Judge: Robert C. Longstreth, Case: 37-2022-00022798-CU-DF-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Defamation SLAPP / SLAPPback Motion Hearing 37-2022-00022798-CU-DF-CTL LINGENFELTER VS MACGILLIVRAY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 03/17/2023

Defendant Anastasia Kalinina's Special Motion to Strike the First Amended Complaint and Defendants 4354 Sandy Springs Dr. LLC and 2850 Copeland Road LLC's Joinder therein are DENIED. (ROA 63-64, 93.) Defendants seek to strike Plaintiff's First Amended Complaint in its entirety pursuant to the anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. (Code Civ. Proc. § 425.16.) Plaintiff contends the motion is untimely. An anti-SLAPP motion 'may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.' (Code Civ. Proc. § 425.16(f).) Defendants contend they were never properly served with either the initial Complaint or the First Amended Complaint. The only filed proof of service relates to service of the initial Complaint on Defendant Kalinina. (ROA 26.) That proof of service indicates Kalinina was served by mail on June 3, 2022, which pre-dates the filing of the Complaint by ten days and is thus invalid.

Plaintiff has not presented any evidence of sufficient proof of service of either the initial Complaint or the First Amended Complaint. As such, the court concludes the motion is timely, or that at the least that there is no evidence the motion is untimely. In any event, even if there were any doubt on the issue, the Court believes it is appropriate to exercise its discretion to hear the motion.

An anti-SLAPP motion involves a two-prong analysis, with the court first considering whether Plaintiff's First Amended Complaint arises from protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Defendants bear the burden of proof on the first prong of the analysis. (Ibid.) If Defendants meet their burden on the first prong of the analysis, the burden shifts to Plaintiff 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).) Here, Defendants assert that all of Plaintiff's claims against them arise either from 1) statements Kalinina made in judicial proceedings and 2) Kalinina's filing of a false police report. Statements and writings made in judicial proceedings are protected activity. (Code Civ. Proc. § 425.16(e)(1).) Communications made to the police are also protected activity. (Ibid.; see also Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-42.) Defendants, however, have failed to address all of the conduct alleged in the First Amended Complaint. For example, Plaintiff alleges that Defendant Kalinina contacted Plaintiff's landlords and told them Plaintiff is a rapist and drug abuser. (FAC at Exh. 21, ¶ K.) As stated in Plaintiff's opposition, 'Defendants have also disseminated malicious false allegations of 'drugs and rape' to numerous people (Defendant's ex-husband, Plaintiff's landlords, Plaintiff' ex-employer, etc.) while NOT in a courtroom environment.' (ROA 74, at 3:12-14.) Defendants do not attempt to explain why this Calendar No.: Event ID:  TENTATIVE RULINGS

3041194  4 CASE NUMBER: CASE TITLE:  LINGENFELTER VS MACGILLIVRAY [IMAGED]  37-2022-00022798-CU-DF-CTL alleged conduct, which on its face appears to be unprotected, should be subject to an anti-SLAPP action, and the Court does not see any basis for so holding. 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.) Defendants have not done so; instead, they initially relied solely on the conclusory statement that all of the alleged conduct arises in the conduct of court proceedings – an assertion that the Court finds to be incorrect – and then failed in their reply to address prong one of the anti-SLAPP analysis at all.

As to prong two, Defendants point out, accurately, that Plaintiff has failed in his opposition to specifically identify any competent evidence in support of his allegations. The Court is not required, even in considering matters advanced by a self-represented litigant, to comb the files and records of the case to develop a party's arguments. In any event, the Court's review of the 'over 100 pages of evidence' generally referenced by Plaintiff (ROA 74, at 2:12) does not indicate that any such competent evidence exists. Defendants' motion, however, was directed to the First Amended Complaint in its entirety.

Defendants did not direct their motion to any particular causes of action or any particular factual allegations, instead taking the position that no such analysis is needed because the entire complaint alleges only protected activity. For the reasons stated above, the Court disagrees.

Defendants have not met their initial burden to demonstrate that each factual basis for Plaintiffs' claims alleged in the First Amended Complaint arises from protected activity. Accordingly, their Motion to Strike the First Amended Complaint in its entirety is denied.

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