Judge: Lee W. Tsao, Case: 20NWCV00592, Date: 2023-04-18 Tentative Ruling
Case Number: 20NWCV00592 Hearing Date: April 18, 2023 Dept: C
MENDOZA v. CITY OF MAYWOOD, et al.
CASE NO.: 20NWCV00592
HEARING: 4/18/23
@ 1:30 PM
#4
TENTATIVE
RULING
Defendants Marquez and
Lara’s special motion to strike is GRANTED as to the 3rd cause of
action, and DENIED as to 1st and 4th causes of action.
Moving Parties to give
NOTICE.
Individual
Defendants Marquez and Lara moves to strike the 1st, 3rd,
and 4th causes of action in Plaintiff’s Second Amended Complaint pursuant to CCP § 425.16.
Judicial Notice is taken
of Plaintiffs’ exhibits. (Ev. Code §§
451-453.)
Second Amended Complaint
The relevant facts, as summarized
by Plaintiffs Jose Mendoza and LA Labs, Inc. in the Second Amended Complaint
(“SAC”) are as follows:
On September 3, 2018, Plaintiff Mendoza
visited the Maywood City Hall to speak with the Building and Planning
Department to determine the zoning on 4000 East Slauson Avenue
property (hereinafter “property”) for the proposed use of a Cannabis Testing
Laboratory for his business LA Labs, Inc. (SAC, ¶ 9.) The Cannabis Testing Laboratory,
LA Labs, Inc., only would consist of a testing laboratory and was not intended,
nor would provide retail for customers.
(Id., ¶ 10.) Plaintiff was
informed by a code officer that the property qualified for the proposed
use. (Id., ¶ 11.) Since the application process requires an
applicant to have a location prior to submitting the application, Plaintiff signed for a lease. (Id., ¶ 13.)
Between January 2019 and March 6,
2019, Mendoza met with Mayor Eddie De La Riva and Mayor Pro Tem Ricardo Lara,
who agreed to meet to discuss the project.
(SAC, ¶ 15.) On March 6, 2019 Mendoza had a lunch meeting with Defendant
Mayor Eddie De La Riva, who stated the testing laboratory project was great for
the community and encouraged Mendoza to continue the application process. (Id., ¶ 16.) On
March 16, 2019, Mendoza met with council member Heber Marquez, who demonstrated
excitement about the project; and indicated that he would demonstrate ignorance
concerning the plans so he would not be precluded from participation; he was in
support of Mendoza’s plans. (Id., ¶ 17.)
On April 2, 2019 Mendoza submitted
an application to obtain the Cannabis Testing Laboratory License. (Id., ¶ 18.)
In June or July 2019, Mendoza met Defendant Carmen Perez. (Id., ¶ 22.) Perez told Mendoza she was chair for the
planning commission. (Id.) Perez assured Mendoza the city’s concern was
with the number of cannabis dispensaries, not the testing laboratories. (Id.) Perez told Mendoza not to worry and to
follow the process. (Id.)
On September 3, 2019 at 7:00 p.m., Mendoza
was scheduled to meet with the planning commission. (Id., ¶ 25.)
On that date, Defendant Reyna Mendez, Vice Chair of the planning
commission, came to the business, “Chavelitas,” a party supply store adjacent
to the proposed location for LA Labs, Inc., and spoke to the business owner,
Blanca. (Id., ¶ 26.) Mendez told Blanca that Mendoza planned to
operate a dispensary, grow marijuana, and be open to the public whereby
dispensary customers would overwhelm the available parking; everything that
Mendez stated to Blanca was untrue and since Mendez had known the specifics
about LA Labs, Inc. at that time, Mendez knew her own statements to Blanca were
false. (Id., ¶ 26.) Blanca described to Mendoza that Mendez tried
to get her to attend the planning commission meeting at 7:00 p.m. that evening
and vote in the negative to Mendoza’s proposed plans. (Id., ¶ 27.)
On September 3, 2019 at 7:00 p.m. the city staff recommended the
planning commission to adopt and allow the cannabis facility to conduct
business from the proposed property location since the plans were in compliance
with ordinance 18-12; the Maywood staff additionally agreed to all twenty
conditions. Mendez indicated she had spoken to the neighboring businesses and
they did not approve of LA Labs, Inc. (Id.,
¶ 28.) The Planning Commission decided
to continue the hearing to September 17, 2019 so they could obtain more
information; the commission specified four requests they would like Mendoza to
address on that future date; those four items were: 1) a business plan; 2)
explanation of the chemicals used in the testing laboratory and filtration of
the water; 3) photographs of the equipment and documentation of similar
laboratories; and 4) mock-ups of sample sizes received for testing. (Id.)
Between September 8th and September
15, 2019, a Latino man between 29-34 years old, approached Mendoza and stated,
“We need three hundred and fifty thousand dollars to move your project
forward.” (Id., ¶ 31.) The man indicated by pointing toward a black
Honda Accord without plates across the street.
