Judge: James A. Mangione, Case: 37-2022-00038397-CU-BC-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Breach of Contract/Warranty SLAPP / SLAPPback Motion Hearing 37-2022-00038397-CU-BC-CTL ST GERMAIN VS ESZLINGER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants' Special Motion to Strike Pursuant to the Anti-SLAPP Statute (CCP § 425.16) is granted.

Pursuant to CCP §425.16, the court evaluates an anti-SLAPP motion in two steps. First, the court determines whether the moving party has made a threshold showing that the challenged cause of action is one arising from protected activity, i.e., the act underlying petitioner's cause of action fits one of the categories delineated in CCP §425.16(e). (CCP §425.16 (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) The moving party bears the initial burden of establishing a prima facie showing that the challenged cause of action arises from the moving party's protected activity. (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) If the court finds that such a showing has been made, it must then determine whether the opposing party has demonstrated a probability of prevailing on the claim. (Ibid.) 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.' (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) Prong 1 Payment for legal services rendered is not a fraudulent conveyance, even if it results in 'preference of some creditors over others.' (Wyzard v. Goller (1994) 23 Cal.App.4th 1183, 1188-89.) Additionally, funding litigation activity is protected activity under the Anti-SLAPP statute. (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154 (''Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation.').) Therefore, the conduct alleged against these Defendants satisfies the first prong of the statute. Consequently, the burden is shifted to Plaintiff to show a probability of success on the merits.

Prong 2 Plaintiff has failed to show a probability of success on the merits because Judge Wohlfeil has exclusive concurrent jurisdiction over the claims asserted in the Second Amended Complaint ('SAC'). 'Under the rule of exclusive concurrent jurisdiction, 'when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.'' (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787.) Although framed as a breach of contract claim under a settlement agreement, the allegations giving rise to Plaintiff's claims arise from attempts to collect a monetary judgment awarded in Masters United of Orange County, LLC v. Masters United I, LLC, Case No. 37-2013-00062944 Calendar No.: Event ID:  TENTATIVE RULINGS

2967504  13 CASE NUMBER: CASE TITLE:  ST GERMAIN VS ESZLINGER [IMAGED]  37-2022-00038397-CU-BC-CTL ('Underlying Case'). Here, Plaintiff's claims from alleged breaches of the settlement agreement in the Underlying Case, which Judge Wohlfeil maintains jurisdiction over pursuant to CCP § 664.6, and violations of the assignment order from the Underlying Case. (Underlying Case, ROA 361.) As such, Plaintiff has failed to show a probability of success on the merits.

Defendants' Motion to Strike and Demurrer are denied as moot.

The minute order is the order of the Court.

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