Judge: Robert C. Longstreth, Case: 37-2012-00083034-CU-CL-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Other Collections SLAPP / SLAPPback Motion Hearing 37-2012-00083034-CU-CL-CTL ACCESS GROUP INC VS. DE GOLIER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for SLAPP, 09/07/2023

Cross-Defendants Gaba Law Corporation and John Donald Guerrini's Special Motion to Strike Cross-Complainant Renee De Golier's First Amended Cross-Complaint (ROA 152) is GRANTED.

Cross-Defendants seek to strike Cross-Complainant's third through eighth causes of action pursuant to the anti-SLAPP statute. (Code Civ. Proc. § 425.16.) The anti-SLAPP statute provides '[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.' (Code Civ. Proc. § 425.16(b)(1); see also Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Cross-Defendants assert all of the conduct alleged against them in Cross-Complainant's First Amended Cross-Complaint (FAXC) is protected activity under the following two categories of the anti-SLAPP statute: '(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.' (Code Civ. Proc. § 425.16(e)(1), (2).) Each factual basis for a claim must be analyzed separately. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011, rejecting the gravamen/principal thrust approach.) With regard to the third cause of action for violation of Civil Code section 1788 et seq., Cross-Defendants assert all of the alleged conduct is protected activity because it is based upon documents filed in this lawsuit, statements made to the court and to Cross-Complainant made in connection with issues being considered in this lawsuit, and litigation of the case. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) In opposition, Cross-Complainant asserts the alleged conduct is an express exception to both the litigation privilege and the anti-SLAPP statute, citing Komarova v. National Credit Acceptance, Inc.

(2009) 175 Cal.App.4th 324.

Komarova does hold that the litigation privilege does not apply to violations of the Rosenthal Act.

(Komarova at pp. 337-40.) However, it does not follow that conduct that is not litigation privileged is necessarily outside the anti-SLAPP statute. In fact, the cases uniformly hold or suggest the contrary.

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3041826  25 CASE NUMBER: CASE TITLE:  ACCESS GROUP INC VS. DE GOLIER [IMAGED]  37-2012-00083034-CU-CL-CTL For example, while Cross-Complainant cites Young v. Midland Funding, LLC (2023) 91 Cal.App.5th 63 for the proposition that the anti-SLAPP statute is inapplicable to Rosenthal Act claims, the court stated in Young that it 'need not spend time addressing the first prong of the anti-SLAPP test, since all parties agreed below and continue to agree on appeal that Young's Rosenthal Act cause of action arose from protected activity.' (Young at p. 80.) To the extent Young offers any guidance on the first prong, it suggests that the matter is sufficiently settled that a plaintiff can reasonably decide not to contest it. In Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5th 410, 424, the plaintiff also did not contest, either in the trial court or on appeal, that the anti-SLAPP statute applies to Rosenthal Act claims.

In Moten v. Transworld Systems, Inc. (2023) 98 Cal.App.5th 691, the court analyzed the defendant's anti-SLAPP motion under the second prong rather than the first, which similarly suggests that the anti-SLAPP statute applies to Rosenthal Act claims, since the second prong of the anti-SLAPP analysis is not reached unless the first prong is satisfied. And in O'Neil-Rosales v. Citibank (South Dakota) N.A.

(2017) 11 Cal.App.5th Supp. 1, the court affirmed the grant of an anti-SLAPP motion dismissing a Rosenthal Act claim along with a federal Fair Debt Collection Practices Act claim.

Accordingly, the court finds that Rosenthal Act claims are not categorically excluded from the application of Code of Civil Procedure section 425.16(e)(1) and (2).

As to the fourth, fifth, sixth, and eighth causes of action, Cross-Defendants assert that although the theories of recovery differ from the third cause of action, the conduct underlying them is the same.

Cross-Complainant does not dispute this.

As to the seventh cause of action for fraud, two misrepresentations are alleged. Cross-Complainant alleges '[a] representative from Gaba misrepresented to De Golier that he would respond to De Golier's inquiry relating to forbearance.' (FAXC ¶ 105.) Cross-Defendants assert this is a statement made in connection with an issue being litigated. Cross-Complainant also alleges 'Gaba and Guerrini further misrepresented to De Golier their proper performance of their obligations as Debt Collectors when advancing the related motion for entry of judgment on behalf of Access, which falsely set forth incorporated a Notice of Default (attached to the motion) had been properly provided to De Golier to support basis for entry of default.' (Id. at ¶ 108.) Cross-Defendants assert these statements were made in a motion filed in the litigation, which are statements made in a judicial proceeding.

The court concludes Cross-Defendants have met their burden on the first prong to demonstrate the alleged conduct in Cross-Complainant's third through eighth causes of action against them arises from protected activity.

Accordingly, the burden shifts to Cross-Complainant to demonstrate '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.' (Navellier, supra, at pp. 88-89, citations omitted.) The court notes Cross-Complainant misstates this burden in her papers, citing Navellier but asserting the moving party bears the burden to satisfy the second prong of the test. (Opp. at 9:15-17.) This is not correct. After Cross-Defendants meet their initial burden on the first prong, it is Cross-Complainant's burden as the opposing party to demonstrate she has a probability of prevailing on her claims. (Navellier at p. 88; Code Civ. Proc. § 425.16(b)(1).) Cross-Complainant has not sufficiently addressed why she has a probability of prevailing on any of the claims she now alleges in her Cross-Complaint. She offers little analysis of the elements of any of these claims, nor has she marshalled any evidence to support them beyond her own declaration. The court finds this is insufficient to support a finding that Cross-Complainant has a likelihood of prevailing. While the court is not persuaded that all of Cross-Complainant's claims would be barred by the litigation privilege as Cross-Defendants argued in their moving papers – indeed, Komarova makes clear that at a minimum, the claim for violation of the Rosenthal Act would not be barred – the failure of Cross-Complainant to demonstrate why she would be entitled to relief given the absence of this defense requires that Cross-Defendants' motion be granted.

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3041826  25 CASE NUMBER: CASE TITLE:  ACCESS GROUP INC VS. DE GOLIER [IMAGED]  37-2012-00083034-CU-CL-CTL In addition, Cross-Complainant did not sufficiently address why her claims are not time-barred pursuant to Code of Civil Procedure section 340.6. Plaintiff states, without support, that section 340.6 is inapplicable where the defendant is acting as a debt collector rather than as a lawyer. Even putting aside whether the statute would be inapplicable where, as here, a law firm is acting in both capacities, the argument that section 340.6 applies only to claim of professional negligence has been rejected.

(Bergenstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 819 (borrower sued lender's attorneys; trial court granted attorneys' anti-SLAPP motion; appellate court affirmed, holding in part that section 340.6 barred the claims).) This provides an additional ground, again one that it is independent of any application of the litigation privilege, for granting Cross-Defendants' motion.

Cross-Defendants' request for judicial notice of Exhibits 1-6, 10, and 17-21, which are pleadings, filings, and orders in this action, are granted. As to Exhibits 7-9, 11-16, and 22-23, the requests are denied on the grounds the exhibits were not relevant to the court's determination of the issues in this motion.

Cross-Defendants' objection to Cross-Complainant's unauthorized sur-reply is overruled. The court exercised its discretion to consider it notwithstanding Cross-Complainant's failure to obtain leave of court before filing it, but found that it added nothing of value.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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