Judge Mark A. Young, Case Number: 24SMCV00025, Date: 2024-08-01 Tentative Ruling

Judge: Mark A. Young, Case: 24SMCV00025, Date: 2024-08-01 Tentative Ruling

Case Number: 24SMCV00025 Hearing Date: August 1, 2024 Dept: M

CASE NO.: 24SMCV00025

MOTION: Special Motion to Strike/Demurrer

HEARING DATE: 7/31/2024

BACKGROUND

This hearing regards two demurrers and a special motion to strike. Defendant Robert Wiener moves to strike under Code of Civil Procedure (CCP) section 425.16 specific allegations and causes of action contained in Plaintiff Gyanmitra Prasad’s Complaint. Defendant Brian Nathan demurs to the Complaint. Defendants International Church of Divine Awakening (“ICODA”), Chase Thomas, Manya Natan, Michael Sletta, and Sky Nathan also demur to the Complaint. In response to the demurrers, Plaintiff filed his first amended complaint (FAC), which mooted the pending demurrers. The FAC also omits the claims against Defendant Wiener. Even though an amended pleading was submitted, the Court must still consider the merits of the Anti-SLAPP motion against the Complaint.

ANTI-SLAPP Legal Standard

CCP 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. “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.) “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 384.)

“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 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 384-385 [citations omitted].)

A moving party must move to strike under this section within 60 days of service of the complaint. (CCP §425.16(f).)

EVIDENTIARY ISSUES

Defendant Wiener’s request for judicial notice is GRANTED.

ANTI-SLAPP ANALYSIS

The Complaint states four causes of action against Wiener for intentional infliction of emotional distress (IIED) (eighth cause of action), defamation (twelfth), conversion (thirteenth), and legal malpractice (fourteenth - purportedly a derivative claim by ICODA). Wiener moves to strike all causes of action alleged against himself and all factual allegations mentioning him. The Court will first address the statement-based claims of IIED and defamation.

Prong One Standards

Wiener argues that his liability is based on pre-litigation communications protected by subsections (1) and (2). “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral, supra, 1 Cal.5th at 396.) CCP section 425.16(e) defines protected acts as the following: “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…”

Communications which are “preparatory to or in anticipation of the bringing of an action or other official proceeding” are within the scope of protected conduct under Code of Civil Procedure section 425.16. (Bel Air Internet, LLC v. Morales, (2018) 20 Cal. App. 5th 924, 940; see Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 [discussing the litigation privilege].) To be protected, a communication “must be ‘in furtherance of the objects of the litigation.’ This is ‘part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.’ A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration.” (Id., citations omitted.)

Defendant identifies communications leading up to and regarding Plaintiff’s termination. The Complaint alleges that ICODA wrongfully “terminated” Plaintiff without notice or the “due process” required by the by-laws via Wiener. (Compl., ¶ 55.) On March 26, 2022, Wiener drafted certain “notice” letters be sent to the ICODA directors, as directed by Premodaya, which were designed not to be received by Plaintiff. (¶ 59.) On March 31, 2022, Wiener sent a letter to Plaintiff purporting to terminate Plaintiff’s employment in retaliation of Plaintiff’s complaints. (¶ 60, Ex. G.) On May 2, 2022, Wiener sent Plaintiff a letter claiming that Plaintiff “was no longer” an “employee, officer or director” of ICODA and that Plaintiff should not attend any ICODA functions or contact any ICODA members. (¶ 62.) The letter cited crucial and urgent ecclesiastical issues, inconsistent with the March 31, 2022, termination letter. (¶ 63.) In a letter of May 5, 2022, Wiener sent Plaintiff a letter, stating that Plaintiff was attempting to “extort money” and that "[f]uture correspondence direct to ICODA or any of its personnel will be similarly disregarded and remain unopened." Wiener stated that plaintiff was attempting to “extort money.” (Id., ¶ 157, Ex. J4.)

