Judge: Lee W. Tsao, Case: 24NWCV02740, Date: 2024-11-12 Tentative Ruling
Case Number: 24NWCV02740 Hearing Date: November 12, 2024 Dept: C
Peter Gazerro vs City of
Downey, et al.
Case No.: 24NWCV02740
Hearing Date: November 12, 2024 @ 10:30 a.m.
#10
Tentative Ruling
Defendants Jennifer Dekay and Downey Patriot’s
Special Motion to Strike is GRANTED.
Defendants to give notice.
Plaintiff Peter Gazerro (“Plaintiff”) alleges that on or about April 17, 2024, Defendants Downey Patriot and
Jennifer Dekay (“Defendants”) knowingly made false allegations to Downey Police
Officers that Plaintiff had threatened Dekay, which caused Plaintiff emotional
distress. As relevant here, the
Complaint filed on August 26, 2024 asserts causes of action against Defendants for
Violation of the Bane Act (Civil Code §52.1) and Intentional Infliction of
Emotional Distress. The cause of action
for General Negligence against Defendant City of Downey is not at issue
here.
Defendants Downey Patriot and Jennifer Dekay make this
Special Motion to Strike the Second and Third Causes of Action pursuant to CCP §425.16
on the grounds that Plaintiff’s claims are barred by the doctrine of collateral
estoppel.
Plaintiff filed an untimely opposition on November 8, 2024.
Judicial Notice
Defendants
request the Court take judicial notice of: (1) the request for Civil Harassment
Restraining Orders filed by Defendant Jennifer Lynn Dekay on April 19, 2024,
Case No. 24WHR000815; and (2) the Civil Harassment
Restraining Order After Hearing issued by the Court on May 10, 2024, Case No.
24WHR000815.
The requests for judicial notice are GRANTED pursuant to
Evidence Code Sections 452, subdivision (d), (g), (h) and 453.
Legal Standard
In assessing a defendant’s section 425.16 special motion to
strike, the court must engage in a two-step process. (Shekhter v. Financial
Indem. Co. (2001) 89 Cal.App.4th 141, 150.)¿First, the court must decide
whether the defendant has met the threshold burden of showing that the
plaintiff’s cause of action arises from the defendant’s constitutional rights
of free speech or petition for redress of grievances. (Id.) This burden
may be met by showing the act which forms the basis for the plaintiff's cause
of action was an act that falls within one of the four categories of conduct
set forth in 425.16(e):
(1) any
written or oral statement or writing made before a legislative, executive, or
judicial body, 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.
If the defendant meets his initial burden, then the burden shifts
to the plaintiff to establish a probability that the plaintiff will prevail on
the claim—i.e., present facts which would, if proved at trial, support a
judgment in the plaintiff’s favor.¿ (Id. at 15051.)¿
In making its determination of the anti-SLAPP motion, the
court shall consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based. (Code Civ.
Proc., § 425.16(b)(2).)¿However, the court does not “weigh credibility [nor]
compare the weight of the evidence. Rather,
[the court] accepts as true the evidence favorable to the plaintiff and
evaluates the defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006)
39 Cal.4th 299, 326.)¿
Protected Activity
Plaintiff alleges that on or about April 17, 2024,
Defendants knowingly made false allegations to Downey Police Officers that
Plaintiff had threatened Dekay, which caused Plaintiff emotional distress.
Defendants submit evidence of the following:
· Defendant
Jennifer DeKay is the owner and publisher of the Downey Patriot. (DeKay Decl.,
¶1.)
· Plaintiff
used to advertise in the newspaper. (Id., ¶2.)
· In
2024, the newspaper refused to publish any more advertisements by Plaintiff. (Id.,
¶3.)
· On
April 14, 2024, DeKay received an email from Plaintiff in which Plaintiff talks
about having a “double barrel shotgun in [DeKay’s] mouth” and “the shotgun will
fire, and your brain will be all over your office walls.” (Id., ¶10.)
· DeKay
gave the email to the Downey Police Department. (Id., ¶12.)
· On
April 19, 2024, DeKay filed a Request for Civil Harassment Restraining Order
against Plaintiff based upon the threats she received from Plaintiff. (Id.,
¶13, Ex. E.)
·
Following a court hearing on May 10, 2024, the
Court entered a Civil Harassment Restraining Order against Plaintiff. (Id.,
¶15, Ex. F.)
Defendants contend their statements to the Downey Police
Department arise from protected activity because they were made in an “official
proceeding authorized by law.”
Based on the above, the Court determines that Defendants
have met their initial burden of showing that Plaintiff’s causes of action
arise from Defendants’ constitutional rights of free speech or petition for
redress of grievances; specifically, that the statements at issue were made in
an official proceeding authorized by law.
The
Court now turns to whether Plaintiff has established a probability that he will
prevail on his claims.
Probability
of Prevailing on the Claims
In
the second component of the analysis, courts employ a “summary-judgment-like”
procedure, “accepting as true the evidence favorable to the plaintiff and
evaluating the defendant’s evidence only to determine whether the defendant has
defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims,
Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) In other
words, the court does not assess credibility, and the plaintiff is not required
to meet the preponderance of the evidence standard. The court accepts as true
the evidence favorable to the plaintiff, who 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.)
Second Cause of Action: Violation of the Bane
Act
The Bane Act authorizes suit against anyone who by threats,
intimidation, or coercion interferes with the exercise or enjoyment of rights
secured by the state or federal Constitutions or laws without regard to whether
the victim is a member of a protected class. (Civ. Code § 52.1.) To obtain
relief under Section 52.1, liability only requires interference or attempted
interference with the plaintiff’s legal rights by the requisite threats,
intimidation, or coercion. (Venegas v. County of Los Angeles (2004)
32 Cal.4th 820, 841-843.)
In
an untimely Opposition filed on November 8, 2024, Plaintiff argues that making
a false report of a crime is not privileged activity under Civil Code §47. However, Plaintiff fails to
submit any evidence in support of this cause of action. The Court determines that Plaintiff has
failed to demonstrate a probability of prevailing on this cause of action.
Thus,
the special motion to strike is GRANTED as to the second cause of action.
Third Cause of Action: Intentional
Infliction of Emotional Distress
The
elements of an IIED claim are: “(1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the probability
of causing, emotional distress; (2) the plaintiff's suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant's outrageous conduct.” (Christensen v.
Superior Court (1991) 54 Cal.3d 868, 903.) Under California law, for
conduct to be “outrageous” it must be “so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” (See Ess v. Eskaton
Props., Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not
extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035,
1051.) “Generally, conduct will be found to be actionable where the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” (Ibid.)
“Severe emotional distress means . . . emotional distress of such substantial
quantity or enduring quality that no reasonable man in a civilized society
should be expected to endure it.” (Fletcher v. Western Nat. Life Ins.
Co. (1970) 10 Cal.App.3d 376, 397.)
Here, as in
the second cause of action, Plaintiff fails to submit any evidence in support
of this cause of action.
Thus, the
special motion to strike is GRANTED as to the third cause of action.
Given these
rulings, the Court need not address Defendants’ argument that Plaintiff’s
claims are barred by the doctrine of collateral estoppel.
Attorney
Fees and Costs
“Pursuant to CCP §425.16(c)(1), a prevailing defendant on a
special motion to strike shall be entitled to recover that
defendant's attorney's fees and costs.
Defendants may move for attorney’s fees and costs in a
separately noticed motion.