Judge Michael Small, Case Number: BC695768, Date: 2023-08-22 Tentative Ruling

Judge: Michael Small, Case: BC695768, Date: 2023-08-22 Tentative Ruling

Case Number: BC695768 Hearing Date: August 22, 2023 Dept: 57

Code of Civil Procedure Section 425.16 authorizes the filing of special motions to strike complaints in cases that qualify under that statute as strategic lawsuits against public participation ("anti-SLAPP motions"). Here in this case, Defendant Charles Perez filed in 2018 an anti-SLAPP motion seeking to strike the complaint of Plaintiff Southwest Law Center ("SLC"). The Court (per Judge David Sotelo) denied Perez's anti-SLAPP motion on the ground that Perez had failed to establish, at the first step of the well-established two-step process for evaluating anti-SLAPP motions, that SLC's complaint against him arises from an act in furtherance of Perez's right of petition or free speech under the federal or California constitutions in connection with a public issue -- acts that the anti-SLAPP statute treats as protected. (The Court did not address the second step of the process, which is whether there is a probability that SLC would prevail on its complaint.) The Court of Appeal affirmed.

Five years after he filed his first anti-SLAPP motion in this case, Perez has applied under Section 425.16(f) for leave to file a second one ("the Application"). Section 425.16(f) provides that anti-SLAPP motions "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." Because Perez wishes to file an anti-SLAPP motion more than 60 days (and way more, at that) after service of SLC's complaint, he had to submit the Application. According to the Application, Perez seeks leave to file a second anti-SLAPP motion well into the life of the case, and five years after SLC’s complaint was served, because he has only recently uncovered evidence in a related case (Medical Acquisition Company v. Southwest Law Center, BC585918) establishing that SLC's complaint against him in this case arises from protected activity.

The Court is denying the Application.

Perez has failed to identify any precedent (and the Court is unaware of any either) authorizing a litigant to file a second anti-SLAPP motion directed at the initial complaint in a case after the expiration of Section 425.16(f)'s sixty-day deadline. The precedents that Perez has identified (and of which the Court is aware) authorize the post-sixty-day deadline filing of a second anti-SLAPP motion directed at amended complaints that asserted a claim that was not asserted in the initial complaint. The operative pleading in this case remains SLC's initial complaint. It has not filed an amended complaint. Furthermore, Perez overlooks a long line of precedent in which appellate courts have affirmed trial court rulings denying leave to file an anti-SLAPP motion directed at an initial complaint more than sixty days after service of the complaint. (E.g., Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775-776 [canvassing precedents affirming trial court rulings denying late-filed anti-SLAPP motions targeting the initial complaint].)

Perez's assertion that he has just discovered evidence in the related case establishing that SLC's claim in this case arises out of protected activity is an inadequate basis to support the exercise of discretion to allow Perez to file a second anti-SLAPP motion directed at SLC's one and only complaint, five years on. The purpose of the legislature in authorizing the prompt filing of anti-SLAPP motions early in a case (i.e. within 60 days after service of the complaint) is to enable parties to "nip . . . in the bud" lawsuits that arise from protected activity, (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042), and thereby avoid "be[ing] dragged through the courts" for having engaged in protected activity, (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th1315, 1317.) Indeed, to that end, the filing of an anti-SLAPP motion automatically stays all discovery in the case (although some limited, specified discovery in connection with motion may be permitted). (Section 425.16(g).) The automatic stay of discovery is intended to minimize the costs of litigating a lawsuit the arises from protected activity. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192, fn. 5.)

Perez's avenue for relief at this late stage in the case based on discovery that has been adduced in the related case is to file a motion for summary judgment, not another anti-SLAPP motion. For after all, unlike an anti-SLAPP motion, a summary judgment motion is necessarily predicated on discovery that has been conducted, and turns on what the discovery shows or does not show. (Section 437c(b); Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [noting discovery-related distinction between anti-SLAPP motions and summary judgment motions].)

Platypus Wear, Inc. v. Goldberg, supra, is instructive in this regard. In that case, the trial court granted leave to the defendant to file an anti-SLAPP motion two years after the initial complaint was served, and at a juncture in the case after which substantial discovery had been completed. (Platypus, supra, 166 Cal.App.4th at pp. 775, 784.) (There was no amended complaint in that case). The Court of Appeal reversed, holding that the trial court abused its discretion in permitting the filing of an anti-SLAPP motion so late in the case. In reaching that conclusion, the Court of Appeal rejected the defendant’s argument that meritorious anti-SLAPP motions generally should be allowed at any time. It stated that if the defendant was so confident in his position, he should have, at that stage of the case, filed a motion for summary judgment. (Id. at p. 785.)

In sum, “[a]n anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4^th 611, 625-626.) The Application in this case runs afoul of that basic principle.