Judge Ronald F. Frank, Case 22STCV18435 2023-03-15 Tentative Ruling

Judge: Ronald F. Frank, Case: 22STCV18435, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV18435 Hearing Date: March 15, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 15, 2023¿¿

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CASE NUMBER: 22STCV18435

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CASE NAME: Romualdo Quintal III, a minor, by his Guardian Ad Litem, Socorro Cisneros v. Big 5 Sporting Goods Corporation, et al .¿¿¿

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MOVING PARTY: (1) Cross Defendants, Romualdo Quintal Jr. and Socorro Cisneros

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RESPONDING PARTY: (1) Defendant/Cross-Complainant, Chi Hsin Impex, Inc.

(2) Defendant/Cross-Complainant, Big 5 Corp.

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TRIAL DATE: February 26, 2024

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MOTION:¿ (1) Plaintiff’s Special Motion to Strike Defendant, Chi Hsin Impex, Inc.’s Cross-Complaint

(2) Plaintiff’s Special Motion to Strike Defendant Big 5 Corp’s Original Cross-Complaint

Tentative Rulings: (1) The anti-SLAPP motion as to Chi Hsin Impex is denied. ¿

(2) The anti-SLAPP motion as to Big 5 is mooted by Big 5’s filing of its First Amended Cross-Complaint before the anti-SLAPP motion was filed

(3) Requests for attorney’s fees are denied.

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I. BACKGROUND¿¿

The Court will conduct a further Case Management Conference after the hearings on the two anti-SLAPP motions. No additional CMC statement is required.

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A. Factual¿¿

On June 6, 2022, Plaintiff, Romualdo Quintal III, a minor, by his Guardian Ad Litem, Socorro Cisneros (“Plaintiff”) filed a complaint against Defendants, Big 5 Sporting Goods Corporation and Chi Hsin Impex, Inc. (CHI) for: (1) General Negligence; (2) Products Liability; and (3) Premises Liability. This action is based on the following set of facts: On or about August 20, 2021, Plaintiff was lawfully on Defendants’ premises when a kettlebell fell on Plaintiff’s hand, smashing and disfiguring his right little finger. Plaintiff alleges that the subject kettlebell was being displayed for sale at defendant’s above-mentioned retail premises when it fell.

On January 24, 2023, Defendant, Big 5 Corp., erroneously sued as Big 5 Sporting Goods Corporation also filed a cross-complaint against Plaintiff, Romualdo Quintal, Jr., and Defendant CHI and DOES 1 through 50. The Cross- Complaint alleges causes of action for: (1) Partial Indemnity and Apportionment of Fault (against all Cross-Defendants, and DOES 1-50); (2) Breach of Contract (Against Cross-Defendant CHI and DOES 1-50); (3) Breach of Express Indemnity (Against Cross-Defendant Impex, and DOES 1-50); (4) Total Indemnity (Against Cross-Defendant CHI, and DOES 1-50); (5) Express Warranty (Against Cross-Defendant CHI, and DOES 1-50); and (6) Declaratory Relief (Against All Cross-Defendants, and DOES 1-50).

On January 24, 2023, Defendant, CHI also filed a cross-complaint for: (1) Partial Indemnity and Apportionment of Fault; and (2) Declaratory Relief against Socorro Cisneros and Romualdo Quintal, Jr., and ROES 1 through 50. Socorro Cisneros is the minor plaintiff’s guardian ad litem and one of the minor plaintiff’s parents; Romualdo Quintal Jr. is the minor plaintiff’s other parent.

Plaintiff now files separate Special Motions to Strike, generally referred to as Anti-SLAPP motions, as to the Cross-Complaints from both Defendant CHI and Defendant, Big 5 Corp.

B. Procedural¿¿

On February 9, 2023, Plaintiff filed his Anti-SLAPP Motions against both Defendant CHI, and Defendant, Big 5 Corp.. On March 2, 2023, Defendant Big 5 Corp. filed an opposition. On March 2, 2023, Defendant, CHI also filed an opposition. On March 13, 2023, Plaintiff filed a combined reply brief to both oppositions. There is an indication in the Opposition papers that the moving party did not conduct any meet-and-confer with CHI’ counsel before filing the anti-SLAPP motion, and that if there had been a meet and confer then CHI would have amended away the issue raised by the anti-SLAPP motion.

