TENTATIVE RULING

Calendar: 8 

Date: 4/26/2024

Case No: 24 AHCV00002 Trial Date:  None Set 

Case Name: Rodgers v. Chan-Jones 

SPECIAL MOTION TO STRIKE

Moving Party: Defendant Joanie K. Chan-Jones  

Responding Party: Plaintiff Christopher J. Rodgers     

RELIEF REQUESTED:

Order striking first and third causes of action of plaintiff’s Amended Complaint      

CAUSES OF ACTION:   from Amended Verified Complaint 

1) Civil Extortion 

2) Conversion  

3) IIED 

4) Claim and Delivery/Writ of Possession 

SUMMARY OF FACTS:

Plaintiff Christopher J. Rodgers alleges that in November of 2020, plaintiff and defendant Joanie K. Chan-Jones purchased a single-family residence in Altadena as joint tenants.  As of the time of the property purchase, plaintiff and defendant were in a relationship and until October of 2023 resided together at the property.  

Plaintiff alleges that in June of 2019, plaintiff purchased a Labradoodle dog named Remy, for which he paid $2,250 together with a $550 deposit.

The FAC alleges that plaintiff has certain limitations regarding social interactions due to what plaintiff’s doctors have diagnosed as a mental health disability, and in July of 2020, plaintiff began seeing a therapist for his condition.   In 2020, plaintiff’s then therapist determined that Remy had been a big help to plaintiff in managing plaintiff’s life on a daily basis and recommended that Remy be designated as an emotional support animal for plaintiff to help alleviate plaintiff’s social difficulties and enhance his ability to live independently and travel.  As a result, Remy was formally certified as an Emotional Support Animal by the United Service Dog Association.  Plaintiff’s doctors have recommended the constant presence of plaintiff’s emotional support animal to assist plaintiff in coping with his diagnosis, and that diagnosis has resulted in an Emotional Support Dog being prescribed by a licensed therapist as necessary for plaintiff’s well-being in light of his mental health disability. 

Plaintiff alleges that in August of 2023, plaintiff and defendant decided to separate, and defendant moved out of the property in October of 2023.  Plaintiff and defendant are still working to determine how to handle the property and some issues still need to be resolved, including any potential buyout and roof repairs.  

Plaintiff alleges that even after leaving the property defendant has been showing up unannounced and has been improperly removing mail and deliveries from the property, including things belonging to plaintiff, and has most egregiously removed plaintiff’s Emotional Support Animal, Remy, without plaintiff’s permission.  

Plaintiff alleges that defendant has threatened plaintiff to maintain custody of Remy until the property issues are settled.  Plaintiff alleges that defendant’s actions were deliberate, cruel, and emotionally abusive to plaintiff, with defendant using intimidation and threats to manipulate plaintiff to make certain decisions regarding disposition of the property in order to financially benefit defendant.  The FAC also alleges that removing Remy without permission violates various California and federal laws, including the Americans with Disabilities Act, and Penal Code sections which provide that stealing a companion animal is a crime.

Plaintiff alleges that he has tried to persuade defendant to return Remy, including enlisting the assistance of the Altadena Sheriff’s Department, but defendant has refused, which has caused plaintiff emotional distress, and negatively affected his health. 

The file shows that on January 19, 2024, the court heard an ex parte application brought by plaintiff for a writ of possession, which was granted, and defendant was ordered to immediately return possession of the Emotional Support Animal known as “Remy” to plaintiff, finding that defendant had not shown she had any lawful claim to Remy.  The court ordered that no undertaking by plaintiff would be required, but that given the uniqueness of the property in dispute and defendant’s failure to show any lawful right to such property, the amount of defendant’s undertaking was set at $50,000.  The Order Granting Ex Parte Application for Writ of Possession was signed and filed the same date.  

On January 23, 2024, defendant filed a Notice of Posting the Undertaking, with proof of deposit with the court on the same date. 

On March 19, 2023, defendant filed a cross-complaint naming plaintiff as a cross-defendant, alleging that Remy was fully gifted to cross-complainant by cross-defendant in 2019, in order to induce cross-complainant to remain in their romantic relationship.  Cross-complainant alleges that since receiving Remy as a gift from cross-defendant, cross-complainant has loved, nurtured, and cared for Remy, particularly providing solely for Remy’s special needs and health issues, including Remy being diagnosed with leptospirosis, having to go through dialysis, and then having to be fed through a feeding tube and receive IV fluids.   Cross-complainant alleges that she takes Remy to all medical appointments and grooming appointments and provides for cleaning and bathing to avoid infection and address Remy’s allergies.   

