Judge: Gregory Keosian, Case: 23STCV16395, Date: 2023-10-25 Tentative Ruling
Case Number: 23STCV16395 Hearing Date: October 25, 2023 Dept: 61
Defendant
Kimball, Tirey & St. John, LLP’s Anti-SLAPP Motion is GRANTED
Defendant
PIH Health Good Samaritan Hospital’s Demurrer to the Complaint is SUSTAINED
without leave to amend. The motion to strike is DENIED as moot.
Defendants
to provide notice.
I.
SPECIAL
MOTION TO STRIKE
In 1992 the Legislature enacted Code of Civil
Procedure section 425.16 as a remedy for the “disturbing increase in lawsuits
brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (Code Civ.
Proc., §425.16, subd. (a); Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as
“SLAPP” lawsuits, an acronym for “strategic lawsuit against public
participation.” (Equilon Enterprises, LLC
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant
opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any
cause of action “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 . . . .” (Code
Civ. Proc., § 425.16, subd. (b)(1).) An anti-SLAPP motion may be addressed to
individual causes of action and need not be directed to the complaint as a
whole. (Shekhter v. Financial Indemnity
Co. (2001) 89 Cal.app.4th 141, 150.)
In ruling on an anti-SLAPP motion, a trial
court uses a “summary-judgment-like procedure at any early stage of the
litigation.” (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step
process. First, the defendants must show
that the acts of which the plaintiff complains were taken “in furtherance of
the [defendant]’s right of petition or free speech under the United States of
California Constitution in connection with a public issue.” (Code Civ. Proc.,
§425.16 subd. (b)(1).) Next, if the defendant carries that burden, the burden
shift to the plaintiff to demonstrate a probability of prevailing on the claim.
(Code Civ. Proc., § 425.16 subd. (b)(3).)
In making both
determinations the trial court considers “the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is
based.” (Code Civ. Proc., § 425.16, subd. (b)(2); Equilon Enterprises, supra,
29 Cal.4th at p. 67.)
Defendant Kimball,
Tirey & St. John LLP (KTS) moves to strike the Complaint filed by Plaintiff
Moné Shaw (Plaintiff) on the grounds that, to the extent any of the claims
against KTS are specifically identifiable, they derive from KTS’s alleged
service of a forged notice of hearing for an OSC re: failure to file proof of
service, and as such constitute claims arising from protected litigation
related activity and communications privileged under Civil Code § 47. (Motion
at pp. 3–6, 7–10.)
A.
PROTECTED ACTIVITY
The anti-SLAPP statute defines protected
activities as:
(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.
(Code Civ. Proc., § 425.16, subd. (e),
emphasis added.)
Courts have “have adopted a fairly expansive view of what
constitutes litigation-related activities within the scope of section 425.16.”
(Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) “Correspondence
made in anticipation of litigation “contemplated in good faith and under
serious consideration can be a petitioning activity protected by the anti-SLAPP
statute.” (Lunada Biomedical v. Nunez
(2014) 230 Cal.App.4th 459, 472.) The court is mindful that the defendant bears
the burden of making this initial showing. (See
Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
It is the “principal thrust or
gravamen of a plaintiff’s cause of action” that determines whether the
anti-SLAPP statute applies. (Contreras v.
Dowling (2016) 5 Cal.App.5th 394, 405.) This gravamen is “defined by the
acts on which liability is based, not some philosophical thrust or legal
essence of the cause of action.” (Ibid.)
Here, the Complaint against KTS
appears to derive from its service of an alleged forged notice of OSC re:
failure to file proof of service in an underlying unlawful detainer case. KTS
presents the declaration of Christopher Evans, a KTS partner, who states that
KTS was retained by CIRCA 1200, LLC to represent it in an unlawful detainer
proceeding, and that the notice of hearing was merely a filled-out LACIV 240
form served with the summons and complaint. (Evans Decl. ¶¶ 3–5.)