Of note, on February 8, 2023, Defendant, Big 5 Corp. filed an amended Cross-Complaint, one day before the anti-SLAPP motion. Cross-Defendants’ Anti-SLAPP motion that was filed a day later was based on the original Cross-Complaint, not the First Amended Cros-Complaint that likely had not yet been received by the moving party’s counsel.

II. ANALYSIS¿

A. Legal Standard

“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 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.” (Baral, 1 Cal.5th at 384 (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 384-385 (citations omitted).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

B. Anti-SLAPP to Big 5 Corp.’s Cross-Complaint

Here, Cross-Defendants, Romualdo Quintal, Jr. and Socorro Cisneros, argue that on its face, the Big 5 Corp.’s action arises out of the Plaintiff and Cross-Defendant’s constitutionally protected petition activity, making it appropriate for a special motion to strike. Plaintiff contends that the first cause of action is for partial indemnity, and the second cause of action is for declaratory relief. Plaintiff claims that both causes of action are based upon statements and/or conduct delineated in CCP §425.16(e)(2), (3), and (4).

In opposition, Big 5 Corp. assert that it has filed an Amended-Cross Complaint, thus rendering Plaintiff’s Anti-SLAPP Motion moot. As such, the Court does not reach the merits of the Cross-Defendants’ motion as to Big 5.

C. Anti-SLAPP to CHI ’s Cross-Complaint

Moving parties Romauldo Quintal Jr. and Socorro Cisneros invoke Code of Civil Procedure section 425.16(e)(2), part of the anti-SLAPP statute, arguing that their son’s filing of his complaint, and them acting as Guardian ad Litem in this action, constitute protected activity. That is correct. However, Plaintiffs’ argument is based on the conclusory argument that “on its face, Cross-Complainant [CHI]’s action arises out of the plaintiff and cross-defendant’s constitutionally protected petition activity, making it appropriate for a special motion to strike. Following the logic of moving parties’ argument, no compulsory cross-complaint could ever be filed without running afoul of the anti-SLAPP motion, and that was neither the intention nor the purpose of the statutory scheme.

It is not enough to merely argue that Defendant, CHI, Inc’s cross-complaint arises from protected activity simply because it followed the filing of the underlying complaint. It is true that a compulsory cross-complaint CAN be subject to the SLAPP statute. (See, e.g., Raining Data Corp. v Barrenechea (2009) 175 Cal.App.4th 1363, 1371–1374.) But the claims alleged in the cross-complaint must be based on, for example, the Plaintiff’s act of filing the complaint such as the malicious prosecution or abuse of process claims asserted there. Here, the Cross-Complaint arising out of the underlying facts of a bodily injury occurring in the Big 5 store where a minor was injured when encountering a kettle bell. A defendant is entitled, and under the compulsory counter-claim rule required, to file a cross-complaint against the party or parties who sued him that arises from the same operative facts and circumstances. Such a Cross-Complaint does not arise out of protected activity; rather, it arises out of the same facts as alleged in the Complaint bolstered by additional alleged facts concerning parental supervision of the minor. If an attorney sued a former client for unpaid fees, would the client’s cross-complaint for malpractice in the same legal representation be subject to an anti-SLAPP motion? Of course not.

In ruling on a motion under section 425.16, the trial court engages in the familiar two-step process. The moving party's burden on the threshold First Step is to show “the challenged cause of action arises from protected activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see Baral, supra, 1 Cal.5th at p. 396.) At Step Two, “the burden shifts to the plaintiff [or here, the Cross-Complainant] to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's [or here, the Cross-Complainant’s] showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396; accord, Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Nonetheless, the court should grant the motion “ ‘if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 714; accord, Baral, supra, 1 Cal.5th at p. 385, [the court “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”]; Zamos, supra, 32 Cal.4^th at p. 965.)

