Judge Randolph M. Hammock, Case 21STCV45780 2022-09-27 Tentative Ruling

Plaintiff/Cross-Defendant Kamran Massachi filed a Complaint against Defendants A Plus Fabric, Inc., Curious Apparel, and Elliot Tishbi, for various Labor Code violations. Plaintiff, who worked for Defendants as a loss prevention clerk, alleges that Defendants failed to pay wages, failed to pay overtime, and misclassified him as an independent contractor, among other things.

Defendant/Cross-Complainant A Plus Fabric, Inc., has filed a Cross-Complaint against Plaintiff asserting a single cause of action for negligence. Cross-Complainant alleges that Plaintiff operated a forklift without authorization, causing damages to Cross-Complainant’s warehouse.

CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

To satisfy the first prong of the two-prong test, a movant defendant must 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. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].)

The filing of a lawsuit is a protected activity under the anti-SLAPP statute, and because a cause of action “arising from any act ... in furtherance of the ... right of petition” is subject to the anti-SLAPP motion, a cause of action “arising from” [a] defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.” (Takhar v. People ex rel. Feather River Air Quality Mgmt. Dist. (2018) 27 Cal. App. 5th 15, 27–28.) “’Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]” (Id.) Thus, “statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)

On December 14, 2021, Plaintiff, who worked for Defendants as a loss prevention clerk, filed this lawsuit. Plaintiff alleges that Defendants failed to pay wages, failed to pay overtime, and misclassified him as an independent contractor, among other Labor Code violations.

On May 24, 2022, Cross-Complainant A Plus Fabric brought a counterclaim for negligence against Plaintiff Massachi. The Cross-Complaint alleges four separate events where Massachi caused damages to Cross-Complainant’s warehouse by operating a forklift without certification or authorization. (Cross-Complaint ¶¶ 12, 13.) Cross-Complainant also alleges Massachi was “written-up” three times for his unauthorized use of the forklift. (Id.) All-in, Cross-Complainant alleges Massachi caused $112,075.00 in damages. (Id.)

“[A] claim may be struck [as a SLAPP] only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. [Citation].” (Wong v. Wong (2019) 43 Cal. App. 5th 358, 364.) “Thus, in evaluating anti-SLAPP motions, ‘courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” [Citation.] (Id.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78 [emphasis added].) It is the “[t]he ‘principal thrust or gravamen’ of the plaintiff's claim [which] determines whether section 425.16 applies. [Citations.]” (Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 394-395.)

Massachi contends “it is obvious” that the negligence claim is “not merely a related cause of action, but arises out of the litigation process itself.” (Mtn. 6: 16-17.) However, the Cross-Complaint does not reference or rely on the Complaint, or the conduct underlying the Complaint. Cross-Complainant can plead and prove each element of its negligence claim without resort to the Complaint, and without any reliance on the fact that Massachi filed a lawsuit.

Indeed, Cross-Complaint could have brought this Cross-Complaint as a stand-alone suit even if Plaintiff had never filed this action. The allegations underlying the Cross-Complaint are wholly separate from, and in no way rely upon, Plaintiff’s protected activity of filing a lawsuit. As such, the “principal thrust or gravamen” of the negligence cause of action is not that Massachi filed a lawsuit, but rather, that Massachi was negligent in his work duties by using a forklift he was not authorized to operate. (Cross-Complaint ¶¶ 12, 13.)

Moreover, this result does not change, even if, as Massachi alleges, the Cross-Complaint was merely done in retaliation for filing this suit. Massachi points to text messages from Defendant Elliot Tishbi, an agent of Cross-Complainant. (See Masschi Decl., Exh. 2.) In those messages, Tishbi expressed frustration that Massachi had filed a lawsuit against him. (Id.) Tishbi continued to tell Massachi that Massachi “made many mistakes and caused lots of damages,” at work, but that Tishbi had “ignored them until now.” (Id.) But in now having to defend a lawsuit, Tishbi told Massachi that “unfortunately, we have to sue you, too, for the damages that you caused.” (Id.)

Here, even though the Cross-Complaint may have been “triggered by” the Complaint, that does “not entail that it is one arising from such.” (City of Cotati, supra, 29 Cal. 4th at 78 [emphasis added].) Even a purely retaliatory Cross-Complaint “is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic.” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal. App. 4th 921, 924.)

Construing the “arising from” requirement so broadly would make nearly any Cross-Complaint a SLAPP-suit, since by its very nature, a Cross-Complaint always arises from a Complaint. However, the Cross-Complaint here only arose from Massachi’s “alleged tortious acts, but not from [his] protected act of filing a complaint.” (Third Laguna Hills Mutual v. Joslin (2020) 49 Cal. App. 5th 366, 372–376.) In light of this, Cross-Defendant has not demonstrated that the Cross-Complaint is based on acts in furtherance of his right of petition or free speech.

Cross-Complainant requests its reasonable attorney’s fees in defending against this motion, contending it was frivolous and intended to cause unnecessary delay. “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.” (CCP § 425.16(c).) For purposes of this section, “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (CCP § 128.5(b)(2).)

Here, the special motion to strike undoubtedly does not arise from protected activity—indeed, it is not a close call. However, when considering the Cross-Complaint in conjunction with Elliot Tishbi’s text messages telling Massachi that Cross-Complainants would now have to file a Cross-Complaint, Massachi had at least some factual argument that the Cross-Complaint “arose from” protected activity, to wit, this lawsuit. Again, a losing argument, but not quite “frivolous” as defined by the statute. [FN 1]

FN 1 -- Of course, if the moving party’s “logic” was correct, then every cross-complaint would be subject to a special motion to strike since it arose from the complaint by definition. Such is not the case. The cross-complainant would be served well to simply submit on this tentative and hope that this Court doesn’t change its mind.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.