Judge: Peter A. Hernandez, Case: 22PSCV00441, Date: 2022-09-07 Tentative Ruling

Case Number: 22PSCV00441    Hearing Date: September 7, 2022    Dept: O

Defendants Susan Rubio’s and Blanca Rubio’s Special Motion to Strike Portions of Plaintiff’s Complaint Pursuant to Code of Civil Procedure § 425.16 and for Attorneys’ Fees is GRANTED [see below].

Background[1]   

Plaintiff Roger Hernandez (“Plaintiff”) alleges as follows:

Plaintiff is a former California State Assemblyperson, a former candidate for U.S. Congress and the ex-husband of Defendant California State Senator Susan Rubio (“Susan”). Defendant Blanca E. Rubio (“Blanca”) is Susan’s sister and a California State Assemblyperson. Susan filed a request for a three-year domestic violence restraining order (“DVRO”) against Plaintiff on April 13, 2016, which the court granted on July 1, 2016. The DVRO was renewed by Susan on January 17, 2020 for an additional five years. Beginning in or about April 2017, Plaintiff began his post-elected-office professional life as a governmental consultant. Plaintiff’s clients, however, would terminate his services upon being informed—either directly or indirectly by Susan and/or Blanca—that the city councils of El Monte, West Covina and Baldwin Park would refuse to grant any permits to, or otherwise “do any business” with, any of Roger’s clients. Also, during an October 4, 2021 keynote speech at the “International Coercive Control Conference” Susan made false statements that Plaintiff “had committed various acts of domestic violence against her.” Further, during a November 5, 2021 panel hosted by the University of California Irvine Initiative to End Family Violence, in conjunction with the California Protective Parents Association Legislative Panel, Blanca made false statements that “(a) [Plaintiff] was actively ‘grooming’ other women for domestic violence/abuse; and (b) [Plaintiff] tried to ‘re-abuse’ Susan after she obtained the [DVRO] against [him].” 

On May 6, 2022, Plaintiff filed a complaint, asserting causes of action against Susan, Blanca and Does 1-50 for: 

1.               Defamation Per Se

2.               Intentional Interference with Contractual Relations

3.               Intentional Interference with Prospective Economic Relations 

A Case Management Conference is set for December 13, 2022. 

Legal Standard 

“A special motion to strike under section 425.16—the so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) 

“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 [is] 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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) 

“When determining whether to grant an anti-SLAPP motion, the trial court engages in a two-step process. First the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 946 [internal quotation marks and citation omitted].)

An anti-SLAPP motion may be used to challenge specific causes of action in a Plaintiff’s complaint, as well as portions of a single cause of action. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 770; Baral v. Schnitt (2016) 1 Cal.5^th 376, 391-392.)

Discussion[2]

Susan and Blanca move the court, pursuant to Code of Civil Procedure § 425.16, for an order striking out the following portions of Plaintiff’s complaint: (1) Paragraph 36; (2) the first cause of action (i.e., for Defamation Per Se; Paragraphs 38-46) and (3) the seventh prayer for relief (i.e., Page 16, lines 15-18)[3], on the basis that the conduct complained of arises from Susan’s and Blanca’s advocacy for legislation on behalf of domestic abuse survivors conducted in the course of their work as a California State Senator and Assemblyperson, respectively, and that Plaintiff cannot establish a probability of prevailing on the merits of his claim. Susan and Blanca also seek attorney’s fees pursuant to subsection (c).

Request for Judicial Notice

The court rules on Susan’s and Blanca’s Request for Judicial Notice (“RJN”) as follows:

Granted as to Exh. 16 (i.e., DV-100 Request for Domestic Violence Restraining Order filed April 13, 2016 in Case No. BD613291);

Granted as to Exhs. 17-21 (i.e., minute orders dated May 25, 2016, June 9, 2016, June 16, 2016, June 17, 2016 and July 1, 2016, respectively, in Case No. BD613291);

Granted as to Exh.22 (i.e., DV-130 Restraining Order After Hearing (Order of Protection) filed July 1, 2016 in Case No. BD613291);

Granted as to Exh. 25 (i.e., DV-700 Request to Renew Restraining Order filed June 5, 2019 in Case No. BD613291);

Granted as to Exh. 27 (i.e., DV-730 Order to Renew Domestic Violence Restraining Order filed January 17, 2020 in Case No. BD613291);

Granted as to Exhibit 23 (i.e., July 1, 2016 reporter’s transcript in Case No. BD613291);

Granted as to Exhibit 26 (i.e., January 17, 2020 reporter’s transcript in Case No. BD613291);

Granted as to Exh. 24 (i.e., the “Verified Petition for Writ of Mandate/Complaint for Declaratory Relief” filed July 10, 2018 in case styled Partida v. The City of Carson, Case No. BS174161).

