Judge Ralph C. Hofer, Case Number: 22GDV01128, Date: 2023-12-22 Tentative Ruling

This action is brought by plaintiff Jane DOE K.C. 1 and plaintiff Jane Doe A.H. 2, who allege that they are survivors of childhood sexual abuse, sexual battery, assault, molestation, and abuse at the hands of defendant (originally sued as defendant Doe 1) Gloria de Los Angeles Trevino Ruiz aka Gloria Trevi, and defendant (originally sued as defendant Doe 2) Sergio Gustavo Andrade Sanchez aka Sergio Andrade. It is also alleged that defendant Maria Raquenel Portillo Jimenez aka Mary Boquitas and Mary Raquenel (originally sued as Doe 3) was a choreographer, dancer and assistant working with the other defendants who benefitted from the wealth, status, and power acquired by the other defendants, supported their efforts to acquire such wealth, status, and power, and was afforded by defendants’ productions particular power and influence over minors, including plaintiffs.

The operative complaint, the First Amended Complaint, alleges that beginning when plaintiff Jane Doe K.C. 1 was a 15-year-old child, and plaintiff Jane Doe A.H. 2 was a 13-year-old child, defendants used their role, status and power as a well-known and successful Mexican pop star and a famous producer to gain access to, groom, manipulate, and exploit plaintiffs and coerce sexual contact with them over a course of years, much of it occurring in the State of California. The complaint alleges that as a result of the sexual harassment, abuse and assault, plaintiffs have suffered severe emotional, physical and psychological distress.

On July 28, 2023, the court heard various motions in this matter, including a motion to strike the complaint, and for an order unsealing the names or requiring the identification of plaintiffs by name in the court’s public file. The motion to strike was granted in part but the order was stayed, and plaintiffs were ordered to file a noticed motion seeking an order to permit plaintiffs to proceed anonymously, addressing the appropriate standards as set forth in Department of Fair Housing v. Superior Court (2022) 82 Cal.App.5th 105.

Defendant Maria Raquenel Portillo Jimenez (“Portillo” in Cross-Complaint, “Raquenel” in motion), as cross-complainant, has filed a First Amended Cross-Complaint, which identifies cross-defendants as Andrade Sanchez, with the remaining cross-defendants identified by Doe and Roe designations.

The FACC alleges that cross-complainant Portillo is a public figure, with over 30 years of experience in the entertainment industry, and that cross-defendant Andrade is a well-known successful music producer, and now convicted sex offender in his native Mexico, and that Andrade married cross-complainant when she was fifteen years old, from 1980 to 1990, and divorced cross-complainant to marry cross-defendant Jane Doe AH 2 (AH) from 1990 to 1992, when cross-defendant was fifteen years old. The FACC alleges that Andrade married AH with the parental consent of cross-defendant’s mother, cross-defendant Roe JP 1, and that AH’s uncle, cross-defendant Roe JP 2, and her aunt, cross-defendant Roe SP 3, were witnesses to the marriage. It is also alleged that the parents of cross-defendant Jane Doe KC 1(KC), cross-defendants Roe JC 4 and Roe S 5, consented to KC living with Andrade, including allowing her to travel abroad to the U.S. with him.

The FACC alleges that in 2021, cross-defendant AH contacted cross-complainant and mentioned her plans to pursue a lawsuit against Andrade and Trevi for abuse of a minor. It is alleged that cross-complainant and AH met in person, and AH unexpectedly brought along two attorneys, and later introduced cross-complainant to a Federal Bureau of Investigation (FBI) agent. The FACC alleges that cross-complainant found out that the purpose of the meeting was for cross-complainant to be asked to be a named plaintiff in the underlying lawsuit as being the first victim of Andrade and the one who endured the longest. Cross-complainant told them she would think about it and afterward AH became insistent, along with the FBI agent, via phone calls and messages, that cross-complainant become a plaintiff in the lawsuit.

Cross-complainant decided to ignore the situation in hopes it would die out, and in July of 2022 contracted to do a podcast to tell her story of her life with Andrade, and there was immediate noise in the media about the podcast.

On December 30, 2022, cross-defendants KC and AH filed the underlying lawsuit for damages against Trevi, cross-defendant Andrade and cross-complainant for sexual battery, sexual assault and violation of Penal Code section 647.6, alleging that they are the survivors of childhood sexual abuse, sexual battery, assault and molestation.

