Judge Michael Shultz, Case Number: 23STCV24271, Date: 2024-12-04 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.

23STCV24271 Dupont Clinic, People’s Choice, et al v. City of Beverly Hills, et al.

[TENTATIVE] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT

Plaintiffs allege that Defendant, City of Beverly Hills, interfered with Plaintiffs’ attempt to open a clinic specializing in reproductive healthcare because of political pressure of extremist, anti-abortion protesters. Plaintiffs allege seven causes of action for tortious interference with contractual relations and related claims and for negligent and intentional misrepresentation.

This matter was originally set for hearing on November 14, 2024, at which time the court continued the hearing to December 4, 2024, at 10:00 a.m. (M.O. 11/13/24.)

On November 18, 2024, the court related 24STCV28644 People v. City of Beverly Hills (the “Injunction Action”) to this case (the “Lead Case”) pursuant to the State of California’s Notice of Related Cases. The Hon. Daniel Murphy signed a stipulated judgment in the Injunction Action on November 6, 2024, requiring the City to cease its discriminatory conduct against any reproductive healthcare provider and requiring the City to refrain from using City resources to interfere with or discriminate against such providers as more specifically described in the stipulated judgment. (Stip. Judgment 11/6/24.)

Defendants, City of Beverly Hills and its employee managers (collectively, “City”), move to strike portions of the complaint in the Lead Case, alleging that statements made in official proceedings constitute protected activity and are subject to a motion to strike. Defendants contend that Plaintiffs will not be able to show a probability of prevailing on the merits of any of their claims, since the alleged statements were true, and Defendants are immune from liability for alleged misrepresentations made by City employees.

In opposition, Plaintiffs argue that the motion is frivolous. Defendants focus only on certain statements alleged in the complaint without considering the conduct Plaintiffs have alleged. Defendants have not established that the alleged statements concerned an issue of public interest. The allegations of Defendants’ misconduct fall outside the scope of the anti-SLAPP statute. Regardless, Plaintiffs can meet its burden of showing probability of prevailing on the merits. None of the immunities cited by Defendants apply.

In reply, re-filed on November 13, 2024, pursuant to the court’s order, Defendants argue that “mixed” cases, involving both protected and unprotected speech, are subject to a motion to strike. Unprotected speech is disregarded.

Plaintiffs did not meet their burden on the second prong to show the probability of prevailing on the merits. While an official investigation may not have been pending at the time the Tenant Letter was prepared, written or oral statements made in connection with an issue under consideration (security at the DuPont clinic) by an executive body, such as the City’s police department, remains protected speech.

Defendants also argue that Plaintiffs “flooded” the court with voluminous and mostly irrelevant evidence that remain unlinked to Plaintiffs’ burden of proof. It is not the court’s job to search for evidence to support Plaintiff’s claims. The evidence must be admissible to support Plaintiffs’ burden of proof.

The anti-SLAPP statute^{^[1]} codified at Code of Civil Procedure section 425.16 provides that any act of a 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 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 type of conduct that falls within the scope of protected activity is statutorily defined:

" (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing 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.” (Code Civ. Proc., § 425.16 subd. (e).)

Plaintiffs allege they intended to open a clinic for reproductive health care in a building located at 8920 Wilshire Boulevard in Beverly Hills (“Building.”) (Complaint, ¶ 3.) The landlords of the building were Douglass Emmett Management, Inc., and Douglas Emmet, Inc. (collectively, “Landlords”). (Complaint, ¶ 3.) Plaintiffs allege that the City publicly gave its support for equality and freedom of choice by issuing a press release. (Complaint, ¶25.) Plaintiffs allege that in reliance on the City’s statement of support, Plaintiffs entered into a lease agreement for the premises with Landlord and commenced their permit applications in early February 2022. (Complaint, ¶¶ 28, 32.)

In the wake of anti-abortion protest activities in the Building in late 2022 and early 2023, Plaintiffs allege that DuPont met with the Landlord, the City, and local and federal law enforcement to discuss the protesters and how best to protect DuPont’s staff, patients, and all other employees in the building. (Complaint, ¶ 33.) Plaintiffs allege that protestors began appearing at City Council meetings to urge the City to stop DuPont from opening the Beverly Hills clinic and organized a petition to stop it. (Complaint, ¶35-36.)