Defendant is correct that the
present lawsuit against it arises out of protected activity. Litigation
activity, including the service of notices prerequisite to the bringing of an
unlawful detainer suit, is protected activity under Code of Civil Procedure
§ 425.16. (See Wallace v. McCubbin (2011) 196 Cal.App.4th 1169,
1183.) The service of the notice of hearing at issue here is therefore protected,
and Plaintiff may be required to justify her claims.
B.
LIKELIHOOD OF PREVAILING
After a defendant meets their burden of
showing that the gravamen of the complaint involves protected activity, the
plaintiff must then “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.” (Matson v. Dvorak (1995) 40 Cal.App.4th
539, 548.) A defendant can meet its burden if it can establish that the
plaintiff cannot overcome an affirmative defense. (Birkner v. Lam (2007) 156 Cal.App.4th 275 at 285.)
“[A] plaintiff cannot simply rely on his or her pleadings, even if
verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Grenier
v. Taylor (2015) 234 Cal.App.4th 471, 480.)
“Legally sufficient”
means that the cause of action would satisfy a demurrer. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421.) The
evidentiary showing must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School
District (2007) 149 Cal.App.4th 1424, 1444.) Proof, however, cannot be made
by declaration based on information and belief. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497–1498.) The question
is whether the plaintiff has presented evidence in opposition to the defendant’s
motion that, if believed by the trier of fact, is sufficient to support a
judgment in the plaintiff’s favor. (Zamos
v. Stroud (2004) 32 Cal.4th 958, 965.)
Plaintiff here has filed no
opposition to the motion, and made no showing as to the legal or evidentiary
sufficiency of her claims against KTS.
The anti-SLAPP motion is
therefore GRANTED.
II.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311:
“We treat the demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. . . . Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Id. at
p. 318; see also Hahn. v. Mirda
(2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.
[Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendant PIH Health Good Samaritan Hospital (PIH) demurrers
to the Complaint on the grounds that it fails to comply with CRC Rule 2.112,
requiring the serial numbering of each cause of action and the parties by and
against which it is asserted. (Demurrer at p. 4.) PIH also argues that the
demurrer is uncertain, and fails to allege the substantive elements of a claim
for medical negligence. (Demurrer at pp. 4–5.)
PIH’s arguments are persuasive. CRC Rule 2.112 requires a
complaint to state, for each cause of action or count in a complaint, “[i]ts
number (e.g. ‘first cause of action’),” its “nature (e.g. ‘for fraud’),” and
“[t]he party or parties to whom it is directed (e.g. ‘against defendant
Smith’).” (CRC Rule 2.112.) No such information is included in the Complaint
here, as a number of legal theories are set forth with no serial numbering,
indication as to whom they are directed, or the substantive basis therefore.
Indeed, PIH is correct that the complaint as a whole is uncertain, as it is “so
incomprehensible that a defendant cannot reasonably respond.” (Mahan, supra,
14 Cal.App.5th at p. 848.)
It is reasonable to infer from the
Complaint that a medical malpractice claim is raised against PIH. However, this
claim is ill-pleaded. “The elements of a cause of action for medical
malpractice are: (1) a duty to use such skill, prudence, and diligence as other
members of the profession commonly possess and exercise; (2) a breach of the
duty; (3) a proximate causal connection between the negligent conduct and the
injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015)
239 Cal.App.4th 959, 968.) Plaintiff alleges that while at PIH, she was “denied
basic human rights, misdiagnosed, . . . and mistreated, while each medical Doe
staff ignored her pleads for medical attention, as her breathing condition
continued to deteriorate.” (Complaint at p. 11.) This allegation, without
elaboration, does not allege duty, causation, or damages.
The demurrer is therefore SUSTAINED as to all claims
alleged against PIH, without leave to amend. PIH’s concurrently filed motion to
strike the prayer for punitive damages, as well as Plaintiff’s allegation that
PIH is a public entity, is DENIED as moot.