In February of 2023, cross-complainant’s co-producers invited AH to be a guest on the podcast. In March of 2023, cross-complainant was served and found out for the first time about the lawsuit against her and her co-defendants. In April of 2023, the podcast was launched and in the first week ranked number one in Mexico and the U.S. and number four worldwide within its category. Also in April of 2023, AH stated publicly that she would like to be a guest on the podcast. In July of 2023, cross-complainant sent a message to AH to let her know about cross-complainant’s sadness at being involved in the lawsuit and to request AH consider removing cross-complainant from the lawsuit, since cross-complainant felt it had been a retaliatory move by AH due to cross-complainant having declined to be involved as a plaintiff in the lawsuit.

The FACC alleges that if plaintiffs sustained injuries as alleged in their complaint, it was a direct result of the negligent and intentional acts of cross-defendants, and in the event cross-complainant is held liable to plaintiffs, she is entitled to equitable indemnification and equitable contribution from cross-defendants.

The FACC also alleges that the lawsuit filed by plaintiffs KC and AH, alleging that cross-complainant committed sexual battery of a minor, sexual assault of a minor, and molested a minor, and all statements pertaining to cross-complainant, are false, that the complaint is libelous on its face, that the complaint has been read or seen by family members, the public and the media, and that as a result cross-complainant has suffered loss of her reputation, shame, mortification, and injury to her feelings, all to her damage.

It is also alleged that the cross-defendants filed the lawsuit sharing false stories about cross-complainant with the intent of portraying her as a criminal, and of destroying cross-complainant’s reputation worldwide, and as a result of the lawsuit and its publication to media outlets worldwide, cross-complainant has been uninvited from events concerning the podcast, guests have cancelled, conflict has been caused with her co-producers, cross-complainant has been harassed by third parties and threatened, and cross-complainant’s reputation has been adversely affected. The FACC also alleges that due to the allegations of the lawsuit, cross-complainant has suffered severe emotional and physical distress, including loss of sleep, stress and anxiety, difficult focusing, and social isolation.

Cross-Defendants Jane Doe AH 2 (AH) and Jane Doe KC 1(KC) seek an order striking the First Amended Cross-Complaint, and all the causes of action asserted in it, filed by cross-complainant Maria Raquenel Portillo Jimenez (referred to in the moving papers as “Raquenel,” rather than “Portillo”) pursuant to CCP § 425.16, which provides:

“(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) 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 or 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.

Subdivision (e) defines “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” to include statements made before an official proceeding, in connection with an issue under consideration by an official proceeding, in a “place open to the public or in a public forum” in connection with an issue of public interest, “or 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.” The latter two categories require a specific showing the action concerns a matter of public interest; the first two categories do not require this showing. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1120.

“Resolution of an anti-SLAPP motion “requires the court to engage 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. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.””

“And in a trio of opinions issued last year, we held that the plain language of the “arising from” prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Navellier v. Sletten (2002) 29 Cal.4th 82, 89–95, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier )), rejecting proposals that we judicially engraft the statute with requirements that defendants moving thereunder also prove the suit was intended to chill their speech (Equilon, supra, 29 Cal.4th at p. 58, 124 Cal.Rptr.2d 507, 52 P.3d 685) or actually had that effect (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75, 124 Cal.Rptr.2d 519, 52 P.3d 695).

Cross-defendants argue here that the causes of action in the cross-complaint against these parties, which all are based solely on allegations contained in plaintiffs’ complaint filed in this matter, fall within CCP § 425.16. CCP § 425.16 (e) defines act in furtherance of a person’s right of petition or free speech to include “(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…”

It is held that the right to petition includes any litigation related activity, and that the anti-SLAPP statute protects not only litigants, but also their attorney’s litigation related statements and conduct. Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.

The California Supreme Court in Rusheen v. Cohen (2006) 37 Cal.4th 1048, in addressing a cause of action for abuse of process, found that the anti-SLAPP statute applies to “communicative conduct such as the filing, funding, and prosecution of a civil action.” Rusheen, at 1056.

