Judge: Gary Y. Tanaka, Case: 22STCV15486, Date: 2022-09-28 Tentative Ruling


Case Number: 22STCV15486    Hearing Date: September 28, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                           Wednesday, September 28, 2022

Department B                                                                                                                                              Calendar No. 5

 

 

PROCEEDINGS

 

Ned Meislin v. Sean Lamar Newman, Sr., et al.  

22STCV15486

  1. Sean Lamar Newman, Sr., et al.’s Special Anti-SLAPP Motion to Strike


TENTATIVE RULING

 

            Sean Lamar Newman, Sr., et al.’s Special Anti-SLAPP Motion to Strike is granted.

 

Background

 

            Plaintiff filed the Complaint on May 10, 2022.  Plaintiff alleges the following facts.  On May 13, 2020, Plaintiff arrived at his home but could not access his driveway because Defendant Sean Newman, Jr.’s (“Newman Jr.”) vehicle was blocking the driveway.  Defendant Newman, Jr. eventually moved the vehicle and Plaintiff was able to enter.  However, thereafter Newman, Jr. blocked the driveway again and Plaintiff was not able to leave.  Newman, Jr. ignored Plaintiff’s requests to move the vehicle. Instead, Newman, Jr. backed his vehicle into Plaintiff and struck him, and drove away.  Later, Newman, Jr. and Sean Lamar Newman, Sr. (“Lamar Sr.”) called 911, falsely reported that Newman, Jr.’s car had been vandalized by Plaintiff, and filed a false police report.  Defendants falsely reported that Plaintiff had pounded on Newman, Jr.’s vehicle and damaged it.  Plaintiff was wrongfully charged of a felony but eventually the case was dismissed. During trial, it was revealed that the damage to Newman, Jr.’s vehicle was prior damage.  Plaintiff alleges the following causes of action: 1. Negligence; 2. Libel; 3. Slander; 4. NIED; 5. IIED; 6. Abuse of Process; 7. Conspiracy to File False Police Report; 8. Assault and Battery.

 

            Defendants move for an order striking the second through seventh causes of action pursuant to Code of Civil Procedure, Section 425.16 (the “anti-SLAPP” statute). The motion is made on the grounds that the causes of action arise from acts of Defendants in furtherance of Defendant’s Constitutional rights of petition or free speech, as defined in Code of Civil Procedure § 425.16(e), and that Plaintiff cannot establish a probability that he will prevail on the causes of action.

 

            Requests for Judicial Notice

 

            Defendants’ request for judicial notice is granted pursuant to Evidence Code sections 452(c) and (d).  The Court only takes judicial notice of the existence of these documents but does not take judicial notice of the truth of any matters set forth in the documents, or, does the taking of judicial notice reflect that the documents are admissible as evidence and not subject to objections.

 

            Plaintiff’s request for judicial notice is granted pursuant to Evidence Code sections 452(d) and (h).  The Court only takes judicial notice of the existence of these documents but does not take judicial notice of the truth of any matters set forth in the documents, or, does the taking of judicial notice reflect that the documents are admissible as evidence and not subject to objections.

 

            Objections

 

            Plaintiff’s objections:

 

            Plaintiff’s objections to Defendants’ exhibits E to H are sustained.

 

            Defendants’ objections:

 

            Decl. of Alexis Galindo – Objections 1 to 9 are sustained.

 

            Request for Judicial Notice – Objections 1 to 5 are sustained.

 

            Anti-SLAPP Motion to Strike

 

            Defendant filed a special motion to strike the second through seventh causes of action of the Complaint under CCP § 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute.  “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.”  Baral v. Schnitt (2016) 1 Cal.5th 376, 393.  “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech.  It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”  Id. at 384. 

 

            “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.  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.”  Baral, 1 Cal.5th at 384 (citation omitted).  The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’  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.  ‘[C]laims with the requisite minimal merit may proceed.’”  Id. at 384-385 (citations omitted).          

 

              

  1. Conduct in Furtherance of Right of Petition or Free Speech

     

                CCP § 425.16(e) states:  “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: . . . (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.”  “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.”  City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.  The anti-SLAPP's statute focuses, not on the form of cross-complainant’s cause of action but, rather, cross-defendants' underlying activity that gives rise to the asserted liability and whether that activity constitutes protected speech or petitioning.  See Navellier v. Sletten (2002) 29 Cal.4th 82, 92.

     

                In Baral v. Schnitt (2016) 1 Cal.5th 376, the court held that an anti-SLAPP motion may be utilized to strike specific allegations of protected activity without eliminating the entire cause of action or primary right.  “By referring to a “cause of action against a person arising from any act of that person in furtherance of” the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§ 425.16(b)(1), italics added.) Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity.”  Id. at 395.

     

                The gravamen of Plaintiff’s second through seventh causes of action against moving Defendants is based on allegations stemming from Defendants’ alleged act of filing an allegedly false police report stating that Plaintiff damaged Newman, Jr.’s vehicle.

