Judge: Maurice A. Leiter, Case: 22STCV34866, Date: 2023-02-01 Tentative Ruling

Case Number: 22STCV34866    Hearing Date: February 1, 2023    Dept: 54

Hearing Date: February 1, 2023

Department 54, Judge Maurice A. Leiter

Anti-SLAPP

Moving Party: Defendants Doron Ofir and Popular Productions, Inc.

Responding Party: Plaintiff Nicholas Hoeh

T/R:     DEFENDANTS’ ANTI-SLAPP MOTION IS GRANTED.

DEFENDANTS’ REQUEST FOR ATTORNEY’S FEES AND COSTS IS GRANTED.

DEFENDANTS 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.

BACKGROUND

            On December 14, 2022, Plaintiff Nicholas Hoeh filed the operative first amended complaint against Defendants Doron Ofir and Popular Productions, Inc., asserting causes of action for (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent; (5) wrongful termination in violation of public policy; (6) breach of contract; (7) assault and battery; (8) intentional misrepresentation; (9) violation of Labor Code § 1102.5; (10) wage and hour violations; and (11) UCL violations.

            Plaintiff worked as a project coordinator for Defendants. Plaintiff alleges Defendant Ofir fired Plaintiff for refusing a sexual relationship with Ofir. Plaintiff was later rehired. Plaintiff alleges Ofir found Plaintiff having intimate relations with another man and fired him again. Plaintiff alleges Ofir also sought a restraining order against Plaintiff in retaliation.

ANALYSIS

In ruling on a special motion to strike pursuant to California Code of Civil Procedure section 425.16, or anti-SLAPP motion, the court applies a two-prong 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.)

The court then moves to the second prong, in which the burden shifts to Plaintiff to demonstrate 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.)

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.)

Defendants move to strike paragraphs 23-24 from the first amended complaint, which provide,

23. When Ofir learned that Plaintiff intended to bring legal action, Ofir immediately retaliated again, this time by filing a frivolous request for an emergency protective order, a temporary restraining order, and seeking to obtain a domestic violence restraining order against Plaintiff. Ofir falsely stated in court documents that Plaintiff was dangerous and Ofir was afraid for his safety, among other clearly false statements. Plaintiff was forced to defend himself in an extensive hearing related to the restraining order. Ultimately, the court saw through Ofir’s further retaliation and dishonest statements to the court and rejected denied Ofir’s request for the restraining order, finding that Plaintiff credible and no risk to Ofir’s safety.

24. Indeed, showing the false and retaliatory nature of the filings against Plaintiff, Ofir continued to harass and intimidate Plaintiff through additional attempted contact and texts while his request for the TRO was pending. Ofir also stalked and threatened Plaintiff and Plaintiff’s boyfriend.

            Defendants assert that these allegations are premised on Defendant Ofir’s protected petitioning activity. In opposition, Plaintiff maintains that these allegations are only context and do not form the basis of any causes of action.

            As pleaded, Plaintiff seeks redress for statements and conduct made in and in anticipation of a judicial proceeding. Defendants have met their burden to establish the allegations arise from Ofir’s protected activity.

B. Probability of Success on the Merits

“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, supra 40 Cal.App.4th at 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, supra 29 Cal.4th at 89.)

Defendants argue Plaintiff cannot establish a probability of success because these allegations are based on Ofir’s protected petitioning activity. Defendants say that Ofir’s statements and conduct in connection with the restraining order proceedings are protected by the litigation privilege. The Court of Appeal has explained the litigation privilege as follows,  

Civil Code section 47, subdivision (b), a codification of the litigation privilege, provides that, “A privileged publication or broadcast is one made: [¶] ... [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2....” “ ‘The purposes of¿section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. [Citation.] To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice. [Citation.] Moreover, “[i]n furtherance of the public policy purposes it is designed to serve, the privilege prescribed by¿section 47[, subdivision (b) ] has been given broad application.” [Citation.]’ ” (Komarova v. National Credit Acceptance, Inc.¿(2009) 175 Cal.App.4th 324, 336, 95 Cal.Rptr.3d 880.) 

“Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it¿amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] ... [¶] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” (Silberg v. Anderson¿(1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365; see¿Action Apartment Assn., Inc. v. City of Santa Monica¿(2007) 41 Cal.4th 1232, 1241, 63 Cal.Rptr.3d 398, 163 P.3d 89;¿La Jolla Group II v. Bruce¿(2012) 211 Cal.App.4th 461, 472, 149 Cal.Rptr.3d 716.)

(Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1293-4.)

            Here, all communications made in and in connection with the restraining order proceedings are protected by the litigation privilege. Plaintiff asserts that the litigation privilege does not apply because FEHA causes of action are not tort causes of action and because Plaintiff’s causes of action resemble a claim for malicious prosecution, citing Radentz v. Am. Ass'n of Physician Specialists, Inc., 2014 WL 12601013 (C.D. Cal. 2014). The Court, of course, is not bound by federal district court opinions and finds Radentz unpersuasive. Plaintiff cites no published California authority in support of these assertions.

Plaintiff has failed to establish a probability of success on the merits.

Defendants’ anti-SLAPP motion is GRANTED.

C. Attorney’s Fees

Pursuant to CCP § 425.16(c), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  “A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs ‘incurred in connection with’ the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action. . . .  [T]he award of fees is designed to ‘reimburs[e] the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit’ rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit.”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 [citations omitted].) 

            Defendants move for attorney’s fees and costs in the amount of $30,574.15. Counsel declares that 29.75 hours were spent preparing this motion, and estimates another 13 hours to review the opposition, prepare a reply and attend the hearing. Counsel charges between $595 and $750 per hour. The Court finds that counsel’s fees are reasonable. Anti-SLAPP motions are complex, take significant skill and time, and require investigation, research, and analysis.

            Defendants’ request for attorney’s fees and costs is GRANTED.