Evidence Code § 452, subdivision (d) provides that judicial notice may be taken of “[r]ecords of . . . any court of this state.” Evidence Code §§ 453 and 453 “permit the trial court to take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455 [quotations and citation omitted].) “Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. Thus, while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action.” (People v. Moore (1997) 59 Cal.App.4th 168, 178 [citations omitted].) However, “[e]ven though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action.” (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.)

Granted as to Exhs. 11-14 (i.e., Assembly Bills 557, 929, 2694 and 3129, respectively) and Granted as to Exhs. 28-34 (i.e., Senate Bills 273, 1141, 538, 374, 316, 935 and 320, respectively).

Evidence Code § 452, subdivision (c) permits the court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”

Granted as to the request made in Paragraph 16 (i.e., “[t]hat the primary elections for the California State Senate occurred on June 7, 2022”).

Evidence Code § 452, subdivision (h) permits the court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Granted as to Exhs. 4-10 (i.e., various news articles) (See Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807, fn. 5 [“Without assuming the truth of the assertions contained in the news articles, the fact that news articles discussing topics provoked by the Show were published is not reasonably subject to dispute”].).

The court rules on Plaintiff’s RJN as follows: Granted, as to the request made in Paragraph 1.

Evidentiary Objections

The court rules on Susan’s and Blanca’s evidentiary objections as follows:

Plaintiff’s Declaration: Overruled as to Nos. 1, 3, 6, 9, 15, 17, 19, 21, 30 and 65 (objectionable language not provided), 33, 35, 40-44, 53, 54, 56, and 79, Sustained as to Nos. 2, 4, 5, 7, 8, 10-14, 16, 18, 20, 22-29, 31, 32, 34-39, 45-52, 55, 57-60, 62 and 78. 

Dayana Partida Declaration: Sustained as to Nos. 80-87. 

Mike Ponitz Declaration: Sustained as to Nos. 88-94.

Merits

1.               Step One: Whether the Complaint Arises from Protected Activity 

The anti-SLAPP statute is designed to protect “(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).)

Whether an issue is of “public interest” is construed broadly (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4^th 107, 115) and includes statements concerning “a person or entity in the public eye, conduct that could directly affect a large number of people beyond the direct participants or a topic of widespread, public interest.” (Kieu Hoang v. Phong Mind Tran (2021) 60 Cal.App.5^th 513, 527 [quotation marks and citation omitted].)

Plaintiff has alleged, in relevant part, that during an October 4, 2021 keynote speech at the “International Coercive Control Conference,” Susan made a knowingly false statement to members of the public that Plaintiff had “committed various acts of domestic violence against her.” (Complaint, ¶ 39.) Plaintiff has also alleged, during a November 5, 2021 live panel discussion hosted by the University of California Irvine Initiative to End Family Violence, Blanca made knowingly false statements to members of the public that “(a) [Plaintiff] was actively ‘grooming’ other women for domestic violence/abuse; and (b) [Plaintiff] tried to ‘re-abuse’ Susan after she obtained the [DVRO]” against Plaintiff. (Id., ¶¶ 36 and 41.)

First, the alleged statements pertain to the issue of domestic violence and abuse, which are matters of public interest. (See Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 238 [ “Domestic violence is an extremely important public issue in our society”]; M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629 [domestic violence “is significant and of public interest”].) Plaintiff, moreover, readily concedes that the statements were made in a place open to the public. (Complaint, ¶ 39 [conference “was attended by various members of the public”) and ¶ 41 (panel discussion “was attended by various members of the public”].)

