Judge Randolph M. Hammock, Case Number: 23STCV241000, Date: 2024-10-08 Tentative Ruling

This is a dispute between the two members of the musical group “Cobra Man.” Plaintiff Sarah Rayne alleges that her bandmate, Defendant Andrew Harris, took the band’s trademark, withdrew funds from the Band’s bank account(s), and locked Plaintiff out of the Band’s social media accounts. Additionally, Plaintiff alleges that Defendant Harris and the Band’s management—Defendants Shelter Music Group, Dino Paredes, and Derek Brewer—have attempted to force Plaintiff out of the Band. Plaintiff asserts causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) conversion, (4) fraud, (5) declaratory relief, and (6) involuntary dissolution.

Defendant Harris has filed a Cross-Complaint against Rayne, alleging that Rayne fraudulently incorporated Cobra Man, LLC, and represented that she was CEO of the Company and 50% owner. Defendant Harris also alleges that Rayne defamed him. Harris asserts causes of action against Rayne for (1) fraud, (2) breach of fiduciary duty, (3) breach of contract, (4) trademark infringement, and (5) defamation.

Generally, “no opening or responding memorandum may exceed 15 pages.” (See Cal Rules of Court, Rule 3.1113(d).) Rayne’s opening memorandum of points and authorities is one page long. Harris’s opposition is 9-pages overlength. Each party moved for leave of court to file an oversized brief in the days after filing the papers, and objected to other’s brief as overlength.

Despite filing an opposition that already substantially exceeded the page restrictions, Harris then filed an unauthorized sur-reply. Rayne objected to the Sur-reply. That objection is well taken. Under these circumstances, the court will not consider the Sur-Reply, and it is ordered stricken.

Harris argues the motion is procedurally defective because it was not set for hearing within 30-days after service. Under CCP section 425.16, subdivision (f), “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.”

Rayne contends in reply that this is a “red-herring” because “Rayne’s counsel scheduled the hearing date for the earliest available on the Court’s docket.” (Reply 3: 8.) It does not appear counsel attests to this fact in a declaration. However, it is credible based on the court’s knowledge of its own docket conditions.

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.)

Plaintiff and Cross-Defendant Sarah Rayne moves to strike the Cross-Complaint filed by Andrew Harris pursuant to the anti-SLAPP statute. The court begins with a discussion of the dispute as raised in the Complaint and Cross-Complaint, and then turns to Rayne’s burden of demonstrating the Cross-Complaint arises from protected activity.

Plaintiff Sarah Rayne, one-half of the musical group “Cobra Man,” brings this action against her bandmate Defendant Andrew Harris and the band’s management. Rayne alleges that Harris “presented [her] with an ultimatum prior to Cobra Man’s United States tour leg” that Rayne “sign over the Cobra Man trademark to Harris, or Harris would quit the band before the tour.” (Compl. ¶ 14.) “[N]ot wanting to jeopardize the Cobra Man tour, Rayne capitulated to Harris’s demand, not understanding the repercussions of doing so.” (Id.)

“Over the next few months, Rayne and Harris continued to have disputes over the band’s operation and future; these disputes came to a head after the conclusion of Cobra Man’s U.S. tour at the end of May 2023.” (Id. ¶ 15.) Rayne alleges that Harris extracted money from Cobra Man’s bank accounts without Rayne’s knowledge or approval and locked her out of the band’s storage unit and social media accounts. (Id. ¶ 16, 17, 18, 20.)

On June 9, 2023, Rayne had a Zoom meeting with Harris and the band’s management. (Id. ¶ 19.) There, “Harris stated his intention to no longer work with Rayne.” (Id.) Plaintiff later learned the Defendants had a executed a “months-long plan to remove Rayne from Cobra Man.” (Id. ¶ 22.)

After Rayne’s attempts to reach “an amicable settlement with Harris” regarding Cobra Man failed, Rayne filed this action for (1) breach of contract, (2) breach of fiduciary duty, (3) conversion, (4) fraud, (5) declaratory relief, and (6) involuntary dissolution. (Id. ¶ 24.)

