Judge: Lee W. Tsao, Case: 24NWCV00084, Date: 2024-03-08 Tentative Ruling
Case Number: 24NWCV00084 Hearing Date: April 11, 2024 Dept: C
B.A. v. VALDIVIA
CASE NO.: 24NWCV00084
HEARING: 04/11/24
#5
I.
Defendant GRACIELA ORTIZ’s Special Motion to
Strike the Complaint is DENIED.
II.
Defendants EFREN MARTINEZ AND GRACIELA ORTIZ’s
Demurrer to the Complaint is SUSTAINED with 30 days leave to amend.
Moving party to give notice.
This action was filed by Plaintiff B.A. on January 9, 2024.
The operative facts, as alleged, are as follows: “Billy Valdivia entered a plea
of nolo contendere and was convicted, April 8, 2021… of Penal Code section
647.6(A)(1) (annoying or molesting a child under 18 years of age) and section
25850(A) (carrying a loaded firearm on the person or in a vehicle). (Complaint
¶1.) He used the firearm to intimidate and threaten the victim. (Complaint ¶8.) “The crimes occurred in
connection with the commercial space that was turned into a political campaign
office during late 2020 and early 2021, in Huntington Park, California. The
entity ‘Yvote!’… was utilized to mobilize youth volunteers… as political
campaign workers in support of the political campaigns of Efren Martinez and
Graciela Ortiz.” (Id. ¶2.) “Graciela Ortiz is an individual and elected
official in Huntington Park….. She was at the campaign headquarters giving
instructions for canvassing and other activities on a daily basis during the
time that Plaintiff was being groomed for abuse and sexually molested in and
around Huntington Park.” (Id. ¶4.) Plaintiff alleges that “Valdivia’s conduct
occurred principally in the early weeks of 2021 while Ms. B.A. was working at
Efren Martinez’s campaign office under the instruction of Graciela Ortiz….
Billy Valdivia was involved in the media campaign, creating video advertising
for Efren Martinez and using a vehicle to drive the volunteers, including B.A.,
around the area. He would drop volunteers off… in the neighborhoods where they
were going door-to-door soliciting votes, and sometimes he would drop
volunteers back home because of the late hours.” (Id. ¶9.) “Billy Valdivia
eventually arranged to be alone in the vehicle with B.A., and sexually
assaulted and battered her there. He went so far as to create pictures and
video of his sexual battery.” (Id. ¶10.)
The Complaint asserts the following causes of action:
(1) Sexual
Assault and Battery against Defendant Billy Valdivia;
(2) Negligent
Hiring, Supervision, and Retention as to Defendants Graciela Ortiz and Efren
Martinez;
(3) Intentional
Infliction of Emotional Distress as to Defendant Billy Valdivia; and
(4) Civil
Conspiracy to Cover Up Wrongdoing as to all Defendants
Special Motion to Strike
Defendant GRACIELA ORTIZ’s (“Ortiz”) Request for Judicial
Notice is GRANTED. (Cal. Ev. Code §452.)
Defendant Ortiz moves to strike Plaintiff’s second and
fourth causes of action as to her on the basis that they constitute protected
activity for which anti-SLAPP protection applies. Ortiz specifically argues
that Plaintiff’s claims against her improperly chill her participation in local
politics.
In Opposition, Plaintiff argues that Ortiz cannot satisfy
the first prong of the anti-SLAPP statute and that Plaintiff can meet her
burden on the second prong of the anti-SLAPP statute.
CCP §425.16(b)(1) requires the
Court to engage in a two-step process. First, the Court decides whether the
moving Defendants have made a threshold showing that the challenged causes of
action arise 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. If the Court
finds such a showing has been made, the burden then shifts to the Plaintiff,
who must demonstrate a probability of prevailing on the merits of his claims. (Equillion
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
A defendant meets their burden on
the first prong by demonstrating the act underlying the plaintiff’s cause is
protected activity—that it fits one of the four categories identified by CCP
§425.16(e). The four categories are: (1) statements or writings made before a
legislative, executive, or judicial or other official proceeding; (2)
statements or writings made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other legally
authorized proceeding; (3) statements or writing made in a place open to the
public or in a public forum, in connection with an issue of public interest;
and (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)(1-4).) Protected activity under
the statute applies to suits involving statements made during political
campaigns. (Beilson v. Sup. Ct. (1996) 44 Cal.App.4th 944, 950.) “The right
to speak on political matters is the quintessential subject of our
constitutional protections of the right of free speech.” (Matson v. Dvorak
(1995) 40 Cal.App.4th 539, 548.) However, speech or petitioning activity that
is “illegal as a matter of law,” is not constitutionally protected, and thus
cannot satisfy the first prong of the SLAPP analysis. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 320.)
In determining whether a
defendant seeking to strike a claim under the anti-SLAPP statute has made a
prima facie showing that the plaintiff’s action arises from activity protected
by statute, the critical consideration is whether the plaintiff’s cause of
action itself, and the act which the plaintiff complains of, is based on an act
taken by defendant in furtherance of his right of petition or free speech. (Philipson
& Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 357.) “The anti-SLAPP
statute’s definitional focus is not on the form of the plaintiff’s cause of
action but, rather, the defendant’s activity that gives rise to his or her
asserted liability—and whether that activity
constitutes protected speech or petitioning.” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 92.)
