition “in its discretion”]; see Tate
v. Superior Court (1975) 45 Cal.App.3d 925, 930 [The court may treat the
appearance of Defense counsel at the hearing and her opposition to the motion
on its merits as a waiver of defective notice of the motion.].) Therefore, the
court considers the Plaintiff’s untimely opposition.
B. Factual Summary
This action arises from a May 30, 2024, Email sent at 9:33 a.m. by
Defendant Williams, as an agent of Defendant Hillcrest, to Plaintiff and six
individuals who work for a company with which Plaintiff is associated. (Compl.,
¶¶ 7, 8, 11, 16, Ex. A.) The Email states:
John,
I
understand now why you have an attorney handling all your debts. You have filed
bankruptcy 3 times, you have 25 tax liens for various amounts state and
federal, and you have one judgment against you for 63k. Your [sic] somebody
that just doesn’t pay his bills. You said you have an attorney put me in touch
with them.
Kenny
Williams
[
. . . ]
**This
is an attempt to collect a debt and any information obtained will be used for
that purpose.**
The information
contained in this e-mail message is intended only for the personal and
confidential use of the designated recipients. This message may be an
attorney-client communication, and as such is privileged and confidential. If
the reader of this message is not an intended recipient, you are hereby
notified that any review, use, dissemination, forwarding or copying of this
message is strictly prohibited. Please notify us immediately by reply e-mail or
telephone, and delete the original message and all attachments from your system.
(Compl., Ex. A; Jezzini Decl., ¶¶ 2, 3, Ex. A.)
Plaintiff asserts that the
statements in the Email are false and defamatory as Plaintiff has not declared
bankruptcy three times, does not have tax liens levied against him personally,
and does not have a $63,000 judgment against him. Plaintiff also claims that these statements,
by publication to third parties, have
caused serious damage to him. (Compl.,
¶¶ 12, 17.)
C. Prong 1: Does the
Alleged Wrongful Conduct Arise from 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 (Bonni I).)¿¿
Defendants assert the email arises from an act in furtherance of
the right to free speech in connection with a public issue. (CCP §
425.16(e)(3).) CCP § 425.16€ provides in relevant part:
As
used in this section, “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” includes: . . . (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 . . .
Defendants fail to cite case law finding that a company’s business
email is a place open to the public or a public forum and the debt of a private
individual is an issue of public interest. The March 30, 2024, Email contains a
disclosure that states that “this e-mail message is intended only for the
personal and confidential use of the designated recipients.” (Compl., Ex. A; Jezzini Decl., ¶¶ 2, 3, Ex.
A.) Moreover, the Email was sent to five email addresses, which Plaintiff
asserts “belong to individuals who worked for a company that I own.” (Jezzini
Decl., ¶ 3.) The disclosure at the bottom of the Email, and the fact that the
statements were made to a select group of individuals, supports a finding that
the Email was a private communication.
“Granted, private communications may qualify as protected activity
in some circumstances. [Citations.] But the private context eliminates any
possibility of protection under section 425.16, subdivision (e)(3) . . . and here makes heavier [the defendant’s]
burden of showing that, notwithstanding the private context, the alleged
statements nevertheless contributed to discussion or resolution of a public
issue for purposes of subdivision (e)(4).” (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 903 (Wilson).)
Defendants assert that statements in the Email are protected because
Defendants were “expressing their Constitutional Right to make truthful
statement as to Plaintiff’s failure to pay a debt.” (Motion, at p.
4:16-17 [emphasis original].) However, the constitutional right to free speech
alone does not make a statement protected speech under the Anti-SLAPP statute.
As the Email was made in a private context, it was not protected under CCP §
425.16(e)(3). Consequently, Defendants must show that “notwithstanding the
private context, the alleged statements nevertheless contributed to discussion
or resolution of a public issue for purposes of subdivision (e)(4).” (Wilson,
supra, 7 Cal.5th at p. 903.)
In Murray v. Tran (2020) 55 Cal.App.5th 10, the appellate court
found a private conversation was a protected activity under CCP § 425.16(e)(4)
because it related to a matter of public interest and furthered or contributed
to a public conversation or discussion on this issue.” (Id. at p. 31.)
The single category of communications that the Murray Court found was
made in the public interest, was the communication in which the defendant,
Tran, a dentist and former partner of Murray's, also a dentist, communicated to
others about Murray's level of care as a dentist. (Id. at pp. 31-16.)