Harris has filed a Cross-Complaint against Rayne, which is the subject of the instant special motion to strike. Cross-Complainant Harris alleges he is “the primary owner, songwriter, producer, engineer, graphic designer, and bandleader” of Cobra Man. (Cross-Complaint ¶ 5.) A mutual friend introduced Harris and Rayne in 2016, and the two began working together making soundtrack music for the skateboarding business known as “The Worble.” (Id. ¶ 6.) The pair eventually formed the band “Cobra Man” and had their first show in April of 2017. (Id. ¶ 11.) In June 2017, Harris applied for the trademark “Cobra Man” with the United States Patent and Trademark Office. (Id.)

Harris alleges he wrote and performed all instruments on Cobra Man’s albums, and designed the album covers. (Id. ¶¶ 12-18.) Rayne, on the other hand, provided only “limited services” and “minimal contributions” on these albums. (Id. ¶¶ 14, 17.) Even so, “in consideration of her contributions to the administrative/business affairs of the band and for singing back-up vocals,” Rayne received a 25% “publishing share” on “songs Rayne did not write or contribute anything to.” (Id. ¶ 16.) Most Cobra Man songs were registered to ASCAP, and the “vast majority of Cobra Man’s library is registered with a publishing split 75/25 in favor of Harris.” (Id. ¶ 27.) However, “[i]f both Harris and Rayne wrote a song together, i.e, Rayne equally wrote and performed on a substantial portion of the song, they would split 50/50, or split evenly with any other writer involved in a substantial way.” (Id. ¶ 26.)

“[S]o that [Harris] could focus on the music,” Rayne “offered to handle” Cobra Man’s “accounting, banking, and tax duties.” (Id. ¶ 19.) “In late 2018, Rayne suggested a limited liability company (“LLC”) be formed for ‘tax purposes.’ Harris was skeptical but Rayne reassured him that ‘[he could] be the primary owner’ and that it would help perform administrative/business tasks for the band. She pitched the LLC as being necessary for conducting business, not ownership.” (Id. ¶ 20.)

Harris alleges that “unbeknownst to [him], Rayne incorporated Cobra Man LLC using her personal email address with an agent for service of process that she had a prior relationship with, and fraudulently used Harris’ digital signature on documents submitted to the California Secretary of State.” (Id. ¶ 21.) And “[d]espite her representations that Harris would own and control the LLC, Rayne fraudulently registered herself as ‘CEO’ of the LLC and designated the ownership percentages as ‘50/50’ with Harris.” (Id. ¶ 22.) “Rayne tried to hide her fraudulent acts from Harris by directing notifications regarding the LLC be provided to her by U.S. mail and sent to her personal home address, and later changed to her parent’s home address, both without Harris’ knowledge or consent.” (Id. ¶ 23.)

In 2019 and 2020, “tensions steadily grew” between Rayne and Harris. (Id. ¶ 24.) While Harris “was performing all of the creative and musical services to the band,” Rayne “had control over all of the business accounts and business affairs for the band.” (Id.) In October 2020, Harris rebuffed Rayne’s attempts “to draw up a band agreement giving her 50/50 ownership and requiring Harris to provide his professional services to the LLC exclusively.” (Id. ¶ 25.) “At [this] point, Harris had no idea Rayne had fraudulently created the LLC and asserted herself as an equal owner.” (Id.)

“On or about February 13, 2023, Rayne unilaterally registered the publishing splits for the song ‘Cool, Nice’ to ASCAP, giving herself 50% of the publishing without Harris’ knowledge or consent. (Id. ¶ 28.) Harris alleges “Rayne did not write a single word or note of the original Cool Nice track.” (Id.) Rayne knew this, “but decided to act on behalf of her own interests, covertly, and registered the publishing split 50/50 on “Cool Nice” without Harris’ consent and diametrically opposed to his wishes or their agreement.” (Id. ¶ 29.) Rayne allegedly then made false statements to Harris suggesting that she had not registered the song. (Id. ¶ 30.)

Harris decided to stop working with Rayne, but “after a Zoom meeting with management,” decided to “give Rayne another chance.” (Id. ¶¶ 31, 32.) However, “in consideration for Harris providing services on New Paradise I for free (the band was in debt and Harris was working 80 hour weeks on the album), Harris asked Rayne to consent to the LLC assigning the Cobra Man trademark to him personally.” (Id. ¶ 33.) Rayne agreed, and then assigned the trademark to Harris. (Id.) Harris then petitioned the USPTO to register the trademark in his name and resumed work on the album. (Id. ¶ 34.)