Plaintiffs allege that in April 2023, the City “actively and intentionally acted to withhold DuPont’s permits for the Premises which had been internally approved by the City and were ready to be issued to DuPont. Yet as of April 24, 2023, they [the permits] had not yet been issued. When DuPont’s representatives telephoned the City to ask about the delay, the City allegedly informed Plaintiffs that City Attorney, Laurence Weiner, Esq., had placed a ‘hold’ on the permits. (Id.) Later that same day, Brandon Alfaro, a Customer Service Representative in the City’s building department, sent an email to DuPont’s contractors and architects explaining the ‘hold.’” (Complaint, ¶37.)

Ultimately, on June 12, 2023, Landlord allegedly “bowed to pressure from the City and sent Plaintiffs a letter purporting to rescind the lease” (“Rescission Letter”), a copy of which was sent to City officials. (Complaint, ¶47.) At this point, Plaintiffs had begun construction on the clinic and purchased furniture, HVAC systems, and other equipment. (Complaint, ¶ 46.)

B. First prong: Defendants’ threshold burden is to show that the claims arise from protected activity.

As the moving party, Defendants 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.) To that end, courts are to “consider the elements of the challenged claim and Defendants’ actions that supply those elements and consequently form the basis for liability.” (Id.)

The defendant's burden is to identify what acts each challenged claim rests upon on and demonstrate how those acts are protected under a statutorily defined category of protected activity. (Id.) The court must identify the alleged wrongful and injury-producing conduct that provides the foundation for the claim. (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 209.) The action must be based on the defendant’s protected free speech or petitioning activity. (Finton at 209-210.)

While a claim may depend on both protected and unprotected speech (“mixed action”), Plaintiffs’ burden in proving a probability of prevailing on the merits must focus on claims that are supported by protected speech. If Plaintiffs’ burden is not met, the claim and its corresponding allegations must be stricken. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.)

The court must determine whether the claims arise from protected speech or protected acts. (Code Civ. Proc., § 425.16 subd. (b) ["In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based"] [emphasis added].)

1) The first through fourth causes of action (inducing breach of contract, intentional interference with contractual relations, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage) arise from the same alleged misconduct:

The City Attorney said the City placed a hold on the permits. (Complaint, ¶37). A customer service representative in the City’s building department sent an email to DuPont advising that the City Attorney was “looking into the matter and determining whether the proposed use is allowed or not.” (Id.)

Plaintiffs allege that the City colluded with the Landlord to put pressure on DuPont by rallying other tenants in the Building against Plaintiffs. (Complaint, ¶ 64.) On May 31, 2023, the Chief of Police sent Plaintiffs and Landlord a draft letter. The Chief intended to send the letter to all building tenants and a set of “Safety Tips.” The letter warned tenants of protestors who may attempt to disrupt the building. Plaintiffs allege that the letter was intended to terrify the tenants and to pressure Plaintiffs to leave the building. (Complaint, ¶ 44.)

Plaintiffs allege that the Landlord “bowed to pressure” from the City by sending Plaintiffs a letter purporting to rescind the lease, with a copy sent to the City Mayor and City Manager. (Complaint, ¶ 47.)

Plaintiffs allege the City decided to align itself with the anti-abortion protesters, held secret meetings and telephone conferences with them, and promised that it would stop DuPont from opening, all of which was allegedly confirmed at a protest rally by the director of “Outreach of Survivors LA.” (Complaint, ¶¶ 52-54.)

2) Defendants have met their burden of establishing that the first through fourth causes of action arise from protected activity.

Other than the alleged conduct to delay Plaintiffs’ permits, Defendants argue that the remaining alleged misconduct (subparts 1(a) – 1(d) constitutes protected speech. Therefore, Defendants contend the first through fourth causes of action arise from protected activity and are subject to the motion to strike.