The cross-complaint seeks a declaration that cross-complainant is the 100% legal and equitable title holder of Remy, and that her interest is superior to any rights asserted by cross-defendant. 

The cross-complaint also seeks partition by sale of the real property owned jointly by cross-complainant and cross-defendant, and an accounting, based on allegations that during the years of the ownership of the real property, cross-defendant collected and received from third parties rents and profits derived from the property, and that cross-complainant has paid expenses for the repair, maintenance, taxes, and insurance on the property in amounts different than amounts paid by cross-defendant.    

ANALYSIS:

Defendant Joanie K. Chan-Jones seeks an order striking the first cause of action for extortion and the third cause of action for IIED in the FAC 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

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.   

 

  The California Supreme Court in Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728 set forth the manner in which the trial court is to apply CCP § 425.16:

“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.”” 

Jarrow, at 733, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. 

The Court summarized it previous decisions addressing the statute, and noted:

“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).

Jarrow, at 734. 

An order granting or denying an anti-SLAPP motion is reviewed de novo.  Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.  

Defendant argues here that the first and third causes of action are brought to punish defendant for the assertion of her legal right to real property co-owned by the parties and retaliate against defendant for transmitting a pre-litigation demand communication.   

Specifically, defendant argues that the text message which forms the cornerstone of plaintiff’s first and third causes of action constitutes protected petitioning and protected litigation activity. 

Defendant argues that the causes of action accordingly fall within CCP § 425.16 (e)(2), which defines act in furtherance of a person’s right of petition or free speech to include “(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.   Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908. 

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 moving papers cite to Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, in which the California Supreme Court observed that with respect to communications involving prospective litigation, such a communication would be privileged if there were facts establishing that it related to litigation that is “contemplated in good faith and under serious consideration.”   Action Apartment, at 1251; See also Bailey v. Brewer (2011, 2nd Dist.) 197 Cal.App. 4th 781, 789-790 (where statements concern the subject of the dispute, and are made in anticipation of litigation, contemplated in good faith and under serious consideration, “then the statements may be petitioning activity protected by section 425.16”, citations omitted).   It is held, “Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to the utmost freedom of access to the court without [the] fear of being harassed subsequently by derivative tort actions.”  Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055 quotations, citations omitted.  

Defendant argues that the first and third cause of action rely entirely on defendant’s October 16, 2023 text message, in which defendant made a final demand, after many other communications between the parties had been exchanged, which was akin to what an attorney would have written, and which was preparatory to anticipated litigation as to the parties’ interests in the subject property.  

Defendant attaches the subject e-mail to the declaration of defendant Jones in support of the motion, which text states:

“Hi Chris.  As you instructed in your email on Monday, October 2, I’ve reached out to an attorney friend to help facilitate the house situation.  He will be reaching out to you shortly.  My intent for retaining counsel isn’t adversarial, but rather to move this along swiftly so that we can both move on with our lives.  It told you at the beginning of the breakup that I aim for a peaceful departure.

Since then, I believe it’s in my best interest to stay away.  I no longer feel safe in my own home.  You made a major house decision without discussion or my consent and your reasons for doing so aren’t forthcoming.  You also gave ‘someone’ an access code to pick up ‘something’ for you.  No one showed up and you didn’t notify me.  I was anxiously waiting with barricades up in my own home.  I also noticed that someone slept in the bed in the sneaker room Saturday evening.  When I left Saturday afternoon, the bed was made.  When I returned Sunday at 1230pm, it was not made. 

You will not be seeing us anytime soon until we come to an agreement with the property.  We can have a discussion at that time.  

I moved more of my things this weekend.  However, I still have a lot of my stuff at the house including furniture.  We both still own the property so I ask that you respect all my personal belongings and don’t touch them.  This includes any of the boys’ personal items.  I did not take anything that wasn’t mine and if you should find that I mistakenly took an item that was yours, please let me know and I’ll gladly return it.  I will be coming by the house whenever necessary to check on it, retrieve my mail, organize/pack more things and so forth. 

I received a new quote from Hexagon roofing with the partial roof replacement plus drywall and submitted it to the home insurance for approval.  The new quote is $26,180.”

[Jones Decl., Ex. V]. 

As argued in the opposition, this text does not appear to be the “cornerstone” of the causes of action for extortion or IIED.   The gravamen of those causes of action appear to be the allegations that defendant took the dog Remy, plaintiff’s emotional support animal, and would not return Remy to plaintiff.  The text does not mention Remy, and to the extent it states that plaintiff will not see “us” anytime soon, this could easily be interpreted as a reference to defendant and her two sons, the “boys” referenced in the text.  There is no direct threat involving Remy included in this text.   