Defendant also identifies communications in December 2022. On December 15, 2022, Wiener sent a letter calling Plaintiff a “liar and perjurer” with “psychosis,” engaging in “character assassination,” and making “terroristic type threats.” (Compl., ¶¶ 69, 158, Ex. J22.) The letter was transmitted to the ICODA officers and directors and other third parties. (¶ 159.) On December 18, 2022, Aden, Manya and Devaraj sent a letter edited by Wiener to the “entire ICODA community” that called Plaintiff “a disgruntled ex-employee seeking revenge,” accused Plaintiff of trying to “con” members and making “false and baseless accusations and threats to extract money from ICODA,” “harassing” ICODA, and among other things, “disseminating his hatred and revenge.” (¶¶ 68, 160-161.) Plaintiff contends that these accusations were false. (¶ 71.)

The claims for IIED and defamation arise from some of the above communications. The IIED claim alleges that “Premodaya’s ad hominem attacks, both directly and through Attorney Wiener, in connection with the wrongful termination of Plaintiff’s employment, were intended to and did result in Plaintiff’s severe emotional distress.” (Compl., ¶ 131.) As a result of these unprivileged attacks, Plaintiff “suffered mental and emotional distress and damage, humiliation, fear, guilt and shame” and has been unable to work. (¶¶ 132- 133.) Such “ad hominem attacks” are reasonably embraced by the May 5 letter allegedly stating that Plaintiff was attempting to “extort money,” the December 15 letter calling Plaintiff a “liar and perjurer” etc.; and the December 18 open letter calling Plaintiff “disgruntled ex-employee seeking revenge.” Likewise, the Complaint cites the above letters sent or drafted by Wiener on May 5, December 15, and December 18 as the basis for defamation. (Compl., ¶¶ 157-161, Exs. J4, J22.) Defendant characterizes the alleged communications as settlement negotiations. Defendant cites various communications attached to the complaint between May 5, 2022, and December 15, 2022, which he contends were all made in connection with the serious threat of litigation by Plaintiff and/or ICODA. (Compl., Exs. G-H, J1-J22.)

May 5, 2022, Letter

The Court concurs that the May 5, 2022, letter is within the scope of section 425.16(e)(1)-(2). The May 5 letter addresses Plaintiff’s request that Wiener cease representing ICODA and threaten to “submit the matter to the State Bar for examination.” (Compl., Ex. J3.) In opposition to the allegations, Wiener explained to Plaintiff that he was only ever ICODA’s attorney, was not ever Plaintiff’s individual attorney, and never gave him legal advice. (Ex. J4.) Wiener ends the letter informing Plaintiff that any direct contact between Plaintiff and ICODA or its personnel will be disregarded and remain unopened. (Id.) This letter was then followed up by a lengthy letter from Plaintiff explaining his contentions regarding his own substantive claims against ICODA and Premodaya, his position that Wiener should cease representing ICODA and Premodaya, and that he would “take all appropriate action” if he did not receive a signed statement from Wiener that he ceased to represent ICODA and Premodaya. (Ex. J6.)

In context, Wiener sent the May 5, 2022, letter in furtherance of protected litigation activity. The May 5 letter directly addressed Plaintiff’s allegations of attorney misconduct and conflicts of interest. The letter was in direct response to a clear threat to file a state bar complaint regarding the same, which is indisputably an official proceeding. Defendant’s prong one burden is thus met as to the May 5 letter.

December 15, 2022, and December 18, 2022, Letters

The Complaint alleges facts demonstrating that the December letters are preparatory to, or in anticipation of, this litigation. In the December 15, 2022, letter, Wiener called Plaintiff a “liar and perjurer” with “psychosis,” engaging in “character assassination” and making “terroristic type threats.” (¶¶ 69, 158, Ex. J22.) The letter was transmitted to the ICODA officers and directors, and other unspecified third parties. (¶ 159.) The December 18, 2022, letter, edited by Wiener, concerned the ongoing dispute, and was allegedly sent to the “entire ICODA community”. (¶ 71.) The above communications, in context, are in furtherance of Wiener’s objectives in the instant litigation. Wiener wrote or transmitted those letters in relation to the ongoing employment dispute between Plaintiff and Premodaya. Thus, the first prong is met as to these letters.

Conversion

Plaintiff alleges that he shared a personal joint checking account with Premodaya. (Compl., ¶ 78.) He claims that Premodaya withdrew all funds from their shared accounts three days after Wiener demanded that Plaintiff accept their terms or receive nothing. (¶¶ 79, 169.) Premodaya and Wiener refused and continues to refuse to return Plaintiff’s funds unless Plaintiff complied with multiple unjust and extortionate demands, including a complete release of any and all claims against Premodaya. (¶¶ 80, 170, Ex. J.) Despite knowing that the funds are owned by Plaintiff, the complaint alleges that Wiener refuses to return the funds. (¶ 172.)

