Judge Randolph M. Hammock, Case Number: 23STCV28769, Date: 2024-07-11 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV28769, Date: 2024-07-11 Tentative Ruling

“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 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”].) Section 425.16 expressly “defines the types of claims that are subject to the anti-SLAPP procedures…as these terms are defined in subdivision (e)(1)-(4) of the statute.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75–76.)

In the form amended complaint [FN 1], Plaintiff alleges that Defendant, along with others, “joined together to destroyed [sic] the worker comp case and pay little money.” (FAC ¶ 11.) In Plaintiff’s “Amended the Summons and Complaint Statement” Plaintiff alleges that during a deposition in his workers compensation case, the insurance company’s lawyers “blamed” Plaintiff for six car accidents he “never committed.” (“Amended The Summons and Complaint Statement,” p. 1.) Plaintiff alleges it was “illegal to combine the past cases with the new ones.” (Id. at p. 2.) Plaintiff also alleges that Defendant allegedly sent false information to Dr. Neil Halbridge, the QME. (Id. p. 1.) On these allegations, Plaintiff asserts causes of action for defamation and fraud. (Id. at p. 1-2; FAC ¶ 10.)

As further background, the moving party submits evidence that Plaintiff submitted a workers’ compensation claim against his employer, LKQ Pick Your Part, alleging bodily injuries. (Gershfeld Decl. ¶ 2, Exh. A; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [“[i]n deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”].) Defendant ACE American Insurance was the workers’ compensation insurer and Defendant CCMSI was the third party claims administrator handling the claim for ACE American Insurance. (Gershfeld Decl. ¶ 3.) On November 21, 2019, Plaintiff was deposed in the workers’ compensation case. (RJN Exh. D.) The case eventually settled. (Gershfeld Decl. ¶ 5, Exh. B.)

Defendant argues that Plaintiff’s challenge to conduct occurring in the workers’ compensation case is protected under the anti-SLAPP statute as “(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 § 425.15 subd. (e)(2).) In opposition, Plaintiff argues, without analysis, that Defendant does not “have the right to protect in this matter.” (Opp. at p. 5, ¶ (b).)

Similarly, here the entirety of the Complaint is based on defamation or fraud occurring in the workers’ compensation case, or at the very least, “in connection with” the case. (CCP § 425.15 subd. (e)(2).) Thus, the complaint arises from an act in furtherance of the defendant’s right of petition or free speech as “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 § 425.15 subd. (e)(2).) Defendant has therefore met its burden under prong one.

“To establish a probability of prevailing, the 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

In opposition, Plaintiff argues that Defendant’s conduct is not protected. Based on this court’s review of the opposition and record, Plaintiff has not submitted any admissible evidence—declarations, affidavits, or otherwise—to support a probability of success on his claims. Plaintiff cannot rely on his pleading or the arguments made in this opposing memorandum on the second step. (See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal. App. 4th 604, 614 [to demonstrate a probability of success, the plaintiff must adduce “competent admissible evidence”]; see also Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 213–214 [“[a]n anti-SLAPP motion is an evidentiary motion.”) This is a sufficient and independent basis to grant the motion.

Additionally, Defendant argues the Complaint fails as a matter of law because the challenged conduct is protected by the litigation privilege. “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.] ‘The usual formulation is that the privilege 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 [has] some connection or logical relation to the action.’” (Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 964.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927 [plaintiff must overcome litigation privilege to demonstrate a probability of prevailing under anti-SLAPP prong two].) “[T]he principal purpose of [Civil Code] section 47 [, subdivision (b) ] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.) “The breadth of the litigation privilege cannot be understated.” (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) “Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Id.)

Again, Plaintiff alleges that Defendant defamed and defrauded him in the workers’ compensation case by accusing him of causing car accidents and by providing false information to the QME. This conduct is protected by the absolute litigation privilege. [FN 2] (See Harris v. King (1998) 60 Cal. App. 4th 1185, 1187 [noting workers’ compensation proceedings are protected by the litigation privilege].)

Judge of the Superior Court

FN 1 - Plaintiff filed the initial complaint on November 27, 2023. On April 23, 2024, Plaintiff filed a form amended complaint, “Amended Exhibits of the Case,” and “Amended the Summons and Complaint Statement.” Then, on June 7, 2024, Plaintiff attempted to file a second amended complaint. Because Plaintiff did not have leave to file the second amended complaint and because of the pending anti-SLAPP motion, the court ordered the second amended complaint stricken. (See 06/11/2024 Minute Order.) However, consistent with the second amended complaint, on its own motion the court dismissed Defendant Ace American Insurance Co. (See id. and 06/11/2024 Order of Dismissal.) The amended pleading filed on April 23, 2024, is therefore the operative complaint.

FN 2 - Because Plaintiff cannot establish a probability of prevailing based on both the lack of admissible evidence and the litigation privilege, the court need not address whether the statute of limitations is also a bar to Plaintiff’s claims.