Judge: Gary Y. Tanaka, Case: 22TRCP01017, Date: 2023-05-08 Tentative Ruling

Case Number: 22TRCP01017    Hearing Date: May 8, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                                             Monday, May 8, 2023

Department B                                                                                                                                             Calendar No. 5

 

PROCEEDINGS

 

Timothy Roth, et al. v. John Q. Rodgers, et al.

            22TRCV01017

1.      John Q. Rodgers’ Special Anti-SLAPP Motion to Strike

2.      Timothy Roth, et al.’s Motion for Judgment on the Pleadings  

 

 

TENTATIVE RULING

 

John Q. Rodgers’ Special Anti-SLAPP Motion to Strike is granted.

 

Timothy Roth, et al.’s Motion for Judgment on the Pleadings is denied.

 

Background

 

Plaintiffs filed the Complaint on October 26, 2022.  Plaintiffs allege the following facts.  In 2011, Defendant Rodgers and Plaintiffs agreed to purchase real property at 2601 Pacific Coast Highway, Hermosa Beach, California.  The property is developed with an office building wherein Rodgers operates his law and tax businesses.  In October 2013, Articles of Organization were filed with the California Secretary of State for 2601 PCH LLC.  Timothy Roth and John Q. Rodgers were the sole members of PCH LLC, and the LLC was formed for the purpose of purchasing the real property. Thereafter, the parties became embroiled in numerous disputes which ultimately resolved in arbitration.  The arbitration award was eventually rendered to a judgment.  Plaintiffs now allege that Defendant breached the “arbitration agreement.” Plaintiffs allege causes of action for (1) Breach of Contract and (2) Declaratory Relief.

 

Anti-SLAPP Motion to Strike

 

Defendant filed a special motion to strike the first and second 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).          

              

I.                    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.

 

Defendant argues that, in the Complaint, Plaintiffs alleged facts that implicate the anti-SLAPP statute because Plaintiffs’ causes of action arise from Defendant’s alleged wrongful conduct in connection with a judicial proceeding. Thus, Defendant contends that the causes of action arise from an act in furtherance of a person’s right to petition or free speech, including any written or oral statement or writing made before a judicial proceeding.  CCP §425.16(e)(1).

 

“It is established that the exercise of petition rights can include the filing of lawsuits.” People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317. “[A] statement is “in connection with” litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266. “The courts have repeatedly emphasized that the focus in determining whether a claim is one “arising from” protected speech or petitioning must be on the substance of [the] lawsuit....” Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 610 (internal quotation omitted).

 

Here, the gravamen of Plaintiffs’ Complaint and each cause of action directed against moving Defendant is based on allegations stemming from Defendant’s alleged act of filing a civil Complaint against Plaintiffs. Plaintiffs have alleged that the parties’ disputes were governed by the operating agreement of the LLC and that the relevant arbitration provision directed the parties to resolve the disputes through arbitration.  Thereafter, an arbitration award was rendered, and the award was memorialized into a judgment.  Then, according to Plaintiffs, Defendant filed a civil lawsuit to allegedly avoid the terms of the award.  (Complaint, ¶¶ 11-32.)  As specifically alleged by Plaintiffs: “Despite his contractual agreement that the Award was his exclusive remedy and his inability under the law to challenge the Award issued in a binding arbitration, Rodgers did not dismiss Rodgers’ Civil Complaint because he would not accept the foregoing rulings and findings in Arbitration and continued his intent to use that Complaint to seek to obtain different and inconsistent rulings. The Plaintiffs herein were named in that Complaint which was not served by Rodgers until after Award was issued. [...] They were all sued by Rodgers in Rodgers’ Civil Complaint in furtherance of Rodgers’ breach of his contractual obligations referenced above and his desired circumvention of a binding Arbitration Award[.]”  (Complaint, ¶¶ 26-28.) Plaintiffs have specifically alleged that Defendant attempted to breach the “contractual obligations” by filing and maintaining a lawsuit.  However, the filing of a lawsuit is protected activity pursuant to CCP § 425.16(e)(2).

 

Plaintiffs’ citation to Filmon.com Inc. v. Doubleverify (2019) 7 Cal.5th 133 for the proposition that Defendant failed to meet the public interest requirement of the first prong of the anti-SLAPP is unavailing. “Section 425.16 defines an “act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue,” covered by the anti-SLAPP statute and subject to an anti-SLAPP motion, as including statements or writings made before a judicial proceeding or made in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (b)(1), (e).)  Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.”  Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.

