Judge: Peter A. Hernandez, Case: 22PSCV00479, Date: 2022-12-15 Tentative Ruling

Case Number: 22PSCV00479    Hearing Date: December 15, 2022    Dept: O

Cross-Defendant Lupe Garcia’s unopposed Special Motion to Strike [the Third Cause of Action in the] Cross-Complaint Pursuant to CCP § 425.16 is GRANTED. Attorney’s fees and costs are awarded in the reduced amount of $2,105.65.

Background   

Plaintiff Lupe Garcia, successor trustee (“Lupe”) alleges as follows:

Francisco Salas (“Francisco”) and Celia Salas (“Celia”) were married and had five children: Lupe, John Salas (“John”), Fernando Salas, Rafael Salas and Cynthia Salas. On February 7, 2003, Francisco and Celia established The Celia and Francisco Salas Living Trust (“Trust”) and transferred their property located at 420 Clintwood Avenue, La Puente, CA 91744 (“subject property”) into the Trust. On or about April 2010, Francisco was diagnosed with Alzheimer’s disease and dementia. Celia died on June 21, 2017. After Celia died, John removed Francisco from the subject property, put the subject property up for rent and collected all rental property from the subject property for his own personal use. John had Francisco live in a shed behind his (i.e., John’s) home and excluded family members from contacting Francisco. On August 29, 2018, John caused Francisco to execute a quitclaim deed transferring the subject property to him. Francisco died on December 14, 2020. Lupe is the current sole acting successor trustee of the Trust.

On May 20, 2022, Lupe filed a complaint, asserting causes of action against John and Does 1-15 and 10-20 for:

1.                  Invalidity of Deed for Undue Influence

2.                  Invalidity of Deed for Lack of Capacity

3.                  Invalidity of Deed for Financial Elder Abuse

4.                  Deemed to Predecease Decedent

5.                  Invalidity of Deed for Fraud in the Inducement

6.                  Cancellation of Deed

7.                  Quiet Title

8.                  Constructive Trust

On September 19, 2022, John filed a cross-complaint, asserting causes of action against Lupe, individually and as successor trustee, all persons unknown, claiming any legal or equitable title, estate, lien or interest in the Subject property described in the cross-complaint adverse to cross-complainant’s title or any cloud on cross-complainant’s title thereto; and Roes 1-50 for:

1.      Quiet Title

2.      Reformation of Deed

3.      Intentional Infliction of Emotional Distress

A Case Management Conference is set for December 15, 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 shall be 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].)

“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

Discussion

Lupe moves the court, pursuant to Code of Civil Procedure § 425.16, for an order striking the third cause of action for Intentional Infliction of Emotional Distress in John’s cross-complaint, on the basis that it arises from Lupe’s acts in furtherance of her constitutional rights of petition and speech and that John cannot establish a probability of prevailing on the merits of his claim. Lupe also seeks attorney fees in the amount of $3,613.50 and costs in the amount of $90.00.

Request for Judicial Notice

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

1.                  Granted as to Exhibit 1 (i.e., complaint filed May 20, 2022); and,

2.                  Granted as to Exhibit 2 (i.e., cross-complaint filed September 19, 2022).

Merits

1.                  The Third Cause of Action in John’s Cross-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).) A “public interest” must be demonstrated only with respect to the activities described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1121.)

Here, John has alleged, in relevant part, as follows:

The Cross-Defendants, and each of them, engaged in intentional conduct directed against the Cross-Complainant which included the following:

 

A.        Cross-Defendant Lupe Garcia filed a lawsuit alleging invalidity of deed for undue influence, invalidity of deed for lack of capacity, invalidity of deed for financial elder abuse, deemed to predecease decedent, invalidity of deed for fraud in the inducement, cancellation of deed, quiet title, and constructive trust, which included unfounded, slanderous, and egregious allegations against Cross-Complainant intended to cause emotional distress to Cross-Complainant.

 

B.        Cross-Defendant Lupe Garcia represented in her lawsuit that Cross-

Complainant fraudulently, with undue influence, acted maliciously to harm Decedent when in fact Cross-complainant deeply loved, respected, and cared for by Decedent and Decedent deeply loved, respected Cross-complainant. Furthermore, Cross-Defendant Lupe Garcia alleges that Defendant and Cross-Complainant did so while Decedent lacked capacity, and thus, was easily manipulated by Defendant and Cross-Complainant to deed the Subject Property to Defendant and Cross-Complainant. . . Plaintiff and Cross-Defendant is acting directly against Decedent’s wishes by filing this lawsuit.

 

C.        The actions of Cross-Defendants, and each of them, as set forth above were extremely outrageous and beyond the common bounds of decency.

 

D.        By reason of the above-mentioned acts, Cross-Defendants, and each of them, intended to cause Cross-Complainants severe emotional distress, humiliation and anguish, and did cause such damages.

 

E.         As a proximate result of the wrongful conduct by the Cross-Defendants, Cross-Complainants incurred monetary and economic losses and damages . . .”

 

(Cross Complaint, ¶ 26 (emphasis added).)

John’s Third Cause of Action is entirely based on Lupe’s act of filing her complaint against him in this instant lawsuit. “A claim for relief filed in . . . court indisputably is a ‘statement or writing made before a . . . judicial proceeding’ (§ 425.16, subd. (e)(1).)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)

The court finds that Lupe has made a threshold showing that the challenged cause of action arises from protected activity pursuant to subdivision (e)(1).

2.                  John Has Not Established a Probability of Prevailing on His Third Cause of Action

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

In determining whether a plaintiff (or cross-complainant) 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.)

“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations and citation omitted].)

John, by failing to oppose the instant motion whatsoever, has not met his burden of demonstrating a probability of prevailing on his third cause of action.

Further, John’s cause of action arises from Lupe’s act of filing her complaint against him in this instant lawsuit. This conduct is protected by the litigation privilege espoused in Civil Code § 47, subdivision (b) [i.e., “A privileged publication or broadcast is one made: . . . (b) In any . . . (2) judicial proceeding . . .”].) “[T]he litigation privilege is held to be absolute in nature.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 215.)

The motion is granted.

3.                  Attorney’s Fees

Lupe seeks attorney fees in the amount of $3,613.50 [calculated as follows: 4.6 hours preparing motion, plus 2.8 hours reviewing opposition and preparing reply, plus 2.5 hours preparing for/attending hearing at $365.00/hour], plus $90.00 in costs.

The court will award attorney’s fees in the reduced amount of $2,044.00 (i.e., 4.6 hours preparing motion, plus 1 hour preparing for/attending hearing at $365.00) and costs in the reduced amount of $61.65.