The first cause of action alleges: 

“As set forth above, Defendant improperly and illegally removed Christopher's emotional support animal, Remy, from the Property without Christopher's permission. Further, Joanie has refused to return custody of Remy to Christopher until the Property issues are settled.”

[FAC, para. 34] 

The third cause of action alleges:

“Joanie knew that Christopher needed his Emotional Support Animal in his daily life and that he would suffer emotional distress when she removed Remy from his possession and deliberately employed intimidation and escalated manipulation against Christopher.”

[FAC, para. 53]. 

Particularly in connection with the IIED cause of action, it appears that this conduct of taking the Emotional Support Animal without permission would alone support the cause of action, and no alleged protected pre-litigation speech activity would be necessary to support such a cause of action.  Any alleged threats do not appear to be included in the subject text message, and would only provide further evidence that defendant engaged in outrageous conduct, which conduct would already be sufficiently outrageous without additional threatening conduct or alleged escalating manipulation.       

The first cause of action is more complicated because the elements of extortion require a threat. 

In Flatley v. Mauro (2006) 39 Cal.4th 299, the California Supreme Court recognized a civil cause of action for extortion, based on the criminal statutes:

“Extortion is the obtaining of property from another, with his consent … induced by a wrongful use of force or fear … .” (Pen. Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶] … [¶] 2. To accuse the individual threatened … of any crime; or, [¶] 3. To expose, or impute to him … any deformity, disgrace or crime[.]” (Pen. Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen. Code, § 523.)

Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal. App. 3d 1058, 1079 [267 Cal. Rptr. 457].)”

Flatley, at 326. 

Under Penal Code § 519:

“Fear, such as will constitute extortion, may be induced by a threat of any of the following:

 1. To do an unlawful injury to the person or property of the individual threatened or of a third person.

 2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime.

 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime.

 4. To expose a secret affecting him, her, or them.

 5. To report his, her, or their immigration status or suspected immigration status.”

As set forth above, Flately indicates that such conduct is actionable, as under the criminal statute there is liability “as if such money or property were actually obtained…” Flately, at 326. 

    

In connection with the first prong and the first cause of action for extortion, plaintiff argues that defendant’s speech is not protected, as there is an insufficient showing that any extortionate threats concerning withholding custody of Remy unless plaintiff would agree to defendant’s terms concerning the buyout of the real property was made in anticipation of litigation.    

This posture leaves the issue, as set forth above, of whether any alleged communications involved prospective litigation, which was at the time “contemplated in good faith and under serious consideration.”  Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.    

As set forth above, the text message on which defendant relies from the October 16, 2023 text, states on its face:

“As you instructed in your email on Monday, October 2, I’ve reached out to an attorney friend to help facilitate the house situation.  He will be reaching out to you shortly.  My intent for retaining counsel isn’t adversarial, but rather to move this along swiftly so that we can both move on with our lives.”

[Jones Decl., Ex. V]. 

The FAC does not clearly allege when Remy was first taken by defendant but does allege that threatened custody maintenance by defendant is reflected in texts dated October 16, 2023, which text is set forth above.  [FAC, para. 20]. 

Defendant in the moving declaration states that in the back-and-forth negotiations concerning the buyout, plaintiff sent a counterproposal on September 18, 2023, which referenced legal fees because the parties had discussed the possibility of each retaining an attorney.  [Jones Decl., paras.  44-47, Ex. O].  It is indicated that this email was the first mention of plaintiff retaining custody of Remy for one weekend a month, when it remains defendant’s position that Remy had never been plaintiff’s dog.  [Jones Decl., paras. 47, 48, Ex. O].  Defendant indicates it was at this point that she started contacting lawyers, and evidently began taking action such as returning checks for less than the full amount agreed to, evidently on the advice of counsel.  [Jones Decl., paras.  50-52].  It appears that after this retention was when plaintiff began in his emails indicating that “Remy is part of the equation and nothing will be signed until custody is agreed upon.”  [Jones Decl., para. 55, Ex. S].  Jones indicates that in this same October 2, 2023 e-mail, plaintiff stated, “If we are not in agreement, and you do not want to accept my buyout offer, we can both go get attorneys at this point to help formulate our next steps/each persons’ obligations.”  [Ex. S]. 

