Judge: Ronald F. Frank, Case: 22TRCV00429, Date: 2023-03-07 Tentative Ruling
Case Number: 22TRCV00429 Hearing Date: March 7, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: March 7, 2023¿¿
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CASE NUMBER: 22TRCV00429
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CASE NAME: Joseph
Gazal v. Charlie Echeverry, et al
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MOVING PARTY: (1)
Defendants, Charlie Echeverry aka Carlos Echeverry, Jessica Echeverry, and
SOFESA
RESPONDING PARTY: (1)
Plaintiff, Joseph Gazal
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TRIAL DATE: None set¿
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MOTION:¿ (1) ¿ Special Motion to Strike Plaintiffs’
Complaint
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Tentative Rulings: (1) ARGUE.
The Court will likely take the matter under submission after argument. To help focus argument, the Court seeks input
on the following: (a) is there any published precedent where statements made
during a religious service including a sermon or homily have been the basis for
an anti-SLAPP motion being granted? (b) How
should the Court address the contention as to the First Step of the anti-SLAPP
analysis that at least some of the allegations arise from free speech protected
activity in a public forum as to matters of public concern, but other allegations
appear to arise from subsequent private speech as to a matter of private concern
regarding a single unhoused family? (c)
are there any published decisions that apply the elder abuse statute or
misrepresentation causes of action to solicitations for charitable donations by
members of the clergy, or which discuss a defense to such claims when the
alleged tortfeasor is a minister of the gospel?
(d) How should the Court evaluate the contention that the gravamen of the
misrepresentation claims appears to concern the deductibility of the charitable
solicitation or the titling of the car and house rather than the donation(s) or
amount of the donation(s)? (e) Does the
anti-SLAPP statute protect other First Amendment exercises besides speech and petitioning,
such as religious exercise?
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I. BACKGROUND¿¿
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A. Factual¿¿
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On
June 1, 2022, Plaintiff, Joseph Gazal (“Plaintiff”) filed a Complaint against
Charlie
Echeverry aka Carlos Echeverry, Jessica
Echiverry, and SOFESA. The Complaint alleges causes
of action for: (1) Breach of Contract;
(2) Breach of Fiduciary Duty; (3) Common Law Fraud and
Deceit; (4) Constructive Fraud; (5)
Negligence and Negligent Misrepresentation; (6) Unlawful
Solicitation; (7) Violation of
California Welfare & Institutions Code §§15600, et seq.; (8)
Unfair
Business
Practices; and (9) Accounting.
The Complaint
is based on the following allegations: Plaintiff alleges that he is a devoted 80
year old parishioner at St. Gerard Majella Church and has been a member for
over fifteen (15) years. (Complaint, ¶¶
3, 8.) Defendant, Charlie Echeverry was a Deacon at the St. Gerard Majella
Church. (Complaint, ¶ 8.)
Plaintiff claims that on December 19, 2021, at the Christmas Mass during his
homily, Defendant Charlie Echeverry told the parishioners about a family in
need with four kids who just fled from an abusive father and husband. (Complaint,
¶ 9.) Allegedly, the family was living
in a Motel 6 in Los Angeles and had no home. (Complaint, ¶ 9.) Defendant, Charlie Echeverry read a
purported letter to Santa Claus from the oldest child, a 12-year old boy, who
was pleading for help and asking for gifts for his brothers. (Complaint,
¶ 9.) Plaintiff claims that since
Christmas was near, this letter was intended, and did capture the sympathy and
heart of the parishioners, including him. (Complaint, ¶ 9.)
Plaintiff
claims that during the Christmas Mass homily, Defendant Deacon Echeverry
cloaked charitable solicitation in faith-based rhetoric by reminding his
congregation that the theme of fourth Sunday of Advent was “Caritas” which
translates to “love.” (Complaint, ¶ 10.) After the homily, a line of parishioners, including Plaintiff,
stood waiting to speak to Defendant Charles Echeverry, about heling the family.
(Complaint, ¶ 11.) Plaintiff
told Defendant that he was captivated by the Deacon’s pitch and the 12 year
old’s letter, and said that he would donate a large sum for a house for this
destitute family. (Complaint, ¶
11.) Within a few days, Defendant Charles Echeverry introduced Plaintiff to his
wife, Defendant Jessica Echeverry and most communications with Plaintiff from
therein included both of them. (Complaint, ¶ 11.) Plaintiff also notes that the identity of this family was never
disclosed other than their first names. (Complaint, ¶ 11.)
Plaintiff claims that Defendants preyed on his good
heart and also solicited funds for a care for this unidentified family.
(Complaint, ¶ 12.) Defendants allegedly
claimed that the family was in immediate need for a car as their car, which was
almost paid off, had significant body damage making it unsafe to drive. (Complaint,
¶ 12.) The Defendants allegedly
stated that it would cost $3,000 to $6,000 to repair the car or $40,000 to
replace it with a new one. (Complaint, ¶
12.) Plaintiff agreed to donate $40,000 immediately to purchase a new
car for this family. (Complaint, ¶ 12.)
