Judge Lee W. Tsao, Case Number: 23NWCV03115, Date: 2023-12-13 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03115, Date: 2023-12-13 Tentative Ruling

Case Number: 23NWCV03115 Hearing Date: January 3, 2024 Dept: C

tirman v. tbc, et al.

CASE NO.: 23NWCV03115

HEARING: 1/3/24 @ 10:30 AM

TENTATIVE RULING

Defendant The Bicycle Casino, LP’s Special Motion to Strike pursuant to CCP § 426.16 is GRANTED.

Moving Party to give NOTICE.

Defendant The Bicycle Casino, LP (“TBC”) specially moves to strike Plaintiff Phillip Tirman’s (“Plaintiff”) Complaint pursuant to CCP § 426.16.

Background

Plaintiff alleges that his late wife, Vanessa Jung Tirman (“Decedent”), became despondent and took her own life as a result of being shown security video during a deposition of Decedent in the underlying case of Tirman v. TBC, L.P. (Los Angeles Superior Court Case No. 22STCV21242) (“the Tirman Lawsuit”) Decedent initiated the Tirman Lawsuit against Bicycle Casino based on the death of Decedent’s brother, Jonathan Jung. Decedent brought wrongful death claims asserting that her brother died as a result of injuries incurred during an altercation with security personnel at the Bicycle Casino property. Decedent alleged that the security personnel had acted improperly during the interaction between security and Decedent’s brother. During Decedent’s deposition in the Tirman Lawsuit, Bicycle Casino’s counsel showed Decedent portions of the security video showing her brother’s interaction with security personnel leading up to his death. In his Complaint filed September 27, 2023, Plaintiff brings causes of action for 1) intentional infliction of emotional distress, and 2) abuse of process.

Legal Standard

CCP § 425.16 permits 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.

The defendant bears the initial burden of showing that the plaintiff's claim is based on an act of defendant in furtherance of his right to free speech and, thus, falls within the class of suits subject to a motion to strike under CCP § 425.16.¿(Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 304.) Under CCP § 425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination.¿A defendant meets his initial burden by demonstrating that the act underlying the plaintiff’s case fits one of the categories identified in CCP § 425.16(e).¿(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)¿Subdivision (e) defines the protected acts as 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.

Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ [Citation.]” (Bonni v. St. Joseph Health System (2021) 11 Cal. 5th 995, 1009, citations omitted.) To that end, the plaintiff must present competent evidence, “that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

Discussion

TBC argues that its alleged activity was protected speech under CCP § 425.16 as a statement made in a judicial proceeding or an act in furtherance of the right to petition. The conduct which gives rise to Plaintiff’s claim was displaying a video of an alleged assault which was the subject of the underlying litigation during a deposition. This is clearly an act in furtherance of the right to petition because the conduct was during a deposition regarding the subject matter of the underlying lawsuit.

Plaintiff argues TBC’s conduct is not protected speech because the conduct was illegal. Speech or activity “must be illegal as a matter of law to defeat a defendant's showing of protected activity. The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.) “[P]laintiff bears the burden of conclusively proving the illegal conduct.” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 385.) Whether the conduct is illegal is determined by the allegations of the complaint. (See Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1046-1047; Towner v. County of Ventura (2021) 63 Cal.App.5th 761, 770-774.)

Plaintiff alleges in his Complaint that “Defendants undertook a campaign to conceal, suppress, obscure, and diminish any information about, and reporting of, Jonathan’s incident and death.” (Compl. ¶ 11.) “Defendants knew [Vanessa Tirman’s] suit threatened to expose their criminal failure to report Jonathan’s incident and death, and threatened to expose them to the criminal and civil consequences that would cascade from that misconduct.” (Compl. ¶ 12.) “Defendants directed their regular, long-time counsel to terrorize and punish Vanessa at her deposition as a means of silencing her voice, punishing her whistleblowing, and continuing Defendants’ concerted effort to conceal their criminality.” (Compl. ¶ 16.) “Defendants hoped that showing Vanessa portions of her brother’s death video would elicit an amotion reaction and prompt Vanessa [to] dismiss her lawsuit, or to say or do something that would adversely impact its standing, so as to further ensure nondisclosure, concealment, and secrecy surrounding Defendants’ criminal failure to self-report Jonathan’s death incident.” (Compl. ¶ 19.) Defendants “were scared, nervous, vexed, annoyed, and irritated by the likelihood that Jonathan’s wrongful death case, as principally advanced by Vanessa, had the potential … to expose it to criminal culpability ….” (Compl. ¶ 167.)

The Court finds that Plaintiff has not conclusively demonstrated that Defendants’ conduct was illegal. Plaintiff argues that his Complaint alleges that Defendants violated Penal Code § 136.1. Penal Code § 136.1 prohibits any person from preventing or dissuading, or attempting to prevent or dissuade, any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (Penal Code §§ 136.1(a) and (b).) Here, the alleged misconduct occurred during Decedent’s deposition when TBC’s counsel showed Decedent portions of a security video depicting the very acts at issue in the underlying Tirman lawsuit. The evidence demonstrating that this conduct is criminal is far from conclusive. The Court is sympathetic to Plaintiff’s claim that showing Vanessa Tirman the security video was traumatizing to her; however, the Court cannot find that doing so was illegal as a matter of law. TBC’s alleged conduct was protected speech within the meaning of CCP § 425.16.

The burden now shifts to Plaintiff to demonstrate at least minimal merit of his claims. “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus (2007) 40 Cal.4^th 683, 729.) “The plaintiff need only establish that his or her claim has ‘minimal merit’…to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Plaintiff’s claims are barred by the litigation privilege. “A plaintiff cannot show a probability of prevailing on the merits of a cause of action for anti-SLAPP purposes where the cause of action is barred by the litigation privilege codified in Civil Code section 47.” (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 840.) The litigation privilege “is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution.” (Moore v. Conliffe (1994) 7 Cal.4th 634, 641.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)

Here, TBC’s conduct was made in a judicial proceeding by participants authorized by law because it occurred during a deposition of Decedent by TBC’s counsel. Plaintiff argues that TBC’s conduct “did not serve to further litigation in any way ….” (Opposition p. 7.) “The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.” (Silberg, at 219-220.) “The ‘furtherance’ requirement was never intended as a test of a participant's motives, morals, ethics or intent.” (Id. at 220.) Here, showing the security video to Decedent was logically connected to the action and in furtherance of the objects of litigation because it occurred during the deposition of Decedent, the Plaintiff in the underlying Tirman lawsuit, regarding the very acts in dispute in that litigation. TBC’s alleged improper motivation or ill intention are not exceptions to the litigation privilege. The litigation privilege is absolute in nature, immunizing defendants from tort liability based upon abuse of process, intentional infliction of emotional distress and other causes of action. (Id, at 215.) The only exception to the litigation privilege to tort suits has been for malicious prosecution actions. (Id. at 216.) The litigation privilege reflects the government’s overriding interest in promoting full and free participation in official proceedings. (Id. at 214.) Towards that end, “[i]t is desirable to create an absolute privilege … not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions …” (Id.) These policy considerations compel the result reached here.

Defendant TBC’s Special Motion to Strike pursuant to CCP § 426.16 is GRANTED.