TENTATIVE RULING

Calendar: 10 

Date: 1/3/2024

Case No: 24 NNCV03438 Trial Date:  None Set 

Case Name: Jourdan v. Robertson’s Ready Mix, Ltd. 

 SPECIAL MOTION TO STRIKE

Moving Party: Defendant Robinson’s Ready Mix, Ltd.  

Responding Party: Plaintiff Jacqueline Jourdan    

RELIEF REQUESTED:

Order striking the first and third causes of action of the Complaint 

Attorney’s fees in the amount of $5,775.00     

CAUSES OF ACTION:   from Complaint 

1) Recovery for Property Damage 

2) Negligence 

3) Fraud

SUMMARY OF FACTS:

Plaintiff Jacqueline Jourdan alleges that in June of 2020 cement trucks owned by defendant Robertson’s Ready Mix, Ltd. (RRM) and driven by employees of RRM trespassed onto plaintiff’s property and severely damaged plaintiff’s driveway and the facia boards on the front of plaintiff’s home.  Plaintiff alleges that the driveway is damaged even until now. 

Plaintiff alleges that further, plaintiff has experienced tremendous personal economic damages and monetary losses due to the necessity to appear at ten mandatory court proceedings between January 2021 and August 2023, and has endured an enormous amount of stress and anxiety caused by RRM’s frivolous lawsuit, and additionally, RRM’s fraudulent claim posed a threat of foreclosure on plaintiff’s home because of a baseless mechanic’s lien filed against plaintiff’s home. 

The complaint alleges that Juan Mata, through a sworn declaration, willfully perjured himself by stating he did not damage plaintiff’s property, but the court found that RRM’s truck did in fact damage plaintiff’s driveway, and Mata did perjure himself in his sworn affidavit.  

Plaintiff alleges that through the solicitation of false information, defendant sought foreclosure of plaintiff’s property through an invalid mechanic’s lien, and that despite the court’s ruling in favor of plaintiff, the emotional distress from this ordeal persists, as defendant persists in sending bills to plaintiff, despite the court’s dismissal of defendant’s baseless suit.  

Plaintiff alleges that defendant RRM intentionally made an attempt to deliver concrete to plaintiff’s residence without plaintiff’s knowledge or authorization, with the expectation that plaintiff would be billed for services and products that defendant was fully aware plaintiff had never ordered. 

It is also alleged that defendant had an obligation to uphold a reasonable standard of care to prevent harm to plaintiff and plaintiff’s property, and that as a result of defendant’s negligence, plaintiff has suffered damages. 

ANALYSIS:

Defendant RRM seeks an order striking the first cause of action for recovery for property damage and third cause of action for fraud 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 fall within CCP § 425.16 (e)(1), which 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.  Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.   The recording of a mechanic’s lien is also held to fall  within the protection of the special motion to strike statute, as a “protected prelitigation statement preparatory to filing a judicial proceeding.”  RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App. 5th 413, 426.  

The argument is that plaintiff’s causes of action arise from allegations that RRM  engaged in litigation and engaged in litigation activities, such as submitting a declaration and pursuing enforcement of a mechanic’s lien, which are protected activities.  Defendant argues that the causes of action center around allegations that RRM engaged in wrongful conduct by defending against plaintiff’s claims in a prior small claims action, recording a mechanic’s lien in connection with a previous limited civil action, and prosecuting its claims in that previous limited civil action. 

The first cause of action includes allegations that plaintiff suffered damages due to the necessity to appear at 10 court proceedings, mental pressures caused by RRM’s “frivolous lawsuit,” and also refers to the filing of a “baseless mechanic’s lien,” perjury in a “sworn affidavit,” information of which a “Court took notice,” and “illegal actions to fraudulently acquire title to Plaintiff’s property.”  [Complaint, paras. 8-11].   

The third cause of action makes similar allegations, and also alleges that defendants served plaintiff with a “fraudulent Mechanic’s Lien filing” and “served Plaintiff with a frivolous Civil Complaint for Damages.”   [Complaint, paras. 20-23].  Such allegations appear to arise out of protected activity.  