Tran texted and telephoned a third dentist, Murray's boss, to tell him that
Murray's care was substandard. (Id. at pp. 34-35.) The Murray Court
found Tran's communications seeking to “protect ... patients from ‘substandard
care’ ... – made to a current employer – were directly tethered to the issue of
public interest (a dentist's competence to perform dental work) and promoted
the public conversation on that issue because they were made to a person who
had direct connection to and authority over the patient population with whom
Dr. Murray was working at the time.” (Id. at p. 35.) The other
communications were internal, private communications that did not further the
public discourse under § 425.16(e)(4) and were not protected. (Id. at
pp. 31-36.)
Defendants failed to show that the fact that Plaintiff had filed
for bankruptcy and had a judgment against him is a matter of public interest.
The fact that the Email was to a few private individuals with no responsibility
or authority over Plaintiff shows that the Email was a private
conversation. Accordingly, Defendants
did not expect the Email to further or contribute to a public conversion or
discussion about a public issue. (Murray, supra, 55 Cal.App.5th
at p. 31.) For this reason, the court finds that “[t]his case does not resemble
other cases in which speech concerning the actions of individual nonpublic
figures has been held to contribute to ongoing debate on a public controversy.”
(Wilson, supra, 7 Cal.5th at p. 903.)
Defendants rely on Aguilar v. Mandarich Law Group, LLP
(2023) 87 Cal.App.5th 607, for the proposition that a communication made in an
attempt to collect debt is a protected activity under the Anti-SLAPP statute.
However, the parties in Aguilar concede that Defendants’ claims were
protected under CCP § 425.16(e) because the allegation about the debt owed were
made in a debt collection action. (Id. at p. 607.) In Aguilar,
the plaintiff alleged that Defendants had “made false or misleading
representations in the collection action, in violation of the Rosenthal Act.” (Id.
at p. 614.) Thus, “[t]he parties’ dispute centers on the second step of the
anti-SLAPP analysis.” (Id. at p. 610.) The facts in Aguilar are
distinguishable because the false or misleading statements were made in a debt
collection action, not in an email sent to few select individuals. Nothing in Aguilar
supports the proposition that any statements made in furtherance of an
attempt to collect debt is a protected activity.
Lastly, Defendants fail to show that the statements made in the Email
were not unlawful and did not violate the Rosenthal Fair Debt Collection
Practices Act (“CFDCPA), specifically Civ. Code §§ 1788.10(c) and 1788.12(d).)
Civ. Code § 1788.10 prohibits debt collectors from attempting to
collect debt via “[t]he communication of, or threat to communicate to any
person the fact that a debtor has engaged in conduct, other than the failure to
pay a covered debt, which the debt collector knows or has reason to believe
will defame the debtor.” Civ. Code § 1788.12(d) prohibits debt collectors from
attempted to collect debt “by means of a written communication that displays or
conveys any information about the covered debt or the debtor other than the
name, address, and telephone number of the debtor and the debt collector and
that is intended both to be seen by any other person and also to embarrass the
debtor.”
The California Supreme Court has stated that conduct that is
illegal as a matter of law is not protected activity under the Anti-SLAPP
statute. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 305 [“a defendant
whose assertedly protected speech or petitioning activity was illegal as a
matter of law, and therefore unprotected by constitutional guarantees of free
speech and petition, cannot use the anti-SLAPP statute to strike the
plaintiff's complaint.”]; City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 423 [“We emphasized that section 425.16 was expressly intended to protect valid
speech and petitioning activity.”] [italics original].)
Defendants’ opposition fails to address the contention that the
May 30, 2024, Email was not a violation of the Rosenthal Fair Debt Collection
Practices Act. Moreover, while Defendants contend that bankruptcy, judgments,
and tax liens are public records accessible to the public, Defendants fail to
cite any law finding that these two facts alone make statements in the Email a
matter of public interest.
Defendants have failed to meet their initial burden of showing
that the claims fall within the class of suits subject to a special motion to
strike under CCP § 425.16. Consequently, the court does not need to address the
second prong of the Anti-SLAPP statue. (ValueRock TN Properties, LLC v. PK
II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1050 [“We therefore
conclude Defendants failed to make a threshold showing that Plaintiffs' claims
arose from activity protected under the anti-SLAPP statute. Based on this
conclusion, we need not address Plaintiffs' likelihood of prevailing under the
second prong of the anti-SLAPP analysis.”].)
The Motion is denied.
On reply, Defendants attempt to introduce evidence that the
statements in the May 30, 2024, Email are truthful. “Points raised for the
first time in a reply brief will not be considered.” (Malmstrom v.
Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320,
231.) Moreover, the evidence is immaterial because Defendants failed to meet
the first prong of the Anti-SLAPP statue.
Conclusion
Defendants’ special motion to strike is
denied. Defendants are to file a responsive
pleading
within 10 days. The Court sets an OSC Re: Responsive Pleading
for March 14, 2025, at 8:30
a.m., and continues the Case Management
Conference to the same date and time.
Defendants to
give notice.