Judge: Joel L. Lofton, Case: 23AHCV01772, Date: 2024-05-28 Tentative Ruling
Case Number: 23AHCV01772 Hearing Date: May 28, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: May 28,
2024 TRIAL DATE: No
date set.
CASE: THAONAM CUU DANG,
et al. v. PROGRESSIVE DIRECT INSURANCE COMPANY.
CASE NO.: 23AHCV01772
MOTION
MOVING PARTY: Defendant Progressive Direct Insurance
Company
RESPONDING PARTY: Plaintiffs Thaonam Cuu Dang and Mai T. Nguyen
SERVICE: Filed October 16, 2023
OPPOSITION: Filed on May 15, 2024
REPLY: Filed on May 20, 2024
RELIEF
REQUESTED
Defendant moves for an order
striking the Complaint filed by Plaintiffs Thaonam Cuu Dang and Mai T. Nguyen pursuant
to CCP § 425.16.
BACKGROUND
This action arises from alleged false
representations made during pre-litigation settlement negotiations. On August
3, 2023, Plaintiffs Thaonam Cuu Dang and Mai T. Nguyen (“Plaintiffs”) filed a
Complaint against Defendants Progressive Direct Insurance Company (“Defendant”)
and DOES 1 through 25, inclusive, alleging causes of action for: (1)
Intentional Misrepresentation; and (2) Negligent Misrepresentation.
On September 28, 2023, Defendant
filed a demurrer to the Complaint, which Defendant subsequently took off
calendar.
On October 16, 2023, Defendant filed
and served the instant Special Motion to Strike Plaintiffs’ Entire Complaint. The
motion is made on the grounds that the Complaint arises from acts protected by
the anti-SLAPP statute and Plaintiffs cannot establish a probability of
prevailing on their action.
On May 15, 2024, Plaintiffs filed an
opposition to the special motion to strike, to which Defendant replied on May
20, 2024.
TENTATIVE RULING
Defendant’s
special motion to strike is GRANTED.
REQUESTS FOR JUDUCIAL
NOTICE
The Court GRANTS Defendant’s request
for judicial notice. The Court takes judicial notice of the existence of the
respective court documents but not to the truth of the matters stated therein.
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th
97, 113.)
LEGAL STANDARD
“A special motion to strike under section 425.16—the so-called anti-SLAPP
statute—allows a defendant to seek early dismissal of a lawsuit that qualifies
as a SLAPP.” (Nygard, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)
“A cause of action against a person 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 shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd.
(b)(1).)
In analyzing an anti-SLAPP motion, a court engages in a two-step process.
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
“First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity.” (Ibid.)
“In making its determination of whether a cause of action arises from protected
activity, a 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).) “If the court finds such a showing
has been made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (Kronemyer
v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 946, internal
quotations omitted.)
DISCUSSION
Overview
Defendant
moves to strike the Complaint filed by Plaintiffs on the grounds that the acts
alleged therein arise from protected activity and Plaintiffs cannot establish a
probability of prevailing on their action. Plaintiffs contend that this action
does not arise out of a protected activity and the Complaint is legally
sufficient.
Initially,
the Court rejects Plaintiffs’ argument that Defendant did not meet and confer
prior to filing the instant motion. Plaintiff presents no legal authority
standing for the proposition that the parties must meet and confer prior to
filing a special motion to strike under CCP § 425.16. In fact, there is no meet
and confer requirement prior to filing a special motion to strike. (Code Civ.
Proc., § 435.5, subd. (d)(3).)
Pertinent
Allegations of the Complaint
The Court
finds it necessary to set forth the pertinent allegations of the Complaint. The
Complaint alleges the following: the underlying action in this case was a motor
vehicle accident involving Plaintiffs and Elton William Stingley (“Stingley”).
