Judge: Lee W. Tsao, Case: 22NWCV01107, Date: 2023-05-09 Tentative Ruling

Case Number: 22NWCV01107    Hearing Date: May 9, 2023    Dept: C

YEH v. OXY-HEALTH, LLC, et al.

CASE NO.:  22NWCV01107

HEARING:  5/9/23 @ 1:30 PM

 

#11

TENTATIVE RULING

 

Defendants Oxy-Health and Samir Patel’s motion to strike portions of Plaintiff’s complaint pursuant to CCP § 425.16 and request for reimbursement of all fees and costs is DENIED.

 

Opposing Party to give NOTICE.

 

 

Defendants Oxy-Health and Samir Patel move to strike the “wrongful termination” and “retaliation” causes of action pursuant to CCP § 425.16.

 

Complaint

 

Plaintiff Ching Wen Yeh filed the instant action against his employers, Defendants Oxy-Health and Samir Patel.  Plaintiff alleges that “defendant OXY, and its President, PATEL, fired Plaintiff for submitting testimony and otherwise assisting in a court proceeding based on the same defendants alleged violations of California Government Code, Section 12940. Plaintiff’s testimony concerned his observations of PATEL's improper and unlawful conduct towards female employees.” (Complaint, ¶ 26.)  “Plaintiff testified that PATEL would slap the backsides of female employees in the office, would call female employees sexually charged names and refer to their body parts on the public intercom ‘... get your big ass in my office.’  Plaintiff testified that PATEL would make comments out loud about female employees’ breasts and buttocks and when he drank, he was even more inappropriate and offensive to female employees.”  (Id., ¶ 27.)  “Plaintiff’s employment was terminated on or around January 23, 2018. Plaintiff’s testimony and assistance was provided on or around August 28, 2017. On March 19, 2019, PATEL called Plaintiff and admitted that he fired Plaintiff ‘... [b]ecause you hurt me by signing that affidavit. ...’ PATEL also admitted that he is coming for Plaintiff, he is going to ruin Plaintiff financially and that he also intended to harass Plaintiff’s wife because he had the money and lawyers to do it.”  (Id., ¶ 28.)  “Plaintiff was terminated because he provided testimony and assistance in the matter of Josefina Ortiz v. Oxy-Health, LLC, Samir Patel, et al., LASC Case No. BC641771.”  (Id., ¶ 29.)  Based thereon, the Complaint asserts causes of action for:

 

1.    Wrongful Termination in violation of public policy (Gov. Code § 12940(h))

2.    Retaliation in violation of Lab. Code § 1102.5

 

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, 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.)

 

Defendants bear the burden of establishing that Plaintiff’s action falls within the class of suits subject to the special motion to strike.  Defendants contend that Plaintiff’s complaint is really a “malicious prosecution” claim, seeking recovery of fees incurred in the Federal Action, Oxy Health, LLC v. H2 Enterprises, Inc., et al., U.S.D.C. C.D. Cal. Case No. 2:18-cv-04066-MWF-AGRx.  (Motion, 1:5-7.)  Defendants seek to excise the language “forced Plaintiff to spend in excess of a hundred thousand dollars to maintain his website” as set forth in ¶ 32 of the Complaint.  (Defendant’s Motion to Strike, p. 1.)

 

Defendants concede that the thrust of their motion targets damages, not a cause of action: “even if Plaintiff’s overall theories of recovery have merit … he may not recover damages in the form of attorney’s fees incurred in defense of the Federal Action.”  (Defendant’s Reply Brief, p. 2.)  It is well established that remedies sought are not subject to a special motion to strike.  (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1392; Frieda Marlin v. Aimco Venezia (2007) 154 Cal.App.4th 154, 162.  For this reason alone, Defendants’ motion to strike is without merit. 

 

Additionally, the Complaint does not mention damages incurred in any Federal Action.  Instead, the “principal thrust or gravamen” of Plaintiff’s claim is one for wrongful termination and retaliation due to Plaintiff’s testimony against Patel in a separate employment matter involving Oxy Health.  (Complaint, ¶ 29.)  Defendants’ retaliation and/or wrongful termination of Plaintiff is not protected activity for purposes of the anti-SLAPP statute.

 

Accordingly, the motion is DENIED.

 

Any request for attorney’s fees pursuant to CCP § 425.16 may be made in a separately noticed motion.