Second, all of the parties are public figures. Susan is a California State Senator. (Complaint, ¶ 12.) Blanca is a California Assemblyperson. (Id., ¶ 13). Plaintiff is a former California Assemblyperson and candidate for the United States House of Representatives. (Id., ¶ 11.) Speech regarding a public figure—here, statements made by two public figures about a third—is likely to be deemed a matter of public interest. (See FilmOn.com, Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145 [“In articulating what constitutes a matter of public interest, courts look to certain specific considerations, such as whether the subject of the speech or activity ‘was a person or entity in the public eye’”]; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254 [statements by one high profile person about another concerning their relationship is considered “statements in connection with an issue of public interest”].)

Finally, Plaintiff has alleged that Susan and Blanca made the alleged defamatory statements while discussing their ongoing efforts to promote and apply legislation to protect and support survivors of domestic violence (Susan Decl., ¶¶ 36-40, Exhs. 2 and 35; Blanca Decl., ¶¶ 8-12, Exhs. 3 and 15), such that they would be protected under subdivision (e)(2).

Plaintiff expressly “does not dispute that the defamatory statements at issue (i.e., comments made by Susan and Blanca at domestic violence awareness/activism conferences) arise from protected activity.” (Opposition, 3:1-3 and 3:22-24.) Based on this representation and on the above discussion, the court determines that Susan and Blanca have made a threshold showing that the challenged portions of Plaintiff’s complaint arise from protected activity.

2.               Step Two: Whether Plaintiff Has Established a Probability of Prevailing

Again, once a claim is shown to fall within the ambit of the anti-SLAPP law, the burden shifts to the plaintiff to establish a “probability” of prevailing on that claim.

In determining whether a plaintiff has established a probability of prevailing on the claim, the court will “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2). “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [emphasis added].)

“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendant's contrary showing, if any, does not defeat the plaintiff's as a matter of law.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

1.               Plaintiff’s Allegations Against Susan

a.               Falsity of Susan’s Statement

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) To plead defamation by oral statement, or slander, a plaintiff “must set forth ‘either the specific words or the substance of’ the allegedly defamatory statements,” which must include a “provably false factual assertion.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 948 [citations omitted].)

Again, Plaintiff has alleged that during an October 4, 2021 keynote speech at the “International Coercive Control Conference,” Susan made a knowingly false statement to members of the public that Plaintiff had “committed various acts of domestic violence against her.” (Complaint, ¶ 39.) Here, Plaintiff cannot demonstrate the falsity of Susan’s statement.

In Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, Daniel Miller (“Miller”) was discharged from his position as a Construction and Maintenance Supervisor with the City of Los Angeles Department of Water and Power for engaging in conduct constituting a conflict of interest, misconduct on the job seriously reflecting on his city employment and theft of City property. Miller appealed his discharge to the Board of Civil Service Commissioners. After participating in two days of evidentiary hearings and after receiving the hearing examiner’s report recommending the Board’s approval of his discharge, Miller filed a “withdrawal and/or dismissal” of his appeal. The Board considered the hearing examiner’s report and notified Miller in a letter that it had made all of the findings recommended therein, including that his discharge was appropriate and therefore sustained. The Board further notified Miller that his withdrawal had not been granted as it was not within the established guidelines. Miller subsequently filed a complaint against City for, inter alia, defamation. The trial court granted City’s special motion to strike as to the defamation action. The Court of Appeal affirmed, determining that “because Miller is collaterally estopped from arguing that his termination was wrongful in light of the finality of the administrative proceedings concluding he was properly terminated. . ., Miller cannot meet his burden of establishing a probability of prevailing on the merits. . .” (Id. at 1383.)

Similarly here, collateral estoppel bars the re-litigation of the issue of whether Susan was a victim of domestic violence at the hands of Plaintiff.

A DVRO petitioner must show “reasonable proof of a past act or acts of abuse.” (Fam. Code § 6300, subd. (a).) Abuse includes “intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury,” “plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another” or “engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320.” (Fam. Code § 6203, subd. (a).) Enjoined behavior under Section 6320 includes “molesting, . . ., striking. . ., threatening . . .[or] harassing.”

On July 1, 2016, Judge Kaufman granted Susan’s DVRO petition in Case No. BD613291. (RJN, Exh. 22.) The court there found that Susan had shown by a preponderance of the evidence that, inter alia, “there’s been abuse by intentionally or recklessly causing or attempting to cause bodily injury. . .” (RJN, Exh. 23, 44:19-21; see also RJN, Exh. 21 [“Petitioner’s Request for Domestic Violence Restraining Order is granted.