Defendant states, “I understood Mr. Rodgers words that if we did not reach an agreement on his terms, that he would hire an attorney and file a lawsuit against me regarding ownership of the Subject Property and our shares in the Subject Property.  I was scared by his statement about getting an attorney because to me that meant he was going to file a lawsuit against me.”  [Jones Decl., para. 58].  Defendant also states, “At this stage, I was already being advised by my current attorneys…”  [Jones Decl., para. 59]. 

It appears that by the time of the alleged threats on October 16, 2023 as currently alleged in the FAC, defendant has established that she had been for two weeks fearful that she would be forced to defend against contemplated litigation and in good faith had retained counsel to deal with that eventuality and protect her rights to pursue litigation.  It is also clear from the file that defendant, as cross-complainant, in response to this lawsuit, actually did file a cross-complaint to protect her interests concerning the real property, further supporting that litigation had been anticipated.    

This showing sufficiently establishes that any alleged threats upon which the first cause of action of the FAC relies, if they existed at all, were undertaken as pre-litigation communications, which would constitute protected activity within the meaning of CCP § 425.16 (e)(2), which defines act in furtherance of a person’s right of petition or free speech to include “(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…”  

In any case, even if defendant’s speech in making threats concerning the custody of the dog were the gravamen of the causes of action, meeting the first prong and shifting the burden to plaintiff to establish a probability of prevailing on those causes of action, plaintiff argues that he is able to do so without reference to any alleged pre-litigation communications, which argument is discussed below. 

Plaintiff also argues that extortion is not a protected activity under the first prong of the Special Motion to Strike statute but is considered non-protected criminal activity.

In Flatley v. Mauro (2006) 39 Cal.4th 299, the California Supreme Court affirmed the judgment of the trial court and the Second District denying a special motion to strike where the alleged conduct constituted criminal extortion as a matter of law, finding that since extortionate speech was not constitutionally protected, the anti-SLAPP statute did not apply.  Flatley, at 328.  (“Extortion is not a constitutionally protected form of speech.”).  The Court found that in that case, where defendant did not deny that he made the extortionate statements, and “based on the specific and extreme circumstances of this case,” the activity was extortion as a matter of law, and the trial court did not err in denying the special motion to strike. Flatley, at 332-333.

The Court in Flatley held that the special motion to strike statute did not apply, “where either the defendant concedes the illegality of its conduct, or the illegality is conclusively shown by the evidence…”  Flatley, at 316.  

Plaintiff makes this argument and argues that defendant’s extortionate threats are criminal and illegal as a matter of law but does not establish that defendant here has somehow admitted to making any extortionate statement, that there are specific and extreme circumstances in this matter, or that illegality is conclusively shown by the evidence.  The opposition points to no admission by defendant of having made a threatening statement which would be considered extortionate as a matter of law.  

The opposition cites, without real discussion, to Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, in which the Second District found that plaintiff’s ex-boyfriend’s attorney’s alleged wiretapping was not protected activity, but criminal misconduct, concluding that,  “Under no factual scenario offered by [the law firm] is such wiretapping activity protected by the constitutional guarantees of free speech and petition.”  Gerbosi, at 446-447.  Such a showing has not been established as the case here, where a review of the text message at issue does not even include an extortionate statement, in effect, a threat prohibited under statute, combined with a demand for money, or, indeed, any mention of Remy.   See also LeFebvre v. LeFebvre (2011, 2nd Dist) 199 Cal.App.4th 696, 705 (affirming denial of anti-SLAPP motion finding that the activity in that case, filing a false police report, although privileged, did not fall within the first prong of the anti-SLAPP statute because it was illegal activity, not made in connection with a protected constitutional right, the Second District concluding “Because Alice does not contest that she submitted an illegal, false criminal report, [w]e end our review here.”); See also Kenne v. Stennis (2014, 2nd Dist.) 230 Cal.App.4th 953, 967 (distinguishing the case before it from LeFebvre:  “Plaintiff's reliance on LeFebvre…is misplaced. In that case, the wife conceded that her report to the police was both false and illegal. Here, defendants deny that any report they made to the police was false or illegal.”)

Here, there is no concession by defendant that any illegal extortion occurred, and plaintiff’s brief argument, unsupported by citation to any evidence, is insufficient to meet plaintiff’s burden of establishing illegality as a matter of law.  This illegality argument is rejected. 

In making its determination as to the probability of the plaintiff 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 plaintiff and the defendant, 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.    

As noted above, an order granting or denying an anti-SLAPP motion is reviewed de novo.  Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.  

First Cause of Action— Civil Extortion 

As set forth above, the Court in Flatley recognized a civil cause of action for extortion as follows:

“Extortion is the obtaining of property from another, with his consent … induced by a wrongful use of force or fear … .” (Pen. Code, § 518.) …. “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen. Code, § 523.)”

