Judge: Maurice A. Leiter, Case: 22STCV12913, Date: 2022-09-16 Tentative Ruling

Case Number: 22STCV12913    Hearing Date: September 16, 2022    Dept: 54

Hearing Date: September 16, 2022

Department 54, Judge Maurice A. Leiter

Anti-SLAPP

Moving Party: Cross-Defendant Edgardo M. Lopez

Responding Party: None

T/R:    CROSS-DEFENDANT LOPEZ’ ANTI-SLAPP MOTION IS GRANTED.

LOPEZ’ REQUEST FOR ATTORNEY’S FEES AND COSTS IS GRANTED, PAYABLE WITHIN 30 DAYS.

            CROSS-DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.[1]

BACKGROUND

On April 18, 2022, Plaintiffs Trinity Foliente and Filipino American Community of Los Angeles, Inc. sued Defendants Gloria Resurreccion, Francisco Rongavilla, Al Capati and Mar De Vera, asserting causes of action for (1) removal of directors under Corp. Code § 5223; (2) declaratory relief; (3) UCL violations; and (4) injunctive relief. Plaintiffs allege that Defendants are minority board members on the FACLA board. Plaintiffs allege they have engaged in various forms of misconduct, including sexual harassment, an attempt to change signatories on FACLA bank accounts, and stealing FACLA funds.

On May 20, 2022, Gloria Resurreccion filed a cross-complaint against Foliente, FACLA and Edgardo M. Lopez, asserting causes of action for breach of fiduciary duty, removal of directors, and violations of CA State Bar rules. Resurreccion alleges Foliente has mismanaged FACLA and embezzled money. Resurreccion alleges Lopez has violated state bar rules by “defending” Foliente in a board meeting.

ANALYSIS

In ruling on a special motion to strike pursuant to California Code of Civil Procedure section 425.16, an anti-SLAPP motion, the Court applies a two-pronged test. First, the Court determines whether the moving defendant has met his or her burden to establish that the “challenged cause of action is one arising from protected activity.” (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) The moving defendant meets this burden by demonstrating that “the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute.” (Id.)

If moving defendant meets this burden the plaintiff has the burden of establishing the second prong: a probability of prevailing on the merits of the complaint. (Id.) “To establish such a probability, a 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 if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

Cross-Defendant Lopez brings this motion on the ground that Resurreccion’s cross-complaint arises from Lopez’ protected petitioning activity.

A. Protected Activity

“A cause of action. . . arising from any act of that person in furtherance of the person’s right of petition” is subject to the anti-SLAPP statute.  (CCP § 425.16(b)(1).)  Protected activities include: “(1) any written or oral statement or writing made before a…judicial proceeding…, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a…judicial body…, (3) any written or oral statement…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.”  (CCP § 425.16(e).) 

“The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. Indeed, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537, internal citations omitted.) “Furtherance means helping to advance, assisting.” (Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 166.) Even if a lawsuit has not been commenced, “if a statement concern[s] the subject of the dispute and is made in anticipation of litigation contemplated in good faith and under serious consideration…then the statement may be petitioning activity protected by section 425.16.” (Neville v. Chudacoff (2008) 160.Cal.App.4th 1255, 1268, internal citations and quotations omitted.)

Resurreccion alleges that Lopez attended a November 1, 2021 board meeting with Foliente, claiming to be FACLA’s counsel. (X-Compl. ¶ 25.) She alleges Lopez “defended” Foliente by stating Foliente’s previous criminal record did not disqualify her from sitting on the board. (Id. ¶ 26.) Resurreccion asserts Lopez’ conduct violated the state bar ethics code and the Penal Code.

Lopez represents that he attended the meeting as FACLA’s counsel to warn the minority directors that if they attempted to change bank account information again, FACLA would file suit against them. Lopez asserts that all statements made during the board meeting, including his legal opinion regarding Foliente’s qualifications, were made in anticipation of litigation. Lopez argues that these statements are protected activity. The Court agrees.

Lopez has met his burden to establish Resurreccion’s cross-complaint arises from Lopez’ protected activity. The burden shifts to Resurreccion to establish a probability of success on the merits.

B. Probability of Success on the Merits

            In opposition, Resurreccion states that her claims are meritorious because Lopez is an expert on the FACLA bylaws and therefore knows Foliente cannot sit on the board.[2] This is insufficient to establish a probability of success on the merits.

Lopez’ anti-SLAPP is GRANTED.

Lopez seeks $6,000.00 in attorney’s fees and costs. The Court finds these fees reasonable.