Judge: Peter A. Hernandez, Case: 23PSCV01601, Date: 2023-09-18 Tentative Ruling
Case Number: 23PSCV01601 Hearing Date: November 1, 2023 Dept: K
Defendant Richard Norene’s
Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 is GRANTED.
Background
On June 26, 2022,
Richard Norene (“Norene”), Richard Fannan (“Fannan”) and Vincent Quigg
(“Quigg”) (together, “Defendants”) filed a “false and frivolous complaint”
against Plaintiffs in probate court, Case No. YP0011705. Aimee suffered a mild
heart attack during trial proceedings. Sandra has received documents from Quigg
under Case No. 15N00433 which instruct her to go to court and indicate that she
owes a balance of $81,364.00. Before the court date Plaintiffs received a
letter stating that Quigg was going to foreclose on the family residence and
that he was going to proceed with a sheriff’s sale on the property. Quigg
claims there is a judgment against Sandra filed March 3, 2005 and there was a
renewal and the date for the renewal is December 17, 2014 to February 24, 2020,
but this “do[es] not add up” because the probate case where the judgment
stemmed from occurred in 2011 and had nothing to do with Sandra. Defendants
have also “tr[ied] to take advantage of” Lorin by claiming there are judgments
against him.
On May 31, 2023, Plaintiffs filed a complaint, asserting causes of action against Defendants and Does 1-10 for:
1.
Intentional Tort
2.
Intentional Tort
On September 19, 2023, the court granted Fannan’s and Quigg’s respective anti-SLAPP motions.
A Case Management Conference is set for November 1, 2023.
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. (Code Civ. Proc., § 425.16, subd. (b)(1).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) 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].)
Discussion
Norene moves the court, pursuant to Code of Civil Procedure § 425.16, for an order striking and dismissing Plaintiffs’ complaint, on the basis that it arises from Norene’s constitutionally protected right to petition the court and that Plaintiffs cannot establish a probability of prevailing on the merits of his claims. Norene defers attorneys’ fees, to be addressed via a separate motion.
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.)
“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, disapproved of on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5). “The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537). Court “have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)
Here, Plaintiffs have alleged, in relevant part, that on June 26, 2022, Norene, along with co-Defendants Fannan and Quigg, “filed a false and frivolous complaint against [Plaintiffs].” (Complaint, Page 1-2, ¶ IT-1 [emphasis added]).
Plaintiffs have alleged that Defendants “are trying to take advantage of our father by trying to claim there are judgments against him” and that they “would also make calls to all individual Plaintiffs. . .[and] always try and get money from them.” (Id., Page 1-2, ¶ IT-1). Plaintiffs have further alleged that “[b]ut for the Defendants filing all of these false Complaints, serving multiple court documents, constant phone calls containing threats, and claiming they have judgments against the Plaintiffs’ there would be no damage caused to the Plaintiffs.” (Id. [emphasis added].). The foregoing allegations indicate that Plaintiffs’ causes of action arise from defendants’ filing of a lawsuit as well as post-judgment collection efforts.
The court finds that Norene has made a threshold showing that the challenged causes of action arise from protected activity pursuant to subdivision (e); accordingly, the court would normally proceed to the second step of the anti-SLAPP analysis (i.e., whether plaintiffs have established a probability of prevailing). Plaintiffs, however, have failed to oppose the instant motion whatsoever; as such, they have not met their burden. The motion is granted.