This court finds the Respondent has met her burden of proof to show that an act or acts of domestic violence occurred”].) Additionally, Susan sought a renewed DVRO against Plaintiff in June 2019. (Id., Exh. 25.) On January 17, 2020, Judge Treu renewed the DRVO for 5 additional years, finding that “the respondent has proved by preponderance of the evidence that she’s entitled to a renewal of the restraining order based upon the severe conduct of the petitioner that led to the court’s findings in issuing the restraining order sought to be renewed. And the court finds that respondent has a reasonable basis for fear, reasonable apprehension of future abuse based on that.” (Id., Exh. 27.)

The DVRO rulings were made after several days of hearings on the merits. Both Plaintiff and Susan submitted declarations and exhibits, called witnesses, and were subject to cross-examination. (Susan Decl., ¶¶ 20-24, 29-31.) Plaintiff had a full opportunity to challenge the basis of the DVROs. Plaintiff claims that Susan defamed him by stating that he “had committed various acts of domestic violence against her.” (Complaint, ¶ 39.) Judge Kaufman, however, previously decided this. Accordingly, the issue presented by Plaintiff’s defamation claim—whether Plaintiff “had committed various acts of domestic violence against “Susan—was decided in a prior case between the parties.

The court determines that Plaintiff cannot make a prima facie showing of evidence to support a judgment that Susan’s accusations are false and cannot meet his burden of demonstrating a probability of prevailing on the merits against her for the reasons articulated above.

b.               Actual Malice

Additionally, the court determines that Plaintiff cannot demonstrate that Susan acted with actual malice. “If the person defamed is a public figure, he must show, by clear and convincing evidence, that the defamatory statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false.” (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 218.)

The court determines that Plaintiff is a public figure. “Three types of defamation plaintiffs have been identified who must prove actual malice when defamatory speech relates to a matter of public concern—the public official, the general purpose public figure and the limited purpose public figure.” (Mosesian v. McClatchy Newspapers (1991) 233 Cal.App.3d 1685, 1694.) Plaintiff has alleged that he was elected to the Rowland Unified Board of Education in 1999, that he was elected to the West Covina City Council in 2003, where he served for two terms until being elected to the California State Assembly in 2010, that he went on to be re-elected to the California State Assembly in 2012 and 2014 before “terming out” of office in 2016, and then ran for United State Congress. (Complaint, ¶ 11.) Even if he were not a general purpose public figure (which he would seem to be), Plaintiff would qualify as a limited purpose public figure. “[O]ne who undertakes a voluntary act through which he seeks to influence the resolution of the public issues involved is a public figure.” (Sipple, supra, 71 Cal.App.4th at 247.) “A person becomes a limited public figure by injecting himself into the public debate about a topic that concerns a substantial number of people.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25-26; see Denney v. Lawrence (1994) 22 Cal.App.4^th 927, 935-936 [Plaintiff “gave press interviews . . . and, . . . promoted a version of the case favorable to his brother,” rendering him a limited public figure].) Here, the fact that Susan, then a City Council member, sought and obtained a DVRO against Plaintiff, then a State Assemblyman and candidate for the United States Congress, was highly publicized. (RJN, Exhs. 4-10.) Plaintiff injected himself into the public debate on this issue by publicly commenting on Susan’s allegations. After the initial DVRO, Plaintiff told the media that Susan was a “trained actress” who had deceived the court and compared Susan’s “attack” on him to a “Tonya Harding baseball bat to [his] knees.” (Secretov Decl., ¶¶ 12 and 13, Exhs. 9 and 10.)

 “To meet the clear and convincing standard, the evidence must be such as to command the unhesitating assent of every reasonable mind.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1579 [quotations and citation omitted].) “The reckless disregard test requires a high degree of awareness of the probable falsity of the defendant's statement.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. This is a subjective test, focused on the defendant's attitude toward the veracity of the published material, as opposed to his or her attitude toward the plaintiff.” (Id. [quotations and citation omitted].) Actual malice will not be inferred “solely from evidence of ill will, personal spite or bad motive.” (Id.; Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 92 [“A court may consider a defendant's anger or hostility toward a plaintiff in determining the presence of malice only to the extent it impacts the defendant's actual belief concerning the truthfulness of the publication”].) Plaintiff has not carried his burden. Further, even if Plaintiff’s declaration could properly establish falsity, “[t]here is a significant difference between proof of actual malice and mere proof of falsity.” (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 862 [quotations and citation mitted].) Plaintiff has not demonstrated any connection between Susan’s purported ill will towards him and her belief about the truth of her publication.

