Judge: Robert C. Longstreth, Case: 37-2020-00048485-CU-PO-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  PI/PD/WD - Other SLAPP / SLAPPback Motion Hearing 37-2020-00048485-CU-PO-CTL LAU VS HOUSER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant's Motion to Strike Plaintiff's Complaint Pursuant to the Anti-SLAPP Statute (ROA 76) is GRANTED.

Plaintiff's Complaint asserts a single cause of action for malicious prosecution. (ROA 1, at p.4.) Defendant moves to strike the Complaint pursuant to the anti-SLAPP statute. (Code Civ. Proc. § 425.16.) An anti-SLAPP motion involves a two-prong analysis, with the court first considering whether Plaintiff's claim arises from some protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Defendant bears the burden of proof on the first prong of the analysis. (Ibid.) 'By definition, a malicious prosecution suit alleges that the defendant has committed a tort by filing a lawsuit.' (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) 'The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity, because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding.' (Lee v. Kim (2019) 41 Cal.App.5th 705, 719.) In opposition, Plaintiff asserts Defendant's underlying application for a civil restraining order against Plaintiff contained perjury, and thus it is 'illegal as a matter of law.' (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) Plaintiff fails to demonstrate that exception applies here. 'The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.' (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.) Here, Defendant does not concede that any statement in his declaration in support of an application for a restraining order was perjurious – to the contrary he affirms those statements in the declaration supporting his anti-SLAPP motion – and Plaintiff fails to 'conclusively demonstrate' that any statements are false. See, e.g., Dwight R. C. Christy B. (2013) 212 Cal.App.4th 697, 713, noting 'the critical distinction between a plaintiff's bare allegations of unlawful activities and uncontroverted evidence of unlawful activities.' Were the law otherwise, the anti-SLAPP statute would effectively be construed into irrelevance.

Accordingly, Defendant has established that the Complaint arises from protected activity, and that the anti-SLAPP statute applies.

With regard to the second prong of the anti-SLAPP analysis, it is Plaintiff's burden to establish, with admissible evidence, that Plaintiff has a probability of prevailing on the challenged causes of action.

(Code Civ. Proc. § 425.16(b)(1).) Calendar No.: Event ID:  TENTATIVE RULINGS

3042016  9 CASE NUMBER: CASE TITLE:  LAU VS HOUSER [IMAGED]  37-2020-00048485-CU-PO-CTL Defendant correctly asserts Plaintiff's claim is barred as a matter of law. '[T]he unsuccessful filing of a petition for an injunction under [Code of Civil Procedure] section 527.6 may not form the basis for a malicious prosecution action.' (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574.) Although the Complaint fails to specifically identify the underlying action upon which Plaintiff's malicious prosecution claim is based, the parties do not dispute in the papers that the basis of the Complaint is Defendant's previous attempt to obtain a civil harassment restraining order against Plaintiff in Case No.

37-2020-00003533-CU-HR-CTL. (See Houser Decl. ¶¶ 16-17; Lau Decl. at ¶¶ 10, 36 & Ex. 1.) Plaintiff appears to concede he cannot prevail on his malicious prosecution claim in his opposition, because he offers no analysis of the claim and instead requests leave to amend in order to state new claims for defamation and intentional infliction of emotional distress against Defendant. However, '[t]he anti-SLAPP statute makes no provision for amending the complaint once the court finds the requisite connection to First Amendment speech,' and allowing leave to amend would undermine the legislative purposes of the statute. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) Plaintiff asserts he may be permitted to amend for the purpose of demonstrating a probability of prevailing on the merits, citing Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858. As Defendant points out, the Fourth District, Division One has expressed some skepticism of the holding in Nguyen-Lam.

(Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 898-899.) Even assuming Nguyen-Lam was correctly decided, it would not support Plaintiff's request for leave to amend here.

Allowing Plaintiff leave to amend to state two new causes of action would necessarily trigger a new anti-SLAPP motion and a new analysis of whether the first prong is met on those new claims. This is not a situation (as was presented in Nguyen-Lam) in which the pleading is deficient on its face but the evidence reveals a probability of prevailing on the stated, but deficiently alleged, cause of action. In any event, Defendant makes a persuasive showing that any amendment would be futile even apart from the general bar to granting leave to amend when the anti-SLAPP statute applies. Plaintiff's request for leave to amend is denied.

Plaintiff asserts he was not properly served with the moving papers. Defendant's proof of service states the papers were served electronically on Plaintiff, who was self-represented at the time and living in Alaska, per the parties' agreement. (ROA 81.) Plaintiff asserts he never agreed to electronic service.

(Lau Decl. at ¶ 14.) The court need not resolve this dispute, since Plaintiff does not assert that he failed to receive actual notice of the motion, or that he has otherwise been prejudiced in any way by the alleged defect in service. To the contrary, the court's schedule allowed Plaintiff months to respond to the motion, and during this time he was able to retain an attorney and file a thorough and timely opposition.

To the extent that Plaintiff seeks any relief with respect to this issue, as opposed simply making it clear that he does not waive his objections as to service, the court believes that it is appropriate to consider the motion.

Defendant is to submit a proposed Judgment within five (5) days.

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3042016  9