Judge: Stephen Morgan, Case: 23AVCV00324, Date: 2023-08-15 Tentative Ruling

Case Number: 23AVCV00324    Hearing Date: August 15, 2023    Dept: A14

Background

This is an action stemming from an alleged breach of contract. Plaintiff Michelle Davey Valencia (“Plaintiff”) alleges that on or about August 13, 2023, Plaintiff and Defendant Valley Elite Gymnastics Academy (“VEGA”) entered into a written contract; Plaintiff performed all the acts that the contract required of her; and VEGA breached the contract by failing to pay Plaintiff 10% of the tuition fees of all students in all mobile programs, to be truthful with regard to the number of students enrolled in each mobile gymnastics program, and misappropriating Plaintiff’s confidential business information. Further, VEGA and Defendant Ynez O. Lacson (“Lacson” and collectively “Defendants”), who worked for VEGA, were aware that Plaintiff was and is in the business of operating and licensing mobile gymnastic programs and had economic relationships with numerous private pre-schools and elementary schools that resulted in and would have continued to result in an economic benefit to Plaintiff and, despite this knowledge, Lacson made statements to various schools, parents of students, and at least one other third person, that Plaintiff was no longer connected to, or had a business relationship with VEGA, and that Plaintiff’s contacting Little Dreamers was “highly unprofessional and a security issue since children are involved” when Plaintiff had contacted each location where mobile gymnastic programs were being taught by VEGA and verify the number of students participating in each program, as required by the contract, which resulted in the disruption of Plaintiff’s business relationships. Plaintiff claims monetary and emotional damages.

On March 24, 2023, Plaintiff filed her Complaint alleging eight (8) causes of action for: (1) Breach of Contract against VEGA, (2) Accounting against VEGA, (3) Intentional Interference with Prospective Economic Relations, (4) Defamation against Lacson, (5) Intentional Infliction of Emotional Distress (“IIED”) against Lacson, (6) Defamation against Defendants, (7) IIED against Defendants, and (8) Misappropriation of Trade Secrets against Defendants.

On July 07, 2023, Defendants filed a Special Motion to Strike under Cal. Code Civ. Proc. § 425.16 (“Special Motion to Strike”).

On July 19, 2023, Plaintiff filed an Ex Parte Application for Order Shortening Time for Hearing on Motion Permitting Specified Discovery on Defendants’ Special Motion to Strike, subsequently denied.

On August 02, 2023, Plaintiff filed an Opposition with supporting papers, including a proposed order on Plaintiff’s evidentiary objections. However, no evidentiary objections were filed.

On August 03, 2023, Plaintiff filed her evidentiary objections. All papers opposing the motion were due on August 02, 2023. (See Cal. Code Civ. Proc. § 1005(b).) “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) As it appears that the late filing of the evidentiary objections were in error, the Court considers the evidentiary objections.

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Legal Standard

Standard for Special Motion to Strike under Cal. Code Civ. Proc. § 425.16 – Under Cal. Code Civ. Proc. § 425.16, a cause of action asserted against a person arising from any act of that person in furtherance of his/her right of petition or free speech under the United States or California Constitution, in connection with a public issue, is subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Cal. Code Civ. Proc. § 425.16(b)(1); See also Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 892.)

The motion requires the moving party to bear the initial burden of establishing a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. (Wilbanks, supra, 121 Cal.App.4th at 894.) The defendant may meet this burden by showing the act which forms the basis for the plaintiff's cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding; or such a statement in connection with an issue under consideration or review by a legislative, executive, or judicial body; or such a statement was made in a place open to the public or a public forum in connection with an issue of public interest.  (Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820 [overruled in part as to showing of intent of party that filed the complaint].)

Once a defendant meets their burden, the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim, i.e., make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff’s favor. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1497-78.) Specifically, the plaintiff carries their shifting burden by making an evidentiary showing like that required under Cal. Code Civ. Proc. § 437c. (Id.; See also Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15.)

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Discussion

Request for Judicial Notice – Plaintiff’s two requests for judicial notice concern documents filed with the Court in this action. Judicial notice is GRANTED as judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Cal. Evid. Code § 452(d).)

