Judge: H. Jay Ford, III, Case: 23SMCV02764, Date: 2024-12-13 Tentative Ruling

Case Number: 23SMCV02764    Hearing Date: December 13, 2024    Dept: O

  Case Name:  Iulianelli v. Zuckerman, et al.

SUBJECT:                 SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT/PETITION PERSUANT TO CCP § 425.16 (ANTI-SLAPP)

MOVING PARTY:   Defendants Kevin V. DeSantis, James A. McFaul, Doug Gillie; Dunn DeSantis Walt & Kendrick LLP

RESP. PARTY:         Plaintiff Lisa M. Iulianelli

TENTATIVE RULING

            Defendants Kevin V. DeSantis, James A. McFaul, Doug Gillie, and Dunn DeSantis Walt & Kendrick LLPs’ SLAPP Motion is GRANTED as to find the Defendants are the prevailing party on the SLAPP motion thus entitled to attorneys’ fees and costs. Plaintiff filed a first amended complaint dismissing Defendants while the Defendants’ SLAPP motion to the original complaint was pending. Defendants are the prevailing party on the SLAPP motion, and are entitled to attorneys’ fees and costs pursuant to CCP 425.16.  Defendants are ordered to bring a separate motion for attorney’s fees.

            Defendants RJN is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.)

REASONING

            A “prevailing defendant” on a special motion to strike is “entitled to recover that defendant’s attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) The purpose of this provision is to provide the SLAPP defendant financial relief from the plaintiff’s meritless lawsuit. (Liu v. Moore (1999) 69 Cal.App.4th 745, 750 (Liu).) A defendant who is only partially successful will generally be considered to have prevailed, but not if “the results of the motion were so insignificant that [he or she] did not achieve any practical benefit from bringing the motion.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Whether a partially successful defendant achieved sufficient benefit to be a “prevailing party” is left to the discretion of the trial court and reviewed accordingly. (Ibid.)

            When a plaintiff dismisses his or her complaint while the defendant’s special motion to strike is pending, courts agree they retain jurisdiction to award fees and costs. (See, e.g., Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain);  Liu, supra, 69 Cal.App.4th at p. 752; Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456 (Tourgeman).) This is because permitting an eleventh-hour dismissal to eliminate financial liability would undermine the deterrent purpose of the anti-SLAPP statute. (See Liu, at pp. 750–751.) As set forth in Coltrain, a plaintiff’s dismissal gives rise to the presumption that the defendant prevailed. (Coltrain, supra, 66 Cal.App.4th at p. 107.)

            A trial court must consider the merits of the filed special motion to strike and ascertain whether the defendant is a “prevailing defendant” on that basis, just as it would have if the complaint had not been dismissed. (See, e.g., Tourgeman, supra, 222 Cal.App.4th at p. 1458.)

            Defendants Kevin V. DeSantis, James A. McFaul, Doug Gillie; Dunn DeSantis Walt & Kendrick LLP (collectively “DDWK”) filed their anti-SLAPP motion as to Plaintiff Lisa M. Iulianelli (“Plaintiff”) initial Complaint on 7-25-24. On 9-9-24 Plaintiff filed a first amended complaint dismissing DDWK from the complaint while the SLAPP motion was pending. Even though DDWK is no a longer party to the complaint, the Court still retains jurisdiction as to the award of attorneys’ fees and costs for the prevailing party. To determine the prevailing party, the Court must utilize the two-step analysis for anti-SLAPP motions.

I.            Anti-SLAPP Analysis

            “Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.  If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [discussing where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether 1^st step is met based on “gravamen” test; but rather must determine whether each factual bases supplies the element of claim or merely provides context].)   

a.     1^st Step of Analysis – Defendants’ Burden

            “[C]ourts 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 1009.) 

            “The moving defendant must show that the challenged claim or claims arise from the defendant's constitutionally protected free speech or petition rights.  A defendant need only make a prima facie showing at this stage.”  (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)  A defendant has the “burden of identifying all allegations of protected activity” on the first 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.)   

             Plaintiff alleges two causes of action against DDWK for (1) Violation of Privacy and (1) Negligent Supervision. DDWK argue that both the Violation of Privacy and Negligent Supervision claims are based on attaching the Arbitration Award to the Anti-SLAPP motion DDWK filed in the separate Iulianelli Superior Court Case No. 23SMCV00356 (the “Underlying Iulianelli Action”). (Motion, pp. 12–14.)  DDWK argues the filing of the motion in the underlying Iulianelli Action is based on protected activity under CCP §425.16(e)(2).  CCP §425.16(e)(2) protects communications “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.”   

            DDWK identifies their protected behavior as the filing of the Underlying Iulianelli Action which included the arbitration award at issue as an exhibit.  Plaintiff relies on the filing of the Underlying Iulianelli Action by DDWK to satisfy the essential elements of both the Violation of Privacy and Negligent Supervision claims. (See Compl., ¶¶ 4, 28, 87-88, 91, 94, 96, 98.) This litigation activity was made in connection with the Underlying Iulianelli Action. Such litigation activity qualifies as protected conduct under CCP §425.16(e)(2). (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 811 [granting Anti-SLAPP on because all conduct considered “litigation activities”]; Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113-115 [attorneys’ alleged assisting with misappropriation of settlement funds protected activity because it arose out of representation of client in the underlying litigation that led to settlement]

            DDWK establishes that Plaintiff’s complaint arises from protected conduct under CCP §425.16(e)(2), thus DDWK satisfies its burden on the first step for the Anti-SLAPP motion.  The burden therefore shifts to Plaintiff to establish the probable validity of Plaintiff’s claim. 

b.     2^nd Step of Analysis ­–Plaintiff’s Burden

            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.  (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)  “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.  Only a cause of action that lacks ‘even minimal merit' constitutes SLAPP.”  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)

            “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.)

            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”].)     

            Plaintiff fails to make even a minimal showing of facts that would support a judgment Plaintiff’s favor for either the violation of privacy or negligent supervision, and thus fails to meet their burden on the Anti-SLAPP second step. Additionally, Plaintiff filed a FAC dismissing DDWK from the complaint, thus giving “rise to the presumption that the defendant prevailed.” (Coltrain, supra, 66 Cal.App.4th at p. 107.)

            Further, DDWK is protected by the litigation privilege. The filing of the motion in the underlying action was a “publication” made in a judicial proceeding, to achieve an object of litigation, with a clear connection to the action. Even if DDWK’s motives for filing the award were with malicious intent, as alleged by the Plaintiff, the litigation privilege would still apply in this situation. “[I]t is now well established that the litigation privilege applies without regard to motives, morals, ethics or intent. The litigation privilege is simply a test of connectedness or logical relationship to litigation. [Citation.]” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1490.)

            Thus, Plaintiff fails to make a minimal prima facie showing of a probability of success on the merits and therefore fails to meet the plaintiff’s burden for the second prong of the Anti-SLAPP analysis.

            DDWK is the prevailing party on the SLAPP motion and thus entitled to attorneys’ fees pursuant to CCP § 425.16.