Flatley, at 326. 

The relevant portion of Penal Code § 519 is:

“Fear, such as will constitute extortion, may be induced by a threat of any of the following:

 1. To do an unlawful injury to the person or property of the individual threatened or of a third person….” 

Plaintiff in opposition argues briefly, with no citation to evidence, that defendant’s actions constitute extortion in that defendant has wrongfully taken and is holding Remy hostage in an effort to force plaintiff to make certain concessions regarding the disposition of the real property in order to financially benefit defendant, and that as a result plaintiff has been damaged and continues to suffer damages.  

As discussed above, this cause of action requires an oral or written threat, and the text message which is the focus of the motion does not mention Remy directly and does not include a threat that unless plaintiff complies with defendant’s demands, defendant will cause unlawful injury to plaintiff’s person or property.  The e-mail at best states, “You will not be seeing us anytime soon until we come to an agreement with the property.  We can have a discussion at that time.”  [Jones Decl., Ex. V].

To the extent there may be a vague argument that there was some extortion in the act of holding Remy hostage, or wrongfully obtaining possession of Remy, this assertion could not be the basis of an extortion claim, because it is expressly alleged that defendant took Remy “without [plaintiff’s] permission” or consent, when extortion requires that property be obtained from another, “with his consent,” “induced by wrongful use of force or fear.”  [FAC, para. 20, see also para. 22].  In fact, this lack of permission or consent appears to be an essential element of the claims asserted for conversion and statutory violations, which are not challenged by instant motion.    

In addition, as argued above, even if such a representation met the elements of extortion, it is clear that the October 16, 2023 e-mail and any other communications after October 2, 2023 are protected 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 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.

In Greco v. Greco (2016) 2 Cal.App.5th 810, the court of appeal set forth the following elements to establish the litigation privilege:

“The litigation privilege, found in Civil Code section 47, subdivision (b)(2), “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365.)”

Greco, at 826.  

These elements have been established in connection with the subject text message, as discussed in detail above.  The text was authored by defendant litigant, was a pre-litigation statement connected to the dispute in this action, to achieve the objects of that anticipated litigation. 

The opposition argues here that the first cause of action is based on the conduct by defendant, the wrongful taking and refusing to return Remy, not any alleged protected speech by defendant.  This argument disregards that a claim for civil extortion involves the making of some threat, and the opposition does not point to any threat being made other than arguing that the text message relied upon by defendant is not the basis of the claim but is simply evidence that proves the bad faith purpose of plaintiff’s wrongful conduct to extort concessions regarding the parties’ property dispute.  

It is difficult to understand from the opposition how plaintiff has established by admissible evidence each element of an extortion claim, particularly if the court must disregard the text at issue as a pre-litigation communication.  

Plaintiff’s declaration in support of the opposition states that, “Since the first day I brought Remy home, Remy and I have been living together for the past 4 and ½ years until Remy was taken without my permission by Joanie on October 2, 2023.”  [Rodgers Decl., para. 30].   The declaration states that “All conversations about the house were only possible after I was forced to agree to terms with Remy and his living situation,” which evidently occurred before October 2, 2024, as the declaration states again that “after leaving the house, Joanie removed my Emotional Support Animal, Remy, without my consent.”  [Rodgers Decl., paras. 40-44].  It is not clear what accompanying threat was made to support an extortion claim.  The declaration states that plaintiff did not instruct defendant to obtain counsel, despite her claims that she formally retained and consulted counsel at the beginning of the process, and states:

“Joanie has repeatedly refused to talk about Remy, knowing it would affect my stance on the house.  Finally, Joanie used Remy to threaten me through text in order to sell the house faster and obtain her desired payout amount.  Obviously, Joanie and I had been discussing Remy since he was mentioned in her text dated October 16, 2023.” 

[Rodgers Decl., para. 58]

The text quoted above is then attached to the declaration as Exhibit 25.  Again, if this text is the only evidence relied upon to establish the essential element of fear “induced by a threat” that defendant would “do an unlawful injury to the person or property of the individual threatened,” the text does not include such a threat.  Moreover, the testimony concerning what defendant “knew” and her thought processes in making an alleged statement has been objected to, and it would appear that plaintiff would have no personal knowledge of what defendant “knew” or was thinking at the time.  Finally, the text would also be subject to the litigation privilege as a pre-litigation communication, discussed above.  This legal contract trumps all other arguments presented by plaintiff.