Despite Rayne’s “promise[] to be honest and transparent about all business dealings” involving Cobra Man going forward, Rayne allegedly made business moves without Harris’s knowledge or consent leading up to the New Paradise Tour. (Id. ¶¶ 36-39.) Additionally, Rayne “consistently failed to learn and perform keyboard parts necessary for live performance.” (Id. ¶ 41.) The last straw for Harris came in June of 2023 when Rayne met with an EU booking agent behind his back. (Id. ¶ 46.) With management present, Harris informed Rayne that he was done working with her. (Id.)

After the meeting with management, Rayne allegedly sent “Harris and management a threatening and vengeful document titled ‘letter to Andy,’ full of gaslighting, inflammatory accusations, emotional blackmail, and veiled threats by Rayne to damage Harris, his career, and his reputation if he did not comply with her demands to continue Cobra Man with her…” (Id. ¶ 47.) “From June 16, 2023 and continuing to date, and true to her threat to ‘lash out,’ Rayne has made false and baseless accusations aimed at Harris, management, and business management, including without limitation, accusing them of stealing from the band. Specifically, Rayne told third parties that publishing royalties from a Taco Bell ad and $32,000 from the City National bank account had been stolen by Harris, management, and/or business management, which accusations were patently false.” (Id. ¶ 48.)

Since the breakup, Harris alleges that Rayne has attempted to remove Harris’s access to Cobra Man’s financial accounts and has blocked receipt of his publishing royalties. (Id. ¶¶ 49-52.) Harris asserts causes of action against Rayne for (1) Fraud, (2) Breach of Fiduciary Duty, (3) Breach of Contract, (4) Trademark infringement, and (5) defamation.

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 as defined in the statute. (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 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.)

“[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 elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (J-M Mfg. Co. v. Phillips & Cohen LLP (2016) 247 Cal. App. 4th 87, 97.) “A statement is defamatory when it tends ‘directly to injure [a person] in respect to [that person's] office, profession, trade or business, either by imputing to [the person] general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to [the person's] office, profession, trade, or business that has a natural tendency to lessen its profits.’ (Civ. Code, § 46, subd. 3.)” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.)

In support of the fifth cause of action for defamation, Harris alleges that “Plaintiff made one or more statement[s] to a person or persons other than Harris, that [1] Harris stole money from the City National Bank account for Cobra Man, [2] that Harris stole money from the Pay Pal account for Cobra Man and [3] that Harris and management conspired to kick her out of the band.” (Cross-Complaint ¶ 80.) Harris alleges these statements were false, as “[t]he money in the City National Bank account was paid out by the business managers to vendors that worked on a tour in accordance with the consent that Plaintiff gave to them for payment of Cobra Man bills. The money in the Pay Pal account was restored to the account and remains there to date, despite Plaintiff's attempt to have a check written for the balance of the account and sent to her home but was unable to cash because it wasn't made out to Plaintiff. Finally, Harris refused to collaborate further with Plaintiff on Cobra Man for the reasons set forth in this Complaint and had a legal right to do so.” (Id. ¶ 82.)

CCP section 425.15, subdivision (e)(4) protects conduct in furtherance of free speech or petition rights in connection with a public issue. (Code Civ. Proc. §425.16(e)(4).) Section (e)(4) is meant to be a broadly construed “catch-all.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal. App. 4th 156, 164.) A cause of action arises from protected activity under subdivision (e)(4), if “(1) defendants' acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants' right of petition or free speech (3) in connection with a public issue.” (Tamkin v. CBS Broad., Inc. (2011) 193 Cal. App. 4th 133, 142–43.)