Cross-defendants rely on Navellier v. Sletten (2002) 29 Cal.4th 82, in which the California Supreme Court found that a complaint for fraud and breach of contract based on allegations that parties had made misrepresentations or omissions in connection with the negotiation of a release of claims, and breached the release by filing counterclaims in court asserting that the release was invalid, arose from protected activity.

The third cause of action for defamation alleges that plaintiffs filed a lawsuit against cross-complainant as defendant, and summarizes the allegations of the complaint, states that the complaint was understood to refer to cross-complaint, by “those who read the lawsuit which was made a public record and mentioned in the media,” that “[t]he entire statements in the Complaint are false as it pertains to Cross-Complainant,” and then alleges “[t]he Complaint is libelous on its face.” [FACC, paras. 96-99]. There are no statements alleged in the FACC in connection with this cause of action which were made other than in this lawsuit.

Similarly, the fourth cause of action for false light alleges the filing of the lawsuit, which “shared false stories about Cross-Complainant,” “involved listing numerous false allegations,” and that cross-complainant suffered the alleged damages, “[a]s a result of Cross-Defendants [sic] lawsuit which is a public record, and it has been published to many different media outlets worldwide.” [FACC, paras. 105-108].

Likewise, the cause of action for IIED alleges the conduct upon which it is based as the bringing of the lawsuit and publication of its allegations by virtue of the complaint becoming a public record. The fifth cause of action for IIED alleges that “[o]n or around December 30, 2022, Cross-Defendants engaged in behavior that caused damages” to Cross-Complainant, as they “filed a lawsuit against Cross-Complainant alleging false facts and stories,” that “[b]y filing the underlying lawsuit” cross-defendants “caused Cross-Complainant to suffer severe emotional distress,” and that this emotional distress was suffered “[a]fter the lawsuit was published and known within the media outlets, community and family members…” [FACC, paras. 110-112].

The causes of action accordingly arise out of protected activity and are subject to the anti-SLAPP statute, shifting the burden to cross-complainant to establish a probability of prevailing on the causes of action.

The motion notes, twice, in footnotes, that these causes of action should be stricken from the cross-complaint and dismissed but would remain as pled in defendant Raquenel’s Answer to plaintiffs’ complaint as affirmative defenses. [See Motion, n. 3, 4].

These causes of action also appear to the court to be overall improper as against the moving cross-defendants, who are plaintiffs in the underlying action, not co-defendants or alleged joint tortfeasors, but victims in the underlying action to whom duties by the various cross-defendants would be owed.

The causes of action allege that indemnity and contribution are available, “In the event the cross-complainant is held liable to the Plaintiffs in the principal action…”; and that “Plaintiffs’ damages, if any, were caused by the negligence and carelessness of the Cross-Defendants…” [FACC, paras. 91, 94]. There do not appear to be any factual allegations in the causes of action which would support a finding that plaintiffs engaged in negligence or carelessness which caused their own damages.

The general allegations do allege conduct on the part of the other co-cross-defendants which would fall outside of asserting allegations against cross-complainant in the complaint (which was not in fact filed by those parties), such as cross-defendant parents giving consent to the marriage of AH to Andrade and to allowing KC to travel with Andrade. [Cross-Complaint, paras. 30, 31, 32, 35, 38, 42].

The general allegations against the moving cross-defendants are, as to KC, that KC was introduced to Andrade by AH at the age of sixteen, that her parents consented to allow her to travel with him, that KC later introduced her two younger sisters to Andrade who currently each have a son of Andrade, and that:

“Cross-Defendant KC filed a lawsuit for damages against Defendant Trevi, Cross Defendant Andrade and Cross-Complainant for (1) Sexual Batter, (2) Sexual Assault, and (3) Violation of Penal Code § 647.6(a)(1) alleging she is a survivor of childhood sexual abuse, sexual battery, assault and molestation.”

As to AH, the general allegations are similarly that AH is the ex-wife of Andrade, married him at age 15 with her mother’s consent, along with her aunt and uncle serving as signed witnesses on the Mexican Marriage Certificate, that AH has filed for divorce and is receiving a marital settlement from Andrade, and that:

“Cross-Defendant AH filed a lawsuit for damages against Defendant Trevi, Cross- Defendant Andrade and Cross-Complainant for (1) Sexual Batter, (2) Sexual Assault, and (3) Violation of Penal Code § 647.6(a)(1) alleging she is a survivor of childhood sexual abuse, sexual battery, assault and molestation.”

