Judge Keri G. Katz, Case 37-2023-00002369-CU-DF-CTL 2023-10-11 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2023-00002369-CU-DF-CTL, Date: 2023-10-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 10, 2023

10/11/2023 09:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Defamation SLAPP / SLAPPback Motion Hearing 37-2023-00002369-CU-DF-CTL NOBILITY SD LLC VS ROCHER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Perfecte Rocher's evidentiary objections are all OVERRULED.

The court then rules as follows. Defendant Perfecte Rocher's CCP § 425.16 special motion to strike the complaint filed by Plaintiff Nobility SD, LLC is DENIED.

Pursuant to CCP § 425.16 (b)(1) 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.

Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 explains, [r]esolution of an anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon ).) Jarrow, 31 Cal.4th 728, 733.

The court addresses only the protected activity prong as the court finds this issue dispositive.

Under CCP § 425.16(e) . . . '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: (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 Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL 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.

'In deciding whether the initial 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)' Navellier v. Sletten (2002) 29 Cal.4th 82, 89. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 further explains that [a]t this first step, courts are to 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' (Park, supra, 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. (Wilson, supra, 7 Cal.5th at p. 884, 249 Cal.Rptr.3d 569, 444 P.3d 706.) Bonni , 11 Cal.5th at 1009. Bonni goes on, [i]n Baral, we addressed how a court should proceed when a plaintiff has pleaded what is sometimes loosely referred to as a ' 'mixed cause of action' ' - that is, a cause of action that rests on allegations of multiple acts, some of which constitute protected activity and some of which do not. (Baral, supra, 1 Cal.5th at p. 382, 205 Cal.Rptr.3d 475, 376 P.3d 604.) We considered and disapproved a line of cases that had held an anti-SLAPP 'motion lies only to strike an entire count as pleaded in the complaint.' (Ibid.) Such a rule would allow a plaintiff, through artful pleading, to shield particular allegations of protected activity, themselves sufficient to give rise to a claim for relief, from a motion to strike by intermingling them with unprotected acts. (Id. at pp. 387–388, 392–393, 205 Cal.Rptr.3d 475, 376 P.3d 604.) Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief - each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action - to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion. (Id. at pp. 393–395, 205 Cal.Rptr.3d 475, 376 P.3d 604.) Baral was a second-step anti-SLAPP case, but our instructions for how to handle so-called mixed causes of action began with the first step. At that stage, we said, the moving defendant must identify the acts alleged in the complaint that it asserts are protected and what claims for relief are predicated on them. In turn, a court should examine whether those acts are protected and supply the basis for any claims. It does not matter that other unprotected acts may also have been alleged within what has been labeled a single cause of action; these are 'disregarded at this stage.' (Baral, supra, 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475, 376 P.3d 604.) So long as a 'court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached' with respect to these claims. (Ibid.) Bonni, 11 Cal.5th at 1010.

The complaint alleges two causes of action – declaratory relief and slander of title. In the general allegations the complaint alleges: 19. Shortly following the termination of Rocher's work with Nobility, Rocher for the first time falsely claimed – and has since continued to falsely claim – that he is a member of Nobility.

Under the declaratory relief cause of action the complaint alleges: 24. An actual controversy has developed and presently exists between Plaintiffs and Rocher concerning whether (or not) Rocher is a member of Nobility. Plaintiffs assert that Rocher is not a member of Nobility.

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3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL Rocher asserts – falsely and without any legal or factual basis upon which to tether such an assertion – that he is a member of Nobility. And Rocher refuses to recant such assertion.

And under the slander of title cause of action the complaint alleges: 28. Rocher asserts that he is an owner of a membership interest in Nobility, casting doubt on the existing members of Nobility, as well as the ownership interests Basile and Wilson hold in Nobility.

Based on the allegations of ¶ 19, both of Nobility's causes of action arise out of Rocher's initial claim of a membership interest in Nobility ['Rocher for the first time falsely claimed'] as well as Rocher's alleged continuing statements to this effect ['and has since continued to falsely claim'].