Cross-Defendant argues her alleged defamatory statements underlying the defamation cause of action are protected under prong one because they “implicate ongoing public issues of and interests to the Cobra Man community.” (Mtn. 13: 18-19.) She suggests that the three statements “contributed to a public debate about the status of the band, what transpired between the two bandmates, and who was to blame for their fallout.” (Id. at 14: 26-28.) She emphasizes that Cobra Man has “over 31,000 followers across its social media and another 800,000 listeners across its streaming platforms.” (Rayne Decl. ¶ 18.) She also contends that fans of the Band have “been voicing [their] concerns about the band,” including “about whether the band was breaking up, and, if so, the impetus for the foregoing.” (Id. ¶ 19.) Rayne provided screenshots of posts made by fans on social media addressing cancellation of the tour or the bands suspected breakup. (Rayne Decl., Exhs. E-I.)

“Section 425.16 does not define ‘public interest,’ but its preamble states that its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Tamkin, supra, 193 Cal. App. 4th at 143 [citing § 425.16, subd. (a)].) “[A]n issue of public interest’ ... is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” (Id.) It includes “conduct that could directly affect a large number of people beyond the direct participants” and a “topic of widespread, public interest.” (Balla, supra, 59 Cal. App. 5th at 673.) There must be “some degree of closeness between the challenged statements and the asserted public interest.” (Id.)

In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, the Court of Appeal established a two-part inquiry to determine whether a defendant has met its burden to show its alleged wrongful activities fell within section 425.16, subdivision (e)(4)'s public interest requirement: “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.]” (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) “FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute. Only when an expressive activity, viewed in context, cannot reasonably be understood as implicating a public issue does an anti-SLAPP motion fail at FilmOn’s first step.” (Geiser v. Kuhns (2022) 13 Cal. 5th 1238, 1253–54.)

“Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) On the second inquiry, a court must determine if the speech “contributes to—that is, ‘participat[es]’ in or furthers—some public conversation on the issue.” (Id. at 151.) This analysis requires consideration of the particular circumstances in which a statement was made, “including the identity of the speaker, the audience, and the purpose of the speech.” (Id. at 140.)

In opposition, Cross-Complainant argues the defamation cause of action does not arise out of Rayne’s right to free speech merely “because it involves a business dispute that fans of Cobra Man would be interested in.” (Opp. 12: 13-15.) Rather, he asserts there is no “public issue” because “each cause of action in the Cross Complaint relates to a business tort and/or breach of contract between private individuals and members of a private limited liability company.” (Opp. 12: 14-16.) Though not named expressly named in the Cross-Complaint, Harris contends in his opposing evidence that Rayne made allegedly defamatory or slanderous statements about him to Joey Mullen, Cara Salimando, and Graeme Whynot. (Harris Decl. ¶¶ 163-166.)

Subdivision (e)(4) applies to private communications concerning issues of public interest. (Terry v. Davis Cmty. Church (2005)131 Cal. App. 4th 1534, 1546.) But, the anti-SLAPP statute is available only if the “defendant's conduct underlying the plaintiff's cause of action”—here, that Rayne told others that Harris stole money from the Band’s LLC or forced Rayne out of the Band—was “itself” an “act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.) The instant dispute, viewed in context, cannot reasonably be understood as implicating a public issue.

Here, applying the analysis from FilmOn.com, it is difficult to articulate what “public issue or [ ] issue of public interest” the speech in question implicates. (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) Rayne asserts it evinces “ongoing public issues of and interests to the Cobra Man community.”

However, statements to certain individuals—and not the public at large—that Harris stole money from Cobra Man’s bank accounts is not made in connection with a public issue. Neither is Rayne’s alleged statement(s) that Harris and band management “forced” her out of the band.

Rather, viewed in context, these are statements part of a private dispute between the members of Cobra Man and its confidants. Rayne nearly concedes this point when she argues later in her motion that the alleged defamatory statements “were likely made to persons…part of the Cobra Man community (including, possibly, bandmates).” (Mtn. 23: 6-8 [emphasis added].) Thus, the speech cannot “reasonably be understood to implicate a public issue.” (Geiser, supra, 13 Cal. 5th at 1253–54.)

Turning to FilmOn.com’s second step, here there is a weak “functional relationship” between the speech at issue and the public issue, or as Rayne puts it, “interests to the Cobra Man community.” (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) Rayne presented no evidence that her statements were made to anyone except a few individuals associated with Cobra Man. These statements could hardly further the public conversation on the public’s interest in Cobra Man. (Id. at 151.)

