Judge: Richard Y. Lee, Case: 30-2022-01260863, Date: 2022-12-01 Tentative Ruling

Defendant, Karen Gregor (“Defendant”), moves for an order striking the First Cause of Action for Defamation, the Second Cause of Action for Intentional Interference with Prospective Economic Advantage, and the Third Cause of Action for Intentional Infliction of Emotional Distress, or alternatively, portions of the Complaint which constitute allegations of protected activity including paragraphs 17-23, and 25 of the general allegations in the Complaint, and paragraph 43 of the Second Cause of Action, pursuant to Code of Civil Procedure section 425.16.

Defendant contends that Plaintiff, Brett Gregor, (“Plaintiff”) and she are presently involved in a divorce proceeding, and that as part of that action, Plaintiff’s allegations concerning Defendant’s communications with third persons was to conduct an investigation and to seek information about Plaintiff’s apparent extramarital affair and the expenditure of community funds on the same which constitutes protected activity under Code of Civil Procedure section 425.16(e)(2), and is absolutely protected by the litigation privilege.

Plaintiff asserts that Defendant has not satisfied her burden to invoke the anti-SLAPP statute because she has not demonstrated that the defamatory statements at issue in the Complaint arise from protected conduct, i.e., her investigation and exercise of free speech or petition rights; that Defendant vaguely tries to equate her self-serving legal conclusions about conducting an investigation to the allegations in this case, but none of Plaintiff’s claims arise from the issue that Karen asserts as the basis for her investigation—Plaintiff’s purported misuse of community property; and that Defendant has not shown and cannot show that her defamatory statements about Plaintiff having an affair involves an issue under consideration in the divorce proceedings, and thus, fails on prong one. Plaintiff also contends that the evidence refutes Defendant’s assertion that the anti-SLAPP statute and litigation privilege protect her defamatory statements as Defendant’s deposition testimony confirms that she was not conducting any investigation that would achieve the objects of the divorce proceedings or was logically related thereto, and that whether Plaintiff had an affair is irrelevant to a dissolution action as California is a “no fault” state. Plaintiff argues that Defendant has confirmed that the role that most third parties played in her discussions about Plaintiff’s purported affair was to provide “support” for her, and that there is an exception to the litigation privilege known as the “divorce proviso,” under Civil Code § 47(b)(1). Plaintiff contends that, at minimum, whether Defendant’s conduct qualifies under the litigation privilege presents factual issues that the Court should not determine at this stage. Finally, Plaintiff argues that he has shown a probability of success on the merits on the first three causes of action by submitting evidence showing how Defendant’s smear campaign was false, defamatory, and caused him harm.

“The express language of section 425.16, subdivision (b)(1) allows a single cause of action to be stricken.” (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) “The fact that other claims remain does not bar a trial judge from granting a section 425.16 special motion to strike.” (Ibid.)

Courts engage in a two-step evaluation process to determine whether an action is subject to a special motion to strike under Code of Civil Procedure section 425.16. First, the court determines whether the defendant has made a prima facie showing that the complaint “arises from” defendant’s constitutionally-protected free speech or petition activity. (Code Civ. Proc. §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once the defendant makes such prima facie showing, then the burden shifts to the plaintiff to establish a “probability” of prevailing on the merits. CCP §425.16(b); Premier Med. Mgmt. Systems, Inc. v. Cal. Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (“Navellier”).) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89, emphasis in original.)

First Prong:  Lawsuit Arises from Act in Further of Right to Petition or Free Speech

In determining the whether a moving party has satisfied its burden under the first prong of the section 425.16 analysis, “the critical consideration…is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier, supra, 29 Cal.4th at 89.)  “The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “Defendant does not have to ‘establish [his] actions are constitutionally protected under the First Amendment as a matter of law.’ [Citation.] The statute requires a defendant to make only a prima facie showing that plaintiffs’ causes of action arise from an act in furtherance of defendant’s constitutional rights of petition or free speech in connection with a public issue. [Citation.]” (Ibid.)

An “ ‘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’ includes:  (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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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.” (Code Civ. Proc. § 425.16(e).) As relevant here, Defendant cites to Code of Civil Procedure section 425.16(e)(1).

“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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

Under the first prong, a defendant must make a “threshold showing” that the challenged activity is one “‘arising from’” protected activity. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]. In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of defendant’s right of petition or free speech. [Citations.]” (Id. at p. 78.) “ ‘A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.]’ [Citation.]” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217.) “ ‘[T]he question is what is pled—not what is proven.’ [Citation.]” (Ibid.) The pleaded facts are accepted as true. (Ibid.)

The court, “in making its determination [whether the plaintiff's cause of action is subject to an anti-SLAPP motion], shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” (Civ. Proc. Code § 425.16, subd. (b)(2); City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 79; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 821; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal. App. 4th 624, 630; Contreras v. Dowling (2016) 4 Cal. App. 5th 774, 777–778.)

