Judge: Marcella O. Mclaughlin, Case: 37-2024-00006695-CU-FR-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Fraud SLAPP / SLAPPback Motion Hearing 37-2024-00006695-CU-FR-CTL QASSIMYAR MD VS ORTEGA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 04/02/2024

Defendants' special motions to strike are GRANTED.

Resolution of an anti-SLAPP motion involves two steps. Baral v. Schnitt (2016) 1 Cal.5th 376, 384.

First, the defendant must establish that the challenged claim arises from activity protected by Code of Civil Procedure section 425.16(e). Id. Second, 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. Id. A. Evidentiary Objections Defendants have objected to portions of plaintiff's declaration. See ROA 58 at pp. 9-14; see also ROA 60. The objections are sustained.

B. Public Interest Exemption Before engaging in the anti-SLAPP two-step analysis, a court must consider any claims by the plaintiff that a statutory exemption contained in Code of Civil Procedure section 425.17 applies. San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622. Relevant here, section 425.17(b) provides that the anti-SLAPP statute does not apply to 'any action brought solely in the public interest[.]' 'A plaintiff has the burden to establish the applicability of this exemption.' Id. at 622.

In this case, although plaintiff argues that he 'solely filed his complaint for the public interest and for the safety of thousands of patients in San Diego' (Oppo. at 7:21-23), his complaint clearly shows that he seeks personal relief. '[T]he applicability of the public interest exception is determined by examining the complaint.' Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1466. 'If any part of the complaint seeks relief to directly benefit the plaintiff, by securing relief greater than or different from that sought on behalf of the general public, the section 425.17(b) exception does not apply.' Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 312. Accordingly, plaintiff has failed to establish that the public interest exception applies.

C. Prong One – Protected Activity In the first step of the anti-SLAPP analysis, defendants must make two related showings: (1) that the alleged statements and conduct qualify for protection under one of the four categories in section 425.16(e); and (2) that the protected activity supplies one or more elements of plaintiff's claims. Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887. Here, plaintiff alleges claims for 'fraud and Calendar No.: Event ID:  TENTATIVE RULINGS

3110068  6 CASE NUMBER: CASE TITLE:  QASSIMYAR MD VS ORTEGA [IMAGED]  37-2024-00006695-CU-FR-CTL deceit.' 'The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.' Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255. In this case, the alleged wrongful act that supports plaintiff's fraud-based claims is defendants' submission of falsified medical records to the court in the underlying medical malpractice action. (See, e.g., Complaint at ¶¶ 32-33, 37-38, 43, 45, 47, 53-55, 59-61.) Defendants argue that such conduct is statutorily protected under subdivisions (e)(1) and (e)(2). The court agrees.

The anti-SLAPP statute protects statements made 'before a legislative, executive, or judicial proceeding' (Code Civ. Proc. § 425.16(e)(1)) and 'in connection with an issue under consideration or review' in such proceedings (Code Civ. Proc. § 425.16(e)(2)). Here, plaintiff's claims rest entirely on defendants' litigation activity in the medical malpractice action. Thus, the court finds that defendants have met their burden under prong one of showing that plaintiff's claims are subject to the anti-SLAPP statute.

Plaintiff contends that defendants' conduct was illegal as a matter of law and thus outside the ambit of section 425.16. This argument lacks merit. '[I]n the context of an anti-SLAPP motion, illegal conduct precludes anti-SLAPP relief only if the defendant effectively concedes that his or her conduct was illegal or there is uncontested evidence that conclusively establishes illegal conduct as a matter of law.' Cross v. Cooper (2011) 197 Cal.App.4th 357, 384. Neither occurred here. Defendants have not conceded that they falsified plaintiff's medical records in violation of Penal Code section 471.5. To the contrary, they vehemently deny engaging in such conduct. (See Spaid Decl., ¶25; K. Low Decl., ¶ 3; Freiwald Decl., ¶ 2; Harris Decl., ¶ 4; Ling Decl., ¶ 2; Shaw Decl., ¶ 4; W. Low Decl., ¶ 2; Ortega Decl., ¶ 4; Perez Decl., ¶ 3; French Decl., ¶ 2; Tristan Decl., ¶¶ 3-4.) Moreover, plaintiff has provided no conclusive evidence of illegality. Accordingly, plaintiff has failed to show that defendants engaged in illegal conduct as a matter of law.

D. Prong Two – Probability of Prevailing The burden shifts to plaintiff to show a probability of prevailing on his 'fraud and deceit' claims. To succeed under prong two, the plaintiff must 'demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.' Taus v. Loftus (2007) 40 Cal.4th 683, 714.

Here, the only evidence plaintiff has submitted purporting to show that defendants falsified his medical records is his own declaration. The court has already determined that much of the declaration is inadmissible. What little remains is insufficient to sustain plaintiff's burden of establishing a probability of prevailing. See Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 ('[D]eclarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.').

Moreover, '[a] plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.' Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 153, 1172. In this case, as discussed above, plaintiff's claims are based on defendants' submission of medical records to the court in the medical malpractice action. Thus, the litigation privilege immunizes defendants from tort liability. The fact that the medical records are alleged to be falsified is irrelevant.

See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058, 1062 (filing allegedly perjured declaration of service of process covered by the privilege).

Based on the foregoing, the court finds that plaintiff has failed to meet his burden under the second prong of the anti-SLAPP statute of establishing a probability of success on his 'fraud and deceit' claims.

E. Conclusion Calendar No.: Event ID:  TENTATIVE RULINGS

3110068  6 CASE NUMBER: CASE TITLE:  QASSIMYAR MD VS ORTEGA [IMAGED]  37-2024-00006695-CU-FR-CTL The special motions to strike are granted. This ruling is dispositive of the entire action. Defense counsel is directed to prepare and submit a form of judgment consistent with the foregoing. The CMC set for today (ROA 54-55) is ordered off calendar.

Defendants, as the prevailing parties on the special motions to strike, are entitled to an award of reasonable attorneys' fees and costs. Such requests may be addressed in a future noticed motion. See Code Civ. Proc. § 425.16(c).

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