Rocher submits evidence that Rocher's Special Interrogatory No. 1 to Nobility asks Nobility to 'Describe in detail each and every time ROCHER has claimed that he is a member of NOBILITY as alleged in paragraphs 19, 24 and 28 of YOUR COMPLAINT.' Rocher also submits evidence that, in response to Special Interrogatory No. 1, after asserting objections, Nobility states: On October 27, 2022, Rocher's legal counsel, Chet H. Olsen of Sage Law Partners, sent a letter to Plaintiff and Jules Wilson on behalf of Rocher. In the October 27, 2022 letter sent on behalf of Rocher, Rocher baselessly asserted, via his legal counsel, that Rocher: (i) has an 'ownership interest in . . .

Nobility SD LLC'; and (ii) 'maintains [a] one-third ownership in [Nobility SD, LLC.]' As recently as January 4, 2023, Rocher's legal counsel, Chet H. Olsen of Sage Law Partners, sent an email again asserting Rocher's position that Rocher maintains an ownership in Nobility SD, LLC.

Between October 27, 2022 and January 4, 2023, Rocher's legal counsel, Chet H. Olsen of Sage Law Partners, asserted – again, without any basis in law or fact – during phone calls with Plaintiff's counsel that Rocher holds a membership / ownership interest in Nobility SD, LLC.

At no time since October 27, 2022, has Rocher withdrawn his assertions to holding a membership / ownership interest in Nobility SD, LLC, or acknowledged that he does not hold any membership / ownership interest in Nobility SD, LLC, despite demand by Plaintiff that he do so.

Based on Nobility's response to Rocher's Special Interrogatory No. 1, both the original statement and the continuing statements were made by Rocher's attorney. Rocher contends that the statements alleged in the complaint and identified by Nobility in response to Rocher's Special Interrogatory No. 1 are statements 'made in connection with an issue under consideration or review by a . . . judicial body' and, as such, are protected activity under CCP § 425.16(e)(2).

In opposition Nobility argues that the October 27, 2022, letter does not qualify as protected activity.

Nobility does not raise a similar argument as to the alleged continuing statements. Under Bonni, the court is required to analyze all of the alleged acts – the original October 27, 2022, statement and the continuing statements. The court is not persuaded by Nobility's argument that it relies only on the October 27, 2022, letter to support its claims (and not the alleged continuing statements). As pled, the complaint alleges both the original statement (the October 27, 2022, letter) and that Rocher 'has since continued to falsely claim' [Cplt. ¶ 19]. A similar argument from the plaintiff was rejected by the court in Bonni.

If Bonni wishes to abandon the retaliation claims based on defamation and character assassination, he may seek to do so in an appropriate forum. But for present purposes, we will assume his complaint means what it says.

Bonni, 11 Cal.5th at 1017. The same analysis applies in this case. See also, Nirschl v. Schiller (2023) 91 Cal.App.5th 386, 404 . ['The complaint therefore has the 'primary role' in 'identifying the claims at issue' in the first anti-SLAPP step.'] Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL Nor is the court persuaded by Nobility's argument that the 'gravamen' of Nobility's complaint is a property dispute such that Nobility's claims do not arise from the October 27, 2022, letter itself. Bonni rejects this type of 'gravamen' analysis. Thus, as required under Bonni, the court evaluates both the October 27, 2022, letter and the continuing statements. Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995 sets forth the applicable analysis.

'Statements made before an 'official proceeding' or in connection with an issue under consideration or review by a ... judicial body ... are not limited to statements made after the commencement of such a proceeding.' (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 886–887, 123 Cal.Rptr.3d 736.) Statements made 'in anticipation of a court action' may be entitled to protection under the anti-SLAPP statute. (Id. at p. 887, 123 Cal.Rptr.3d 736.) ' '[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege ... [,] such statements are equally entitled to the benefits of section 425.16.' ' (Briggs, at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564.) A prelitigation communication is privileged only if it 'relates to litigation that is contemplated in good faith and under serious consideration.' (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251, 63 Cal.Rptr.3d 398, 163 P.3d 89 (Action Apartment); see Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268, 73 Cal.Rptr.3d 383.) Trinity Risk Management, 59 Cal.App.5th at 1005.

The Trinity court analyzed the pre-litigation correspondence at issue as follows.

Here, the May 30 and 31, 2018 e-mails Wahi sent to Schultz of Captive were communications made prior to Simplified's filing of its original complaint on June 11, 2018. Wahi actually copied Simplified's attorney in his May 31, 2018 followup e-mail to Schultz. Our independent review of the contents of the e-mail persuades us that Wahi's e-mail asking for documents and posing questions about the workers' compensation insurance policy are communications made in preparation for or in anticipation of litigation. The content of the communication is related to the ongoing issues between Simplified and cross-complainants. It is essentially a discovery request, but as the request for documentation was made prior to the filing of any civil complaint, it operated as an informal request for information and documents.