Plaintiff
asserts that his donations consisted of: $47,143.91 on December 24,
2021, $100,000 on December 27, 2021, $100,000 on December 28, 2021 and $800,000
on December 29, 2021 for a total of $1,047,143.91 to purchase a car and a home
for the family. (Complaint, ¶ 13.) In
order to be able to pay this amount, Plaintiff, who is allegedly retired and on
a fixed income, had to withdraw funds from savings and borrow against his line
of credit. (Complaint, ¶ 13.)
Plaintiff claims that he told Defendants that the remaining funds not used for
the purchase of a car and a home had to be returned to him. (Complaint, ¶ 13.)
On January 18,
2022, Defendants allegedly told Plaintiff that a house was purchased for the
family without identifying an amount, and when Plaintiff requested the
remainder of his donation, Defendants requested the completion of a W9 which
would result in a 1099 being issued. (Complaint, ¶ 14.) Plaintiff asserts that he emailed the W9. (Complaint, ¶ 14.) Plaintiff claims he also demanded an
accounting of his donation including the escrow closing statement for the
house, the purchase agreement for the new vehicle, and the sales receipt of the
family’s old car. (Complaint, ¶
15.) Plaintiff asserts that Defendants ignored his request until counsel got
involved. (Complaint, ¶ 15.)
Defendants allegedly produced a one page purported escrow statement with
pertinent information redacted such as the address of the property, the buyer’s
name, and the identity of the escrow company. (Complaint, ¶ 15.) Defendants also allegedly produced an
unsupported accounting sheet that revealed Plaintiff’s donation used for items
never discussed or agreed upon which is why only $195,000 was returned to the
Plaintiff. (Complaint, ¶ 15.)
Later, Plaintiff claims that it was revealed that both the house and car were
purchased in Defendant Sofesa’s name which was also never discussed or agreed
upon. (Complaint, ¶ 15.)
Plaintiff
filed this action because he claims that Defendants were not transparent and
deceived him not believing the care and house would be purchased for this
family and titled to the family. (Complaint, ¶ 16.) Plaintiff claims that if this family actually resides in the
property and drives the vehicle, Defendant Sofesa allegedly has the ability to
evict them at any time, charge rent, and take away their only mode of
transportation although it allegedly reaped the benefit of the family’s old car
which was 90% paid off. (Complaint, ¶ 16.)
Defendants now bring an Anti-SLAPP special motion to
strike.
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B. Procedural¿¿
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On
August 12, 2022, Defendants filed the Anti-SLAPP Special Motion to Strike. On
February 22, 2023, Plaintiff filed an opposition. On February 28, 2023,
Defendants filed a reply brief.
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II. EVIDENTIARY OBJECTIONS
Plaintiff’s Evidentiary
Objections to Defendants’ Evidence
Sustain: none
Overrule: all
Defendants’ Evidentiary
Objections to Plaintiff’s Evidence
Sustain: none
Overrule: all
III. ANALYSIS¿
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A. Legal
Standard
Attorney Defendants filed a special motion to strike
the Complaint against them in its entirety, consisting of the eight(8) causes
of action under CCP § 425.16, also known as the anti-SLAPP (“strategic lawsuit
against public participation”) statute. “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. Discussion
Conduct
in Furtherance of Right of Petition or Free Speech
Code of Civil Procedure § 425.16(e) states: “As used
in this section, ‘act in furtherance of a person's right of petition or free
speech under the United States or California Constitution in connection with a
public issue’ includes: . . . (1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (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, (3) any
written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a public issue or
an issue of public interest.” “In the anti-SLAPP context, the critical point is
whether the plaintiff's cause of action itself was based on an act in
furtherance of the defendant's right of petition or free speech.” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The anti-SLAPP's statute
focuses, not on the form of cross-complainant’s cause of action but, rather,
cross-defendants' underlying activity that gives rise to the asserted liability
and whether that activity constitutes protected speech or petitioning. (See Navellier
v. Sletten (2002) 29 Cal.4th 82, 92.)
In Baral v. Schnitt (2016) 1 Cal.5th 376, the court
held that an anti-SLAPP motion may be utilized to strike specific allegations
of protected activity without eliminating the entire cause of action or primary
right. “By referring to a “cause of action against a person arising from any
act of that person in furtherance of” the protected rights of petition and
speech, the Legislature indicated that particular alleged acts giving rise to a
claim for relief may be the object of an anti-SLAPP motion. (§ 425.16(b)(1),
italics added.) Thus, in cases involving allegations of both protected and
unprotected activity, the plaintiff is required to establish a probability of
prevailing on any claim for relief based on allegations of protected activity.”
(Id. at 395.)