Judge Martha K. Gooding, Case 22-01289898 2023-08-21 Tentative Ruling

Judge: Martha K. Gooding, Case: 22-01289898, Date: 2023-08-21 Tentative Ruling

1) Motion for SLAPP

2) Case Management Conference

Defendant The Moore Law Group, LLP’s (“Defendant”) Special Motion to Strike the Complaint by Plaintiff John Hamilton (“Plaintiff”) is DENIED.

Procedural Issues

At the outset, the Court notes that Plaintiff objected to this motion as untimely, because it was not filed within 60 days of service of the complaint. (Code Civ. Proc. § 425.16, subd. (f).) As Defendant correctly points out in its reply, a special motion to strike cannot be brought in a limited civil case. (1550 Laurel Owner's Assn., Inc. v. Appellate Division of Superior Court (2018) 28 Cal.App.5th 1146, 1158.) Thus, Defendant could not have brought the motion when it was served with summons, while the case was pending in limited. However, once the Clerk served the Notice of Transfer, Reclassification and/or Consolidation (the “Notice”) on March 23, 2023, the case was assigned to unlimited civil, and Defendant brought this motion on April 25, 2023, which is within 60 days of the service of the Notice. Under these circumstances, the Court finds it appropriate to consider the motion on the merits and exercises its discretion to do so.

The Court notes that unpublished trial court rulings are not citable and have “no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.) The Court did not consider any citation of unpublished trial court rulings.

Merits

Plaintiff alleges that, on November 1, 2022, he received a telephone call from a female acting on behalf of Defendant, “where the first-words [sic] from her mouth was this call is being recorded.” (Compl. at ¶ 18.) Plaintiff asked the caller who she was and when the recording of the telephone call began. She gave her name and explained the recording started when she placed her call. Plaintiff then told the caller that he did not accept recorded calls and the call ended. (Compl. at ¶¶ 19-21.) Plaintiff further alleges that, “at no time during the recorded call did Defendant’s employee/agent’s caller ask Plaintiff if he consented – or would consent – to the recording of the call”; and, “[a]t no time did Plaintiff consent to the call being recorded.” (Compl. at ¶¶ 22-23.) Plaintiff is informed and believes the call “was related to Plaintiff previously providing limited scope representation under CRC 3.35 to one Tayler Wayne in case number 30-2022-01245204- CL-CL-CJC and, as such, was a conversation which was highly personal and involved private financial information.” (Compl. at ¶ 26, original emphasis.) Based thereon, Plaintiff claims Defendant violated Penal Code section 632(a) and seeks the statutory damages and injunctive relief under Penal Code section 637.2.

Defendant contends Plaintiff’s Complaint, and the causes of action asserted therein, are subject to a special motion to strike under CCP section 425.16, which permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits that are primarily brought to chill the valid exercise of constitutional rights.

The trial court engages in a two-step process to determine whether a special motion to strike should be granted. (Code Civ. Proc., § 425.16, subd. (b)(1).) First, the court decides whether the defendant has met its initial burden of establishing a prima facie showing that defendant’s acts, of which the plaintiff complains, were taken in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

As our Supreme Court has observed, the “arising from” requirement is not always easily met. A cause of action does not “arise from” protected activity simply because it is filed after protected activity took place. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76–77.) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily mean that it arises from such activity. (Id. at 78.) Courts must instead focus on the substance of the lawsuit in analyzing the first prong of a special motion to strike. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413–414.) “If liability is not based on protected activity, the cause of action does not target the protected activity and is therefore not subject to the SLAPP statute.” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550.)

The statute defines four categories of activities as an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue,” including: (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 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 the moving defendant meets its initial burden of showing protected activity, the burden shifts to the plaintiff to establish a probability that it will prevail on the claim, i.e., a showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor. (DuPont Merck Pharm. Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.) 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.” (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Assn. (2006) 136 Cal.App.4th 464, 476 [emphasis in original; internal quotes omitted].)

“ ‘As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.’ [] Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations.[]” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883, citations omitted.)

Here, Defendant contends the alleged violation of Penal Code section 632 is protected activity as a “communication in connection with civil litigation,” i.e., subdivision (e)(1) or (e)(2). (See Mot. at pp. 6-7.) The problem with Defendant’s argument is, the gravamen of Plaintiff’s claim is not any “communication” that Defendant undertook, but the act of recording, which is indisputably not a “written or oral statement” or a “writing” under (e)(1) or (e)(2). Although the scope of subdivisions (e)(1) and (e)(2) have been expanded to include “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, 480), Plaintiff fails to explain how recording a phone call is a “communicative act.” It is not. Rather, it is merely an act that accompanied a communication. Although the recording may have been “triggered” by protected activity, (i.e., the phone call regarding litigation matters), it does not follow that the alleged violation of Penal Code section 632 necessarily arises from the communications in the phone call, as opposed to the recording of the call.

The citable authorities cited by Defendant, including Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156 and Safari Club International v. Rudolph (9th Cir. 2017) 862 F.3d 1113, are inapposite, because the allegedly unlawful recording was analyzed as “conduct” under subdivision (e)(4), which protects “any other conduct . . . in connection with a public issue or an issue of public interest.” (See Lieberman, supra, 110 Cal.App.4th at 166; Safari Club Intern’l, supra, 862 F.3d at 1120 [noting that “surreptitious recording” is “conduct” under (e)(4), which does not require a “statement” to be protected activity].) While the alleged recording here is indisputably “conduct,” Defendant has not established the additional element of conduct “in connection with a public issue or an issue of public interest,” to show protected activity under (e)(4).

Because Defendant has not met its initial burden of showing that Plaintiff’s Complaint, and the claims therein, arise from protected activity, the Court need not reach the second prong.

Plaintiff is ordered to give notice.