Wiener fails to meet his burden to show that the cited communications form the basis of the relief sought. Defendant specifically cites his letter dated July 2, 2022, which contains a settlement and release offer. However, Defendant’s letter is not the basis of the cause of action. While the conversion was achieved, in part, by Wiener’s refusal to return the funds, the refusal and counteroffer are not the basis of liability for the conversion claim. Instead, Wiener’s failure to return the funds rightfully possessed by Plaintiff is the basis for liability. Any other allegations are merely background and incidental facts.

Malpractice

The malpractice claim does not arise from protected activity. “‘California courts have held that when a claim [by a client against a lawyer] is based on a breach of the fiduciary duty of loyalty or negligence, it does not concern a right of petition or free speech, though those activities arose from the filing, prosecution of and statements made in the course of the client’s lawsuit. The reason is that the lawsuit concerns a breach of duty that does not depend on the exercise of a constitutional right.’” (Chodos v. Cole (2012) 210 Cal.App.4th 692, 702, quoting 4 Mallen and Smith (2012 ed.) Legal Malpractice, § 37:11; see also Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 151 [“‘actions based on an attorney’s breach of professional and ethical duties owed to a client’ are generally not subject to section 425.16 ‘even though protected litigation activity features prominently in the factual background.’”].) “Even though the ‘petitioning activity is part of the evidentiary landscape within which [claimant’s] claims arose, the gravamen of [claimant’s] claims is that [the former attorney] engaged in nonpetitioning activity inconsistent with his fiduciary obligations owed to [claimant].’” (Chodos, supra, 210 Cal.App.4th at 702.)

Wiener presents no authority suggesting that the malpractice claim could arise from protected activity when brought by a client against counsel. The complaint alleges a derivative claim (apparently on behalf of ICODA) that Wiener never communicated or consulted with ICODA’s Board of Directors or conducted any investigation into Plaintiff’s claims, as set forth in the correspondence, or into the truth of Premodaya’s statements supporting the facts set forth in Wiener’s letters to Plaintiff. (Compl., ¶ 178.) The Complaint alleges that Wiener’s failure to obtain the advice and approval of the ICODA Officers and Board of Directors was in gross and willful disregard of his responsibilities to ICODA. (¶ 180.) Wiener’s transmission of the “termination letter” and the May 5, 2022, letters to Plaintiff, was professional negligence, exposing ICODA, its officers and directors to litigation on liability. (¶ 182.) Whether or not these allegations state a claim for malpractice is another matter entirely. Therefore, Wiener does not meet his initial burden as to this cause of action.

Second Prong

Defendant has met its burden concerning the IIED and defamation claims based on Wiener’s May 5, 2022, December 15, 2022, and December 18, 2022, letters. Plaintiff therefore has the burden to show a prima facie case for IIED and defamation.

Plaintiff cannot meet its burden on the current record. Plaintiff does not submit any admissible evidence in support of the defamation or IIED claims, and merely appends all of the previously-cited communications to his memorandum without foundation. Plaintiff attempts to rely on his recently filed FAC, which was purportedly verified by Plaintiff. Upon examination of the evidence, the verification does not comply with CCP section 2015.5’s requirement that, if the verification was executed outside the state of California, the declarant must state that it is “certified or declared under the laws of the State of California.” Plaintiff executed the verification in India, but did not swear under the laws of the state of California. Thus, there is no evidence on the record in support of the opposition.

If the court were to consider the FAC as evidence, Plaintiff has dropped essential allegations against Wiener. The FAC does not allege that Wiener intentionally caused Plaintiff emotional distress. (See FAC ¶ 150.) While Plaintiff maintains the defamation action against Wiener, Plaintiff omits the specific factual and charging allegations against Wiener in support of defamation. (See FAC ¶¶ 172-180.) Therefore, the FAC does not assist Plaintiff as to the second prong of the Court’s analysis.

Accordingly, the special motion to strike is GRANTED in part. Given the partial success of the motion, and that Plaintiff dismissed the action against Wiener in response to the anti-SLAPP, the Court would grant, in part, Defendant’s request for attorneys’ fees.