Approximately 11 days after sending the e-mail, Simplified filed the complaint.

. . . .

Thus, the May 30 and 31, 2018 e-mails from Wahi were ' 'communications preparatory to or in anticipation of the bringing of an action' ' (Briggs, supra, 19 Cal.4th at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564), and as such, are acts in furtherance of its constitutional right of petition and are protected activity for purposes of the anti-SLAPP statute.

Trinity, 59 Cal.App.5th at 1005. As Bailey v. Brewer (2011) 197 Cal.App.4th 781 explains, [i] determining whether a statement was made in anticipation of litigation contemplated in good faith and under serious consideration, this court may look to how this test has been applied in cases involving the litigation privilege of Civil Code section 47. (Flatley, supra, 39 Cal.4th at pp. 322–323, 46 Cal.Rptr.3d 606, 139 P.3d 2 [although the scope of § 425.16 and Civ.Code, § 47 are not identical, the latter may be used 'as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry-that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2)'].) Cases applying the litigation privilege have held that 'if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege. [Citation.]' (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919, 20 Cal.Rptr.3d 385, italics added.) Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL Bailey, 197 Cal.App.4th at 790.

In the context of the litigation privilege Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087 recognizes that it is not necessary that a party make an actual threat of litigation, but there must be ' 'a serious, good faith proposal.' ' Strawn, 30 Cal.App.5th at 1096 citing Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35. Strawn goes on to explain that 'it is not the mere threat of litigation that brings the privilege into play, but rather the actual good faith contemplation of an imminent, impending resort to the judicial system for the purpose of resolving a dispute.' Strawn, 30 Cal.App.5th at 1096 citing Edwards, 53 Cal.App.4th 35-36.

