Judge: John C. Gastelum, Case: 22-01261326, Date: 2023-03-27 Tentative Ruling
(1) Motion for SLAPP (2) CMC
Tentative Ruling: Defendant Dominic Orozco’s special motion to strike specific allegations from Plaintiffs’ Complaint is GRANTED.
Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged. (Code Civ. Proc., 426.15(b) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67 If the defendant carries its burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384
Further, under Baral, where the relief is sought on both protected and unprotected speech, the unprotected activity is disregarded. (Id, at p. 384.) Only allegations of protected activity may be stricken, not the entire cause of action.
Here, the speech alleged by Dart defendants is set forth in the Complaint as follows:
· Paragraph 15, from Line 22 to 23: “Out of apparent anger at not being retained as a regular or payroll employee by SLS, Orozco in mid-April 2021 …”
· Paragraph 15, from Line 24 to 27: “…lodged a complaint against Doll, or the owner of the Doll property, with the City of Newport Beach. The said lodged complaint by Defendant charged that Doll had failed to obtain any permits for the building construction that SLS had been retained by Doll to perform and had been performing.”
· Paragraph 17, in its entirety: “Due to the fact that the owner of the Doll property had not, as charged by Defendant, obtained the requisite building construction permits, the City of Newport Beach ordered all construction work that SLS had been diligently performing to immediately stop, which it did”
· Paragraph 24, in its entirety: “Defendants, and Orozco in particular, intended to disrupt performance of the SLS-Doll contract by lodging a complaint to the City of Newport Beach which claimed the owner of the Doll property had failed to obtain any required permits for the construction services that SLS was providing. As a result of Orozco’s said complaint, SLS was required by the City of Newport Beach to stop all work it had been performing at the Doll property.”
Based upon the facts of the Complaint, Defendant contends the basis for anti-SLAPP protection are Code of Civil Procedure sections 425.16(e)(1) and 425.16(e)(2) .
In Opposition, Plaintiffs do not dispute that the above statements are protected activity. Instead, Plaintiffs claim Orozco’s complaint to the City of Newport Beach is not a basis for the first, or any other, cause of action. In relying on Baral vs. Schnitt (2016) 1 Cal.5th 376, 394, Plaintiffs contend these statements merely provide context and the first cause of action is not based upon these statements, but rather on Defendant’s defamatory statements set forth in Para. 25 of the Complaint.
Allegations of “protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, at 394; see, also Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060 [claim struck only if the protected activity complained of, and is not just an allegation that is evidence of liability or a step leading to some different act for which liability is asserted].)
“In the anti-SLAPP context, the critical consideration is whether the cause of action is based on defendant’s protected free speech or petitioning activity.” (TRG, Cal.Civ.Pro.Before Trial, §7:875 (emphasis in original).) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (emphasis added).) Further, as Cotati said at p. 77:
The anti-SLAPP statute cannot be read to mean that “any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002 [113 Cal.Rptr.2d 625]; see also Briggs, supra, 19 Cal.4th at p. 1114 [“arise from” means “based upon”].)
In Blackburn v. Brady (2004) 116 Cal.App.4th 670, the 4th DCA succinctly reiterates the Cotati rule [discussing the application of Code of Civil Procedure §425.16(e)] at p. 701:
However, as case authority has pointed out, section 425.16 “does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with ‘an issue under consideration or review’ in the proceeding.”
(Paul v. Friedman (2002) 95 Cal.App.4th 853, 866, 117 Cal.Rptr.2d 82; see 20th Century Ins. Co., supra, 86 Cal.App.4th at pp. 284–285, 103 Cal.Rptr.2d 71.)
Here, the 1st COA arises, at least in part, from the purported acts of free speech or petitioning activity.
As stated by Plaintiffs, the elements of a cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Pacific Gas & Electric Co. vs. Bear Stearns & Co. (1990) 50 Cal.3d. 1118, 1126.)
The first cause of action begins at Para. 21, which repeats and incorporates the allegations contained in Paras. 1-20. In addition to the portions of the Complaint cited above, Para. 18 states:
“18. In addition to abandoning the job project and interfering with SLS’s contractual relationship with Doll, the incomplete construction work that Orozco had performed at the Doll property was of poor quality or substandard and cost SLS approximately $20,000 to repair and complete.” (Emphasis added.)
More importantly, Para. 24 itself, which is part of the 1st COA states:
“Defendants, and Orozco in particular, intended to disrupt performance of the SLS-Doll contract by lodging a complaint to the City of Newport Beach which claimed the owner of the Doll property had failed to obtain any required permits for the construction services that SLS was providing. As a result of Orozco’s said complaint, SLS was required by the City of Newport Beach to stop all work it had been performing at the Doll property.” (Emphasis added.)
These allegations provide more than just context, as claimed by Plaintiff. These allegations state Defendant Orozco’s complaint to the City of Newport Beach was intended to disrupt performance of the SLS-Doll contract and, in fact, as a result of Orozco’s complaint, SLS was required by the City of Newport Beach to stop all work at the Doll property. Para. 25 goes on to state that Orozco “further intended to disrupt performance of the SLS-Doll contract by making false statements to Doll about Oliver’s competency. As a result of the false comments Orozco made about Oliver, Doll has refused to fully pay SLS for services rendered.” (Emphasis added.) Para. 26 states SLS has been harmed or incurred damages. Para. 27 concludes that “The conduct by defendants, and Orozco in particular, was a substantial factor in causing SLS’s harm or incurrence of damages.” This cause of action is not based solely on defamatory statements made by Orozco to Doll, but as alleged, this cause of action is based upon both Orozco’s complaint to the City and statements made to Doll.
Based upon the foregoing, Defendant has satisfied the first prong of the anti-SLAPP analysis. Thus, the burden shifts to Plaintiffs to show a likelihood of success on the merits.
As Plaintiffs failed to address the second prong of the anti-SLAPP analysis in their Opposition, Plaintiffs have failed to meet their burden to establish there is a probability that they will prevail on their claims.
Moving Party to give notice.