Judge: Joseph Lipner, Case: 20STCV20469, Date: 2024-02-01 Tentative Ruling

Case Number: 20STCV20469    Hearing Date: February 1, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Brittany Littleton moves to strike the fourth cause of action of the First Amended Complaint (“FAC”) filed by Plaintiff Elliot Haas (“Plaintiff”) under California’s anti-SLAPP statue.

The Court DENIES Littleton’s motion.

Background

Plaintiff alleges that Defendants Brittany Littleton and Little Love Rescue (“Little Love”) (collectively, “Defendants”) unlawfully took away his dog Luna.

The Court takes the following information from the evidence submitted by the Littleton.   On January 24, 2020, non-party Shayla McGhee came across a row of tents along Aaron Street in Los Angeles, where Plaintiff was living. McGhee engaged in light conversation, and McGhee discovered Plaintiff’s dog, Luna. Luna was covered in dried feces and appeared to have serious injuries and an infection. McGhee asked Plaintiff if she could take Luna to a veterinarian to get her checked out. Plaintiff agreed.

McGhee took Luna to a vet, who determined that Luna had several serious conditions. Unprepared for the extreme amount of care Luna needed, McGhee reached out to an animal rescue organization – Little Love – to ask for help.

Littleton was the one who answered the phone when McGhee called Little Love. Although Little Love did not have the resources to provide for Luna’s care, Littleton gave the vet her credit card information and agreed to assume financial responsibility for Luna’s care.

Approximately a day later, the police contacted McGhee, who referred them to Littleton, regarding Luna. The police told Littleton that a man had come into the station demanding his dog back. Littleton discussed Luna’s state with the police told the police that they could give the man her contact information.

Plaintiff then contacted Littleton, and they discussed Luna’s condition and the treatment she needed. Plaintiff periodically called Littleton several times after that, going back and forth between thanking Littleton and threatening her and demanding Luna back. Plaintiff threatened to “freak out and do something bad” and later to kill Littleton and her son. (Littleton Decl. ¶ 13.) Littleton asked Plaintiff for proof of ownership of Luna, which Plaintiff never provided.

The police stopped calling Littleton. Littleton began receiving calls from an organization called Heart LA, which threatened that they would send people to protest Littleton’s unrelated business if Littleton did not “give back Luna.” (Littleton Decl. ¶ 16.)

Little Love continued taking Luna to the veterinarian, who determined that Luna would not be eligible for surgery to repair some of her injuries.

During the time when Little Love was taking Luna to the veterinarian, Littleton made a number of posts on Little Love’s social media accounts, including GoFundMe, soliciting donations to help pay for the veterinarian bills.

In February 2020, Alex Angel saw the story of Luna online and reached out to Little Love. She reached out to Little Love, offering to adopt Luna. Angel adopted Luna in early March 2020.

About a month later, Luna’s condition was still bad, and a veterinarian told Angel that he thought it was humane to euthanize Luna. Luna was euthanized shortly thereafter.

Plaintiff filed this action on May 29, 2020. The operative complaint is the FAC, which raises claims for (1) trespass to chattels; (2) conversion; (3) violation of California Penal Code, section 496, subd. (a); and (4) violation of Business and Professions Code, section 17200.

Littleton filed this motion on December 19, 2023. Plaintiff did not file an opposition.

Legal Standard

Code of Civil Procedure section 425.16 requires the court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

In assessing a defendant’s Code of Civil Procedure section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in Code of Civil Procedure section 425.16, subdivision (e). 

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[T]he 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 the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal quotations omitted.)

Discussion

Littleton moves to strike Plaintiff’s fourth cause of action for violation of Business & Professions Code, section 17200.

Protected Activity

To determine the gravamen of an alleged SLAPP, courts look to the factual basis for liability. (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1190, as modified on denial of reh'g (July 26, 2011) disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal.5th 376.)

          The anti-SLAPP statute applies to a “cause of action again 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.”  (Civ. Proc. Code § 425.16, subd. (b)(1).) The statute defines such acts to include the following:

(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).) 

Plaintiff’s fourth cause of action alleges that Defendants engaged in unfair business practices by soliciting donations “claiming that money was needed for veterinary care for Luna and misrepresenting Luna’s condition.”  (FAC ¶ 79.)  Defendants “continued to solicit from the public” on various media platforms.  (FAC ¶79.)  Plaintiff alleges that Little Love was not registered as a charitable trust. Plaintiff also alleges that statements made by Littleton “eventually authorizing Luna’s euthanasia” constituted unfair business practices. (FAC ¶ 81.)