Evidentiary Objections –

The Court notes that the Evidentiary Objections direct the Court and the parties to “page 4.” The Court believes this is a scrivener’s error as the page number for Lacson’s declaration is page 11 and the initial paragraph at issue is paragraph 4.

Pl.’s Evidentiary Objection No. 1 [Decl. Lacson ¶ 4, lines 13-16]: SUSTAINED.

Pl.’s Evidentiary Objection No. 2 [Decl. Lacson ¶ 4, lines 16-18]: OVERRULED.

Pl.’s Evidentiary Objection No. 3 [Decl. Lacson ¶ 5, lines 20-21]: OVERRULED.

Pl.’s Evidentiary Objection No. 4 [Decl. Lacson ¶ 5, lines 21-22]: SUSTAINED.

Application – Here, Defendants present that the defamation and emotional distress causes of action are subject to a Cal. Code Civ. Proc. § 425.16 special motion to strike because Defendants have a constitutional right to free speech in a place open to the public in connection with a public issue or an issue of public interest. Defendant argues that the statements at issue fall under Cal. Code Civ. Proc. § 425.16(e)(3) and (4). To support this, Defendant cites to two cases: Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894 (“Hilton”) and Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 (“Nyagard, Inc.”).)

As an initial matter, Plaintiff has raised issues of timeliness as well as service regarding both this motion and a related filing.

Plaintiff presents that Defendants were subserved with the Summons and Complaint on April 22, 2023, with mailing done on April 25, 2023, making service complete on May 05, 2023 with a response due on June 05, 2023. Plaintiff directs the Court to her request for judicial notice. Next, Plaintiff presents that Defendants’ counsels’ office sought an extension to file an “Answer” to the Complaint, Plaintiff’s counsel granted the maximum extension permitted under Cal. Rules of Court, Rule 3.110(d). (See Decl. Kathy J. McCormick ¶ 3, Exh. 1.) Instead, Plaintiff received a letter demanding dismissal or amendment of the Complaint. (See id. ¶ 4, Exh. 2.) An email exchange then occurred in which Plaintiff’s counsel, Kathy J. McCormick (“McCormick”), informed defense counsel that no further extension could be given under Rules of Court, Rule 3.110(d). McCormick emphasizes that though defense counsel, Ehman Counts (“Counts”), stated to the Court in his declaration that he filed Declaration re Extension to Respond to Complaint with the Court, no such request was served on McCormick’s office nor did the Court’s Register of Actions reflect such a request. McCormick details her attempt to find the document. (See Decl. McCormick ¶¶, 14-19, Exh. 5.)

Plaintiff is correct – the Court has checked its records. No such request was filed. Such a presentation is a false statement of fact. California Rules of Professional Conduct, Rule 3.3 Candor Toward the Tribunal requires that a lawyer shall not (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal the language of a book, statute, decision or other authority; or (3) offer evidence that the lawyer knows to be false. (See California State Bar, California Rules of Professional Conduct, Rule 3.3(a).) The Court also notes that California Rules of Professional Conduct, Rule 8.3 has been recently approved and requires California attorneys to report any lawyer who commits a criminal act, engages in fraud, misappropriates funds or property, or engages in conduct involving “dishonesty, deceit, and reckless or intentional misrepresentations.” (See Supreme Court of California ADMINISTRATIVE ORDER 2023-06-21-02  <https://newsroom.courts.ca.gov/sites/default/files/newsroom/2023-06/S280290%20-%20admin%20order%202023-06-21-02.pdf> [as of Aug. 07, 2023]; See also The State Bar of California, Rule 8.3 Required Reporting page https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Rule-83-Required-Reporting#:~:text=Effective%20August%201%2C%202023%2C%20lawyers,conduct%20to%20report%20the%20lawyer. [as of Aug. 07, 2023].) The Court cautions Counts against such false representations.