[C]ourts have also recognized that expanding anti-SLAPP protection to any statement that involves potential litigation reaches too far. Almost any dispute could potentially lead to-and so could be argued to be in 'anticipation' of-litigation. (People ex rel. Allstate Ins. Co. v. Rubin (2021) 66 Cal.App.5th 493, 499, 280 Cal.Rptr.3d 858 (Rubin) ['Prelitigation communications may constitute protected activity, but only if those communications are 'relate[d] to litigation that is contemplated in good faith and under serious consideration' ']; see Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 33, 61 Cal.Rptr.2d 518 (Edwards) ['[i]n the present litigious society, there is always at least the potential for a lawsuit any time a dispute arises between individuals or entities'].) Edwards, a litigation privilege case, has an oft-cited test. Protection of pre-litigation statements 'only arises at the point in time when litigation is no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.' (Edwards, supra, 53 Cal.App.4th at p. 39, 61 Cal.Rptr.2d 518.) Our Supreme Court, citing Edwards, has explained that 'prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration.' (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251, 63 Cal.Rptr.3d 398, 163 P.3d 89.) While applying these standards to individual cases may sometimes be difficult, common patterns have produced common results. For example, '[o]rdinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity that is protected under section 425.16.' (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293, 159 Cal.Rptr.3d 292; but see Bailey v. Brewer (2011) 197 Cal.App.4th 781, 793–795, 128 Cal.Rptr.3d 380 [even express demand letter not protected activity when potential litigation was conclusively barred by doctrine of res judicata].) Similarly, protected activity may include exhorting others to bring a lawsuit, such as by making 'communications in connection with counseling or encouraging others to sue.' (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 940, 942, 230 Cal.Rptr.3d 71 (Bel Air Internet) [anti-SLAPP prong one satisfied where defendants allegedly ' 'advised, counseled, encouraged and sought to persuade' ' employees to refuse to sign a release of potential wage and hour claims, and instead to quit and ' 'pursue employment-related lawsuits' '].) And when a dispute has moved to the point of clearly-threatened commencement of legal proceedings, accusations between parties may be litigation activity protected by the anti-SLAPP law. (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 36, 64 Cal.Rptr.3d 348 [statement that party was involved in 'conspiracy,' made in context of ongoing dispute in which 'attorney threatened to file a lawsuit' and ' 'apprised' ... what would be contained in that lawsuit when filed' was protected conduct].) However, in negotiations before litigation has commenced, the mere fact that litigation is possible-or even likely-if negotiations fail is not enough. 'When a cause of action arises from conduct that is a 'necessary prerequisite' to litigation, but that will lead to litigation only if negotiations fail, then future litigation is merely theoretical rather than anticipated and the conduct is therefore not protected prelitigation activity.' (Olivares v. Pineda (2019) 40 Cal.App.5th 343, 358, 253 Cal.Rptr.3d 213.) 'The critical point ... is that the mere potential or 'bare possibility' that judicial proceedings 'might be instituted' in the future is insufficient.' (Edwards, supra, 53 Cal.App.4th at p. 36, 61 Cal.Rptr.2d 518.) Nirschl v. Schiller (2023) 91 Cal.App.5th 386, 401–403. Nirschl goes on, Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL [t]hese cases also hold that one side's subjective belief that negotiations will fail or that litigation will likely occur is insufficient, standing alone, to transform statements made in a pre-litigation negotiation into protected activity. (See Anapol, supra, 211 Cal.App.4th at p. 829, 150 Cal.Rptr.3d 224 [holding attorney's belief that submission of claim was unlikely to settle dispute, but was instead likely to result in litigation, insufficient to make claim automatically protected by anti-SLAPP law, explaining that 'an insurance claim cannot be transformed from a simple claim for payment submitted in the usual course of business into protected prelitigation conduct solely on the basis of the subjective intent of the attorney submitting the claim']; Rubin, supra, 66 Cal.App.5th at p. 501, 280 Cal.Rptr.3d 858 [defendant's ' 'subjective understanding of the purpose' ' of pre-litigation communication was not enough to bring that communication within anti-SLAPP law].) Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 242 Cal.Rptr.3d 216, for example, involved an alleged breach of privacy in the context of 'an insurance claim being investigated following the dismissal of criminal charges of arson against the insured.' (Id. at p. 1097, 242 Cal.Rptr.3d 216.) The court noted that the defendants believed that the claim was likely to be denied and that litigation was 'likely' to occur as a result. (Ibid.) However, the court held that ' '[r]espondents cannot gain the protection of the [litigation] privilege to protect their own communications merely by establishing that they anticipated a potential for litigation,' ' as ' ' 'the privilege only arises at the point in time when litigation is no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.' ' ' (Ibid., quoting Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1381, 88 Cal.Rptr.2d 802.) Thus, when parties negotiate to resolve a dispute that might ultimately result in litigation-but might also be resolved without litigation-statements made in a pre-litigation negotiation are not automatically protected under the anti-SLAPP law just because they relate to 'settlement.' Nirschl, 91 Cal.App.5th at 403–404.

Nirschl in applying this analysis to the facts before the court, first looks to the complaint at issue because '[a] plaintiff's complaint ultimately defines the contours of the claims.' Nirschl, 91 Cal.App.5th at 404 citing Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.

As in Nirschl, Nobility's complaint does not allege that the October 27, 2022, letter or the continuing statements 'were made to resolve litigation – either litigation that had actually commenced, or litigation that had 'ripened into a proposed proceeding that [was] actually contemplated in good faith under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.' Nirschl, 91 Cal.App.5th at 405, citing Edwards, 53 Cal.App.4th at 39. Thus, as in Nirschl, the allegations of the complaint do not support a finding that Nobility's claims based on either the October 27, 2022, letter or the continuing statements arise from protected activity.

Nirschl directs that the court 'go beyond the pleadings and consider the additional evidence proffered by the parties.' Nirschl, 91 Cal.App.5th at 405. The court considers the text of the October 27, 2022, letter and finds the text does not support a finding that the October 27, 2022, letter 'relates to litigation that is contemplated in good faith and under serious consideration' as required under the authorities above.

Although not dispositive, there is no threat of litigation; there is no reference to litigation. Statements such as those referencing a 'breach of contract' and 'violation of the California Corporations Code' and the other statements Rocher relies on do not, without more, evidence a contemplated litigation.