Plaintiff argues that the causes of action do not arise out of litigation activities, but are based on defendant’s alleged unauthorized and unwanted delivery of materials and the subsequent damage to plaintiff’s property.  Plaintiff argues that the fraud alleged is the delivery of unwanted materials and billing for unrequested services, and the fraudulent fabrication of a work order and the delivery of materials which were done without plaintiff’s consent or knowledge.  

If this is the gravamen of plaintiff’s lawsuit, it would appear that the allegations concerning the lawsuit and mechanic’s lien would not be necessary to plaintiff’s claims. 

Plaintiff also argues that defendant’s conduct was extortionate and fraudulent, so is excepted from application of the first prong of the special motion to strike statute. 

However, there is no attempt to plead or show in the opposition that all elements of extortion or other illegality as a matter of law can be established here, and the threshold for establishing an illegality exception is very high.

Plaintiff cites, without analysis, Flatley v. Mauro (2006) 39 Cal.4th 299, in which 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, the trial court did not err in denying the special motion to strike. Flatley, at 332-333.  

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. 

This situation is clearly not a matter where defendant has conceded the illegality of any conduct. Hence the question of whether illegality is conclusively shown by the evidence here is the issue. 

Plaintiff in the opposition has failed to submit any evidence whatsoever of illegality.  While the opposition is accompanied by a verification, there is no declaration of plaintiff submitted establishing personal knowledge of specific facts or attempting to establish directly any facts or to authenticate documentary evidence from the complaint.  While the complaint is verified, plaintiff does not point to any specific facts from the complaint of which plaintiff would have personal knowledge, which would support her claim that defendants engaged in illegal or extortionate conduct. 

Moreover, even if plaintiff had supported her argument with specific facts from her complaint, there is some question whether plaintiff may rely on her complaint, even if verified, to meet her evidentiary burden on a special motion to strike.

While there are courts which indicate that verified allegations based on the personal knowledge of the pleader may be considered in deciding a section 425.16 motion, other courts hold that even verified pleadings cannot be relied upon to demonstrate a probability of success.  (Compare Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289-1290, with Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017, (stating, in dicta, “The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (citing ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010 (also dicta)); Roberts v. Los Angeles County Bar Ass’n (2003, 2nd Dist.) 105 Cal.App.4th 604, 613-614) (“In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence.” (also dicta)).     

In any case, plaintiff has failed in the opposition to meet the burden of producing evidence to establish an illegality exception.  

Overall, the causes of action appear to be mixed causes of action, based on both unprotected activity and separate protected activity.  In such a situation, as noted in the moving papers, the trial court is authorized to strike the specific allegations arising out of protected activity if they are not supported by a showing  that plaintiff has a probability of prevailing on the merits of claims based on those allegations.    

Defendant cites to the California Supreme Court opinion in Baral v. Schnitt (2016) 1 Cal.5th 376,  in which the Court offered the following summary in connection with such circumstances:

“Although the issue arose here at the second step of the anti-SLAPP procedure, identification of causes of action arising from protected activity ordinarily occurs at the first step. For the benefit of litigants and courts involved in this sometimes difficult area of pretrial procedure, we provide a brief summary of the showings and findings required by section 425.16(b). At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.”

Baral, at 396. 

The court has reviewed the pleading, as well as the copy of the pleading attached to the opposition in which defendant has highlighted suggested sections to be stricken.  The court finds that the following allegations arise out of protected activity:

“8.  Further, PLAINTIFF has experienced tremendous personal economic damages and monetary losses due to the necessity to appear at 10 mandatory Court proceedings between January 2021 and August 2023 (a true and correct copy of the Court Case Registrar of Actions is attached hereto as Exhibit B). 

