Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV04260, Date: 2024-12-05 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV04260, Date: 2024-12-05 Tentative Ruling

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) Code of Civil Procedure section 425.16, subdivision (b)(1), provides:

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 under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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.” (Code Civ. Proc., § 425.16, subd. (e).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati, supra, 29 Cal.4th at p. 78.) “In making its determination, 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, subd. (b)(2).)

Plaintiff’s complaint is devoid of any facts. In the complaint, Plaintiff states that she is asserting claims for general negligence, defamation, slander, and libel, and she has suffered wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, loss of earning capacity, and “pending lawsuits of $150,000,000.” (Compl., p. 3, capitalization omitted.) The complaint contains no other allegations. Defendant argues that his only interaction with Plaintiff was in a courtroom, pleadings, motions, and briefs filed in two cases in San Bernardino Superior Court and Los Angeles Superior Court and the appellate courts of California. Defendant provides a supporting declaration with his motion that he represented a party as defense counsel, he has never spoken with Plaintiff outside a courtroom, he has never communicated in writing with Plaintiff before she filed this action, and his only comments about Plaintiff were in pleadings, motions, and appellate briefs. (Mot., Pech Decl. ¶¶ 2-3.)

Plaintiff’s opposition to the motion provides no argument or evidence, but in an “amended opposition” improperly filed without leave of court, Plaintiff appears to concede that this action is based on Defendant’s litigation conduct. Plaintiff provides a declaration describing her beliefs about the nature of Defendant’s statements, which arise out of conduct in a deposition and court hearings. (Am. Opp’n, Basu Decl. ¶¶ 2-5.) While the complaint is vague, the Court understands Plaintiff’s claims to be based on Defendant’s conduct in litigation, as demonstrated in declarations supporting both the motion and Plaintiff’s opposition. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [appellate court referred to declaration to determine whether conduct alleged in pleading was protected activity]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420 [same].)

Code of Civil Procedure section 425.16, subdivision (e)(1), states that “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” is considered protected activity under the anti-SLAPP statute. “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) Here, the conduct at issue is communicative activity performed by an attorney as part of his representation of a client in a judicial proceeding. Therefore, the Court finds that Defendant has satisfied the first prong of the anti-SLAPP statute as to Plaintiff’s claims, as Plaintiff’s claim arises from protected activity.

If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, citation, quotation marks, and brackets omitted.) To do so, “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 if the evidence submitted by the plaintiff is credited.” (Ibid., quotation marks omitted.) In considering whether a plaintiff’s claim has merit, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant,” and while “the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Ibid., emphasis in original.)

Civil Code section 47, subdivision (b), makes privileged any statements made during judicial proceedings, which “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.) Such communications are protected by the litigation privilege for “all torts except malicious prosecution.” (Ibid.) As stated above, the declarations provided by the parties make clear that Plaintiff takes issue with conduct during litigation. It follows that the claims are barred by the litigation privilege. Even if the claims were not barred, the Court lacks a basis to conclude that Plaintiff can prevail on her claims, as she provides only opinions as to Defendant’s conduct. Accordingly, Defendant Richard Pech’s Special Motion to Strike the Complaint as a Strategic Lawsuits [sic] Against Public Participation (Cal. Civ. Proc. Code § 425.16) is GRANTED. Defendant Richard Pech shall prepare, serve, and submit a proposed judgment as per statute.