(Id.) The tinted window of the
car rolled down and Mendoza recognized the face of Mayor Eddie De La Riva. (Id.) Mendoza
waived at Mayor De La Riva, but De La Riva did not waive back. (Id.) At
that moment, Mendoza knew he had just been given a demand for money. (Id.)
On September 16, 2019 Mayor De La
Riva sent Mendoza a text message confronting Mendoza about obtaining signatures
of the neighboring business owners. (Id., ¶ 35.)
The text message conversation stated Mendoza had put De La Riva and
Maywood in an uncomfortable position by obtaining those signatures from the
business owners. (see Exhibit “7”). (Id.)
On September 17, 2019, Mendez returned
to the business “Chavelitas,” the party supply store owned by Blanca. (Id., ¶ 37.) Mendez tried to convince Blanca to demonstrate
non-support for LA Labs, Inc.; however, Blanca stated she supported the
business. (Id.) Blanca did not mention this encounter with
Mendez to Mendoza until days after this incident. (Id.)
On September 17, 2019, Mendoza
received an email from Maywood that included the resolution of denial. (see
Exhibit “9”). (Id., ¶ 38.) Mendoza was immediately concerned and
confused because he was supposed to have the opportunity, but did not, to
address the four items which were specifically requested when the Planning
Commission decided to continue the previous meeting. (Id.)
Although Mendoza had already
received his denial via email earlier that same day, on September 17, 2019
Mendoza attended the meeting and presented the four items for which the
commission had stated their concerns. (Id., ¶ 39.) The meeting concluded with
Mendoza still receiving a denial. (Id.,
¶ 41.) The reasons given for the denial
were different than the four factors which the parties had discussed previously.
(Id.)
The denial stated Mendoza failed to
show the facility would not be materially detrimental to the property of other
persons in the vicinity; or a menace to public health, safety, or general
welfare. (Id.) Mendoza insisted there was support for his
business and presented the signatures of the other business owners who were
supporting him, but he was accused by the commission of intimidating the
business owners to obtain the signatures. (Id., ¶ 43.)
Mendez also stated she had gone to
the business and received different statements from the owners. (Id., ¶ 46.)
Defendant Carmen Perez also spoke to neighboring businesses and stated
Mendoza had been aggressive with neighboring business owners. (Id.)
Mendez put Mendoza’s meeting on a
Facebook Live stream and threatened Mendoza that the mayor, De La Riva, was
watching. (Id., ¶ 56.)
On September 17, 2019 right after
the meeting, Mendoza sent a text message to De La Riva stating he had presented
all the items and still got denied for other reasons. (Id., ¶ 48.)
De La Riva responded Mendoza had put De La Riva and Maywood in an
uncomfortable position by acquiring those signatures. (Id.)
Due to defendant’s pre-textual
denial, Mendoza has lost a considerable amount of money and time, and his name
was tarnished throughout the City of Maywood due to the false representation
made by defendants about Mendoza, his character, and his business. Based
on these facts, Plaintiff asserts causes of action for:
1.
Civil RICO
2.
Attempted Civil Extortion
3.
Defamation, Slander Per Se
4.
IIED
On January 14, 2022, the
court struck the 2nd cause of action for Attempted Civil Extortion
against all Defendants.
Timeliness
CCP
§ 425.16 provides that a special motion to strike may be filed within 60 days
of the service of the complaint, “or, in the Court’s discretion, at any later
time upon terms it deems proper.”
Here,
Defendants Marquez and Lara were added as Does 1 and 2 on September 20,
2022. The court is not in receipt of the
proof of service, but will deem the motion filed on November 22, 2022, as
timely.
Defendants’ Burden of
Proof
The
moving party bears the initial burden of showing that the action falls within
the class of suits subject to the special motion to strike. (Matson v.
Dvorak (1995) 40 Cal.App.4th 539, 548; Dixon v. Superior Court
(1994) 30 Cal.App.4th 733, 742; Wilcox v. Superior Court (1994) 17
Cal.App.4th 809, 819.)
A
defendant may meet this burden by showing that the act which forms the basis
for the plaintiff’s suit was (1) any written or oral statement made before a
legislative, executive or judicial proceeding; (2) a 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 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 an issue of public interest. (CCP § 425.16(e); Equilon
Enterprises, supra, 29 Cal.4th at 66; Dixon, supra, 30 Cal.App.4th
at 742.)
Whether
the anti-SLAPP statute applies is determined by the “principal thrust or
gravamen” of Plaintiff’s claim. It cannot be invoked where allegations of
protected activity are only incidental to a cause of action based on
nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113
Cal.App.4th 181, 187.)
Individual
Defendants Marquez and Lara bear the burden of
establishing that Plaintiffs’ action falls within
the
class
of
suits
subject
to
the
special
motion
to
strike. Defendants contend that the 1st cause of action for
civil RICO, 3rd cause of action for Defamation, and 4th
cause of action for IIED are claims that arise from statements made in
connection with an issue under “consideration or review” by the City, and are
therefore protected. (CCP § 425.16(e)(2).)