 

9.  PLAINTIFF has endured an enormous amount of stress and anxiety due to mental pressures caused by RRM’s frivolous lawsuit which has resulted in Plaintiff’s significant stress-related hair loss (true and correct images illustrating my hair loss are attached hereto as Exhibit C).  Additionally, RRM’s fraudulent claim posed a threat of foreclosure on Plaintiff’s home because of the baseless mechanic’s lien RRM filed against Plaintiff’s home (a true and correct copy of the Notice of Mechanic’s Lien is attached as Exhibit D). 

10.  Juan Mata, through a sworn affidavit, willfully and intentionally perjured himself by stating he did not damage Plaintiff’s property (a true and correct copy of Mr. Mata’s Affidavit is attached as Exhibit E). The Court found, however, that RRM’s truck did in fact damage Plaintiff’s driveway and that RRM’s driver did indeed perjure himself in his sworn affidavit.

11.  Through the solicitation of false information, RRM sought foreclosure on Plaintiff’s real property through an invalid Mechanic’s lien (a true and correct copy of the Court Minute order wherein the Judge expresses concern about the merit of RRM’s lawsuit is attached hereto as Exhibit F).  The Court took notice that a male Hispanic caller placed the cement order and very blatantly pretended to be the Plaintiff!  The sales agent at RRM was clearly confused by the male voice, as the agent asked, “you’re Jacqui?” at which time the male Hispanic caller replied “Yes”! (see Minute Order attached as Exhibit F). 

12.  Despite the Court’s ruling in favor of Plaintiff, the emotional distress stemming from this challenging ordeal persists…. Even after the Court’s dismissal of the Defendant’s baseless lawsuit.” 

13.  As a direct correlation to RRM’s illegal actions to fraudulently acquire title to Plaintiff’s property, Plaintiff now suffers from severe sleep loss and experience recurring nightmares about losing Plaintiff’s home.

14. ….and for loss of income; as well as compensation for mental anguish, emotional and mental distress, pain and suffering, depression, grief and severe anxiety resulting from harassment, intimidation, intentional infliction of emotional distress and other intentional acts by several Robertson’s Ready Mix LTD (RRM) agents and employees from the moment RRM’s Complaint petition was served on Plaintiff nearly 3 years ago….

Clearly, in the Court Record, the Judge indicates on several occasions that the facts presented were not supported by live testimony.  When asked for the witnesses to be presented, there was not response as to why they could not be produced leading the court to surmise that the information being presented was not factual….

Furthermore the intent to defraud Plaintiff was quite obvious when Defendant initiated steps to place a Mechanic’s Lien against Plaintiff’s property in hopes of extorting funds form the Plaintiff for services the plaintiff never ordered or requested.

The DEFENDANTS exploited their contractor’s license to lend credibility to fraudulent statements leading other parties to rely on the validity of Defendant’s professional license to enforce Defendant’s invalid and unjust mechanic’s lien claim….

21.  Juan Mata, through a sworn affidavit, willfully and intentionally perjured himself by stating he did not damage Plaintiff’s property (a true and correct copy of Mr. Mata’s Affidavit is attached as Exhibit F). The Court found, however, that RRM’s truck did in fact damage Plaintiff’s driveway and that RRM’s driver did indeed perjure himself in his sworn affidavit.

22. Through the solicitation of false information, RRM sought foreclosure on Plaintiff’s real property through an invalid Mechanic’s lien (a true and correct copy of the Court Minute order wherein the Judge expresses concern about the merit of RRM’s lawsuit is attached hereto as Exhibit 6).  The Court took notice that a male Hispanic caller placed the cement order and very blatantly pretended to be the Plaintiff!  The sales agent at RRM was clearly confused by the male voice, as the agent asked, “you’re Jacqui?” at which time the male Hispanic caller replied “Yes”! (see Minute Order attached as Exhibit 6). 

23.  ….Shortly thereafter, I received a notice of Defendant’s fraudulent Mechanic’s Lien filing.  Within weeks, DEFENDANTS served plaintiff with a frivolous Civil Complaint for Damages with a Court Date in approximately May, 2022.  

24….   coupled with the post-traumatic stress stemming from the realization that Defendants nearly succeeded in wrongfully seizing Plaintiff’s home.”

