Judge: Loren G. Freestone, Case: 37-2021-00038773-CU-FR-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Fraud SLAPP / SLAPPback Motion Hearing 37-2021-00038773-CU-FR-CTL WILLIAMS VS NETTIE FAYE HOUSE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Natiha House and Nettie House's special motion to strike (ROA # 227) is GRANTED in part and DENIED in part.

Plaintiff's second amended complaint ('SAC') purports to allege three causes of action: (1) defamation; (2) fraud; and (3) 'money damages.' (ROA # 104.) Even when considered liberally, the SAC does not include any allegations that support a cause of action for fraud. Further, money damages are not a valid cause of action. Consequently, the SAC only alleges a single cause of action for defamation. The SAC originally named six defendants, but Plaintiff dismissed all but Nettie Faye House and Natiha House.

(ROA # 110, 114.) Accordingly, Plaintiff's operative pleading only asserts one cause of action for defamation against defendants Nettie Faye House and Natiha house (collectively 'Defendants').

The SAC alleges that Defendants made false statements regarding alleged fraud and elder abuse about Plaintiff to: (1) Adult Protective Services ('APS'); (2) Plaintiff's parents' doctor; (3) financial institutions; (4) San Diego Police Department; (5) the court in Defendant Nettie's petition for elder abuse and a restraining order; and (6) statements made to family, friends and church members.

Defendants move to strike the entire complaint as a strategic lawsuit against public participation ('SLAPP'). Defendants argue that all of the alleged communications constituted petitioning activity subject to the anti-SLAPP statute. Defendants further argue that Plaintiff cannot prevail on her claims because the litigation privilege applies, Defendant Nettie has immunity as a mandated reporter, and there is no admissible evidence of defamation.

Plaintiff opposes the motion on the grounds that: (1) it is untimely; (2) the defamatory statements were protected petitioning activity; and (3) further discovery is necessary to obtain evidence in support of her claim. (ROA #231.) Timeliness A SLAPP motion 'may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.' (Code Civ. Proc., § 425.16.) A court has 'considerable discretion' in determining whether to allow the late filing of a SLAPP motion, but 'exercise this discretion consistent with the purposes of the statue and must be mindful that the 60-day deadline is the general rule. (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624.) The primary consideration is whether the motion advances the anti-SLAPP statute's purpose of examining the merits of a lawsuit during the early stages of the proceedings, but other relevant factors Calendar No.: Event ID:  TENTATIVE RULINGS

3073342  44 CASE NUMBER: CASE TITLE:  WILLIAMS VS NETTIE FAYE HOUSE [IMAGED]  37-2021-00038773-CU-FR-CTL include the length of the delay, the justification for the delay, and any undue prejudice to the plaintiff.

(Id.) In this case, while the 60-day deadline for one defendant, Defendant Nettie, to file a SLAPP motion has long since expired, considering that Defendant Natiha has only recently become a party to this matter, the history of this case, the lack of prejudice to the Plaintiff, and the underlying purpose of anti-SLAPP statute, the Court chooses to exercise its discretion and consider Defendants' Motion.

Merits Ruling on a SLAPP motion requires a two-part inquiry. First the court determines whether the moving party has made a threshold showing that the challenged action arises from protected activity. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477.) If the defendant meets their initial burden, the court then determines whether the plaintiff has demonstrated a probability of prevailing on the merits. (Id.) For the first part of the inquiry, courts evaluate the elements of the challenged claim and determine what actions by the defendant supply those elements. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057.) It is those alleged acts satisfying the elements of the claim that form the basis for liability. (Ibid.) Other allegations are without operative effect and thus cannot be stricken. In prong one, 'the focus of the statute is not the form of plaintiff's cause of action, but the defendant's activity that gives rise to the asserted liability.' (Midland Pacific Bldg. Corp. v. King (2007) 157 Cal. App. 4th 264, 272.) When a cause of action includes more than one claim, that is, a set of facts each allegedly giving rise to relief, the court is required to consider whether each claim within a cause of action arises from activity protected under section 425.16(b)(1). (Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394.) Assertions that are 'merely incidental' or 'collateral', such as those providing context without supporting liability are not subject to a SLAPP motion. (Id. at 394.) Acts subject to CCP § 425.16 (e) 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.' (§ 425.16 (e)(1)-(4).) Courts have adopted an expansive view of what constitutes litigation-related activities under section 425.16, holding that it includes statements concerning the subject of the dispute, 'made in anticipation of litigation contemplated in good faith and under serious consideration.' (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.) This includes statements made while investigating claims in anticipation of litigation. (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 610-611.) First Prong Plaintiff's SAC includes allegations of protected and unprotected activity. Therefore, the Court considered each claim giving rise to Plaintiff's cause of action for defamation.