While it would appear that generally causes of action for indemnity and contribution asserted in a cross-complaint do not arise out of protected activity merely by being asserted in a cross-complaint in response to the filing of a complaint, the FACC in this action alleges that plaintiffs in the underlying action are responsible for damages to any party primarily because they filed the complaint. The gravamen of the claims from the face of the FACC remains the conduct by plaintiffs of making the allegations which cross-complainant finds objectionable in plaintiffs’ complaint.

In particular, as there is no opposition here, the court from the allegations of the FACC concludes that all five causes of action in fact arise out of the protected activity of filing the complaint in this action. These allegations found in the complaint are the statements which cross-complainant challenges and are allegedly the sole source of her damages as against the moving parties.

In making its determination as to the probability of the cross-complainant prevailing on a claim, the court does not weigh the evidence, or determine questions of credibility. It merely determines whether plaintiff has established by admissible evidence, a prima facie case, which, if believed by the trier of fact, would result in judgment for the plaintiff. Mattel, Inc. v. Lude, Forward, Hamilton & Scripps (2002, 2nd Dist.) 99 Cal.App.4th 1179, 1188; Nagel v. Twin Laboratories (2003) 109 Cal.App.4th 39, 45-46.

In order to establish a probability of prevailing on the claim, “plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006, 2nd Dist.) 136 Cal.App.4th 464, 476, italics omitted, quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548. In deciding the issue of potential merit, the trial court considers the pleadings and evidentiary submissions of both the parties but does not weigh the credibility or the comparative probative strength of competing evidence. Wilson v. Parker, Covert & Chidestar (2002) 28 Cal.4th 811, 821. Such a showing “must be based on admissible evidence.” Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004, 2nd Dist) 117 Cal.App.4th 1138, 1147.

Here, there is no opposition, so cross-complainant has offered no evidence in support of any of its causes of action. Cross-complainant accordingly has failed to meet her burden on this motion of submitting admissible evidence, which, if credited, would establish a probability of prevailing on cross-complainant’s claims. The motion is granted on this ground alone.

In addition, cross-defendants also argue that cross-complainant will in any case be unable to establish any of the causes of action. The reason is that any evidence supporting the claims, which would necessarily consist of the allegations in the underlying complaint, would be barred from introduction into evidence by the litigation privilege.

Civil Code § 47 provides that “a privileged publication or broadcast is one made:...(b) In any ...(2) judicial proceeding.” This privilege extends to all communications made by the litigants or their attorneys in furtherance of the objects of the litigation which have some logical relation to the action. Silberg v. Anderson (1990) 50 Cal. 3d 205, 214. The privilege is absolute; it applies regardless of whether the acts falling within it were done with malice or intent to harm others. Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 810. The California Supreme Court has held that “section 47(b) operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution…” Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.

The allegations here are clearly in furtherance of the objects of existing litigation, forming the basis for plaintiffs’ claims that they were abused as children and that cross-complainant was directly responsible for the alleged harm to plaintiffs. Those allegations accordingly are subject to the litigation privilege and could not be admitted to prove any of cross-complainant’s claims in this cross action.

Cross-complainant accordingly is unable to meet her burden of establishing a prima facie case against moving cross-defendants or a probability of prevailing on her causes of action and the motion will be granted. The cross-complaint as to the moving parties is ordered stricken and is dismissed with prejudice.

In addition, with respect to the causes of action for equitable indemnity and contribution, cross-complainant is unable to establish a probability of prevailing on these claims because plaintiff cannot demonstrate that the complaint is “legally sufficient.” See Premier, at 476, Matson, at 548.

The doctrine of equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff.” Hence, to impose liability on such a theory, with limited exception, “there must be some basis for tort liability against the proposed indemnitor.” BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, citation omitted; See also, Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158-1159 (holding that equitable indemnity could not be invoked where it was established that alleged indemnitor owed no duty of care to the injured party, based on immunity, and noting, “A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is ‘wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available’ against the injured party.” Prince, at 1158-1159, quoting Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 115).