Ortiz is an elected
official. She denies running for office
when the alleged abuse occurred in 2021; rather, she supported other candidates
who ran in that election. (Ortiz Decl., ¶¶ 6-9.) Ortiz asserts that she, like
Plaintiff, was just another volunteer supporting a third party running for
office. Ortiz argues that her activities
during the campaign constitute protected activity in furtherance of her free
speech rights to support a political candidate and communicate with government
officers about a crime.
In determining whether Ortiz has
a meritorious Anti-SLAPP motion, we must look again at the statute. “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 … in connection with a public issue shall be subject to a
special motion to strike …” (CCP §425.16(b)(1), italics added.) Here, the gravamen of Plaintiff’s Complaint
arises from Valdivia’s illegal acts and his employment by Efren Martinez. Ortiz does not argue that Plaintiff’s causes
of action arise from her right of petition or free speech. To the contrary, Ortiz argues that
Plaintiff’s complaint has nothing to do with her. (Motion, p. 3:20-21,
“Plaintiff’s action [is] an improper SLAPP suit because it seeks to hold Ortiz
liable for the criminal conduct of another…”)
Because Ortiz does not allege that Plaintiff’s causes of action arise
from her right of petition or free speech, she cannot satisfy the first prong
under CCP §425.16. Simply put, Ortiz
cannot obtain the relief she seeks through an Anti-SLAPP motion.
Accordingly, the Motion is
DENIED.
Defendant Oritz’s Evidentiary
Objections
1.
Overruled
2.
Sustained
3.
Sustained
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Sustained
10.
Sustained
11.
Sustained
12.
Sustained
Attorney’s Fees
CCP §425.16(c) provides, in
pertinent part: “If the court finds that a special motion to strike is
frivolous or is solely intended to cause unnecessary delay, the court shall
award costs and reasonable attorney’s fees to the plaintiff prevailing on the motion,
pursuant to Section 128.5.” Frivolous means “totally and completely without
merit,” or “for the sole purpose of harassing an opposing party.” (CCP
§128.5(b)(2); Baughn v. Dept. of Forestry and Fire Protection (2016) 246
Cal.App.4th 328, 341.) This requires finding that “any reasonable attorney
would agree such motion is totally devoid of merit.” (Moore v. Shaw
(2004) 116 Cal.App.4th 182, 199.)
This request may be made by
separately noticed motion.
Demurrer
Defendants EFREN MARTINEZ and GRACIELA ORTIZ (collectively
“Defendants”) generally demur to the second and fourth causes of action.
Second
Cause of Action – Negligent Hiring, Supervision, and Retention
Defendants argue that the second cause of action is subject
to demurrer because they did not owe Plaintiff a legal duty to protect her from
the unforeseeable criminal activity of another.
“An employer may be liable to a third person for the
employer’s negligence in hiring or retaining an employee who is incompetent or
unfit.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th
1207, 1213.) “[A]n employer’s duty…is breached only when the employer knows, or
should know, facts which would warn a reasonable person that the employee
presents an undue risk of harm to third persons in light of the particular work
to be performed.” (Id. at 1213.)
Plaintiff alleges that “[i]t was known among those on the
campaign staff that Billy Valdivia had a reputation for being overly friendly
and flirtatious with the volunteers. He would hang out with some of them after
hours and purchase alcoholic beverages for them even though almost all of them
were under 21. Billy Valdivia gave special attention to vulnerable young women
and groomed them to be victims of sexual molestation…. [¶] Billy Valdivia had
been charged with weapons charges years before, and more recently he was
accused of domestic abuse…. As an employer of Billy Valdivia, all the defendants…
should have done a background check on a person who was going to be spending
substantial unsupervised time with minors….” (Complaint ¶¶23-24.)
Plaintiff fails to adequately allege a claim based on
negligent hiring against Defendants. Negligent hiring will be imposed upon an
employer if they “knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.” (Phillips
v. TLC Plumbing (2009) 172 Cal.App.4th 1133, 1139.) Here, the Complaint
contains only conclusory language that Defendants knew or should have known
that Valdivia was unfit to supervise minors.
The Complaint alleges that Valdivia was charged with weapons offenses
years ago and he was accused of domestic violence. However, the Complaint does not sufficiently
allege that Defendants were on notice of the actions alleged against Valdivia
in this action.
The demurrer is SUSTAINED with 30 days leave to amend as to
the Negligent Supervision claim.
Fourth
Cause of Action – Civil Conspiracy
“Conspiracy… is not an independent cause of action. [Cite.]
When a plaintiff otherwise states a cognizable cause of action for a civil
wrong, he or she may allege conspiracy as a basis for liability as to more than
one defendant. [Cite.]” (Faunce v. Cate (2013) 222 Cal.App.4th 166,
172-173.) “The elements of civil conspiracy are (1) the formation of a group of
two or more persons who agreed to a common plan or design to commit a tortious
act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting
damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th
191, 212.) Plaintiff does not dispute that civil conspiracy is not an
independent tort.
Accordingly, the demurrer to this cause of action is
SUSTAINED with 30 days leave of amend.