In any case, plaintiff has failed to meet his burden on the second prong to establish a reasonable probability of prevailing on his claim, that is, to establish by admissible evidence a prima facie case which, if believed by the trier of fact, would result in judgment for the plaintiff on a civil extortion cause of action. 

The motion as to the first cause of action for extortion is granted, and the cause of action is ordered stricken from the FAC. 

Third Cause of Action—Intentional Infliction of Emotional Distress 

As discussed above, this cause of action does not have as its gravamen the purported threats included in the subject text message, so does not arise from protected activity, and the special motion to strike will be denied on the ground the third cause of action for IIED has not been established as having arisen from protected activity. 

Even if the court were to find that the burden had shifted to plaintiff to establish a reasonable probability of prevailing on his claim, in effect, to establish by admissible evidence a prima facie case, plaintiff has successfully done so. 

To establish a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead and prove the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff.  Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.

“The removal of Remy came as a huge shock to me and had a severe negative effect on my emotional condition and overall health.  [Plaintiff can present to the Court and Defendant’s counsel the most recent report from Plaintiff’s therapist for review at the time of the hearing in this matter.]”

[Rodgers Decl., para. 45].  

The arguments in the motion and reply are primarily directed to the protected nature of the text message, which does not defeat this cause of action.  The credibility issues as to whether it is credible that Remy is an Emotional Support Animal, or that therapists and medical professionals have sanctioned the necessity for an Emotional Support Animal, and whether plaintiff in representing that Remy was his and not gifted to defendant based on communications with defendant during the period following the break up when defendant in messages to win defendant back made particular comments cannot be overridden by the court.  These issues are not addressed by plaintiff in the opposition.  The court on a special motion to strike, however, does not weigh the evidence, and finds the evidence submitted by plaintiff is sufficient to meet the burden for the cause of action to go forward, despite comments by plaintiff before it had become clear that the relationship could not be salvaged. 

Attorney’s Fees

Defendant seeks attorneys’ fees pursuant to CCP section 425.16(c)(1), which provides, in connection with special motions to strike, with certain exceptions not applicable here:

“…in any action subject to subdivision (b), a prevailing defendant on a motion to strike shall be entitled to recover his or her attorney’s fees and costs.” 

Where a defendant brings a successful motion to strike under section 425.16, these fees are considered mandatory.  Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.  The fee award should ordinarily include compensation for all hours reasonably spent, including those relating solely to the fee.  Ketchum, at 1133, 1141.   

An award of fees under this section is reviewed for abuse of discretion, and the trial court’s determination “will not be disturbed unless the appellate court is convinced that it is clearly wrong.”  Ketchum, at 1132.

The trial court’s determination of the amount of a fee award will be upheld on appeal if supported by substantial evidence.  Macia v. Hartwell (1997) 55 Cal.App.4th 669, 676.  

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, [49 Cal. Rptr. 2d 620].) The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”

Wilkerson, at 448. 

In Mann v. Quality Old Time Service, Inc.  (2006) 139 Cal.App.4th 328, the court of appeal found that the trial court had not abused its discretion in determining that defendants were prevailing parties on an anti-SLAPP motion in that case where they were unsuccessful in striking three of the four challenged causes of action, but that the trial court erred in failing to reduce the fees to reflect that defendants were only partially successful on the motion.  The court of appeal discussed those issues as follows:

“Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16. A contrary conclusion would require a partially prevailing defendant to bear the entire cost of the anti-SLAPP litigation at the outset of the case. This would create a strong disincentive for a defendant to bring the motion, undermining the legislative intent to encourage defendants to utilize the anti-SLAPP procedure to eliminate SLAPP claims and to discourage plaintiffs from bringing meritless SLAPP claims. (See Ketchum, supra, 24 Cal.4th at p. 1131, 104 Cal.Rptr.2d 377, 17 P.3d 735.) On the other hand, there is no reason to encourage a defendant to bring an anti-SLAPP motion where the factual and legal grounds for the claims against the defendant remain the same after the resolution of the anti-SLAPP motion. (Endres v. Moran, supra, 135 Cal.App.4th at pp. 955–956, 37 Cal.Rptr.3d 786.) Where the results of the motion are “ ‘minimal’ ” or “insignificant” a court does not abuse its discretion in finding the defendant was not a prevailing party. (Id. at p. 956, 37 Cal.Rptr.3d 786 (conc. opn. of Mosk, J.); see Los Angeles Times v. Alameda Corridor Transportation Authority, supra, 88 Cal.App.4th at pp. 1391–1392, 107 Cal.Rptr.2d 29.)

