Judge Joel R Wohlfeil, Case 37-2022-00051003-CU-MC-CTL 2023-09-29 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00051003-CU-MC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 27, 2023

09/29/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Misc Complaints - Other SLAPP / SLAPPback Motion Hearing 37-2022-00051003-CU-MC-CTL NGUYEN VS DEMERY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/28/2023

The Motion (ROA # 115) of Defendants IRENE RAMIREZ and KRYSTAL MOORE ('Defendants') to strike the First Amended Complaint ('FAC') by Plaintiff VICTORJA NGUYEN ('Plaintiff'), is GRANTED.

This ruling is based on the analysis set forth below: Late Opposition Papers An opposition brief was filed on September 19, 2023, but it is not accompanied by a Proof of Service.

The reply brief notes that the opposition was not served until September 21, 2023. Therefore, the opposition was served and filed late. See Code Civ. Proc. 1005(b). The Court elects to exercise its discretion to nonetheless consider the merits of the opposition.

First Prong: Protected Activity A party seeking the protection of section 425.16 has the initial burden of establishing that the statute applies. Code Civ. Proc. 425.16(b).

Section 425.16(b)(1) requires the court to engage in a two-step process. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67-68.

First, the Court decides whether Defendant (or Cross-Defendant) has made a threshold showing that the challenged cause of action is one arising from protected activity. Id. The moving Defendant's burden is to demonstrate the acts of which Plaintiff complains were taken in furtherance of Defendant's right of petition or free speech under the United States or California Constitutions. Id. In making this determination, the 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(b)(2).

The anti-SLAPP statute's definitional focus is not the form of Plaintiff's cause of action but, rather, Defendant's activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning. Stewart v. Rolling Stone LLC (2010) 181 Cal. App. 4th 664, 679.

Section 425.16 encompasses any cause of action against a person 'arising from' any statement or Calendar No.: Event ID: TENTATIVE RULINGS

3013834 CASE NUMBER: CASE TITLE: NGUYEN VS DEMERY [IMAGED] 37-2022-00051003-CU-MC-CTL writing made in, or in connection with an issue under consideration or review by, an official proceeding or body. Code Civ. Proc. 426.16(e)(1) and (2); Briggs v. Eden Council For Hope & Opportunity (1999) 19 Cal. 4th 1106, 1113.

Communications to the police are within SLAPP because such communications are made in connection with an official proceeding authorized by law. See Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941, 942.

In this case, all of the causes of action alleged in the FAC are premised on witness statements Defendants made to police officers about the August 28, 2021 bicycle versus car collision. This speech falls under section 425.16(e)(2) such that Defendants have satisfied their burden on the first prong of the anti-SLAPP analysis.

Second Prong: Prevailing on the Merits Where a claim arises from protected activity the burden shifts to the plaintiff to establish a probability of prevailing on the merits. Code Civ. Proc. 425.16(b)(1).

Plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim in order to establish a probability of prevailing on the claim. Wilson v. Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821.

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 Plaintiff is credited.

Id.

In deciding the question of potential merit, the Court considers the pleadings and evidentiary submissions of both Plaintiff and Defendant. Id. Plaintiff, in meeting this burden, must rely on competent, admissible evidence. Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1497, 1498.

The Court's determination of the Motion cannot involve a weighing of the evidence, and the test is similar to the standard applied to evidentiary showings in summary judgment motions. Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907, 908.

Civil Code section 47 provides that '[a] privileged publication or broadcast is one made ... ¶ [i]n the proper discharge of an official duty ... ¶ ... [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law ....' Section 47(b)(5) provides the following exception: 'This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.' Section 47 is construed broadly to protect the right of litigants to the utmost freedom of access. Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal. App. 4th 1, 5.

Even a defamatory communication is absolutely immune from any tort liability if it has some relation to judicial proceedings. Id. at 5, 6.

A report to police is subject to the privilege of Civil Code section 47(b). Wang v. Hartunian (2003) 111 Cal. App. 4th 744, 749.

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3013834 CASE NUMBER: CASE TITLE: NGUYEN VS DEMERY [IMAGED] 37-2022-00051003-CU-MC-CTL Section 47(b) is a recognition that the importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal. App. 4th 1498, 1503, 1504.

Prior to 2021, the Supreme Court held the privilege was absolute and applied 'without respect to the good faith or malice of the person who made the statement.' Hagberg v. California Federal Bank (2004) 32 Cal. 4th 350, 361.

Since then, the California Legislature amended the statute, effective January 1, 2021, to make the privilege qualified. Subsection (b)(5) of the amended statute provides: 'This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.' The malice necessary to defeat a qualified privilege is 'actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff, or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights. Noel v. River Hills Wilsons, Inc. (2003) 113 Cal. App. 4th 1363, 1370.

'Although malice may not be inferred from the fact alone of the communication of a defamatory statement (Civ. Code 48), the tenor of the statement may be evidence of malice.' Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal. 2d 791, 799.

Plaintiff's late opposition consists of a memorandum with three 'exhibits' attached. These exhibits consist of four black and white photographs Plaintiff states were generated by a police body camera and a one page police report. Even assuming these documents constitute admissible evidence, they do not demonstrate that the statements made by Defendants Ramirez and Moore were false, and that these Defendants knew the statements were false or made them with reckless disregard for the truth.

Plaintiff also argues that the transcript of the audio recording ('Exhibit 2,' declaration of McKenzie N.

Hardy) is not accurate. However, this argument is not supported by evidence. And even if supported, these inaccuracies do not demonstrate malice.

As discussed above, Plaintiff's late opposition does not demonstrate the existence of malice sufficient to overcome the section 47(b) privilege. Therefore, Plaintiff has not established a probability of prevailing on the merits. On the other hand, the evidence submitted by Defendants Ramirez and Moore demonstrates an absence of malice. Their declarations state they believed their statements made in response to the police officer's questions were truthful, and were made to help in the investigation of the bicycle versus car collision.

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