Judge: Melissa R. Mccormick, Case: Jones v. Marshall, Date: 2022-12-08 Tentative Ruling

Plaintiffs Richard A. Jones and Renee J. Jones’s Special Motion to Strike

Plaintiffs Richard A. Jones and Renee J. Jones (together, “Jones”) move pursuant to pursuant to Civil Procedure Code section 425.16 to strike the first and second causes of action in cross-complainants’ Lihua Marshall and Grant Marshall’s (together, “Marshall”) cross-complaint.  The cross-complaint alleges three causes of action:  negligent infliction of emotional distress (first cause of action); intentional infliction of emotional distress (second cause of action); and breach of residential lease agreement (third cause of action).  Following the filing of this motion, Marshall dismissed the first and second causes of action.  See Request for Dismissal (filed 10/20/22).  Marshall also filed a Statement of Non-Opposition, in which they stated: 

“Upon receipt of the motion papers filed by the Plaintiff attorney, we realized that the first and second causes of action in our Cross[-]Complaint should not have been filed.  We are uninformed laypersons who have chosen to represent ourselves.  Had we known that filing the first and second causes of action was improper, we would not have filed them.

“However, if the Plaintiff attorney had extended us the courtesy of contacting us by phone or email instead of filing a motion to capitalize on our lack of knowledge, we would have dismissed immediately.  We have submitted a request to withdraw the first and second causes of action of our Cross-Complaint.”

In reply, Jones requests that the court find (i) the cross-complaint is based on “First Amendment Activity,” (ii) Marshall failed to produce evidence demonstrating they can prevail on the merits of their first and second claims; and (iii) Jones is entitled to an award of attorneys’ fees and costs.  For the following reasons, the court finds Jones is entitled to an award of attorneys’ fees and costs.

Fee recovery after voluntary dismissal

When a plaintiff or cross-complainant voluntarily dismisses its complaint or cross-complaint (or challenged causes of action) while a special motion to strike is pending, the trial court retains jurisdiction to award attorneys’ fees under section 425.16(c).  Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107; Liu v. Moore (1999) 69 Cal.App.4th 745, 752; Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 878-79.  A determination of whether a “defendant would have prevailed on its motion to strike is an essential prerequisite to an award of attorneys fees and costs.”  Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457; see also Liu, 60 Cal.App.4th at 752.  Thus, to find Jones is entitled to an award of attorneys’ fees and costs pursuant to section 425.16, the court must first determine whether Jones would have prevailed on their anti-SLAPP motion.

Jones would have prevailed on their special motion to strike the first and second causes of action

Section 425.16, subdivision (b)(1), provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” 

In ruling on a motion under section 425.16, the trial court engages in a two-step process.  “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.  [Citation.]  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 v. Schnitt (2016) 1 Cal.5th 376, 384; accord, Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.  “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, italics omitted.

Marshall expressly premised their first and second causes of action on Jones’s filing of this lawsuit.  See, e.g., Cross-complaint ¶ 25 (“This fabricated lawsuit has caused Cross-Complainant, Grant Marshall, to suffer both emotional and physical distress.”); id. ¶ 29 (“By pursuing legal action based on false accusations, Cross-Defendants breached their general duty to exercise ordinary care.”); id. ¶ 33 (“Cross-Defendants intentionally inflicted emotional distress on Cross-Complainants.  If there are a few inaccuracies in a lawsuit, it may be understandable.  But if the entire lawsuit is filled with false accusations, it must be considered intentional.”).  Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit.  Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120.  The court thus finds Marshall’s first and second causes of action arise from activity protected by section 425.16.

The burden now shifts to Marshall to demonstrate the merit of the first and second causes of action by establishing a probability of success.  Baral, 1 Cal.5th at 384.  Marshall did not oppose Jones’s motion and thus has not done so.  Moreover, the litigation privilege provides a substantive defense to the claims.

The litigation privilege in Civil Code section 47 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.”  Silberg v. Anderson (1990) 50 Cal.3d 205, 212.  “The principal purpose of [Civil Code] section 47, [subdivision (b)], is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  Silberg, 50 Cal.3d at 213; accord, Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.

Marshall’s first and second causes of action against Jones are based on Jones’s filing of this lawsuit.  The litigation privilege thus provides a substantive defense to Marshall’s first and second causes of action and bars the claims.  Marshall cannot meet their burden under the second step of the section 425.16 analysis of demonstrating a probability of prevailing on their first and second causes of action.  Flatley v. Mauro (2006) 39 Cal.4th 299, 323 (litigation privilege “may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing”); Bergstein v. Strook, Strook & Lavan LLP (2015) 236 Cal.App.4th at 814 (“‘A plaintiff cannot establish a probability of prevailing [in responding to a special motion to strike] if the litigation privilege precludes the defendant’s liability on the claim.’”).

Accordingly, because Jones would have prevailed on their special motion to strike the first and second causes of action in Marshall’s cross-complaint, Jones is entitled to an award of attorneys’ fees and costs.  Jones states in their motion and reply that they will file a separate motion for attorneys’ fees and costs by which the court may determine the amount of fees and costs to be awarded.

Jones to give notice.

Case Management Conference

The trial is scheduled for May 6, 2024 at 9:00 a.m. in Department C13.

Clerk to give notice.