This court is mindful that Cobra Man might have a dedicated fanbase or social media following, and that these fans might be interested in the feud between Harris and Rayne generally. The fanbase might also have an interest in Harris’s alleged theft or Rayne being forced out of the group. The court is also mindful that the statute is to be “construed broadly.” (§ 425.16(a).) Be that as it may and with all due respect, we can all agree that Cobra Man are not the Beatles.

There is nothing to suggest these issues reached the public at large. Rayne has identified only a handful of comments from Cobra Man fans on social media expressing disappointment that the tour was cancelled, or speculating that the band might have broken-up. This is only tangentially related to the conduct actually at issue in the Cross-Complaint, that is, Rayne accusing Harris of stealing money from Cobra Man or conspiring with management to kick Rayne out of the band. (Cross-Complaint ¶ 80; see Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal. App. 4th 26, 34 [“By focusing on society's general interest in the … subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so called ‘synecdoche theory of public issue in the anti-SLAPP statute,’ where ‘[t]he part [is considered] synonymous with the greater whole.’”].)

The court therefore concludes that the defamation cause of action does not arise from conduct in furtherance of free speech or petition rights in connection with a public issue. (Code Civ. Proc. § 425.16(e)(4).) Rayne has therefore not met her burden under prong 1.

Rayne makes the general argument that the entire Complaint is protected under CCP section 425.16 subdivision (e)(4) as a matter of public interest. To the extent Rayne contends this applies to the fraud cause of action, that argument fails because the conduct underlying it is not connected to a public issue. (See § 1, supra.)

Rayne also contends that the fraud cause of action is protected under either 425.16 subdivisions (e)(1) or (e)(2). These subdivisions protect “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (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.” (CCP § 425.16(e)(1) & (2).)

“To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.’ ” (Graham v. Bank of Am., N.A. (2014) 226 Cal. App. 4th 594, 605–06.)

In support of the first cause of action for fraud, Harris alleges Rayne committed fraud by (1) “us[ing] Harris’ digital signature to file documents with the Secretary of State asserting she was the Chief Executive Officer of Cobra Man, LLC and that the company was owned by Plaintiff and Harris equally,” and (2) “register[ing] the song ‘Cool Nice’ with ASCAP as being created equally with Harris” when Harris had “wrote the music and lyrics for the song, produced, engineered and recorded the song alone.” (Cross-Complaint ¶¶ 59, 60.)

Rayne argues the fraud cause of action is protected under prong 1 because it “concerns an allegedly fraudulent registration of the Cobra Man LLC with the California Secretary of State, which also constitutes an issue under consideration by an executive body, or any other official proceeding.” (Mtn. 15: 15-18.)

Rayne has cited no authorities holding that the filing of corporate documents with the Secretary of State is a “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.” (CCP § 425.16(e)(2).) Harris also cited no cases holding the opposite.

But in Li v. Jin (2022) 83 Cal. App. 5th 481, 494, the Court of Appeal held that the filing of Articles of Incorporation or a Statement of Information with the California Secretary of State did not “involve or relate to an issue under consideration in an official proceeding.” (Li v. Jin (2022) 83 Cal. App. 5th 481, 494.) That is because the filing and processing of these documents is a ministerial act that lacks the “necessity of action or approval by the Secretary of State or any other government agency.” (Id. at 494-95.)

Accordingly, Rayne has not met her burden to establish that the first cause of action arises from a protected activity.

To prove a claim of trademark infringement, a plaintiff must show: (1) it has valid trademark rights; and (2) the defendant's use of a similar mark is likely to cause confusion. (Applied Info. Science Corp. v. eBay, Inc. (9th Cir.2007) 511 F.3d 966, 969.) A federal trademark registration is prima facie evidence of: (1) the validity of the registered mark; (2) the registration of the mark; (3) the registrant's ownership of the mark; and (4) the registrant's exclusive right to use the registered mark in commerce on or in connection with the goods or services specified. (15 U.S.C. § 1057(b); see also Kiva Health Brands LLC v. Kiva Brands Inc. (N.D. Cal. 2019) 402 F. Supp. 3d 877, 884–85.) The presumption of validity through registration “may be rebutted ‘by showing that the registrant had not established valid ownership rights in the mark at the time of registration’; that is, ‘if [Defendant] can show that [it] used the mark in commerce first, then the registration may be invalidated.” (Quiksilver, Inc. v. Kymsta Corp. (9th Cir. 2006) 466 F.3d 749, 756.)

