Judge Lynette Gridiron Winston, Case Number: 24PSCV02825, Date: 2024-12-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV02825, Date: 2024-12-18 Tentative Ruling

Case Number: 24PSCV02825 Hearing Date: December 18, 2024 Dept: 6

CASE NAME: Jeffrey Ito v. International Neural Network Society

Defendant International Neural Network Society’s Anti-SLAPP Motion to Strike Plaintiff’s Complaint

TENTATIVE RULING

The First Amended Complaint is hereby stricken as improperly filed while the anti-SLAPP motion is pending.

The Court GRANTS Defendant International Neural Network Society’s anti-SLAPP motion to strike Plaintiff’s complaint. The Court hereby STRIKES Plaintiff’s entire complaint and directs Defendant to submit a proposed judgment of dismissal with prejudice within five calendar days of this order.

The Court also GRANTS Defendant International Neural Network Society’s request for attorney’s fees and costs in the reduced amount of $13,560.00.

The Court DENIES Defendant International Neural Network Society’s demurrer and motion to strike as moot.

Defendant International Neural Network Society is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a professional liability case. On August 28, 2024, plaintiff Jeffrey Ito (Plaintiff) filed this action against defendant International Neural Network Society (Defendant), alleging causes of action for professional liability, unjust enrichment, civil conspiracy, misrepresentation and fraud, deceptive trade practices, and invasion of privacy.

On November 4, 2024, Defendant filed an anti-SLAPP motion to strike Plaintiff’s complaint. The motion is unopposed.

LEGAL STANDARD

Code of Civil Procedure section 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. (Code Civ. Proc., § 425.16.)

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393 (Baral), italics in original.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id., at p. 384, italics in original.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at p. 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id., at pp. 384-385, internal citations omitted.)

Where a cause of action is predicated on both protected and unprotected activity, the court may strike those parts predicated on protected activity, even if the moving party sought to strike the entire cause of action. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011 (Bonni).) Allegations that are merely incidental and provide context without a right to recovery are not subject to the anti-SLAPP statute. (Id., at p. 1012.)

REQUESTS FOR JUDICIAL NOTICE

The Court GRANTS Defendant’s requests for judicial notice. (Evid. Code, § 452, subd. (d).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

PRELIMINARY ISSUE

Plaintiff filed a First Amended Complaint on December 6, 2024, which did not add any new parties. (First Amended Complaint (12/6/24).) However, Plaintiff may not amend the complaint before the hearing on the anti-SLAPP motion. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280.) Thus, the First Amended Complaint has no bearing on the Court’s ruling and is hereby stricken.

DISCUSSION

Timeliness

Code of Civil Procedure section 425.16, subdivision (f), requires that a special motion to strike be filed within 60 days of service of the complaint, or later with court permission. (Code Civ. Proc., § 425.16, subd. (f).) Here, Defendant filed and served the motion on November 4, 2024, which is less than 60 days from the time Plaintiff served the complaint on Defendant on September 17, 2024. (Proof of Service (9/30/24).) Accordingly, the motion is timely.

First Prong – Protected Activity

Code of Civil Procedure section 425.16, subdivision (e), defines protected activity as, “(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).)

Summary of Arguments – Protected Activity

Defendant contends it satisfies the first prong of the anti-SLAPP analysis because Defendant engaged in protected activity, and the causes of action in the complaint arise from Defendant’s protected activity. Defendant contends its activities are constitutionally protected because the activities allegedly at issue are the publication and dissemination of scientific and educational materials, which is an act in furtherance of Defendant’s right to free speech. Defendant then contends Plaintiff’s claims arise out of Defendant’s protected activities because they are based on the omission of warnings from Defendant’s publications.

Plaintiff did not oppose the motion.

Analysis – Protected Activity

The Court finds Defendant has satisfied the first prong of the anti-SLAPP analysis. Publication and dissemination of scientific and educational materials is clearly protected activity. “[S]peech interpreting, evaluating and discussing the content and weight of the scientific literature… represents the kind of rigorous debate on issues of public concern that the First Amendment was designed to promote and protect.” (Bernardo v. Planned Parenthood Fed'n of Am. (2004) 115 Cal.App.4th 322, 359-360.)

Moreover, Plaintiff’s complaint is directed at Defendant allegedly publishing and disseminating scientific and educational materials, and alleges that Plaintiff suffered harm because of those activities. (Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 130 [defendant must demonstrate its acts constitute protected activity and that the plaintiff’s claim arose from that protected activity].) For example:

· “INNS engages in the publication of academic journals, the organization of conferences, and the dissemination of educational materials related to neural networks and their applications. The organization has played a pivotal role in shaping the development of neural network theory and its practical applications....” (Complaint, 2:25-3:3.)