(Complaint, ¶ 8.) Stingley was unable to stop his vehicle and collided with
Plaintiffs’ vehicle. (Complaint, ¶ 8.) On or about February 16, 2023,
Plaintiffs filed a personal injury action against Stingley in Nguyen, et
al. v. Stingley, Case No. 23CV00394 in the Superior Court of
California, County of Santa Cruz (the “Underlying Action”). (Complaint, ¶ 9.) On
or about June 14, 2023, Plaintiffs filed an amendment to the Underlying Action
to identify Defendant as “Doe 1.” (Complaint, ¶ 10.)
On or
about June 15, 2023, the Court in the Underlying Action sustained Stingley’s
demurrer without leave to amend on the basis that the action was barred by the
statute of limitations and ordered the action dismissed. (Complaint, ¶ 11.)
Defendant was Stingley’s auto insurance carrier at the time of the underlying
motor vehicle accident. (Complaint, ¶ 12.)
From
approximately March 2021 to December 2022, Plaintiffs’ counsel was gathering
the necessary information and documentation in order to engage in substantive
pre-litigation discussions with Defendant, who was Stingley’s auto insurance
carrier at the time of the motor vehicle accident. (Complaint, ¶ 13.) Due to
the nature and extent of Plaintiffs’ injuries, Plaintiffs did not receive all
crucial information and documentation including relevant medical bills and
records relating to Plaintiffs’ injuries until December 2022. (Complaint, ¶
13.)
On or about January 27, 2023,
Plaintiffs, by and through their counsel, sent two settlement demand letters to
Defendant in connection with the motor vehicle accident. (Complaint, ¶ 14.) On or
about February 8, 2023, Plaintiffs corresponded over the phone with Lesie
Santos (“Santos”), a claims specialist at Defendant’s Pasadena office, who
indicated that Defendant would work with Plaintiffs to resolve this matter.
(Complaint, ¶ 15.) Defendant represented to Plaintiffs that it would work with
Plaintiffs to negotiate a settlement of the claims relating to the motor
vehicle accident irrespective of the statute of limitations. (Complaint, ¶ 15.)
The parties exchanged correspondence and then, abruptly, on February 16, 2023, Jennifer
Ziegler (“Zeigler”), a claims specialist lead for Defendant, sent
correspondence to Plaintiffs indicating that Defendant was no longer willing to
negotiate the matter as the statute of limitations was not tolled, which
contradicted Defendant’s stance just days earlier. (Complaint, ¶¶ 16-17.)
Plaintiffs allege that Defendant was
Stingley’s agent and was aware the statute of limitations on Plaintiffs’ claims
would ordinarily be February 8, 2023. (Complaint, ¶ 18.) Plaintiffs sent the
settlement demand letters prior to the statutory period and Defendant continued
to engage in negotiations beyond the statutory period. (Complaint, ¶ 18.)
Defendant made representations of material fact, including that it would work
with Plaintiffs, irrespective of the statute of limitations, on the claims
relating to the motor vehicle accident with the intent that Plaintiffs would
rely on said representations. (Complaint, ¶ 19.) Defendant’s representations of
material fact were false. (Complaint, ¶ 20.)
Issue
No. 1: Protected Activity
The anti-SLAPP statute is designed to
protect “(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).)
A “public interest” must be demonstrated only with respect to the activities
described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1117-1121.)
“[A] statement is made ‘in connection with’
litigation under section 425.16, subdivision (e)(2) if it relates to the
substantive issues in the litigation and is directed to persons having some
interest in the litigation.” (Greco v. Greco (2016) 2 Cal.App.5th 810,
825.) “[S]tatements, writings, and pleadings in connection with civil
litigation are covered by the anti-SLAPP statute, and that statute does not
require any showing that the litigated matter concerns a matter of public
interest.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261,
citations omitted.) “[C]ourts have adopted a fairly expansive view of what
constitutes litigation-related activities within the scope of section 425.16.”
(Id. at p. 1268, internal quotations omitted, citation omitted.)
