Judge: Matthew C. Braner, Case: 37-2023-00030749-CU-OE-CTL, Date: 2024-03-22 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - March 21, 2024
03/22/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Matthew C. Braner
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Civil - Unlimited Other employment SLAPP / SLAPPback Motion Hearing 37-2023-00030749-CU-OE-CTL NR VS DEL MAR UNION SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:
Defendants Del Mar Union School District, Holly McClurg, Jennifer Huh, Nadine Schick, Abby Domingo, Karly Pecorella, Caitlin Fallon-McKnight, Daniel Shinoff, Erica Halperns, Gee Wah Mok, and Casey Lange (the 'School District Defendants')'s special motion to strike under Code of Civil Procedure section 425.16 is GRANTED.
Defendant Summer Dalessandro's section 425.16 special motion to strike is GRANTED.
The School District Defendants' demurrer to the first amended complaint is SUSTAINED.
Defendant Dalessandro's demurrer to the first amended complaint is OVERRULED as moot.
Preliminary Matters Defendants' requests for judicial notice are granted.
Plaintiff N.R.'s requests for a continuance, stay of the case, or change of venue (none of which were properly noticed) are rejected.
Plaintiff is not an attorney and therefore cannot represent D., her son. Unless Plaintiff appears at the hearing on Defendants' motions with an attorney who has agreed to represent D., and assuming some portion of the case persists following the court's rulings with respect to Defendants' motions, the court must dismiss him from the case.
Special Motions to Strike The anti-SLAPP analysis under Code of Civil Procedure section 425.16 is a two-step process. (Code Civ. Proc., § 425.16, subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.' (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) First, the court must determine whether the moving party has made a threshold showing the challenged causes of action arise from one of the categories of protected activity delineated in section 425.16, subdivision (e). (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) The moving party bears the initial burden of making a prima facie showing the claims arises from protected activity. (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) Second, if the court finds the moving party Calendar No.: Event ID: TENTATIVE RULINGS
3068470 8 CASE NUMBER: CASE TITLE: NR VS DEL MAR UNION SCHOOL DISTRICT [IMAGED] 37-2023-00030749-CU-OE-CTL has made a sufficient showing under the first prong, it must then determine whether the opposing party has demonstrated a probability of prevailing on the claim. (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 61.) The opposing party bears the burden of making a sufficient showing on the second prong. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647.) First Prong The first, second, third, sixth, eighth, ninth, and thirteenth causes of action pled against all defendants arise from, or are primarily founded on, protected activity. All causes of action pled against Defendant Dalessandro arise from protected activity.
The anti-SLAPP statute protects statements and writings made before a legislative, executive, or judicial proceeding. (Code Civ. Proc., § 425.16, subd. (e).) The anti-SLAPP statute protects all petition-related activity before a governmental body whether or not the statements involve a public issue. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.) A claim for relief filed in court, including the complaint itself, 'is indisputably a statement or writing made before a judicial proceeding.' (Navellier v. Sletten, supra, 29 Cal.4th at p. 90; Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p.1115.) Here, Plaintiff's claims for retaliation (1st through 3rd CoAs), violation of constitutional rights (6th and 13th CoAs), and emotional distress (8th and 9th CoAs), are based on Defendants' exercise of protected petitioning activity. (Code Civ. Proc., § 425.16, subd. (e)(1), (2); Civ. Code, § 47, subd. (b).) As to the first, second, and third causes of action, the retaliatory conduct alleged by Plaintiff is protected activity, including: 1) sending 'stay away' letters under Penal Code section 626.6 (FAC, ¶¶ 206.a, b, r, 238.a, b, d); reports to Child Protective Services and the police (FAC, ¶¶ 206.e, f, u, 238.f, g); and activity related to obtaining restraining orders against Plaintiff or other authorized litigation activity (FAC, ¶¶ 206.l, m, p, q, s, t, v, w, 238.c, I, j, l, m). The stay away letters are connected to official proceedings; Penal Code section 626.4 provides school facilities with a remedy for dealing with disruptive conduct, may be preceded or followed by a hearing, and can result in criminal charges. (See, e.g., Braxton v. Municipal Court (1973) 10 Cal.3d 138, 154.) Contacting and making reports to law enforcement and CPS is protected activity. (See, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570-1571.) Filing petitions for restraining orders, vexatious litigant actions, and contempt proceedings are also protected activity.
(See, e.g., Rusheen v. Cohen (2016) 37 Cal.4th 1048, 1056 [''Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action,' and 'includes qualifying acts committed by attorneys in representing clients in litigation.'].) Moreover, although these causes of action include allegations of non-protected activity, the 'principal thrust or gravamen' of each claim is that the School District Defendants retaliated against Plaintiff by pursuing officially authorized processes and remedies. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) Thus, the first, second, and third causes of action arise from protected activity.
As to the sixth and thirteenth causes of action, Plaintiff claims Defendants sent stay away letters, reported her to law enforcement and CPS, and filed petitions for restraining orders and vexatious litigant and contempt actions. (FAC, ¶¶ 280, 286, 347.) As explained above, this conduct is protected activity and is the principal thrust of Plaintiff's claims. Thus, the sixth and thirteenth causes of action arise from protected activity.