- Statements to APS, Doctor and Financial Institutions The litigation privilege extends to statements made to initiate official action, as well as communications with government agencies whose function is to investigate and remedy wrongdoing. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913. It also includes 'acts preparatory to or in anticipation of official proceedings. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711 [investigation into evidence of Calendar No.: Event ID:  TENTATIVE RULINGS

3073342  44 CASE NUMBER: CASE TITLE:  WILLIAMS VS NETTIE FAYE HOUSE [IMAGED]  37-2021-00038773-CU-FR-CTL child abuse was protected activity].) In this case, Defendants' alleged communications with APS, the Parents' doctor and the financial institutions constituted protected activity. APA is a governmental body that is responsible for investigating claims of elder abuse. Further, the statements made to the APA were in anticipation of them investigating Defendants' suspicions of elder abuse. Additionally, all of these statements were part of Defendants' investigation into possible elder abuse and thus made in preparation for contacting the APA and filing the petition for an elder abuse restraining order. As such, these statements would be considered protected activity.

- Statements to Police Statements made to the police are considered protected activity. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) This is because such communications arise from a person's right to petition the government. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [allegedly false report to police of child abuse constituted protected activity].) Here, Defendant Nettie communicated with the police department to express her concern for her Parents' safety and to initiate an investigation into suspected elder abuse. Accordingly, these communications would be considered protected activity.

- Court Fillings The constitutional right of petition includes the act of filing litigation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.) Consequently, statements, writings and pleadings in connection with civil litigation are considered protected activity and a party moving to strike under the anti-SLAPP statute is not required to show the matter being litigated concerned a matter of public interest. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261.) Here, Plaintiff allegations explicitly state they are based on Defendants filing of an ex parte petition for elder abuse. (See SAC, ¶¶15-16.) Defendants' allegations in a court filing are clearly protected activity.

- Family, Friends and Church Members Plaintiff alleges that Defendants made false statements to third parties, including family members, spouses, in-laws, pastors, church members, and cousins. (SAC, ¶ 7). Defendants argue that these are sham allegations, were pled to address prior deficiencies in Plaintiff's claims against the now dismissed defendants and are therefore improper.

Under the sham pleading doctrine, '[i]f a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations' (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.) The doctrine however should not be 'mechanically applied' and is not intended to prevent the correction of ambiguous facts.

Here, the court is not convinced that Plaintiff's SAC is directly contradicted by her prior pleadings as to constitute a sham pleading. Further, since the Defendant bears the burden during the first prong of the anti-SLAPP test, Plaintiff was not required to present admissible evidence supporting these allegations.

Accordingly, Defendants have not met their burden of demonstrating that the statements to third parties were protected activity subject to the anti-SLAPP statute.

Second Prong – Probability of Success Calendar No.: Event ID:  TENTATIVE RULINGS

3073342  44 CASE NUMBER: CASE TITLE:  WILLIAMS VS NETTIE FAYE HOUSE [IMAGED]  37-2021-00038773-CU-FR-CTL The second prong of the anti-SLAPP test is summary-judgment like and requires the plaintiff to 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.