 

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

 

II.                 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 Defendant has established the first prong, Plaintiffs must establish a probability of prevailing on the merits.  See, Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74.  However, Plaintiffs fail to 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. 

 

Plaintiffs 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.  “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. Or, as otherwise stated, it exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. To achieve this end, the absolute privilege is interpreted broadly to apply to any communication, not just a publication, having ‘some relation’ to a judicial [or quasi-judicial] proceeding,” irrespective of the communication's maliciousness or untruthfulness. And judicial or quasi-judicial proceedings are defined broadly to include all kinds of truth-seeking proceedings, including administrative, legislative and other official proceedings. Further, the privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958 (internal citations and quotations omitted; emphasis in original).

 

Therefore, the alleged statements made in connection with, and during the Civil action filed by Defendant as referenced specifically in Plaintiffs’ Complaint are privileged under Civ. Code § 47(b).  The bulk of the alleged acts committed by Defendant, as referenced by Timothy Roth in the declaration submitted in opposition, deal either with acts encompassed within the underlying arbitration and/or the civil Complaint.  Thus, these statements would be privileged pursuant to the litigation privilege.

 

The Court recognizes that Plaintiffs have also alleged acts on the part of Defendant that may not fall within the litigation privilege, including alleged threats against Plaintiff Roth’s life. (Decl., Timothy Roth, ¶¶ 31, 51-53.)  However, Plaintiffs have only alleged causes of action for Breach of Contract and Declaratory Relief.  In that context, Plaintiffs specifically allege that Defendant breached the “arbitration agreement.”  However, there is uncertainty as to the purported agreement that Defendant allegedly breached.  If Plaintiffs contend that Defendant breached the underlying operating agreement, Plaintiffs have submitted no competent evidence (which is not barred by the litigation privilege) which would establish that any of the acts complained of by Plaintiffs committed by Defendant breached specific terms of the operating agreement.  Also, as an aside, the Court notes, paradoxically, any claim for breach of the operating agreement would, itself, be subject to arbitration.

 

However, if Plaintiffs are contending that Defendant has failed to comply with the terms of the judgment, which appears to be the actual theory of liability, Plaintiffs recourse would be to pursue established judgment enforcement procedures as outlined in the Code of Civil Procedure. Plaintiffs allege that Defendant’s motivation was to concoct a plan to escape the rulings of the arbitrator.  (Complaint, ¶ 14.)  As alleged by Plaintiffs: “His plan included, among others things, outright defiance of interim rulings and orders by the Arbitrator and the filing of a civil action in Los Angeles Superior Court through which he would request different and inconsistent rulings and orders than those issued by the Arbitrator simply because he did not want to be bound by the rulings the Arbitrator made.” (Id.)  Roth’s declaration is also replete with facts reciting Rodgers’ alleged actions in failing to comply with the judgment.  (Decl., Roth, ¶¶ 34-37.)  The failure to comply with the terms of a judgment, as opposed to, for example, a settlement agreement, does not in and of itself constitute a breach of “contract.”  Thus, under this theory, Plaintiffs have not alleged a legally sufficient claim.

 

Thus, for the foregoing reasons, Plaintiffs are unable to establish a probability of prevailing on the causes of action.

 

Defendant’s Special Anti-SLAPP Motion to Strike is granted.

 

Motion for Judgment on the Pleadings

 

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired.  Code Civ. Proc., § 438, subd. (f).  Except as provided by statute, the rules governing demurrers apply.  Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.  “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.”  Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  Civic Partners Stockton, LLC, supra, 218 Cal.App.4th at p. 1013.  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.”  Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.

 

Code Civ. Proc., § 438(c)(1)(A) states: “The motion provided for in this section may only be made on one of the following grounds: If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”

 

First, as noted in the Court’s ruling to Defendant’s Special Anti-SLAPP Motion to Strike, Plaintiffs have failed to state facts sufficient to constitute a cause of action against Defendant. Second, Defendant has yet to file an Answer and thus any Motion for Judgment on the Pleadings filed by a Plaintiff would be premature pursuant to the plain language of Section 438(c)(1)(A).

 

Plaintiffs’ Motion for Judgment on the Pleadings is denied.

 

Defendant is ordered to give notice of this ruling.