The court must examine “the principal thrust or gravamen of a plaintiff’s cause of action” to determine whether the anti-SLAPP statute applies to the claims at issue. (Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 368.) If a defendant does not demonstrate the initial “‘arising from’” requirement, the court need not address the second step. (Id. at p. 367.)

Here, the First Cause of Action for Defamation, the Second Cause of Action for Intentional Interference with Prospective Economic Advantage, and the Third Cause of Action for Intentional Infliction of Emotional Distress are based on allegations that beginning on or about January 9, 2022, after Plaintiff filed for divorce on January 6, 2022, Defendant began spreading lies to Plaintiff’s family, friends, colleagues, and potential colleagues and customers via telephone calls, emails, and text messages, that Plaintiff had taken a woman and/or Russian female escort to the guest house of his and Defendant’s Orange County guest house, known as “the casita,” while Defendant was on a trip to Cape Cod and had sexual relations, and that Plaintiff had an extramarital affair and/or is in a romantic relationship with a woman named Linda M. Baldwin Ramage.  (Complaint, ¶¶ 16-20, 24-25, 31-38 (First Cause of Action), 40-46 (Second Cause of Action), 48-52 (Third Cause of Action).)

Defendant argues that following Plaintiff’s filing for divorce on January 6, 2022, Defendant sought to investigate Plaintiff’s interactions and costs with a perceived mistress, and that the alleged communications were made to investigate claims for the purposes of the divorce proceeding. Defendant submits a declaration stating, “[i]n order to obtain evidence and identify witnesses on this topic [whether Plaintiff spent community funds on third parties such as mistresses] for the Dissolution Action, I have contacted family members and mutual friends of both Plaintiff and I, one of whom happens to be a business associate of Plaintiff.” (Declaration of Karen Gregor, ¶ 7.) Defendant additionally states, “I have also been investigating the expenditures of community funds made to find out whether Plaintiff was mismanaging our community property and gifting monies to third parties without my consent.” (Ibid.)

Although Defendant asserts that her communications with certain third parties were made for the purposes of investigating the use of community funds, Defendant does not address the actual allegations or alleged defamatory statements asserted in the Complaint. The first three causes of action, and the allegations supporting these causes of action, are not based on alleged statements Defendant made concerning Plaintiff’s purported misuse of community funds, but are only based on allegedly false, defamatory, and harmful statements Defendant made that Plaintiff had taken a woman and/or Russian escort to the “casita” while Defendant was at Cape Cod and had sexual relations, and that Defendant had an extramarital affair and/or had or has a girlfriend named Linda M. Baldwin Ramage. This is the gravamen of the Complaint.

Defendant fails to demonstrate that Plaintiff’s lawsuit is based on statements made by Defendant concerning Plaintiff’s use or misuse of community funds, and the only evidence offered by Defendant to prove her prima facie case is her own uncorroborated declaration which merely provides a broad description of Defendant’s apparent investigation of expenditures of community funds.

Consequently, Defendant fails to meet her burden to show that the First, Second, and Third Causes of Action are based on an act in furtherance of Defendant’s rights of petition or free speech. Nor does Defendant show that the alleged statements concerning a purported extramarital affair are at issue in the divorce proceedings.

Lastly, the Court notes that Defendant’s notice of motion makes a request “[i]n the alternative,” that the Court strike certain portions of the Complaint. While Defendant cites to Baral in support of striking allegations in the Complaint, Baral discussed the striking of allegations where a claim is stricken under the anti-SLAPP statute, stating, “[a]llegations 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 v. Schnitt (2016) 1 Cal.5th 376, 396.) There is no support for the proposition that the anti-SLAPP statute supports the striking of allegations as an alternative where the motion is denied.

Based on the foregoing, the Court DENIES Defendant’s Special Motion to Strike under Code of Civil Procedure section 425.16 in its entirety.

Plaintiff’s Objections to Evidence (ROA 78)

Objection No. 1:  Sustain.

Objection No. 2:  Overrule.

Objection No. 3:  Overrule.

Objection No. 4:  Sustain.

Objection No. 5:  Sustain.

Defendant’s Objections to Evidence (ROA 86, 87)

Declaration of Melanie Gregor

Objection No. 1:  Sustain.

Declaration of Brett Gregor

Defendant has not sequentially numbered the objections, but has referenced the number of the paragraph and set forth the statement to which she objects. The Court OVERRULES the objection to paragraphs 4, 5, 14, 16, 17, 19, 20, 21, 22, 25, 27, 28.

The Court SUSTAINS the objection to paragraphs 6-12, 15, and 26.

Plaintiff to give notice.