Judge: Robert B. Broadbelt, Case: 24STCV27010, Date: 2025-02-20 Tentative Ruling

Case Number: 24STCV27010    Hearing Date: February 20, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff and cross-defendant Robin Richard

RESPONDING PARTY:       Defendant and cross-complainant Carol Richard

Special Motion to Strike Cross-Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff and cross-defendant Robin Richard (“Cross-Defendant”) moves the court for an order striking the Cross-Complaint filed by defendant and cross-complainant Carol Richard (“Cross-Complainant”) pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute.¿ 

¿“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 p. 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.”¿ (Ibid. [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 pp. 384-385 [citations omitted].)¿¿ 

1.     First Prong: Protected Activity

As set forth above, courts analyze special motions to strike under a two-step approach.¿ “Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.”¿ (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.)¿ “[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 the defendant’s right of petition or free speech.”¿ (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)¿ The moving defendant will meet this burden by demonstrating that the plaintiff’s claim fits one of the categories outlined in Code of Civil Procedure section 425.16, subdivision (e).¿ (Ibid.)¿¿¿¿ 

The protected acts in furtherance of a defendant’s right of petition or free speech 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; or¿¿¿ 

2. Any written or oral statement 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; or¿¿¿ 

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 free speech in connection with a public issue or an issue of public interest.¿¿¿¿ 

(Code Civ. Proc. § 425.16, subd. (e).)¿¿¿¿ 

The court finds that Cross-Defendant has not met his burden to show that the entire Cross-Complaint arises from protected activity in which Cross-Defendant engaged.  (Park, supra, 2 Cal.5th at p. 1061.)

The court notes that certain of Cross-Complainant’s claims appear to arise from protected activity.  For example, Cross-Complainant has alleged, in support of her first cause of action for interference with contractual relations, that Cross-Defendant “took intentional acts to interfere with the sale of the [subject property]” by, inter alia, raising the purported right of first refusal to the buyer’s realtor in a letter from counsel.  (Cross-Compl., ¶ 25.)  Thus, one of the intentional acts that form the basis of the first cause of action appears to be based on Cross-Defendant’s sending a letter in anticipation of litigation, which may be protected by section 425.16.  (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)  Further, the second cause of action for financial elder abuse is based in part on Cross-Defendant’s filing a notice of pendency of action, which is protected activity under section 425.16.  (Cross-Compl., ¶ 35 [“By interfering in the sale of the Elder Court Property and filing the Lis Pendens based on the unenforceable Right of First Refusal, [Cross-Defendant] financially abused [Cross-Complainant]”] [emphasis added]; Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 805-806 [“‘The filing of a notice of lis pendens falls squarely within Code of Civil Procedure section 425.16’s definition of a protected activity’”].)  However, as argued by Cross-Complainant in her opposition papers, Cross-Defendant did not show that all of the causes of action alleged in her Cross-Complaint arise from protected activity. 

“Where a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity.”  (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1108.)  As set forth above, Cross-Defendant’s notice of motion states that he is moving to strike the Cross-Complaint in its entirety.  (Notice of Mot., p. 2:5-8 [Cross-Defendant moves “to strike . . .  CAROL RICHARD’S . . . Cross-Complaint”] [emphasis omitted], 2:8-9 [“the Cross-Complaint falls squarely within the scope of Code Civ. Proc. § 425.16 because this action arises from Cross-Defendant’s acts in furtherance of his” protected activity] [emphasis added], 2:17-18 [“Cross-Complainant’s action against Cross-Defendant arises out of protected activity”] [emphasis added], 2:19-20 [“the Cross-Complaint should be dismissed with prejudice”] [emphasis added].)  The supporting memorandum of points and authorities makes clear that Cross-Defendant’s motion is directed to the Cross-Complaint in its entirety.  (Mot., p. 1:6-7 [“All three causes of action relate to statements made by Cross-Defendant and his counsel in anticipating of filing the underlying case . . . .”] [emphasis added], 10:25-26 [requesting the court “dismiss the Cross-Complaint with prejudice”].)  Thus, Cross-Defendant had the burden to show that the entire Cross-Complaint arises from Cross-Defendant’s protected activity.  (Nazari, supra, 93 Cal.App.5th at p. 1108 [“‘well-established anti-SLAPP law’ provides a solution when an anti-SLAPP movant seeks to impose burdens on the nonmovant or the trial court by filing an overbroad or nonspecific motion: ‘attention to the allocation of the applicable burden of proof’”].)  However, Cross-Defendant did not show that the third cause of action for declaratory relief arises from his protected activity.