In support of the fourth cause of action for trademark infringement, Harris alleges he is the registered owner of the Cobra Man trademark. (Cross-Complaint ¶¶ 75-76.) Harris alleges that Rayne has used the trademark “without the consent of Harris in a manner that is likely to cause confusion among ordinary consumers as to the source, sponsorship, affiliation, or approval of goods.” (Id. ¶ 77.)

Cross-Defendant argues the trademark infringement cause of action is protected under either section 425.16 subdivisions (e)(1) or (e)(2). (See CCP § 425.16(e)(1) & (2) [protecting “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (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”].)

Rayne relies on Mindys Cosms., Inc. v. Dakar, 611 F.3d 590, 596 (9th Cir. 2010), where the Ninth Circuit held that the filing of trademark applications with the USPTO was a protected act within the meaning of the anti-SLAPP statute. The court also held that each cause of action “arise[d] out of” the act of filing the trademark application and was therefore protected under prong one of the anti-SLAPP statute.

Here, unlike in Mindys Cosms., Harris’s trademark infringement cause of action does not arise from the act of filing a trademark application. Rather, it arises from Rayne allegedly using the Cobra Man trademark—which Harris owns—without Harris’s consent. (Cross-Compl. ¶ 77.) Therefore, Rayne has not met her burden on this cause of action.

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.) Both fiduciary and confidential relationships give rise to a fiduciary duty, that is, a duty “to act with the utmost good faith for the benefit of the other party.” (Persson v. Smart Inventions, Inc. (2005) 125 Cal. App. 4th 1141, 1160.)

In support of the second cause of action, Harris alleges Rayne owed him a fiduciary duty and breached that duty “by, among other things: 1) submitting fraudulent documents to the Secretary of State; 2) submitting fraudulent documents to ASCAP; 3) preventing Harris from seeing financial information and having access to Quickbooks; 4) attempting to pilfer the Pay Pal account; 5) having the City National bank account frozen and closed; 6) conducting business affairs on behalf of the band Cobra Man without the knowledge or consent of Harris; 6) disparaging Harris to third parties; and 7) using the Cobra Man trademark without Harris’ knowledge or consent.” (Cross-Complaint ¶ 66.)

“A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) “Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed.” [Citation]. (Carmel Dev. Co., Inc. v. Anderson (2020) 48 Cal. App. 5th 492, 518.)

Rayne argues these causes of action fail for the same reasons as the previous three causes of action, namely, they “both relate or refer to claims that Rayne allegedly ‘submitted fraudulent documents to the Secretary of State…ASCAP…[and] disparaging [or defaming] Harris to third parties.’” (Mtn. 15: 23-25, citing Cross-Complaint ¶¶ 66, 72.)

As already discussed, the allegations giving rise to the breach of contract and breach of fiduciary duty causes of action are not protected under section 425.16, subdivisions (e)(1), (e)(2), or (e)(4). Therefore, Rayne has not met her burden under prong 1.

Because Plaintiff has not met her burden under prong one to establish that any acts of which Harris complains were taken in furtherance of the Rayne’s right of petition or free speech in connection with a public issue, the burden need not switch to Harris to establish minimal merit under prong two.

In Cross-Complainant’s opposition there was a request for attorney’s fees and costs, pursuant to CCP §128.5. It is well settled that if a special motion to strike is denied, the opposing party is only entitled to attorney’s fees and costs if the special motion to strike was “frivolous or is solely intended to cause unnecessary delay.” CCP § 425.16 (c)(1).

Suffice it to state, there is no such showing here. In fact, although this Court has denied to special motion to strike in its entirety, this Court expressly finds that it was not frivolous nor was it solely intended to cause unnecessary delay. [FN 2]

Judge of the Superior Court

FN 1 - In addressing each cause of action under the first prong, the court does not make any determination on the merits of the claims. (See Coretronic Corp. v. Cozen O'Connor (2011) 192 Cal. App. 4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”].)

FN 2 - There was no need to cite or rely upon CCP §128.5, as this exact issue is expressly covered by the special motion to strike statute itself.

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.