Similarly, the statement that the letter 'shall not be construed as a waiver of any legal or equitable rights or remedies, all of which are expressly reserved' does not evidence a contemplated litigation. The court is not persuaded by Rocher's reliance on Nobility's attorney's response to the October 27, 2022, letter as containing the statement 'Mediation privileged.' Such reliance is unpersuasive in light of the negotiation analysis of Nischl. The court also considers the imminent threat requirement. Rocher did not file his complaint until May 1, 2023, six-months after the October 27, 2022, letter, and after Nobility first filed its complaint against Rocher. The court also considers evidence from Nobility member Paul Basile who Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL states that 'Nobility did not understand the letter to be proposing or threatening litigation' [Declaration of Paul Basile, ¶ 12] and evidence from Rocher who states to the contrary that Rocher 'retained an attorney and authorized this communication in good faith pursuit of my claims and in anticipation that we would file a lawsuit if my claims were not resolved.' [Declaration of Perfecte Rocher ¶ 27.] As Nirschl explains, at the first anti-SLAPP step, when there is a disputed evidentiary question relevant to the analysis, '[w]e do not ... weigh the evidence, but accept plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law.' (Park, supra, 2 Cal.5th at p. 1067, 217 Cal.Rptr.3d 130, 393 P.3d 905 [applying this rule to anti-SLAPP step one].) Nirschl, 91 Cal.App.5th 405–406.

Applying this standard, the court finds the evidence from Rocher insufficient to establish that Rocher is entitled to prevail as a matter of law. The court finds Rocher fails to meet his burden of establishing that Nobility's claims based on the October 27, 2022, letter arise from CCP § 425.16(e)(1) or (2) protected activity.

As required under Nirschl, the court also analyzes evidence as to the allegations of continuing statements. Again, Nobility's response to Rocher's Special Interrogatory No. 1 describes these statements as follows: As recently as January 4, 2023, Rocher's legal counsel, Chet H. Olsen of Sage Law Partners, sent an email again asserting Rocher's position that Rocher maintains an ownership in Nobility SD, LLC.

As to statements allegedly made during phone calls, the court finds Rocher fails to provide sufficient evidence as to the content and context of such phone calls. Absent such evidence, Rocher fails to establish that the statements allegedly made during the phone calls 'relates to litigation that is contemplated in good faith and under serious consideration' as required under the authorities above.

The court also considers the text of the January 4, 2023, email from counsel for Rocher to counsel for Nobility. The email reads in full: Jim- During our call, I indicated that my clients were not interested in what your client has proposed and I urged you to get a dollar figure response to the $250,000 offer. Based on what you told me, I was expecting to hear back from you with a number. Without such a counteroffer and per your email below, you are asking my clients to negotiate against themselves by lowering their own offer. They are unwilling to do this. It remains my clients' position that contributions were made to the business that were used by the LLC and its other owners. The position that ownership rights exist also remains.

I hope you can now follow up with your client and a counteroffer is presented. Otherwise, we will need to discuss other ways to address this situation.

Thank you.

As with the October 27, 2022, letter, there is no threat of litigation, there is no reference to litigation. The reference to 'other ways to address this situation' is insufficient to convey the requisite intent to pursue litigation. Although the email references settlement discussions, as Nirschl explains, 'when parties Calendar No.: Event ID: TENTATIVE RULINGS

3020981 4 CASE NUMBER: CASE TITLE: NOBILITY SD LLC VS ROCHER [IMAGED] 37-2023-00002369-CU-DF-CTL negotiate to resolve a dispute that might ultimately result in litigation-but might also be resolved without litigation-statements made in a pre-litigation negotiation are not automatically protected under the anti-SLAPP law just because they relate to 'settlement.' ' Nirschl, 91 Cal.App.5th at 404. The court finds Rocher fails to meet his burden of establishing that Nobility's claims based on the continuing statements arise from CCP § 425.16(e)(1) or (2) protected activity.

Rocher also relies on CCP § 425.16(e)(4). However, Rocher fails to establish how a dispute between Rocher and the members of Nobility as to Rocher's interest in Nobility affects the public to the degree required under subsection (e)(4). The court finds Rocher fails to establish that the alleged statements were made 'in connection with a public issue or an issue of public interest.' The court finds Rocher fails to meet his burden of establishing that Nobility's claims arise from CCP § 425.16(e)(4) protected activity.

As the court finds Rocher fails to meet Rocher's burden of establish that the allegations of Nobility's complaint arise from protected activity, the court does not reach the second prong of the analysis.

Rocher shall file a responsive pleading within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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