We thus hold that a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti- SLAPP motion lies within the broad discretion of a trial court. (See Jackson v. Homeowners Assn. Monte Vista Estates–East (2001) 93 Cal.App.4th 773, 789, 113 Cal.Rptr.2d 363.) We review this determination on an abuse of discretion standard.

Applying these principles, we conclude the trial court did not abuse its discretion in determining defendants were prevailing parties in the underlying litigation. Defendants successfully eliminated the trade libel cause of action. Although trade libel bears similarity to the defamation claim that remained in the litigation, the two causes of action are not identical. Whereas defamation concerns injury to the reputation of a person or business, trade libel involves false disparagement of the quality of goods or services. (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 479, 222 Cal.Rptr. 79; Erlich v. Etner, supra, 224 Cal.App.2d at pp. 73–74, 36 Cal.Rptr. 256.) The elimination of the trade libel cause of action thus had the potential to narrow the litigation with respect to the damage issues and the focus of the claimed false statements. Additionally, the Mann court's acknowledgment that an absolute privilege applies to defendants' reports of WSSI's activities to government entities precluded WSSI from thereafter pursuing any recovery based on defendants' communications with government agencies. (Mann, supra, 120 Cal.App.4th at p. 108, 15 Cal.Rptr.3d 215.) By bringing the anti-SLAPP motion, defendants thus successfully narrowed the scope of the lawsuit, limiting discovery, reducing potential recoverable damages, and altering the settlement posture of the case.”

Mann, at 339-340.   

“An award of attorney fees to a partially prevailing defendant under section 425.16, subdivision (c) thus involves competing public policies: (1) the public policy to discourage meritless SLAPP claims by compelling a SLAPP plaintiff to bear a defendant's litigation costs incurred to eliminate the claim from the lawsuit; and (2) the public policy to provide a plaintiff who has facially valid claims to exercise his or her constitutional petition rights by filing a complaint and litigating those claims in court. (§§ 425.16, 425.17; see Ketchum, supra, 24 Cal.4th at p. 1131, 104 Cal.Rptr.2d 377, 17 P.3d 735.) In balancing these policies, we conclude a defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate.

“This analysis includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion. The fees awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way. The court should also consider any other applicable relevant factors, such as the experience and abilities of the attorney and the novelty and difficulty of the issues, to adjust the lodestar amount as appropriate. (See Ketchum, supra, 24 Cal.4th at p. 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735.)

Mann, at 344-345, italics in the original.  

 

“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.  General arguments that fees claimed are excessive, duplicative or unrelated to not suffice.” 

Premier, at 564. 

 

CCP § 425.16 provides, in pertinent part:

“(c)(1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.  If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”

[Emphasis added].

 A prevailing plaintiff must therefore show the motion is frivolous or solely intended to cause delay to be entitled to fees.  The court of appeal in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, in determining whether the anti-SLAPP statutory scheme provides for reciprocal fee awards, noted:

“A plaintiff who prevails by defeating the motion to strike is not entitled to recover fees and costs under the anti-SLAPP statute simply by prevailing on the motion. Under section 425.16, subdivision (c) the plaintiff may recover fees and costs only by showing that the defendant's special motion to strike was frivolous or solely intended to cause unnecessary delay within the meaning of section 128.5.”

Dowling, at 1432.  

At a minimum, the burden is fairly high for a prevailing plaintiff, since such a party does not enjoy the status of a prevailing defendant in protecting public policy. 

The opposition on this issue is fairly brief, arguing that the motion is frivolous for all the reasons set forth in the opposition, and arguing specifically that it is obvious from the FAC that the first and third causes of action are not based on protected speech, but on the conduct of taking Remy.  This argument has been rejected in connection with one of the two causes of action.  Also, the pleading was not entirely clear that the causes were also not intended to implicate communicative matters, particularly when an extortion claim requires a threat.   Plaintiff also argues that the court’s previous minute order granting the ex parte application for writ of possession should have counseled against bringing an anti-SLAPP motion given that the court had already made a ruling acknowledging the viability of plaintiff’s claims.  

The previous ruling did not consider the claim of extortion, as the findings involved entitlement to possession based on alleged wrongful possession of Remy, based on evidence presented at the time, not on any alleged extortionate activity.  

