Judge Ronald F. Frank, Case 22TRCV00176 2022-12-12 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00176, Date: 2022-12-12 Tentative Ruling

Case Number: 22TRCV00176 Hearing Date: December 12, 2022 Dept: 8

Tentative Ruling

HEARING DATE: November 30, 2022¿

CASE NUMBER: 22TRCV00176

CASE NAME: Garry Cassidy, Garry Cassidy Construction v. Two Coast Brewing Company, LLC, et. al. .

MOVING PARTY: Defendants

RESPONDING PARTY: Plaintiff

TRIAL DATE: None set

MOTION:¿ (1) 2^nd Hearing on Special Motion of Defendants to Strike (Anti-SLAPP) the Sixth and Seventh Causes of Action in the Second Complaint

Tentative Rulings: GRANT Anti-SLAPP Motion. The Court Previously Found Defendant Met the First Step of the Anti-SLAPP Analysis, and now finds on the Second step that the litigation privilege applies to immunize defendants from liability for the alleged extortionist threats in the demand letter.

I. BACKGROUND¿

Resolution of an anti-SLAPP motion involves two steps. In the first step, which the Court previously gave its tentative ruling that Defendants had prevailed, the moving party must establish that the challenged claim (here, the two challenged causes of action) arises from activity protected by section 425.16. (Taus v. Loftus (2007) 40 Cal.4th 683, 712).) Once the Court finds that defendant has made the required first step showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Here, the probability of success issue depends in part on whether the so-called settlement letter is subject to the litigation privilege and therefore a complete defense to the two challenged causes of action can be established. As directed by this Court, Defendant has submitted a brief to discuss Dickinson and any potential applicability to the second prong of CCP § 425.16 of a demonstration by Plaintiff with admissible evidence of the probability of success on a “legally sufficient” claim.

¿II. ANALYSIS

As stated in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, the litigation privilege of Civil Code section 47(b) privileges certain publications or communications. The privilege applies to any communication “(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” (Quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege may extend to steps taken prior to the commencement of a lawsuit or communications made afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)

Mr. Mouzis’ December 29, 2021 letter, Exhibit 1 to the Cassidy Declaration in support of Plaintiff’s Opposition, is 6 pages long. The purported extortionist threat is on the 6^th page, after a detailed recitation of the asserted facts underlying the dispute as to which the settlement proposal or threat is then made. The Court must consider the context in which the act constituting the infliction of emotional distress arises as well as the actual words used in the communication. In the Court’s view, the context is one that has more than “some connection or logical relation” to the contemplated or threatened litigation. To the Court, the first five pages of the letter make it clear that the demand/threat was meant or intended to achieve the object of the anticipate defense to the litigation, more clearly with respect to the stated intention to file a cross-complaint and vigorously litigate it, less so with respect to the indicated intention to make a report to the CSLB.

In Dickinson v. Cosby (2017) 17 Cal.App.5th 655, the court held that a demand letter written by an attorney did not fall within the litigation privilege. There, Cosby’s attorney sent a letter, captioned as a confidential demand letter, to media outlets stating that Dickinson’s allegations were defamatory and threatening litigation if the outlets went forward with coverage of those allegations (Id. at 683-684.) The evidence supported a prima facie interference that the demand letter was intended as a bluff to silence the media, and not sent in serious contemplation of litigation – the letter was sent only to outlets that had not run the story, and the client had not sued any of the multiple media outlets that already ran the story. (Id. at 684.) Dickinson showed that failure to follow through with litigation threat “give[s] rise to an inference that the demand letter was not sent in connection with litigation contemplated in good faith and under serious consideration.” (Ibid.)

Here, Defendants assert that Dickinson is distinguishable on its facts. Defendants are correct. Dickinson did not involve a threat or demand made to Ms. Dickinson herself but rather to media outlets that indicated an intention to publish Ms. Dickinson’s rape allegations. Plaintiff’s supplemental briefing notes that there are many similarities between this case and Dickinson, that in each case the purported attorney demand letters were a mere negotiating tactic meant to induce the settlement of the dispute. The Court finds Defendants have the better of the argument but is wiling to take oral argument from Plaintiffs beyond what was argued in the briefs.