Judge: Michael Shultz, Case: 23CMCV00461, Date: 2023-09-26 Tentative Ruling
Case Number: 23CMCV00461 Hearing Date: October 3, 2023 Dept: A
23CMCV00461
Donald L. Crawford Sr., v. Ally Financial, Inc., et al.
[TENTATIVE] ORDER GRANTING THE ANTI-SLAPP
MOTION BY DEFENDANTS, ALLEN MATKINS LECK GAMBLE MALLOR & NATSIS, LLP;
ANDREW WOOD; AND K. ERIK FREISS
The complaint alleges that Plaintiff
settled an underlying dispute against Hertz Car Rental (“Hertz”), that was
filed in Riverside County (“Crawford I”). Plaintiff alleges that a vehicle he
bought from Hertz was defective, and defendants failed to correct the defects
pursuant to the warranty. However, the Hon. Daniel Ottolia allegedly refused to
hear any of Plaintiff’s motions for breach of settlement agreement and
dismissed the case, but retained jurisdiction pursuant to Civil Procedure,
section 664.6. Defendants, Hertz, Ally Bank (“Ally”), and their attorneys
refused to comply with the settlement agreement. Plaintiff alleges claims for tortious
breach of agreement, unfair business practices, fraud, negligent
hiring/training/supervision, intentional infliction of emotional distress, and
punitive damages.
On September 26, 2026, the Court granted an anti-SLAPP motion
to strike filed by Defendants, Ally Financial, Inc. (“Ally”) and The Hertz
Corporation (“Hertz”) as to the first through third causes of action.
Defendants, Allen Matkins Leck Gamble
Mallory & Natsis, LLP; Andrew Wood; and K. Erik Freiss (collectively
“Defendants” or “attorney Defendants”), files an anti-SLAPP special motion to
strike the fifth cause of action for intentional infliction of emotional
distress. Plaintiff will not be able to show a probability of prevailing on the
claim. The claim does not allege Defendant’s conduct was outrageous. The Court
should deny leave to amend. Defendants are entitled to attorney’s fees and
costs.
Plaintiff did not file an opposition which
was due on September 20, 2023 (nine court days before the hearing).
Plaintiff
filed a first amended complaint on August 23, 2023. Plaintiff cannot avoid an
anti-SLAPP motion by filing an amended pleading before the motion is heard. (Salma v. Capon (2008) 161
Cal.App.4th 1275, 1280.) The motion
pierces the pleadings and requires an evidentiary showing. (Simmons v. Allstate Ins. Co. (2001) 92
Cal.App.4th 1068, 1073.) The court cannot permit a plaintiff to amend the
pleadings once the defendants have established that the complaint arises from acts
in furtherance of their constitutional rights. Doing so would undermine the
statute by permitting plaintiff a “ready escape” from the statute’s quick
dismissal remedy. (Simmons at 1073.)
The anti-SLAPP statute codified at Code of
Civil Procedure section 425.16 provides that any act “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 a probability that the plaintiff will prevail on the
claim." (Code Civ.
Proc., § 425.16(b).) The statute provides a procedure for
"weeding out, at an early stage, meritless claims arising from
protected activity."(Baral v. Schnitt (2016) 1
Cal.5th 376, 384.)
The moving parties bear the initial burden
of establishing that the challenged allegations or claims “arise from protected
activity in which the defendant has engaged." (Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1009.) The trial courts “consider the elements of the
challenged claim and what actions by the defendant supply those elements and
consequently form the basis for liability. (Park, supra, 2
Cal.5th at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) The defendant's burden
is to identify what acts each challenged claim rests on and to show how those
acts are protected under a statutorily defined category of protected
activity." (Id.)
The fifth cause of action for intentional
infliction of emotional distress is alleged against the attorney Defendants
only. Plaintiff alleges that Defendants engaged in a campaign to annoy, harass,
and oppress Plaintiff by refusing to attempt resolution, filing frivolous
documents in the federal action, and unreasonably prolonging the litigation.
(FAC ¶¶ 38). Defendant Wood allegedly placed unenforceable provisions in the underlying
settlement agreement. (FAC ¶ 41.)
Defendants argue that these alleged acts
constitute litigation-related activity, which is statutorily protected. The anti-SLAPP
statute precludes claims that are based on oral or written statements made ”in
connection with an issue under consideration or review” by any judicial body or
any other official proceeding, or any other conduct in furtherance of the
exercise of the constitutional right of petition. (Code Civ.
Proc., § 425.16(e).) A claim is “in connection with” litigation if it “relates
to the substantive issues in the litigation and is directed to persons having
some interest in the litigation.” (Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1266 [synonymous with “reasonably relevant”].) Attorneys
representing clients in litigation may invoke the protections of the anti-SLAPP
statute. (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1116.)
All the alleged misconduct arises from
litigation activity in connection with Crawford I and Defendants’ conduct in
pursuit of their clients’ defense. Accordingly, Defendants have made a prima
facie showing that the claims arise from Defendants’ constitutionally protect
activity. (Governor Gray Davis Com. v. American
Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460.)
Defendants’
conduct is also protected from liability pursuant to the litigation privilege.
(Civ. Code, § 47(b).) A privileged publication or broadcast includes ones made
in any judicial proceeding. Statements protected under Section 47(b) are
equally entitled to the benefits of Civil Procedure section 425.16. (Briggs at 1115.)
The burden then shifts to Plaintiff to
demonstrate that the complaint is legally sufficient and is “supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.” (Governor Gray Davis Com. v. American
Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460–461.) To make this determination, the court
considers the pleadings and supporting and opposing affidavits stating the
facts upon which the liability or defense is based. (Id.)
Plaintiff did not attempt to meet his
burden of proof. Accordingly, the fifth cause of action falls within the scope
of the anti-SLAPP statute and the litigation privilege under Civil Code section
47(b) to warrant striking that claim.
The prevailing defendant on an anti-SLAPP motion
“shall be entitled” to recover the defendant’s attorney’s fees and costs but
only on the motion to strike, not the entire litigation. (Code
Civ. Proc., § 425.16; Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379,
1383.) Here, Defendants requests costs only as Defendants are being
represented by in-house counsel. Defendants intend to provide evidence of costs
incurred.
Based on the foregoing, the anti-SLAPP
motion to strike the fifth cause of action alleged in the complaint against Defendants,
Allen Matkins Leck Gamble Mallory & Natsis, LLP; Andrew Wood; and K. Erik
Freiss, is GRANTED. Defendants are ordered to file a supplemental
declaration substantiating costs incurred to prepare this motion to strike to
be filed within 10 days. As the fifth cause of action is the only claim alleged
against these Defendants, the Court orders their dismissal from this action.