(Young, supra (2023) 91 Cal.App.5th at 79-80.) - Litigation Privilege The litigation privilege provided by Civil Code § 47(b) is relevant to whether plaintiff can show a 'probability of success on the merits' because it is a substantive defense that plaintiff must overcome.

(Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) '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. [Citations.]' (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege 'applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.' (Id.) This includes communications to a local police department or other official government agency designed to prompt action by that entity. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 753.) As a result, 'communications with some relation to judicial proceedings are absolutely immune from tort liability by the privilege.' (Scalzo v. Baker (2010) 185 Cal. App. 4th 91, 100.) This absolute privilege applies 'regardless of whether the communication was made with malice or the intent to harm...[and] does not depend on the publisher's motives, morals, ethics or intent.' (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.) In this case, Defendants statements made to the police, APS, the doctor's office, and through court filings in elder abuse case, were either part of a judicial or quasi-judicial proceeding, were a communication relating to an investigation in anticipation of litigation, or were intended to induce action by law enforcement or other governmental entities. As such, the absolute privilege afforded by Civil Code §47(b) would apply and Plaintiff cannot demonstrate a probability of success on the merits.

Accordingly, these allegations are subject to being stricken under Code Civil Procedure § 425.16.

- Mandatory Reporter Under Welfare and Institution Code § 15630(a), a 'mandated reporter' is '[a] person who has assumed full or intermittent responsibility for the care or custody of an elder...whether or not they receive compensation, including...health practitioner.' A 'Health Practitioner' includes a registered nurse. (Welf.

& Inst. Code, § 15610.37.) Accordingly, a registered nurse 'who, in their professional capacity, or within the scope of their employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse...or is told by an elder...that they have experienced behavior, including an act or omission, constituting physical abuse...or reasonably suspects that abuse' is required to report it. (Welf.

& Inst. Code, § 15630(b).) A mandated reporter is not civilly or criminally liable for any report required or authorized under those provisions. (Welf. & Inst. Code, § 15634(a).) Here, Defendant Nettie submitted a declaration stating that she is a licensed nurse that provided medical attention to her parents in her capacity as nurse, that she suspected there may be elder abuse occurring with her parents, and that she was therefore a mandatory reporter. (See Decl., Nettie House, ¶¶ 3-7.) The opposition disputes this claim but did not present any admissible evidence in support of these arguments.

As such, Plaintiff has also not met her burden under the second prong to overcome the absolute privilege provided by section 15630(b).

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3073342  44 CASE NUMBER: CASE TITLE:  WILLIAMS VS NETTIE FAYE HOUSE [IMAGED]  37-2021-00038773-CU-FR-CTL - Need for Discovery Plaintiff argues that the SLAPP motion should not proceed because further discovery is necessary.

'If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated.' (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) Such relief however is not proper when a plaintiff has had ample time to conduct discovery and fails to seek an exception to the stay on discovery imposed by the filing of an anti-SLAPP motion. (Id. [rejecting argument that anti-SLAPP statute violated due process by preventing necessary discovery when case was pending for over a year and plaintiff did not file a noticed motion seeking an exception].) Here, much as in Lafayette, Plaintiff has not demonstrated that relief is proper. While Plaintiff's opposition attempts to include additional factual allegations regarding Bank of America and Home Title Lock, Plaintiff had originally alleged that Defendants had 'alleged fraud through documentation submittal to Bank of America' in the SAC which was filed July 18, 2022. Further, Defendant Nettie answered the complaint on May 22, 2023, Plaintiff has had ample opportunity to conduct discovery, and Plaintiff did not seek an exception from the Court.

Accordingly, this argument lacks merit.

For these reasons, the Court strikes the following portions of the SAC pursuant to Code of Civil Procedures § 425.16 that involve allegations of protected activity: Paragraph 8 Paragraph 10, p. 6, lines 26-28 starting with: 'Later the Defendants....' Paragraph 10, p. 7, lines 1-8 Paragraph 15 Paragraph 16 Page 10, Paragraph G This is the tentative ruling for an appearance hearing at 10:30 a.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the Court as of March 29, 2024. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

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