The court finds that the 3rd
cause of action for Defamation contain statements that were made in connection
with Defendants’ exercise of their constitutional right of free speech in
connection with an issue under consideration or review by the City.
The court finds that the 1st
cause of action for civil RICO and the 4th cause of action for IIED
do not come within the purview of protected speech. “A
claim arises from protected activity when that activity underlies or forms the
basis for the claim.” (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) “[I]n ruling on an anti-SLAPP motion, courts should
consider the elements of the challenged claim and what actions by the defendant
supply those elements and consequently form the basis for liability.” (Id. at p. 1063.) Thus, “a claim may be struck
only if the speech or petitioning activity itself is the wrong complained of,
and not just evidence of liability or a step leading to some different act for
which liability is asserted.” (Id. at
1060.)
Speech
or petitioning activity that is illegal, such as extortion, is not protected by
the anti-SLAPP statute. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 305 and 316 - The rationale is that the defendant cannot make a threshold showing that
the illegal conduct falls within the purview of the statute and promotes the
statute's purpose to prevent and deter lawsuits brought primarily to chill speech.)
Here, the wrongs complained of included
a scheme to damage Mendoza and LA Labs through an extortion attempt, and resulting
emotional distress. Plaintiffs’ allegations
are not directed at Marquez and Lara’s statements alone, but the contention
that these individual Defendants were acting as part of a larger design with
the other individual Defendants to interfere with his business relationships and
extort money from him. In the Civil RICO
and IIED causes of action, plaintiffs incorporated all conspiracy and agency
allegations (SAC, ¶¶ 5-6), and alleged defendants used their authority “to
intimidate and slander plaintiff after he did not comply with their extortion demand.”
(SAC, ¶ 114; see also SAC, ¶ 86-87.) He described defendants as “co-conspirators
[who] never intended” to approve Mendoza’s business plans, but “instead sought
monetary gain from” Mendoza, causing Mendoza to suffer emotional distress. (SAC, ¶ 111.)
Mendoza’s claim is not simply that Marquez and Lara disparaged Mendoza’s
business to neighboring business owners, made statements at the planning
commission meetings, and voted to deny Mendoza’s application. Rather, his claim—the gravamen of the IIED
and RICO causes of action—is that Defendants participated in a scheme to
interfere with Mendoza’s business plans and extort money from him, which is not
protected activity.
Defendant Lara argues “there are no
allegations whatsoever tethering him to the alleged conspiracy. In fact, his
name is mentioned in just two paragraphs (¶¶ 15, 50) in the Second Amended
Complaint. In paragraph 15, Plaintiffs allege that Lara met with Mendoza and
agreed to meet with him again. (SAC, ¶ 15.) In paragraph 50, Plaintiffs allege
that Lara “was eager to vote ‘no’ and end discussion.” (SAC, ¶ 50.) Neither of
those paragraphs discuss the alleged conspiracy--much less Lara’s connection to
it.” (Reply, pp. 3-4.) Viewing the allegations as a whole, however,
Defendant Lara’s connection to the alleged conspiracy is broader than he claims. It is based upon his position as Mayor Pro
Tem, his close relationship to the other city officials named in this suit, his
agreement to meet in person with Plaintiff and Defendant De La Riva to discuss
the project, and his involvement in the planning commission meeting which
resulted in a “no” vote. The court finds
that the allegations in the SAC, taken as a whole, are sufficient to connect
Defendants Lara and Marquez to the conspiracy.
One of the objectives of the conspiracy was the attempted
extortion. Speech or petitioning activity that is illegal, such as extortion,
is not protected by the anti-SLAPP statute.
(Flatley at 316.)
Accordingly, the 1st
cause of action for civil RICO and the 4th cause of action for IIED are
not subject to the motion to strike.
The court does find,
however, that the 3rd cause of action for Defamation falls within
the class of suits subject to the special motion to strike. The gravamen of the Defamation claim is
injury suffered by Plaintiffs to their reputation, which result from the statements
made to neighboring business owners and at the planning committee meetings,
which are protected speech. Defendants have
met their initial burden regarding the 3rd cause of action.
Plaintiff’s Burden of Proof
Plaintiff now has the burden of proof to
establish a probability that he will prevail on whatever claims are asserted
against Defendants. (CCP § 425.16(b).)
The 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. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n
(2006) 136 Cal.App.4th 4464, 476.)
The 3rd cause of action
for Defamation, Slander Per Se:
Slander is an orally uttered
statement which tends to directly injure a person with respect to his
profession or business by imputing general disqualification in those respects
which the occupation peculiarly requires or that has a natural tendency to
lessen its profits which causes actual damage. (CC § 46).
Plaintiffs submit no evidence in
support of their Opposition.
Accordingly, the court finds that
Plaintiffs failed to meet their burden of establishing a probability of
prevailing on the 3rd cause of action.
The
motion is GRANTED as to the 3rd cause of action, and DENIED as to 1st
and 4th causes of action.