· “Plaintiff believes that the information contained in these publications contributed to his mental distress, as the materials may have been misapplied or misunderstood by third parties, leading to the alleged experiment performed on Plaintiff's brain.” (Compl., 5:16-19.)

· “The Defendants, through INNS, have published and distributed a vast array of educational materials related to neural networks. These materials have been widely disseminated through academic journals, conferences, and online platforms.” (Compl., 5:23-6:2.)

· “Defendants failed to provide adequate warnings or safeguards regarding the potential misuse of these materials…. The Defendants' [sic] negligence in this regard has resulted in significant harm to the Plaintiff….” (Compl., 6:6-10.)

· “Defendants are responsible for the dissemination of harmful information and for contributing to a broader conspiracy that has led to the misdiagnosis and mistreatment of individuals like himself.” (Compl., 8:25-28.)

· “The harm caused by the Defendants' actions has had a profound impact on Plaintiff's mental health, emotional well-being, and financial stability.” (Compl., 9:13-15.)

The gravamen of Plaintiff’s claims are Defendant’s alleged publication and dissemination of scientific and educational materials, the failure to properly warn in connection therewith, and third parties’ misapplication or misunderstanding of those materials to Plaintiff. (Compl., pp. 2-10, e.g. p. 11:5-7, 19-22, p. 12:13-16, 122:27-13:3, p. 14:10-14, p. 15:8-12, p. 16:20-22, p. 18:3-6; Ramona Unified Sch. Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [court looks to gravamen or principal thrust of a plaintiff’s claim to determine whether anti-SLAPP applies].) Plaintiff’s claims are clearly predicated on Defendant’s protected activity. Accordingly, Defendant has met its initial burden. The burden now shifts to Plaintiff to establish a probability of success on the merits.

Second Prong – Probability of Success on the Merits

(b)(1) 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.

(2) 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.

(3) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(Code Civ. Proc., § 425.16, subd. (b).)

The complaint alleges causes of action for professional liability, unjust enrichment, civil conspiracy, misrepresentation and fraud, deceptive trade practices, and invasion of privacy. For Plaintiff to defeat this anti-SLAPP motion, Plaintiff must demonstrate a probability of success on the merits for each cause of action alleged in the cross-complaint.

Defendant makes various arguments as to why Plaintiff’s claims are barred, which the Court finds meritorious. However, it is unnecessary to address the merits of those arguments since Plaintiff did not oppose this motion. Plaintiff therefore has failed to establish a probability of success on the merits. (See Code Civ. Proc., § 425.16, subd. (b).) Further, the Court construes Plaintiff's lack of opposition as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion "it is assumed that [nonmoving party] concedes" that ground].)

Based on the foregoing, the Court GRANTS Defendant’s anti-SLAPP motion as to the entire complaint.

Attorney’s Fees and Costs

“[A] prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c).) “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Since the Court granted the motion, Defendant is entitled to recover attorney fees and costs. However, the Court finds the amount requested somewhat excessive, as Plaintiff did not oppose the motion, which negated any review of an opposition and preparing a reply, which were included in Defendant’s calculation. (Carlsen Decl., ¶ 6.) While the Court understands anti-SLAPP motions require a lot of work, the Court finds this motion was relatively straightforward and should not have required 38.5 hours of preparation. (Carlsen Decl., ¶ 6.) The Court also finds Defendant’s counsel’s hourly rate slightly excessive for the applicable legal community of eastern Los Angeles County. (Carlsen Decl., ¶ 6; 569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437 [“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus.[Citation.]”) Therefore, the Court will award Defendant attorney’s fees and costs in the reduced amount of $13,560.00, comprised of 30.0 hours preparing the motion and attending the hearing on the motion, multiplied by the reduced hourly rate of $450.00, plus the $60.00 filing fee.

DEMURRER-MOTION TO STRIKE

In light of the Court granting Defendant’s anti-SLAPP motion to the entire complaint, the Court DENIES Defendant’s demurrer and motion to strike as moot.

CONCLUSION

The First Amended Complaint is hereby stricken as improperly filed while the anti-SLAPP motion is pending.

The Court also GRANTS Defendant International Neural Network Society’s request for attorney’s fees and costs in the reduced amount of $13,560.00.

The Court DENIES Defendant International Neural Network Society’s demurrer and motion to strike as moot.

Defendant International Neural Network Society is ordered to give notice of the Court’s ruling within five calendar days of this order.