Judge: James A. Mangione, Case: 37-2023-00018771-CU-DF-CTL, Date: 2023-10-27 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - October 26, 2023
10/27/2023 09:00:00 AM C-75 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:James A Mangione
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Civil - Unlimited Defamation SLAPP / SLAPPback Motion Hearing 37-2023-00018771-CU-DF-CTL ADVANCED DEVELOPMENT VS COTE [IMAGED] CAUSAL DOCUMENT/DATE FILED:
Defendant Ben Cote's Special Motion to Strike Pursuant to C.C.P. § 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.) 'Typically, a defendant must establish the anti-SLAPP statute's applicability before the burden shifts and a plaintiff must establish a claim has sufficient merit. But only a claim that satisfies both prongs of the anti-SLAPP statute is a SLAPP, subject to being stricken under the statute. Given this and this court's inherent, primary authority over the practice of law, we may conclude a contested portion of an anti-SLAPP motion should be denied solely based on a plaintiff's showing of merit, as a sufficiently meritorious claim cannot be struck regardless of whether it arises from activity the anti-SLAPP statute protects.' (Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 872 (citations, alterations, and quotation marks omitted).) Conduct in Furtherance of Free Speech/Right to Petition The only thing that Defendant needs to show to invoke the protection of the SLAPP statute is that Plaintiff's lawsuit 'arises from' Defendant's exercise of free speech or petition rights as defined in CCP § 425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) Per CCP § 425.16(e), an '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 a place open to the public or a public forum in connection with an issue of public interest.' Here, Defendant posted a review to websites opining on the quality of work provided by a businessowner operating in California. This is unquestionably a written statement made on a public forum (the internet) in connection with an issue of public interest (the sale of work services).
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3013815 11 CASE NUMBER: CASE TITLE: ADVANCED DEVELOPMENT VS COTE [IMAGED] 37-2023-00018771-CU-DF-CTL Probability of Prevailing If the moving party establishes a prima facie case that this a SLAPP suit, then the burden shifts to the opposing party to establish a probability that it will prevail on the claim, i.e., make a prima facie showing of facts which would, if proved at trial, support a judgment in the opposing party's favor. (
Rather, the plaintiff must adduce competent, admissible evidence.' (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) The court is to 'consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc., § 425.16(b)(2).) 'Defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970 (quotation marks omitted).) Therefore, to satisfy his burden, Plaintiff must show that there is minimal merit to his claim that Defendant's statements were false. The review contains both opinions (which are not actionable) and facts (which are potentially actionable). The factual statements in the review include: (1) the project has taken over 6 months; (2) the contractor did not 'understand the basics of framing or simple math'; (3) inspectors have commented on the poor quality of the work; and (4) Defendant has paid 'tens of thousands of dollars' to fix the work done by Plaintiff. The evidence presented by Plaintiff consists of photos of the project, reviews by Defendant and other customers and an inspection report listing three items and concluding, 'Correct and Recall Inspection.' None of this evidence is sufficient to demonstrate even the minimal merit required.
Plaintiff's First Amended Complaint is dismissed with prejudice and all hearing dates are vacated.
The minute order is the order of the Court.
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