Judge: Gary Y. Tanaka, Case: 22TRCV00283, Date: 2022-08-23 Tentative Ruling

Case Number: 22TRCV00283    Hearing Date: August 23, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                                  Tuesday, August 23, 2022

Department B                                                                                                                                          Calendar No. 2

 

 

PROCEEDINGS

 

Kathryn D’Eliso v. American Honda Motor Co., Inc., et al.

22TRCV00283

  1. American Honda Motor Co., Inc.’s Special Anti-SLAPP Motion to Strike



TENTATIVE RULING

 

            American Honda Motor Co., Inc.’s Special Anti-SLAPP Motion to Strike is granted.

 

Background

 

            Plaintiff filed the Complaint on April 12, 2022.  Plaintiff alleges the following facts. Plaintiff purchased a Honda Pilot from Barber-Honda Bakersfield.  Plaintiff received written, express, and implied warranties from Defendant in connection with her purchase.  After five repair attempts, the vehicle continues to suffer from defects.  Plaintiff was told by Defendant’s agent that Defendant was interested in resolving the matter, but a resolution of the matter was not reached. Plaintiff alleges the following cause of action: 1. Breach of Express Warranty Under the Magnuson-Moss Warranty Act; 2. Breach of Implied Warranty of Merchantability Under the Magnuson-Moss Warranty Act; 3. Unfair Business Practices.  

 

            Defendant moves for an order striking the third cause of action pursuant to Code of Civil Procedure, Section 425.16 (the “anti-SLAPP” statute).  The motion is made on the grounds that the third cause of action arises from acts of Defendant 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 she will prevail on the cause of action.

 

            Anti-SLAPP Motion to Strike

 

            Defendant filed a special motion to strike the third cause 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.

     

                Defendant argues that the third cause of action for violation of the UCL is based on Defendant’s counsel’s discussions with Plaintiff counsel. Defendant states that, in the Complaint, Plaintiff alleges that Defendant engaged in a deceptive business practice during the prelitigation settlement discussions with Plaintiff’s attorney. Prelitigation settlement communications that is connected to an anticipated lawsuit fall within the first prong with the anti-SLAPP statute. Blanchard v. DirecTV, Inc. (2004) 123 Cal.App.4th 903, 919, 922; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.

     

                Defendant has met its burden to establish that the alleged speech arises from protected activity.  As noted above, Defendant argues that the speech was made in anticipation of litigation. “[S]ection 425.16, subdivision (e)(2), has been held to protect statements to persons who are not parties or potential parties to litigation, provided such statements are made in connection with pending or anticipated litigation.”  Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136. “[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.

     

                Here, Defendant has adequately shown that the allegations, on their face, involve certain statements made by Defendant’s agent directly to Plaintiff’s counsel which were made in connection with pending or anticipated litigation.

     

                The following are the allegations which form the foundation for Defendant’s special motion to strike the third cause of action.  “Additionally, when Plaintiff’s counsel sought to resolve this matter, agents for Defendant made the representation that they would be interested in resolving the matter.  One of Defendant’s agents offered to resolve the matter.  After attempting to negotiate a better settlement, Defendant’s agent instead created a condition by which Honda would be willing to resolve this matter, one that Plaintiff’s counsel had already informed Defendant’s agent was unacceptable.  By engaging in the misleading and deceptive conduct by offering a resolution and then creating a condition to be met to ultimately get that resolution as alleged above, Defendant has engaged in unlawful business acts and practices in violation of the UCL by violating state and federal laws including but not limited to Business and Professions code § 17500 et seq., which makes false and deceptive business acts unlawful.” (Complaint, ¶¶ 12-14, 30.)

     

                Plaintiff argues that the allegations noted above were not alleged in connection with the substantive violations of the Magnuson-Moss Warranty Act.  Instead, Plaintiff states the following: “The references to those communications are included in the Complaint not for the purpose of establishing liability under any cause of action other than the Unfair Business Practices Act claims.” (Opposition, page 3, lines 26-28, emphasis added).  In essence, Plaintiff admits and acknowledges that the allegations referenced above were the foundation, and formed the basis for, the third cause of action.  In fact, the instant motion only sought to strike the third cause of action. Plaintiff, for all practical purposes, admits that the allegations, which directly dealt with discussions between Defendant’s agent and Plaintiff’s counsel regarding “a better settlement,” were made in anticipation of litigation. In addition, the third cause of action is based solely on the alleged speech referenced above rather than the underlying Magnuson-Moss Warranty Act violations.

     

                A cause of action which is predicated on prelitigation statements or writings may be subject to an anti-SLAPP motion.  CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 271. Here, Defendant has established that the alleged statements, which both parties acknowledge were made in an attempt to resolve this dispute, related to litigation under serious contemplation.  Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 941-942.  Settlement negotiations and agreements are made “in connection with” litigation for purposes of § 425.16.  Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963.  Settlement negotiations preceding any lawsuit is considered protected under the anti-SLAPP statute.  Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1024.

     

                Thus, Defendant has met its burden to establish that the challenged cause of action arises 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).

 

Quite simply, Plaintiff submitted no evidence with her opposition.  Plaintiff “must demonstrate that her claim is legally sufficient.  And she must show that it is supported by a sufficient prima facie showing, one made with competent and admissible evidence.”  Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 159 (internal citations and quotations omitted).  Here, Plaintiff submitted no evidence, let alone competent and admissible evidence.  In addition, the litigation privilege applies to pre-lawsuit demands and settlement negotiations. Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843-44.  Thus, Plaintiff failed to meet her burden to show a probability of prevailing on the merits of her third cause of action.

 

Therefore, the anti-SLAPP motion to strike granted.

 

The Court also notes that on August 3, 2022, Plaintiff filed a First Amended Complaint. However, Plaintiff may not amend the complaint before the hearing on the anti-SLAPP motion. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280.  Thus, the First Amended Complaint filed on August 3, 2022 is ordered stricken.

 

Defendant is ordered to give notice of this ruling.