In Moore v. Shaw (2004) 116 Cal.App.4th 182, the Second District 

examined subdivision (c) of the statute in connection with a prevailing plaintiff, and set forth the following standard:

“The “reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive standards of section 128.5 in deciding whether to award attorney fees under the anti-SLAPP statute.” (Decker v. U.D. Registry, Inc.(2003) 105 Cal.App.4th 1382, 1392, 129 Cal.Rptr.2d 892.) Attorney fees under section 128.5 may be assessed against a party, the party's attorney, or both. (§ 128.5, subd. (a).) A determination of frivolousness requires a finding the anti-SLAPP “motion is ‘totally and completely without merit’ (§ 128.5, subd. (b)(2)), that is, ‘any reasonable attorney would agree such motion is totally devoid of merit.’ [Citation.]” (Decker, supra, at p. 1392, 129 Cal.Rptr.2d 892, italics added.)”

Moore, at 199, italics in the original.

The Second District also noted, “We review the trial court's order for an abuse of discretion.”  Moore, at 199.

The motion here, which was successful as to one of the two causes of action, was accordingly not made solely to cause unnecessary delay, and was not totally and completely without merit so that any reasonable attorney would agree that such motion was totally devoid of merit.   

RULING:

Defendant Joanie K. Chan-Jones’ Motion to Strike Plaintiff’s First Amended Complaint Pursuant to CCP Section 425.16 is GRANTED in part and DENIED in part. 

As to the first cause of action for civil extortion, the moving papers have sufficiently established that the First Amended Complaint arises out of protected activity, an act in furtherance of defendant’s right of petition or free speech under the United States or California Constitution, as any potential threat necessary to establish all elements of a civil extortion cause of action would appear to constitute protected pre-litigation communications, made in connection with prospective litigation or defense of prospective litigation, which was at the time contemplated in good faith and under serious consideration.  Plaintiff has failed to sufficiently establish that any such conduct was illegal or criminal as a matter of law, leaving it as protected activity.  

This shifts the burden to plaintiff to establish a probability that plaintiff will prevail on plaintiff’s claim for civil extortion as alleged in his First Amended Complaint.  Plaintiff in opposition has failed to meet this burden, as plaintiff submits insufficient evidence to establish a prima facie case of civil extortion, specifically, extortion is the obtaining of property from another, with his consent induced by a wrongful use of force or fear, and fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, the theory relied upon here.  There has been no threat presented.  To the extent the focus is directed at the October 16, 2023 text message, the message does not include any extortionate threat, and also that and any other referenced communications would be subject to the litigation privilege under Civil Code section 47(b)(2), and could not form the basis for tort liability. 

The first cause of action for civil extortion is accordingly ordered dismissed with prejudice. 

As to the third cause of action for Intentional Infliction of Emotional Distress, the motion is DENIED. 

Defendant has failed to establish that the cause of action arises from protected activity.

Even if the cause of action had been established to arise from protected activity, plaintiff has submitted sufficient evidence to meet his burden of a reasonable probability of prevailing on his third cause of action for IIED, that is has established by admissible evidence a prima facie case, which, if believed by the trier of fact, would result in judgment for the plaintiff.  [Rodgers Decl., paras. 8-13, 19-21, 24-33, 35, 44-46, 54, 55, 59; Exs. 1, 2, 4, 7, 12-15, Verified FAC, Ex. 3].  

Request by defendant for attorney’s fees is GRANTED in part. 

Pursuant to CCP section 425.16(c)(1), the Court finds that the results of the special motion to strike here, the elimination of the civil extortion cause of action, were not so insignificant that defendant did not achieve any practical benefit from bringing the motion.  Defendant is accordingly prevailing party on that part of defendant’s motion to strike, entitled to reasonable attorney’s fees incurred in bringing that portion of the motion.

The Court awards reasonable fees and costs of $9,960.00 [$16,560.00 requested ($9,960.00 recommended)], reflecting time the Court has adjusted to account for the partial success, and which the Court finds was reasonably expended at a reasonable billing rate to partly prevail on the motion. 

Request by plaintiff for attorney’s fees is DENIED.  Plaintiff has failed to establish that the special motion to strike was frivolous or solely intended to cause unnecessary delay. 

Defendant Joanie K. Chan-Jones’ Evidentiary Objections to the Declaration of Christopher Rodgers in Support of Plaintiff’s Opposition to Defendant’s Special Motion to Strike Plaintiff’s First Amended Complaint:

Objection No. 10 is SUSTAINED to the phrase beginning, “Joanie had a choice…” through “owner of Remy.”  Objection is otherwise OVERRULED. 

Objection No. 36 is SUSTAINED to the phrase beginning, “knowing it would affect,” through “desired payment amount.”  Objection is otherwise OVERRULED. 

All Other Objections are OVERRULED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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