As to this motion, Plaintiff presents that her counsel never received a copy of the motion and directs the Court to Decl. McCormick ¶¶, 12-15. (See also Decl. McCormick at Exh. 5.) Plaintiff’s Counsel, John D. Martin (“Martin”), who is also listed on the Proof of Service for this motion, presents that, despite the Proof of Service, he was not served with the motion via email as well. (Decl. Martin ¶¶ 3-4.) McCormick also declares that the motion was not received by mail at her firm. (Decl. McCormick ¶ 15.) Though not brought up by Plaintiff, there exists another error with the Proof of Service. The Proof of Service states that Lacson was sent a courtesy copy as she is Plaintiff. No email is provided for Lacson. Lacson is not Plaintiff and is in actuality represented by Counts as he filed this motion on behalf of VEGA and Lacson.

Regarding timeliness, Plaintiff directs the Court to Cal. Code Civ. Proc. § 425.16(f) which reads:

The special 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. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

Here case precedent provides the following:

·         A court correctly denies a defendants’ special motion to strike under Cal. Code Civ. Proc. § 425.16(f) where it is filed more than 60 days after service. (See Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676 (Chitsazzadeh”); Fair Political Practices Com. v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171 [discussing a previous version of the statute where the deadline was 30 days]; Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382 [discussing a previous version of the statute where the deadline was 30 days; discussed in Chitsazzadeh].

·         Trial court abused its discretion in granting defendant’s application to file a late anti-SLAPP motion under CCP § 425.16 where: (1) Delay was extreme, as it was more than two years after plaintiffs filed their complaint; (2) Defendant did not articulate any extenuating circumstances justifying a late filing; (3) Trial court’s reasons for granting the application were unrelated to the purpose of the SLAPP statute; and (4) Potential prejudice to plaintiff, given the lengthy delay occasioned by defendant’s appeal, was great; rather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits, trial court’s ruling had the effect of undermining that statute. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App. 4th 772 (“Platypus”).)

Here, there is no doubt that Defendants’ Special Motion to Strike is past the 60 day statutory time limit as (1) the Proof of Services for VEGA and Lacson show that the Complaint was served by substituted service on April 22, 2023 and mailed on April 25, 2023; (2) the statute provides “[t]he special 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[]” (Cal. Code Civ. Proc. § 425.16(f)); (3) the Court did exercise its discretion prior to the filing of the motion;  (4) using the last date completion of service, May 05, 2023 (10 days after mailing as under Cal. Code Civ. Proc. § 415.20(a)), 60 days is Tuesday July 4, 2023.

Binding case precedent holds that, when addressing a special demurrer or motion to strike under Cal. Code Civ. Proc. § 425.16, a court need to exercise its discretion to allow such a filing. Platypus states “A party may not file an anti-SLAPP motion more than 60 days after the filing of the complaint, unless the trial court affirmatively exercises its discretion to allow a late filing. (Platypus, supra, 166 Cal.App.4th at 775.) Chitsazzadeh states: “Although a court may wish to consider the merits of the motion to determine whether the purposes of the anti-SLAPP statute would best be served if the court considered the merits of and granted the motion, the court has the discretion to deny a motion filed after the 60-day deadline without considering the merits of the motion. (Morin v. Rosenthal, supra, 122 Cal.App.4th at p. 681; see Lam v. Ngo (2001) 91 Cal.App.4th 832, 840 [111 Cal. Rptr. 2d 582].)” (Chitsazzadeh, supra, 199 Cal.App.4th at 682.)

The Court need not address the Special Motion to Strike on its merits as it is untimely. Further, while Counts has incorporated the Court into his explanation for a late filing, the Court emphasizes, as mentioned ante, no such request for extension was filed.

The Court notes that, had it considered the Special Motion to Strike on its merits, by the Defendants’ own cases cited (see Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894 (“Hilton”) [discussing California case precedent] and Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 (“Nyagard, Inc.”), the matter would not be considered one that affects the public interest as: (1) under the tests in Hilton, taking the children potentially affected into consideration, the group would be considered a relatively small, specific audience as the children potentially affected are children who engage in mobile gymnastic classes in the local area of Palmdale; and (2) under the tests in Nyagard, Inc., there has been no showing that the public would take an interest in the statements concerning Plaintiff.

Accordingly, the Special Motion to Strike Complaint is DENIED.

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Conclusion