Here, it is clear that plaintiffs, in asserting their complaint against cross-complainant, are not alleged to have engaged in conduct which would support tort liability against the plaintiffs as joint tortfeasors. Plaintiffs are not alleged in their complaint to be joint tortfeasors but are alleged victims of the conduct of the other parties. Hence, plaintiffs are not proper cross-defendants in the cross-complaint on the causes of action for indemnity and contribution.

Again, cross-complainant has failed to meet her burden of establishing a probability of prevailing on these causes of action, and the motion is granted, and the causes of action are stricken and dismissed with prejudice.

In addition, with respect to the causes of action for equitable indemnity and contribution, the court, on its own motion, pursuant to CCP section 438 grants judgment on the pleadings as to the first and second causes of action of the cross-complaint as alleged against moving cross-defendants.

CCP § 438 subdivision (c)(1)(B) authorizes the granting of judgment on the pleadings if certain conditions exist, including that “(ii) The complaint does not state facts sufficient to constitute a cause of action against” a defendant.

Subdivision (d) provides that “the grounds for the motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

For the reasons discussed above, judgment is appropriate as to the causes of action for equitable indemnity and contribution in favor of moving cross-defendants because these parties (i.e., the plaintiffs) cannot be alleged to be joint tortfeasons with this defendant/cross-complainant (i.e., Portillo) in the underlying complaint. See BFGC Architects, supra, 119 Cal.App.4th 848, 852 (“One factor is necessary, however. With limited exception, there must be some basis for tort liability against the proposed indemnitor. (Munoz v. Davis (1983) 141 Cal. App. 3d 420, 425 [190 Cal. Rptr. 400].) Generally, it is based on a duty owed to the underlying plaintiff (e.g., Yamaha Motor Corp. v. Paseman, supra, 219 Cal. App. 3d at pp. 964–966; Munoz v. Davis, supra, 141 Cal. App. 3d at p. 425)…”). No allegations based on a duty owed to the underlying plaintiffs is alleged in the causes of action at issue here. On the face of the underlying complaint and all other pleadings, it is clear that in no circumstances could plaintiffs be construed as joint torfeasors.

The court also notes that it grants judgment on the pleadings without leave to amend as to the subject causes of action. The court finds as a matter of law that cross-defendants KC and AH, are not positioned in this matter as joint tortfeasors with respect to plaintiffs KC and AH, who are alleged victims. Therefore, the pleading (i.e., the cross-complaint) is legally insufficient. The insufficiency cannot be cured by amendment. Hence, the court grants its own motion for judgment on the pleadings without leave to amend for the first and second causes of action for indemnity and contribution of the cross-complaint as to the plaintiffs Jane Doe K.C. 1 and Jane Doe A.H. 2.

Plaintiffs’ Special Motion to Strike Cross-Complaint Pursuant to CCP Section 425.16 is GRANTED. The moving papers have sufficiently established that the operative cross-complaint, the First Amended Cross-Complaint, arises out of protected activity, acts in furtherance of cross-defendants’ rights of petition or free speech under the United States or California Constitution, as the communications relied upon constitute written statements made before a judicial proceeding, as well as written statements or writings made in connection with an issue under consideration or review by a judicial body, pursuant to CCP § 425.16 (e)(1) and (2).

This posture shifts the burden to cross-complainant to establish a probability that cross-complainant will prevail on the claims. Cross-complainant has failed to oppose the motion, so cross-complainant has failed to submit argument or admissible evidence showing that there is a probability of prevailing, particularly in light of the litigation privilege which would apply to the communications at issue.

Moreover, as to the first two causes of action for indemnity and contribution, the pleading also is insufficient as a matter of law, as devoid of allegations which would support conduct on the part of the moving cross-defendants which would give rise to joint tort liability to plaintiffs with respect to the complaint brought by the moving cross-defendants themselves.

In the alternative, as to the first cause of action for equitable indemnity and second cause of action for contribution, the Court on its own motion pursuant to CCP section 438 GRANTS JUDGMENT ON THE PLEADINGS in favor of moving cross-defendants, Jane Doe K.C. 1 and Jane Doe A.H. 2, as a matter of law, and without leave to amend.

The special motion to strike would then be GRANTED as to the third, fourth, and fifth causes of action against the moving cross-defendants, and the entire First Amended Cross-Complaint would be DISMISSED WITH PREJUDICE as to moving cross-defendants Jane Doe K.C. 1 and Jane Doe A.H. 2.

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