“The anti-SLAPP protection for petitioning
activities applies not only to the filing of lawsuits, but extends to conduct
that relates to such litigation, including statements made in connection with
or in preparation of litigation.” (Kolar v. Donahue, McIntosh &
Hammerton (2006) 145 Cal.App.4th 1532, 1537.) “The constitutional right of
petition encompasses the basic act of filing litigation.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 90.) In assessing whether a complaint arises
from protected activity, a court disregards the labeling of the claim. (Hylton
v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) A court
instead “examine[s] the principal thrust or gravamen of a
plaintiff’s cause of action to determine whether the anti-SLAPP statute applies.” (Ibid., emphasis in original.) “If
the core injury-producing conduct upon which the plaintiff’s claim is premised
does not rest on protected speech or petitioning activity, collateral or
incidental allusions to protected activity will not trigger application of the
anti-SLAPP statute.” (Ibid.) “[T]he critical point is whether the
plaintiff’s cause of action itself was based on an act in furtherance of
the defendant’s right of petition or free speech.” (City of Santa Monica v.
Stewart (2005) 126 Cal.App.4th 43, 74, citations omitted.)
Communications that are preparatory or in
anticipation of bringing litigation are “entitled to the benefits of section
425.16.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) Settlement
discussions made in connection with litigation are afforded protection under
the anti-SLAPP statute. (ValueRock
TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046.) Prelitigation communications are
afforded protection “if it relates to litigation that is contemplated in good
faith and under serious consideration.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 887.) Good faith
means “a good faith intention to file a lawsuit rather than a good faith belief
in the truth of the communication.” (Ibid.)
The Court finds that the claims at issue in the Complaint arise from
protected activity. The Complaint alleges wrongful actions concerning
pre-litigation negotiations between the parties. (Complaint at pp. 3-5.) In
support of the motion, Ms. Santos provides a declaration stating that any of
the communications made by her were communications that she considered to be
made in connection with a potential lawsuit by Plaintiffs against Defendant.
(Santos Decl., ¶¶ 7-9.) The Complaint alleges that the statements at issue were
made in anticipation of litigation and constitute settlement negotiations
between the parties. (Complaint at pp. 3-5.) The gravamen of the Complaint is
allegedly false communications made during settlement discussions prior to the
initiation of litigation. These are clearly communications that were made prior
to Plaintiffs initiating litigation against Defendant. Plaintiffs’ own
Complaint concedes that the communications at issue arise from pre-litigation
negotiations. (Complaint at pp. 3-5.)
Defendant has met its burden in showing that the Complaint arises from
protected activity. The Court will now proceed with the second step of the
anti-SLAPP analysis (i.e., whether plaintiffs have established a probability of
prevailing).
Issue
No. 2: Plaintiffs’ Probability of Prevailing
Once a
defendant has shown that a cause of action arises from protected activity, the
burden shifts to plaintiff to establish a probability of prevailing in the
litigation. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 213.) “[T]he plaintiff must demonstrate that the complaint is
both legally sufficient and supported by a prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.” (Ibid., internal quotations omitted, citation omitted.) “In
opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of
the complaint, but must produce evidence that would be admissible at trial.” (Id.
at p. 212.)
The Court
finds that Plaintiffs have not established a probability of prevailing on their
claims. The declaration of Thuc Dan Ton Nu—which is the sole declaration
submitted in opposition to the motion—only states facts concerning the lack of
meet and confer efforts prior to filing of the instant motion. Plaintiffs have
submitted no evidence to substantiate the causes of action alleged in the
Complaint. Plaintiffs therefore have not and cannot meet their burden to show a
probability of prevailing given the lack of any evidence as to the sufficiency
of the causes of action set forth in the Complaint.
CONCLUSION
Based on
the foregoing, Defendant’s Special Motion to Strike Plaintiff’s Entire
Complaint is GRANTED.
Defendant
is directed to submit a judgment within 20 days.
Moving
Party to give notice.
Dated: May 28, 2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their
intention to submit. alhdeptx@lacourt.org