Judge: Melvin D. Sandvig, Case: 24CHCV02931, Date: 2025-04-04 Tentative Ruling
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Case Number: 24CHCV02931 Hearing Date: April 4, 2025 Dept: F47
Dept. F47
Date: 4/4/25
Case #24CHCV02931
SPECIAL MOTION
TO STRIKE
Motion filed on 10/10/24.
Joinder filed on 10/14/24.
MOVING PARTY: Defendant Gurstel Law Firm, P.C.
JOINING PARTY: Defendant Asset Acceptance LLC
RESPONDING PARTY: Plaintiff Monica N. Miranda
NOTICE: ok
RULING: The joinder is granted. The motion is granted, in part, and denied
without prejudice, in part.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of attempts to collect a judgment
against Plaintiff Monica N. Miranda (Plaintiff) via a wage
garnishment. Plaintiff contends the
judgment is a fraudulent debt. Plaintiff alleges that she contacted Defendant
Gurstel Law Firm, P.C. (Gurstel), the firm acting on behalf of the claimed
creditor, Defendant Asset Acceptance LLC (Asset), to collect the judgment, to
inform Gurstel that she was not the debtor, Monica M. Miranda. Despite being informed of the error, Gurstel
advised Plaintiff that it was going to continue to prosecute the debt
collection lawsuit.
On 8/14/24, Plaintiff filed this action against Gurstel
and Asset alleging causes of action for: (1) Violation of the Rosenthal Fair
Debt Collection Practices Act (alleged against both Gurstel and Asset), (2)
Intrusion Upon Seclusion (alleged against both Gurstel and Asset), and (3)
California Identity Theft Law (alleged against Asset). On 10/1/14, Asset answered the
complaint. On 10/10/14, Gurstel answered
the complaint and filed and served the instant special motion to strike seeking
an order, pursuant to CCP 425.16, striking the 2nd cause of action
for Intrusion Upon Seclusion in Plaintiff’s complaint. Additionally, Gurstel seeks reimbursement of
its reasonable attorney’s fees and costs incurred in bringing this motion
pursuant to CCP 425.16(c). On 10/14/24,
Asset filed and served a joinder to Gurstel’s special motion to strike. Plaintiff has opposed the motion and both Gurstel
and Asset have filed replies to the opposition.
Since Asset joined in the motion filed by Gurstel, the
Court finds that it was not entitled to file a separate reply to the opposition. The joinder itself indicates that it “will be
made on the papers filed in support of Gurstel’s special motion to strike, any
reply [singular] filed in support of the special motion to strike . . .” (See Joinder, p.2:28-p.3:1). Therefore, Asset’s separate reply was not
considered in ruling on the motion.
ANALYSIS
In ruling on a special motion to strike, the court
undertakes a two-step analysis. Area
51 Productions, Inc. (2018) 20 CA5th 581, 592. First, the court must determine whether the
cause of action arises out of protected activity. CCP 425.16(b)(1), (e); Equilon Enterprises
(2002) 29 C4th 53, 67. Second, if the
defendant establishes that the cause of action arises out of protected
activity, the court must then determine whether Plaintiff has established a
probability of prevailing on the claim.
CCP 425.16(b); Equilon Enterprises, supra; Baral (2016) 1 C5th 376, 396 (Once the defendant
has met the first step, the burden shifts to plaintiff to establish by
admissible evidence a probability of success on the claim.).
On a special motion to strike, the court applies a
summary judgment-like standard. Taus
(2007) 40 C4th 683, 714; Varian Medical Systems, Inc. (2005) 35 C4th
180, 192. A plaintiff’s claims must be “supported
by sufficient prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is to be credited.” Taus, supra at 713-714. If a plaintiff fails to satisfy the
evidentiary burden, the court must strike the causes of action subject to the
motion to strike. CCP 425.16(b)(1).
Statements, written or oral, made “in connection with”
litigation and judicial proceedings constitute protected activity under the
anti-SLAPP statute, regardless of whether the statements concern a matter of
public interest. Briggs (1999) 19
C4th 1106, 1115; Navellier (2002) 29 C4th 82, 90; CCP 425.16(e).
