Judge: H. Jay Ford, III, Case: 23SMCV02449, Date: 2024-03-21 Tentative Ruling

Case Number: 23SMCV02449    Hearing Date: March 21, 2024    Dept: O

  Case Name:  Alaoui v. Vaynerman, et al.

SUBJECT:                 SPECIAL MOTION TO STRIKE UNDER CCP § 425.16 (ANTI-SLAPP)

MOVING PARTY:   Defendants Deborah S. Tropp, Tracy L. Breuer, McNeil, Tropp and Braun LLP

RESP. PARTY:         Plaintiff Aziz Alaoui

TENTATIVE RULING

            Defendants Deborah S. Tropp, Tracy L. Breuer and McNeil, Tropp and Braun LLPs’ Special Motion To Strike Under CCP § 425.16 (Anti-SLAPP) as to all causes of action in Plaintiff Aziz Alaoui’s FAC is GRANTED.  Defendants meet their burden to establish Plaintiff’s claims arise from protected activity. Plaintiff does not meet his burden to show a probability of prevailing on his claims. The Court orders all one through eight causes of action in the Plaintiff’s FAC stricken as to Defendants Deborah S. Tropp, Tracy L. Breuer and McNeil, Tropp and Braun LLP.  Defendants are entitled to reasonable attorney fees and costs as the prevailing party on this motion pursuant to CCP ¶ 425.16(c)(1) to be awarded under an appropriate separate motion.

1. Anti-SLAPP First Step – Defendants Burden of Establishing Claims Arise From Protected Activity.

In the first step of the anti-SLAPP analysis, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.  The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.”  (Bonni, supra, 11 Cal.5th at p. 1009.)

“First, the moving defendant must show that the challenged claim or claims arise from the defendant's constitutionally protected free speech or petition rights. (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035.) A defendant has the “burden of identifying all allegations of protected activity” on the 1^st prong of SLAPP.”  (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5^th 924, 936-937.)  Defendant only meets this burden by demonstrating that the act underlying the plaintiff’s cause of action “fits one of the categories spelled out in section 425.16, subdivision (e).”  (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 150.)

            Defendants Deborah S. Tropp, Tracy L. Breuer, and McNeil, Tropp and Braun LLP (collectively the “MTB Defendants”) move to strike Plaintiff Aziz Alaoui’s (“Alaoui”) First Amended Complaint (“FAC”) pursuant to CCP § 425.16 (Anti-SLAPP) arguing that Alaoui’s claims arise from statements or writings made in connection with the underlying litigation at issue in the matter. (Code Civ. Proc., § 425.16, subd., (e)(2) [“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: . . . 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.].)

            The MTB Defendants show the lawsuit  arises from a prior personal injury action, entitled Aziz Alaoui v Yevgisiy Vaynerman, filed by Alaoui on March 27, 2018, Case No. BC699545, the “Underlying Litigation”.) which was dismissed on 3-6-20, and Alaoui’s Motion to Set Aside Dismissal was denied due to multiple factual inaccuracies. (Johnson Decl., ¶¶ 4–13, 18; Notice of Lodgment, Ex. A, C, I, O.) The MTB Defendants represented Yevgisiy Vaynerman in the Underlying Litigation. (Johnson Decl., ¶ 5.) The MTB Defendants state Alaoui signed a statutory offer to compromise on 11-17-21, Alaoui filed a motion to enforce a settlement agreement and enter judgment which was denied by the Court on 12-21-21, followed by Alaoui’s eventual filing of the complaint in this matter on 9-13-23. (Johnson Decl., ¶¶ 14–21, Notice of Lodgment, Ex. M, O, P, Q.) The MTB Defendants argue every fact alleged in the FAC were statements or writings made in further of the litigation in the Underlying Litgation. (Motion, p. 11.)

            The Court finds that the MTB Defendants have shown that the facts that form the basis of each of Alaoui’s FAC arise out of protected speech in furtherance of the litigation in the Underlying Litigation under CCP § 425.16(e)(2).

    II.          Anti-SLAPP Second Step – Alaoui fails to meet his burden Plaintiff’s Burden of Demonstrating a Probability of Prevailing on their Claims.

Once defendant demonstrates that a cause of action arises from protected conduct, 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.  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89.)  “The second prong of the statute deals with whether the plaintiff has “demonstrated a probability of prevailing on the claim.  Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff.  A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.  With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit.”  (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.)

“In order to establish a probability of prevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim.”  La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 470.  The “probability of prevailing” is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict.  Thus, in opposing a SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.  (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 785; Taus v. Loftus (2007) 40 Cal.4th 683, 714 [a “summary-judgment-like procedure”].)  

            Alaoui electronically filed the anti-SLAPP motion opposition at 4:58 PM on March 19, 2024, less than two days before the hearing.  Alaoui did not seek leave from the Court to file a late opposition.  More important, Alaoui did not submit any declaration or other evidence to support his opposition to the anti-SLAPP motion.  Given Alaoui's complete failure to submit any evidence to support the factual allegations of his FAC or the facts recited in his opposition, Alaoui has failed to meet his burden to show even a minimal probability of prevailing on the claims. 

In addition, the MTB Defendants show the litigation privilege is a complete bar to all of Alaoui’s causes of action.  (Motion, pp. 12–13.) “[T]he [litigation] 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.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, as modified (Mar. 12, 1990); see Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 [“Any doubt about whether the privilege applies is resolved in favor of applying it.”].)

“Civil Code section 47, subdivision (b)(2), promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests. [I]t is desirable to create an absolute privilege ... not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions.... [Citation.]” (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 171, citations omitted; see Cal. Civ. Code § 47(b)(4) [protecting any “publication or broadcast” made in in the course of a “judicial proceeding”].)

            The Court finds that all the elements of the litigation privilege are met: (1) the allegations against the MTB Defendants relate to statements or writing made in the Underlying Action (See FAC, ¶¶ 1–15, 17, 23); (2) the MTB Defendants were the opposing counsel in the underlying litigation (Johnson Decl., ¶ 5); (3) the statements and writings identified by Alaoui were made to achieve the objects of the Underlying Action (Johnson Decl., ¶¶ 4–13; Notice of Lodgment, Ex. A–I); (4) the statements and writings identified by Alaoui have a connection and logical relation to the Underlying Action. (See FAC, ¶¶ 1–15, 17, 23; see also Johnson Decl., ¶¶ 4–13; Notice of Lodgment, Ex. A–I). 

            Therefore, because the litigation privilege is a complete defense to Alaoui’s claims, and Alaoui has not presented evidence to support those claims, the Court finds that Alaoui has not met his burden to show a probability of prevailing on the claims against the MTB Defendants.