Plaintiffs argue that since one of the bases for the claim is not protected speech (the delay in Plaintiffs’ permit applications), the analysis should end since the claim survives, based on at least one allegation of unprotected speech. (Opp. 18:167-19.) Plaintiff’s contention is contrary to the California Supreme Court’s opinion in Baral v. Schnitt (2016) 1 Cal.5th 376. Baral held that "courts may rule on plaintiffs' specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity." (Baral at 393.)

Defendants have established that the Tenant Letter was prepared in connection with an issue under consideration or review by an executive body, namely that City police were investigating harassment at the Building, reviewing security concerns, warning of potential violence, and offering “safety tips” to the tenants. (Complaint, ¶ 44.) While Plaintiffs regard the Tenant Letter as harassment, the Tenant Letter was made in furtherance of the right of free speech in connection with an issue of public interest, given the alleged enhanced need for security that might involve violence or vandalism by protesters requiring law enforcement involvement. (Complaint, ¶ 44.)

A police investigation has been held to be an official proceeding authorized by law, "and there can be no doubt that such an investigation is similarly a ‘public official proceeding‘ under subdivision 4 [of Civil Code § 47, which recognizes that a privileged publication or broadcast is one made in the proper discharge of an official duty.] (Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073.)

Contrary to Plaintiffs’ argument, an “official” police investigation need not be occurring in order for the Tenant Letter to fall within the scope of “an issue under consideration or review by an executive body.” (Opp. 19:17-18.) “Under consideration” requires “’attentive thought, reflection, [or] meditation.’ [citation omitted] There is no talismanic significance to ‘official or formal proceedings.’ (Ibid., italics added.) Something more than ministerial action is required, but any form of deliberative executive decision making will suffice.” (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 600–601.)

The first four causes of action also arise from the Rescission Letter, which Plaintiffs contend was a result of a pressure campaign to induce the Landlord to break its lease with Plaintiffs. (Complaint, ¶ 47.) Defendants have not established how the Rescission Letter standing alone is protected speech, however, to the extent Plaintiffs contend that the Tenant Letter was a part of alleged “pressure campaign” to “scare” the tenants in the Building influenced the Landlord’s decision to send the Rescission Letter, the Letter is the direct result of protected speech; namely, the Chief of Police’s draft letter to tenants to warn of public safety issues given the anti-abortion protests.

Defendants have established that the City’s alleged “alignment” with protestors by holding meetings and telephone conferences culminating in a “long speech at the protest of July 29, by Tim Clement, Director of Outreach of Survivors L.A,” that described the group’s efforts to ask for a meeting with the City’s mayor until Mr. Clement obtained an appointment with City officials falls within the scope of the statute that protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” (Code Civ. Proc., §425.16.)

Additionally, the right to petition the government for redress of grievances is protected by the California Constitution. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 52, citing United States v. Cruikshank (1875) 92 U.S. 542, 552, [“The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances’.”].)
As Defendants observe, what Plaintiffs describe as “collusion” between protest leaders and City officials is conduct that falls within the statute’s protections:

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing 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.

Accordingly, Defendants have met their burden of establishing that the first through fourth causes of action arise from protected activity.

3) The fifth cause of action for false promise, the sixth cause of action for intentional misrepresentation, and the seventh cause of action for negligent misrepresentation also arise from protected activity

These claims are premised on the identical alleged misrepresentations: Defendants allegedly made promises to Plaintiffs that the City was supportive of DuPont’s mission and that it would permit Plaintiffs to open a clinic at the premises. (Complaint, ¶¶ 94, 102, 110.)

Defendants argue that these alleged statements are protected speech because the City had adopted a resolution supporting abortion rights. The complaint alleges that the City publicly claimed to protect reproductive freedom, issued a strongly worded press release, and claimed the City had a long history of supporting everyone’s right to equality and freedom of choice. (Complaint, ¶ ¶ 2.) The complaint alleges that “crucially”, the City unanimously adopted a resolution in support of abortion rights. (Complaint, ¶ 25.)

The resolution falls within the statute’s protections as it is a statement made in a legislative proceeding as well as a written or oral statement made in a place open to the public or a public forum in connection with an issue of public interest. (Code Civ. Proc., § 425.16(e)(1), (3).)