Exhibits B through F also implicate protected activity. 

As to the allegations arising out of protected activity, defendant has satisfied the first prong of the statute, so that the burden shifts to plaintiff to establish a reasonable probability of prevailing on the claims based on the allegations of protected activity.   

In making its determination as to the probability of the plaintiff prevailing on its 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.    

Again, 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,

Here, the court notes, as discussed above, that the opposition has failed to submit any evidence whatsoever.   While the opposition is accompanied by a verification, there is no declaration of plaintiff submitted establishing personal knowledge of specific facts or attempting to establish directly any facts or to authenticate documentary evidence from the complaint.  Again, while the complaint is verified, plaintiff fails to point to facts which would establish each element of her claims for property damage and fraud based on specific conduct occurring in the litigation and mechanic’s lien contexts.   Plaintiff accordingly has failed to meet plaintiff’s burden of establishing that plaintiff has a probability of prevailing on the above claims.  

In addition, the moving papers argue that the allegations based on litigation activities such as filing a declaration in the small claims court, even if false, or filing documentation in support of or otherwise pursuing enforcement of a mechanic’s lien would be protected by the litigation privilege, so that plaintiff could not rely on evidence of such conduct to support her claim for recovery.  

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.

Plaintiff has failed to address this argument or to establish how plaintiff will be able to establish her claims arising out of protected activity without the use of privileged communications.    

Attorney’s fees 

Defendant seeks attorneys’ fees pursuant to CCP section 425.16(c)(1), which provides, in connection with special motions to strike:

“…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, 2nd Dist) 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. 

[Brunner Decl., paras. 15, 16]. 

“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. 

 

RULING:

Defendant Robertson’s Ready Mix, Ltd.’s Special Motion to Strike Complaint is GRANTED in part. 

First Amended Defendant’s Special Motion to Strike Complaint Pursuant to Code of Civil Procedure section 425.16 is GRANTED in part and DENIED in part. 

The motion is GRANTED with respect to the following specific allegations set forth in the first and third causes of action of plaintiff’s complaint:

“8.  Further, PLAINTIFF has experienced tremendous personal economic damages and monetary losses due to the necessity to appear at 10 mandatory Court proceedings between January 2021 and August 2023 (a true and correct copy of the Court Case Registrar of Actions is attached hereto as Exhibit B). 

 

9.  PLAINTIFF has endured an enormous amount of stress and anxiety due to mental pressures caused by RRM’s frivolous lawsuit which has resulted in Plaintiff’s significant stress-related hair loss (true and correct images illustrating my hair loss are attached hereto as Exhibit C).  Additionally, RRM’s fraudulent claim posed a threat of foreclosure on Plaintiff’s home because of the baseless mechanic’s lien RRM filed against Plaintiff’s home (a true and correct copy of the Notice of Mechanic’s Lien is attached as Exhibit D). 

10.  Juan Mata, through a sworn affidavit, willfully and intentionally perjured himself by stating he did not damage Plaintiff’s property (a true and correct copy of Mr. Mata’s Affidavit is attached as Exhibit E). The Court found, however, that RRM’s truck did in fact damage Plaintiff’s driveway and that RRM’s driver did indeed perjure himself in his sworn affidavit.

11.  Through the solicitation of false information, RRM sought foreclosure on Plaintiff’s real property through an invalid Mechanic’s lien (a true and correct copy of the Court Minute order wherein the Judge expresses concern about the merit of RRM’s lawsuit is attached hereto as Exhibit F).  The Court took notice that a male Hispanic caller placed the cement order and very blatantly pretended to be the Plaintiff!  The sales agent at RRM was clearly confused by the male voice, as the agent asked, “you’re Jacqui?” at which time the male Hispanic caller replied “Yes”! (see Minute Order attached as Exhibit F). 

12.  Despite the Court’s ruling in favor of Plaintiff, the emotional distress stemming from this challenging ordeal persists…. Even after the Court’s dismissal of the Defendant’s baseless lawsuit.” 