Littleton contends that all of the foregoing constitute statements “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” under section 425.16, subdivision (e)(2) (“Subdivision (e)(2)”). Subdivision (e)(2) is the only category that Littleton raise or argues.  (See 12/19/2023 Memorandum of Points and Authorities at 3:8-9.)  Littleton does not contend that any of the other 425.16(e) subdivisions apply.  Accordingly, at the first step of the analysis—determining whether the conduct is protected under the anti-SLAPP statute—the Court considers only whether the statements at issue were “made in connection with” an issue that is under consideration or review by a “judicial body, or any other official proceeding authorized by law.”  (Civ. Proc. Code § 425.16, subd. (e)(2).)

“[A] statement is ‘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.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167.)

There are several problems with Littleton’s argument.

First, beyond listing various paragraphs of the First Amended Complaint and the request for judicial notice, Littleton has not explained or supported her argument that the allegations of the complaint fall within Subdivision (e)(2) or otherwise fall within the anti-SLAPP statute.  Littleton does not cite a single case in support of this argument or even explain the basis for her argument with any clarity. The Court is left to guess at the precise perimeters of her argument and to try on its own to find the authority that applies to it. An argument is waived if it is not supported with reasoned argument or legal authority.  (See, e.g. Central Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 718 [failure to cite legal authority may be grounds for waiver]; Kim v. Sumimoto Bank (1993) 17 Cal.App.4th 974, 979, quotation omitted. [“This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record”].) The unsupported briefing that Littleton has provided would, in the Court’s view, support a finding that Littleton has waived her argument that the anti-SLAPP statute applies.

Second, assuming for the sake of argument that Littleton has not waived this argument, Littleton lacks the legal or logical basis to support such an argument.  Littleton appears to contend that the donation requests regarding veterinary bills were made in connection with the police’s investigation of Plaintiff’s claim that Defendants stole Luna. (12/19/2023 Memorandum of Points and Authorities at 14:9-13.)  Littleton has not explained how the solicitations on behalf of Luna were made “in connection with” the substantive issues in the police investigation.  The Fourth Cause of Action at issue on this motion is not primarily based on particular statements but on the ability of Little Love Rescue to raise money at all in connection with Luna.

The allegations here do not fit any recognizable pattern of “statements” made “in connection with” a litigation.  Such statements, for example, include litigation updates describing the litigation itself.  (Contemporary Services Corp. v. Staff Pro, Inc. (152 Cal.App.4th 1043, 1055.)  The Court is unaware of case law supporting what appears to be Littleton’s argument: that the mere overlap of the general subject matter between the subject of a defendant’s statement and the subject of an “other official proceeding” (for example, here, the issue of a particular dog and its condition) is enough to implicate Subdivision (e)(2).  The donation requests that are the subject of the Fourth Cause of Action made no reference to the propriety or merits of the police investigation, the question of what the police were investigating, or which party was correct in connection with the police investigation.  The communications did not mention or concern the police investigation at all.

Third, even assuming that the issues discussed above were not problems for Littleton, the statements at issue were still not “directed to persons having some interest in the litigation” as required under the standard applicable to Subdivision (e)(2).  (Neville, supra, 160 Cal.App.4th at p. 1266.)    Defendants’ statements were not directed at persons with some interest in the police investigation, but rather, at the general public. (Contrast Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 CalApp.4th 1043, 1055 [email to customers accusing competitor of litigation-related misconduct was protected] and Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167 [statements made by the defendant, who was a court-appointed liquidator in an insolvency proceeding, to the Insurance Commissioner concerning the assets of the insolvent company were protected]. )

Even though the audience to the statements need not be a party to the proceeding, or even a potential party, there needs to be a level of specific interest in the litigation of the audience and direction of the communication. Defendants’ communications do not appear to be directed to any specific audience.  For this reason, too, Subdivision (e)(2) does not apply.   

Littleton also asserts that the reference in FAC paragraph 79 that “Defendants continued to solicit from the public” was a reference to soliciting funds necessary to pay Littleton’s legal fees.  (12/19/2023 Memorandum of Points & Authorities at 13:24-25.)  Littleton does not provide any evidentiary support for this assertion and fails to make any legal argument about her assertion.   The only legal argument she seems to make is that because the return of Luna was being considered by the police, “all of the alleged statements Littleton posted on social media that form the basis for the unfair business practices cause of action” were made in connection with the police investigation.”  Thus, this unsupported assertion does not provide a basis for the anti-SLAPP motion either.

For all these reasons, the Court denies the motion.