     

                Plaintiff’s second through seventh causes of action arise out of protected activity pursuant to CCP § 425.16(e)(2).  Communications made preparatory to official proceedings, including statements made to the police, are protected under the anti-SLAPP statute.  See, Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570; See, also, Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512.  The alleged statements at issue here, which specifically involve making a false police report to the Manhattan Beach Police Department, are protected under the anti-SLAPP statute. “[C]ommunications to the police are within SLAPP.  Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439, 114 Cal.Rptr.2d 69 [complaint to police is “made in connection with an official proceeding authorized by law”]; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511, 65 Cal.Rptr.3d 641 [in action by physical therapist against client alleging false report of child abuse, client's “statements to the police clearly arose from protected activity].”  Comstock v. Aber (2012) 212 Cal.App.4th 931, 941–42 (stating that statements made to the police and nurses regarding employer’s alleged sexual battery and harassment were protected).

     

                Plaintiff argues that Defendants were not engaged in protected activity because the statements were not truthful, and, therefore, illegal.  However, “conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical.  If that were the test, the statute (and the privilege) would be meaningless.”  Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910–11.  In order to lose protected status, the conduct must be illegal as a matter of law.  See, Flatley v. Mauro (2006) 39 Cal.4th 299, 316.

     

                Therefore, a case presented by plaintiff, Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703 is distinguishable. The Lefebvre Court held that filing a false criminal complaint does not constitute a protected exercise of the right of free speech.  The Court found that, instead, this act constituted illegal non-protected activity. In Lefebvre, significantly, the fact that the police report was false was uncontested.  The state of the evidence, as admitted by all parties, reflected that the police report was false.  However, in the instant action, the false nature of the police report is heavily contested by Defendants.  In addition, there was no adjudication or finding in Plaintiff’s criminal trial that the police report was false.  Complaints or communications made to the police that do not constitute illegal activity, are, in fact, protected activity within the anti-SLAPP statute. See, Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-42.  If a party could remove a matter from the first prong of the anti-SLAPP statute, simply because of his own self-serving accusations that a police report was false, despite evidence presented by the other party that the police report was not, in fact, false, this would render all the line of cases noted above meaningless.        

     

                Thus, Defendants have met their burden to establish that the challenged causes of action arise from protected activity under CCP § 425.16.  The burden, therefore, shifts to Plaintiff to establish a probability of prevailing on the cause of action.

     

  2. Probability of Prevailing on the Merits

 

“To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.  For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.”  Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74.  However, the Court must accept as true the evidence favorable to Plaintiff. See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.

 

“[Plaintiff’s] second-[prong] burden is a limited one. [He] need not prove [his] case to the court [citation]; the bar sits lower at a demonstration of ‘minimal merit’ [citation]. At this stage, [t]he 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. The plaintiff must demonstrate this probability of success with admissible evidence. The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 531 (internal citations and quotations omitted).

 

Since Defendants established the first prong, Plaintiff must establish a probability of prevailing on the merits.  See, Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74.  Plaintiff does not establish a probability of prevailing on the merits.  “To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.”  See, Id. 

 

Plaintiff cannot establish a probability of prevailing on the merits.  Civ. Code § 47(b) provides an absolute privilege for a publication made in a legislative, judicial, or official proceeding.  See, Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 780.  A communication to a governmental agency concerning possible wrongdoing is such an official proceeding.  See, Hagberg v. Cal. Fed. Bank (2004) 32 Cal.4th 350, 364.  “[T]he overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under section 47(b).  These cases explain that a statement urging law enforcement personnel to investigate another person's suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies.  Reasoning that such communications are at least preparatory to “any other official proceeding authorized by law,” (ibid.) the majority of decisions in the Courts of Appeal have held such statements to be shielded by an absolute privilege.”  Id.  “The litigation privilege gives all persons the right to report crimes to the police or an appropriate regulatory agency, even if the report is made in bad faith.”  Hansen v. California Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1546.  Therefore, as the alleged statements are privileged under Civ. Code § 47(b), Plaintiff is unable to establish a probability of prevailing on his claims.

 

In the opposition, Plaintiff relies heavily upon newly enacted Civ. Code § 47(b)(5) which states: “This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”  Civ. Code, § 47(b)(5).  However, this version of Civ. Code § 47, which reflects A.B. 1775, is effective January 1, 2021.  The statements at issue were made in May 2020. Plaintiff, however, argues that CC § 47(b)(5) should be applied retroactively.

 

“Generally, statutes operate prospectively only.  . . . No part of [this code] is retroactive, unless expressly so declared. . . . [A] retroactive application [of a statute] requires either express language or clear and unavoidable implication from the California Legislature. [T]he first rule of [statutory] construction is that legislation must be considered as addressed to the future, not to the past.... The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be 'the unequivocal and inflexible import of the terms, and the manifest intention of the legislature. . . .[T]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.”  Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840–41 (internal citations, quotations, and emphasis omitted).

 

Here, Plaintiff fails to point to anything in the language of the statute, or, in the legislative history, which expressly and clearly shows that the legislature intended that this statute would act retroactively.  Thus, under the version of CC § 47 which was effective at the time of the alleged false report, the statements made to the police would be protected by the litigation privilege.  Since the statements are privileged, Plaintiff cannot meet his burden, under the second prong of the anti-SLAPP statute, to show a probability of prevailing on the merits.

 

Thus, the anti-SLAPP motion to strike the second through seventh causes of action is granted.  Defendants requested attorneys’ fees and costs in conjunction with this motion, or at a separately noticed motion for attorneys’ fees. The Court finds that a separately noticed motion for attorneys’ fees is more appropriate so that the reasonableness of the amount of attorneys’ fees can be fully briefed.

 

Defendant is ordered to give notice of this ruling.