The cause of action for declaratory relief requests a judicial declaration “that the Right of First Refusal possessed by [Cross-Defendant] is a nonbinding agreement and, as such, [Cross-Defendant] has no rights or benefits pursuant to that document.”  (Cross-Compl., ¶ 47.)  Thus, this cause of action is based on the existence of a present controversy between Cross-Complainant and Cross-Defendant regarding the validity of the right of first refusal, and therefore is not based on Cross-Defendant’s protected activity.  (Ibid.; Code Civ. Proc., § 1060; Lee v. Silveria (2016) 6 Cal.App.5th 527, 546 [two elements are required for declaratory relief: (1) a proper subject of relief, and (2) an actual controversy regarding questions relating to the rights or obligations of a party]; Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 37 [holding “that a declaratory relief action filed in response to an attorney’s letters threatening litigation over a contract dispute does not come within the provisions of a” SLAPP lawsuit].)  Cross-Defendant appears to concede this point in his reply papers, asserting that he has “withdrawn” his motion as to this cause of action.  (Reply, n. 1-2 and p. 9:15-24.) 

The court therefore finds that Cross-Defendant has not met his initial burden to show that the Cross-Complaint, in its entirety, arises from his protected conduct.  (Nazari, supra, 93 Cal.App.5th at p. 1108.)

The court notes that Cross-Defendant has attempted to withdraw his motion as to the third cause of action and requests that the court grant his motion as to the first and second causes of action.  (Reply, n. 1.)  The court denies that request.  “If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions.  This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’”  (Nazari, supra, 93 Cal.App.5th at p. 1109 [emphasis added].)  Cross-Defendant did not request this relief in his notice of motion, such that Cross-Defendant (1) did not give Cross-Complainant proper notice that he would be seeking to strike, individually, each cause of action in the alternative, and therefore (2) did not meet his burden to identify each numbered paragraph, sentence, or cause of action that comprises a challenged claim to be stricken.  (Ibid.)

For the reasons set forth above, the court denies Cross-Defendant’s special motion to strike Cross-Complainant’s Cross-Complaint.  (Code Civ. Proc., § 425.16, subd. (b)(1); Nazari, supra, 93 Cal.App.5th at p. 1106 [because the defendants moved to strike only the entire complaint “and did not identify in their motion individual claims or allegations that should be stricken even if the entire complaint were not, the trial court was permitted to deny the anti-SLAPP once it concluded—correctly—that the complaint presented at least one claim that did not arise from anti-SLAPP protected conduct”].)  The court further denies Cross-Defendant’s request for attorney’s fees and costs against Cross-Complainant.  (Code Civ. Proc., § 425.16, subd. (c)(1).)  

The court denies Cross-Complainant’s request for attorney’s fees because (1) the court finds that Cross-Defendant’s special motion to strike was not frivolous or solely intended to cause unnecessary delay, and (2) even if the court had so concluded, Cross-Complainant did not show that she complied with the safe harbor provision of section 128.5.  (Code Civ. Proc., §§ 425.16, subd. (c)(1) [“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”], 128.5, subd. (f)(1)(B) [if the alleged action or tactic is the making of a written motion, a notice of motion shall be served but not filed unless 21 days after service of the motion the challenged action is not withdrawn or corrected]; Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 [“the law requires strict compliance with the safe harbor provisions”].)

ORDER

            The court denies plaintiff and cross-defendant Robin Richard’s special motion to strike cross-complaint.

            The court orders defendant and cross-complainant Carol Richard to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 20, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court