Plaintiffs’ allegation that the City promised to permit Plaintiffs to open a clinic at the premises was made in response to Plaintiffs’ inquiry about the necessity of obtaining a conditional use permit for the premises as well as the zoning of the premises and the building. (Complaint, ¶29.) Plaintiffs allege that the City expressly confirmed to Plaintiffs that the City approved of DuPont’s intended use of the premises. (Complaint, ¶ 29.)

Defendants argue that land use regulation is a function of local government under the grant of police power, and therefore, the alleged misrepresentations fall within the protections of Code Civ. Proc., § 425.16 (e) (2). (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151 [“any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body.”].)

Plaintiffs contend that the complaint’s use of the word “permit” refers to allowing DuPont to open its clinic and not the issuance of permits. (Opp. 23:19-22.) However, this argument is undermined by Plaintiffs’ allegations that Plaintiffs inquired about obtaining conditional use permits and about zoning issues. (Complaint, ¶ 29).

Defendants have established the fraud-based claims arise from protected activity. As Defendants have met their initial burden described in section 425.16, the burden now shifts to Plaintiffs.

C. The second prong of anti-SLAPP analysis requires Plaintiffs to demonstrate a probability of prevailing on the merits.

Plaintiffs fail to meet that burden. Plaintiffs’ burden is to submit admissible evidence to support a prima facie case. While Plaintiffs acknowledge that their burden is only to establish that their claims have “minimal merit,” Plaintiffs have not demonstrated any merit with admissible evidence. Plaintiffs appear to have set forth the necessary elements to make a prima facie case for the first two causes of action. However, the elements for the remaining five causes of action are not discussed.

The opposition fails to cite any evidence in the section discussing Plaintiffs’ burden of showing a probability of prevailing. That section is a narrative of alleged facts, arguments, and criticisms unsupported by any evidence. While Plaintiffs have submitted the declarations of Jessica R. Corpuz and Jennifer Russo, Plaintiffs do not provide any explanation for how the statements or exhibits attached to the declarations are relevant or probative of any element of any of the seven claims alleged in the complaint. As Defendants observe in their reply, “there is not a shred of admissible evidence” for any of the allegations asserted by Plaintiffs and none is cited. (Reply, 14:9-10.)

Plaintiffs submit the declaration of Dr. Russo, the Chief Medical Officer of Dupont Clinic. The declaration attaches 85 pages of exhibits, none of which are cited in the part of the opposition relevant to Plaintiffs’ burden. Plaintiffs also submitted the declaration of Jessica Corpuz, Plaintiffs’ attorneys of record. Her 15-page declaration includes 670 pages of documents apparently cited in Plaintiffs’ nearly 11-page statement of facts, but there is no explanation for how these facts relate to Plaintiffs’ prima facie case. As Defendants aptly point out, simply submitting a “jumble of documents” without an “argument to tie the materials together and explain how they support the claims arising out of the allegations of protected conduct” does not satisfy Plaintiffs’ burden. (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 50; MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 185 ["plaintiffs made no effort to recite the required elements of any cause of action pleaded in the complaint, and instead concluded with amorphous phrases such as ‘[t]he evidence of [i]mproper [u]se here is almost entirely undisputed.’”].)[2]

While Defendants submitted a number of evidentiary objections, Plaintiffs have not provided any context to demonstrate their relevance to any cause of action alleged in the complaint. Plaintiffs have not cited any evidence in the first instance that is germane to the specific elements of their claims.

As Plaintiffs have failed to meet their burden required under Code Civ. Proc., §425.16, Defendants’ motion is GRANTED. The court strikes the protected speech and conduct from which each of Plaintiffs’ seven causes of action arise, as more specifically described in Defendants’ motion. (Mot. 2:18 – 3:25.)

[1] Strategic litigation against public participation.

[2] For comparison purposes, Plaintiffs assert similar amorphous phrases: “[t]his argument is laughably weak.” (Opp. 22:18); “It is clear that the City did harbor actual malice towards abortion generally…” (Opp.24:7-9.)