In the 2nd cause of action for Intrusion Upon
Seclusion, Plaintiff alleges that Gurstel and Asset (collectively, Defendants) intruded
upon her seclusion by issuing “a wage garnishment to Plaintiff’s employer
claiming that Plaintiff was not paying her debts.” (Complaint ¶¶45-46). The garnishment arose out of a civil collection
action filed by Asset in Los Angeles Superior Court and resulting judgment. (See Tsai Decl., Ex.1-2, 4-5). Plaintiff seems to concede that the motion
satisfies the first step of the analysis.
(See Opposition, p.5:2-4 “Defendants’ motion only satisfies the
first prong because [Plaintiff] shows a probability of prevailing on her
intrusion upon seclusion claim.”).
The California Supreme Court has held that where the
cause of action is based on a communicative act, the litigation privilege
extends to those noncommunicative acts which are necessarily related to that
communicative act, including obtaining a writ and execution thereon and levying
on property. See Rusheen
(2006) 37 C4th 1048, 1063-1064; Brown (2001) 94 CA4th 40, 45, 50; CC
47(b). California law holds that the
litigation privilege is an absolute bar to “all torts except malicious
prosecution” and “communications with ‘some relation’ to judicial proceedings
are ‘absolutely immune from tort liability’ by the litigation privilege.” Rusheen, supra at 1057 citing Rubin
(1993) 4 C4th 1187, 1193, 1203; See also Finton (2015) 238 CA4th
200, 212; Tom Jones Enterprises, Ltd. (2013) 212 CA4th 1283, 1293-1294; Komarova
(2009) 175 CA4th 324, 336; Jacob B. (2007) 40 C4th 948, 962 (The
litigation privilege in CC 47(b) bars a privacy cause of action whether based
on common law, statute or Constitution).
Further, it has been held that the litigation privilege applies even
where the alleged wrongful act “is made outside the courtroom and no function
of the court or its officers is involved.
Rusheen, supra at 1057.
As shown above, Plaintiff’s 2nd cause of
action is based on conduct related to enforcing the judgment in the collection
action which is subject to the absolute privilege provided by CC 47(b). In the opposition, Plaintiff merely concludes
that the 2nd cause of action is not barred by the litigation
privilege without actually addressing the argument that Defendants’ acts which
form the basis of the 2nd cause of action for intrusion upon
seclusion are absolutely privileged under CC 47(b). (See Opposition, p.4:8-9 and
Opposition, generally). As such,
Plaintiff has failed to meet her burden of establishing a probability of
prevailing on her intrusion upon seclusion cause of action.
The prevailing defendant on a special motion to strike is
entitled to recover their attorney’s fees and costs. CCP 425.16(c)(1); Ketchum (2001) 24
C4th 1122, 1131. Both Gurstel and Asset request
that they be awarded their costs and attorney’s fees in bringing the instant
motion. However, neither Gurstel nor
Asset provide the Court with any indication or evidence regarding the amount of
fees and/or costs requested or incurred.
(See Motion, generally;
Tsai Decl., generally; Reply, generally; Joinder, generally). In the motion, Gurstel merely states that it
has “incurred significant attorneys’ fees and costs thus far in connection with
this Motion” and, therefore, “requests that this Court order that it be awarded
its reasonable attorneys’ fees and costs as determined by the Court.” (See Motion, p.11:3-5, p.11:12-13).
As such, the requests for an award of attorney’s fees and
costs as the prevailing defendants on this motion is denied without prejudice
to Gurstel and Asset including the attorney’s fees and costs as part of a cost
bill after entry of judgment or timely filing a noticed motion for attorney’s
fees. See American Humane
Association (2001) 92 CA4th 1095, 1103; Carpenter (2007) 151 CA4th
454, 461; Martin (2011) 198 CA4th 611, 631; Caitlin Ins. Co.
(2022) 73 CA5th 764, 772-784; Briggs (2023) 92 CA5th 683; Mallard
(2010) 188 CA4th 531, 545.
CONCLUSION
The joinder is granted.
The request to strike Plaintiff’s 2nd cause of action for
Intrusion Upon Seclusion is granted pursuant to CCP 425.16. The request for an award of attorney’s fees
and costs is denied without prejudice.
The Court notes that in violation of CRC 3.1110(f)(4)
both Gurstel and Plaintiff have failed to electronically bookmark the exhibits
attached to the declarations filed in support of their respective papers. Counsel for the parties are warned that
failure to comply with this rule in the
future may result in matters being continued so that papers can be
resubmitted in compliance with the rule, papers not being considered and/or the
imposition of sanctions.