Accordingly, the court separately determines that Plaintiff cannot make a prima facie showing of evidence to support a judgment that Susan’s accusations were made with actual malice and cannot meet his burden of demonstrating a probability of prevailing on the merits against her.

c.               Plaintiff’s Allegations Against Blanca

As to Blanca, Plaintiff has alleged that during a November 5, 2021 live panel discussion hosted by the University of California Irvine Initiative to End Family Violence, Blanca made knowingly false statements to members of the public that “(a) [Plaintiff] was actively ‘grooming’ other women for domestic violence/abuse; and (b) [Plaintiff] tried to ‘re-abuse’ Susan after she obtained the [DVRO]” against Plaintiff. (Id., ¶¶ 36 and 41.) Plaintiff has alleged that “The November 5, 2021 audience reasonably understood Blanca’s accusations to mean that: (a) Roger was a sexual predator, actively pursuing women to abuse/prey upon; and (b) committed a crime by violating the terms of the three-year restraining order as to Susan.” (Id., ¶ 41.)

At the outset, the court has viewed Exhibit 15 to Blanca’s declaration, which is a video recording of Blanca’s statements in question made during the November 5, 2021 event. The transcription provided by Blanca on the right-hand side of Page 10, lines 15-28 of the motion is accurate and reflects that Blanca used the word “grooming” in the context of Plaintiff grooming others to disbelieve Susan, not that he was grooming other women for domestic violence and abuse. More specifically, Blanca stated as follows at the 40:57-42:28 mark:

I was involved in the court case with Senator Rubio and saw how dismissive

the judge was and saw how dismissive the, you know, kind of the rest of the

panel was, and deeming her ‘crazy’ or, or deeming her ‘overreacting.’ I think

her abuser even said, ‘well, you know, you know that in college, she was an

actress,’ as if that was relevant today. So then he said, ‘you know, she’s just

acting, right?’ And, and for a very long time, he made her believe it, and others

believe it ‘til this day. And I have to call out some of my female counsel

members in my nearby cities. They still do business with her abuser. And they

say, ‘oh, no, she was just overreacting.’ And because he is very, the abuser is

very charismatic, as we all can, all of you listening you know that the abusers

first and foremost, start grooming, and then abusing, right?, so so he’s at the

stage where he’s grooming other women, and have made them believe that that

my sister was was crazy, she was a good actress, and you know, he’s not capable

of that. And unfortunately, as much as we say that women stick together, we

don’t stick together, they still are falling for his his lies about, you know, my

sister was just a good actress therefore, she got away with it. (emphasis added.)

An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 378.) Blanca offered her opinion based on disclosed facts and her interpretation of Plaintiff’s behavior, such that it is a non-actionable opinion. Blanca relayed the facts for her belief, including having heard women say that Susan was “just overreacting” and an “actress,” notwithstanding the DVROs against Plaintiff.

Blanca’s statement regarding “re-abuse,” moreover, was offered in the following context (made at the 42:29-42:55 mark):

And you know, just for the record, the original, my sister got three year restraining order the first time and then he continued to to try and, and re-abuse but through other ways and went to court again and he got an additional five years so that’s an eight-year restraining order. Yet these women are are saying, ‘oh, well, she’s she was just that good of an actress that the judges didn’t see through it’ and therefore he got eight years of a restraining order. And so that’s also frustrating. (emphasis added.)

Blanca’s use of the phrase “but through other ways” means the opposite of violating the original 3-year DVRO. This statement constituted a non-actionable opinion because it does not make a factual assertion capable of being proven true or false and reflects the “subjective judgment of the person making the statement.” (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270; Blanca Decl., 14; Susan Decl., ¶ 31.)

Finally, even if Plaintiff could identify an actionable defamatory falsehood, he cannot make a prima facie showing of evidence to support a judgment that Susan’s accusations were made with actual malice.

2.               Conclusion

The motion is granted; however, Susan’s and Blanca’s request to strike out Paragraph 7 from the prayer is limited to the language identified in footnote one; specifically subsection (a).