13.  As a direct correlation to RRM’s illegal actions to fraudulently acquire title to Plaintiff’s property, Plaintiff now suffers from severe sleep loss and experience recurring nightmares about losing Plaintiff’s home.

14. ….and for loss of income; as well as compensation for mental anguish, emotional and mental distress, pain and suffering, depression, grief and severe anxiety resulting from harassment, intimidation, intentional infliction of emotional distress and other intentional acts by several Robertson’s Ready Mix LTD (RRM) agents and employees from the moment RRM’s Complaint petition was served on Plaintiff nearly 3 years ago….

Clearly, in the Court Record, the Judge indicates on several occasions that the facts presented were not supported by live testimony.  When asked for the witnesses to be presented, there was not response as to why they could not be produced leading the court to surmise that the information being presented was not factual….

Furthermore the intent to defraud Plaintiff was quite obvious when Defendant initiated steps to place a Mechanic’s Lien against Plaintiff’s property in hopes of extorting funds form the Plaintiff for services the plaintiff never ordered or requested.

The DEFENDANTS exploited their contractor’s license to lend credibility to fraudulent statements leading other parties to rely on the validity of Defendant’s professional license to enforce Defendant’s invalid and unjust mechanic’s lien claim….

21.  Juan Mata, through a sworn affidavit, willfully and intentionally perjured himself by stating he did not damage Plaintiff’s property (a true and correct copy of Mr. Mata’s Affidavit is attached as Exhibit F). The Court found, however, that RRM’s truck did in fact damage Plaintiff’s driveway and that RRM’s driver did indeed perjure himself in his sworn affidavit.

22. Through the solicitation of false information, RRM sought foreclosure on Plaintiff’s real property through an invalid Mechanic’s lien (a true and correct copy of the Court Minute order wherein the Judge expresses concern about the merit of RRM’s lawsuit is attached hereto as Exhibit 6).  The Court took notice that a male Hispanic caller placed the cement order and very blatantly pretended to be the Plaintiff!  The sales agent at RRM was clearly confused by the male voice, as the agent asked, “you’re Jacqui?” at which time the male Hispanic caller replied “Yes”! (see Minute Order attached as Exhibit 6). 

23.  ….Shortly thereafter, I received a notice of Defendant’s fraudulent Mechanic’s Lien filing.  Within weeks, DEFENDANTS served plaintiff with a frivolous Civil Complaint for Damages with a Court Date in approximately May, 2022.  

24….   coupled with the post-traumatic stress stemming from the realization that Defendants nearly succeeded in wrongfully seizing Plaintiff’s home.”

The moving papers have sufficiently established that these allegations arise out of protected activity, acts in furtherance of defendant’s right of petition or free speech under the United States or California Constitution, as the participation in litigation is protected petitioning activity, and the filing of mechanic’s liens or other prelitigation activity in connection with such filings or recordings constitute written or oral statements or writings made before a judicial proceeding, or made in connection with an issue under consideration or review by a judicial body. 

This showing shifts the burden to plaintiff to establish a probability that plaintiff will prevail on plaintiff’s claims for property damage and fraud based on such allegations of protected activity.  Plaintiff in opposition has failed to meet this burden.   

The above allegations are accordingly ordered STRICKEN WITH PREJUDICE from the complaint.  The Court also orders STRICKEN WITH PREJUDICE Exhibits B-F to the complaint.   

The motion is DENIED as to the other allegations alleged in the first and third causes of action to support the claims for property damage and fraud.  Defendant has failed to argue or establish that the other conduct alleged arises from protected activity under any of the statutory grounds included in CCP section 425.16.  

Defendant’s request for mandatory attorney’s fees is GRANTED.  The Court finds that defendant Robertson’s Ready Mix, Ltd. was the prevailing defendant on a special motion to strike under CCP section 425.16, entitled to recover reasonable attorney’s fees.  The Court awards fees of $5,775.00 [$5,775.00 requested], reflecting time the Court finds was reasonably expended at reasonable billing rates to prevail on the motion and obtain the fee award.   

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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