Here, the gravamen of CHI’s cross-complaint does not arise from protected activity, but rather it arises from the conditions and circumstances that existed in the Big 5 store before, during, and after the subject injury-producing incident. Accordingly, under Step One of the two-step anti-SLAPP analysis, the moving parties have not met their burden. The anti-SLAPP motion is thus denied.

Under Step Two, if the Court were to reach it, the test for showing a probability of success under section 425.16 is similar to the standard applied to evidentiary showings in summary judgment motions, and the Cross-Complainant must make a prima facie showing by competent admissible evidence within the personal knowledge of the declarant. (Ludwig v. Superior Court (1995) 37 Cal.App.4th at 15-16.) “To show a likelihood of success, ‘[t]he … showing of facts must consist of evidence that would be admissible at trial.’ [Citation.] The [Cross-Complainant] may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1368.) The court bears the responsibility to accept as true the evidence favorable to the [Cross-Complainant, who] need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.)

Cross-Complainant CHI alleged an allegation for Partial Indemnity and Apportionment of Fault against Cross-Defendants “To state a claim for equitable indemnity, a defendant must allege the same harm for which he may be held liable is properly attributable—at least in part—to the cross-defendant.” (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn.7.) The Cross-Complaint alleges “Cross-Complainant is not singularly or totally liable, if at all, for any injury, loss or damage allegedly sustained by Plaintiff.” (Cross-Complaint, ¶ 9.)

Additionally, CHI alleged a claim for Declaratory Relief. “To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) The Cross-Complaint alleges “[a]n actual controversy exists between the parties relating to their rights, duties and liabilities. Cross-Complainant contends that if it is held liable and suffers judgment herein, it is entitled to be indemnified as hereinabove alleged, and entitled to judgment over and against Cross-Defendants, and each of them, in a like amount and in addition thereto is entitled to judgment for costs and expenses incurred in defending said action, including reasonable attorney's fees.” (Cross-Complaint, ¶ 13.)

In this case, Cross-Defendants assert in their Anti-SLAPP motion that there is no basis for CHI to pursue any claim against them. Plaintiffs assert there are no allegations that they owed a duty of care. But it is axiomatic that a parent owes a duty of care to her or his child and that there may be more than one cause of an injury, such as a defective product and a negligent act or omission.

CHI argues that they have met their burden to show the legal sufficiency and factual support for their causes of action against Cross-Defendants, Cisneros and Quintal, Jr. for both indemnity and declaratory relief, and have attached passages from deposition testimony supporting a good faith basis for such an assertion. CHI alleges that Cross-Defendants were negligent in their supervision of Plaintiff, their son, and/or that the minor’s own conduct may have caused or contributed to his injuries and damages. (Bennett Decl., ¶ 3; Exhibit A.). For example, CHI contends the minor plaintiff used the kettle bell in a way that was negligent and unreasonable, i.e. trying to catch a heavy weight as it slips from his grip and falls, CHI further argues that it is reasonable that if Cross-Defendants had been in the same aisle with their son where the kettlebells were, he probably would not have picked one up to feel how heavy it was. (Bennett Decl., ¶ 4; Exh. B pg 48, lns 22-25.) Cross-Complainant, CHI contends that given his history of accidents, Cross-Defendants should have been more diligent in their supervision of their son knowing he seems to be prone to accidents and that he has not used such weights. (Bennett Decl., ¶ 4; Exh. B pg 37, lns 22-24; pg 38, lns 1-25; pg 40, lns 23-25; pg 41, lns 1-4.) The law makes only a minimal pleading requirement to satisfy Step Two, and in the Court’s judgment CHI has met its minimal burden sufficient to survive an anti-SLAPP motion, even if the Court is mistaken in its assessment at Step One. Ultimately, the trier of fact will determine causation and allocation of responsibility among the parties, but for purposes of the pleading stage of this case the Court finds the Cross-Complaint, coupled with the evidence submitted in support of the opposition, to sufficiently present a basis for apportionment of responsibility and declaratory relief to survive the anti-SLAPP motion.

IV. CONCLUSION¿¿

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For the foregoing reasons, the Anti-SLAPP Motion as to CHI is denied and the motion as to Big 5 is mooted by its earlier filing of an amended cross-complaint.