As to the eighth and ninth causes of action for intentional and negligent infliction of emotional distress, which incorporate all prior allegations and assert no new facts, Plaintiff necessarily alleges the emotional harm she sustained was the result of Defendants' protected activity set forth in the preceding paragraphs of the FAC. Thus, the eighth and ninth causes of action arise from protected activity.
Finally, as to any remaining causes of action or claims asserted against Defendant Dalessandro, they necessarily arise from protected litigation activity, as her sole involvement with Plaintiff was as counsel Calendar No.: Event ID: TENTATIVE RULINGS
3068470 8 CASE NUMBER: CASE TITLE: NR VS DEL MAR UNION SCHOOL DISTRICT [IMAGED] 37-2023-00030749-CU-OE-CTL for the School District Defendants.
Second Prong Defendants have made a prima facie showing many of Plaintiff's causes of action (and in the case of Defendant Dalessandro, the entire case) arise from protected activity. As such, the burden shifts to Plaintiff to establish a probability she will prevail on her claims (i.e., to make a prima facie showing of facts that would, if proved at trial, support a judgment in Plaintiff's favor). (
First, Plaintiff failed entirely to present any evidence to support her claims; at best, she merely relies on the allegations of the FAC (and additional unsupported contentions). Even a complaint that survives demurrer cannot defeat an order to strike the complaint under the anti-SLAPP statute. (DuPont Merck Pharm. Co. v. Superior Court (2000) 78 Cal.App.4th 568.) Second, even if Plaintiff had presented evidence to substantiate her claims, the litigation privilege would preclude Plaintiff from making the showing on most, if not all, of the claims sought to be specially stricken. 'A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.' (Digerati Holdings, LLC v. Young Money Ent., LLC, supra, 194 Cal.App.4th at p. 888.) The litigation privilege is 'interpreted broadly in order to further its principal purpose of affording litigants and witnesses the utmost freedom of access to the courts without fear of harassment in derivative tort actions,' and it is 'absolute and applies regardless of malice.' (Id. at p. 889.) Thus, Plaintiff cannot establish a probability of prevailing on her first, second, third, sixth, eighth, ninth, and thirteenth causes of action, nor on any of her claims against Defendant Dalessandro.
Accordingly, Defendants' special motions to strike are granted in full.
Because Defendant Dalessandro's special motion to strike fully resolves all claims against her in the FAC, her demurrer is overruled as moot.
School District Defendants' Demurrer A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10(e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The School District Defendants demur to the remainder of the FAC on the ground that Plaintiff did not allege sufficient facts to show she filed this case within six months of their rejection of her government claim, as required by Government Code section 945.6. The court agrees.
A plaintiff must allege facts demonstrating or excusing compliance with the government claim presentation requirements. (See, e.g., State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) Timely claims presentation is not a statute of limitations; it is a condition precedent to filing suit against a public entity. (See, e.g., Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201, 209.) However, the time for bringing a lawsuit after a claim was presented 'is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim.' (Ibid.) Here, the only conduct alleged in the FAC against the School District Defendants that does not involve Calendar No.: Event ID: TENTATIVE RULINGS
3068470 8 CASE NUMBER: CASE TITLE: NR VS DEL MAR UNION SCHOOL DISTRICT [IMAGED] 37-2023-00030749-CU-OE-CTL protected activity (and therefore is not encompassed within the School District Defendants' special motion to strike) occurred on and prior to October 29, 2021, when Defendant Schick allegedly 'very aggressively proceeded to chase NR.'s son and his friend around the black top, while NR.'s son was ducking, covering his head, and trying to get away from SCHICK.' (FAC, ¶¶ 125-127.) As neither Plaintiff nor her son were present on school grounds after her son graduated in June 2022, her claims must have accrued at various points prior to that. Plaintiff filed government claims against the School District Defendants on July 1, 2020 (rejected on August 18, 2020), October 1, 2021 (rejected on October 28, 2021), June 4 and 27, 2022 (rejected, somehow, on March 20, 2022), January 2, 2023 (rejected on January 20, 2023), and July 28, 2023 (rejected on August 25, 2023). (FAC, ¶¶ 2-7.) Only the June 2022 claims (and assuming Plaintiff obtained relief for failing to present the claim within six months of October 29, 2021) and those prior could encompass the non-protected conduct upon which Plaintiff based her remaining claims. Although it is unclear when the June 2022 claims were rejected (the March 2022 allegation is necessarily a mistake), it is reasonable to infer, given the timing of the other rejections, it occurred within a month after submission. Regardless, Plaintiff did not file this case until July 20, 2023, well after the sixth month deadline for bringing her lawsuit against the School District Defendants. (Gov. Code, § 945.6, subd. (a)(1).) Thus, her claims are untimely and cannot survive demurrer.
Equitable tolling cannot salvage Plaintiff's remaining claims. In this context, the doctrine applies only if: 1) the defendant was given timely notice from filing of the first claim; 2) the defendant is not prejudiced in gathering evidence to defendant against the second claim; and 3) the plaintiff acted reasonably and in good faith in filing the second claim. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924; see also Addison v. State of California (1978) 21 Cal.3d 313, 319.) Here, as shown by the judicially noticed court records, Plaintiff has acted neither reasonably nor in good faith.
Accordingly, the School District Defendants' demurrer is sustained. The court is inclined to sustain the demurrer without leave to amend, but will hear from the parties regarding this issue.
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