Judge: Stephen P. Pfahler, Case: 22CHCV00138, Date: 2023-03-08 Tentative Ruling


Case Number: 22CHCV00138    Hearing Date: March 8, 2023    Dept: F49

Dept. F-49

Date: 3-8-23

Case #22CHCV00138

Trial Date: Not Set

 

SPECIAL MOTION TO STRIKE

 

MOVING PARTY: Defendants, Automobile Club of Southern California, et al.

RESPONDING PARTY: Plaintiff, Ashlie Anderson, pro per

 

RELIEF REQUESTED

Special Motion to Strike the Complaint

 

SUMMARY OF ACTION

On November 1, 2021, Plaintiff Ashlie Anderson was involved in an automobile accident with defendant Ricardo Avelar, and insured with defendants Automobile Club of Southern California and/or Interinsurance Exchange of the Automobile Club, LLC. Plaintiff alleges Avelar wrongfully denied any liability after allegedly agreeing to take full responsibility for the accident.

 

Plaintiff subsequently submitted a claim with the insurer, which led to a designation of Plaintiff’s vehicle as a “total loss salvage.” Plaintiff contends said designation constituted false information as part of greater “general business practice” for various fraudulent and discriminatory purposes, due in part to Plaintiff identifying as African American. Individual defendants Frances Schultz and Gail Louis were employees of insurer at all relevant times.

 

Note, the complaint identifies Anderson’s insurer as Mercury, and the involvement of Anderson’s “boyfriend” in communications with the insurers. [Comp., ¶¶ 30, 33.] Other than communicating the denial of liability by Avelar to Anderson, it’s not clear from the complaint how Mercury was otherwise involved with the adjustment of the claim.

 

On March 2, 2022, Plaintiff filed a 12 cause of action “verified” complaint, comprised of 108 paragraphs of allegations and exhibits, totaling 92 pages, for Failing to Signal and Illegal Lane Change; Fraud in Violation of California Vehicle Code section 11515, subdivision (a); Fraud Based on Concealment; Non-Disclosure of Material Facts; Slander and Disgorgement of Title; Bad Faith in Violation of Insurance Code section 790.03, subdivision (b); Fraud in the Inducement; Civil Rights violations under Unruh and Bane Acts, Civil Code sections 51 and 52.1, et seq., and 42 U.S.C. section 1983; Fraud; Fraud and Violation of California Vehicle Code 11515, subdivision (a-b, d-e) in Falsifying a Settlement Agreement; Criminal Conspiracy in violation of Penal Code section 182, subdivision (a)(4) and the 14th Amendment; and Violation of the Unfair Business Practices Act.

 

On March 14, Anderson filed a 170.6 challenge to Department 47, which led to the reassignment of the action to Department 49. On September 22, 2022, Department 49 reassigned the case to Department 51, as part of the opening of the new courtroom. On October 3, 2022, Anderson filed a 170.6 challenge to Department 51, which led to the reassignment of the case to Department 49 a second time.

 

On February 2, 2023, Ricardo Avelar answered the complaint.

 

RULING: Granted.

Defendants Automobile Club of Southern California, Interinsurance Exchange of the Automobile Club, LLC, Frances Schultz, and Gail Louis move to strike the second through twelfth causes of action from the complaint of Ashlie Anderson on grounds that the entire cross-complaint arises from privileged and protected conduct. Plaintiff in opposition challenges the motion as both untimely, and outside the statutory framework for a special motion to strike. Defendants in reply contend the motion is timely filed and challenge the dual oppositions. Defendants also take issue with the accusations of perjury in the declaration of counsel regarding service of the motion. Defendants deny any “waiver” of their right to file the motion, due to the pending demurrer and motion to strike. Defendants deny and requirement to meet and confer prior to filing a special motion to strike. Defendants reiterate the applicability of the special motion to strike statute, the bar of all challenged causes of action as a result of privileged conduct, and the lack of admissible evidence regarding the probability of prevailing on the claims. Defendant also presents extensive argument regarding the lack of any public interest exception or basis for a “private attorney general action.”

 

Plaintiff in opposition in fact submitted two separate oppositions. The first opposition consists of 21 pages of points and authorities, plus an additional 63 pages of exhibits. The second opposition consists of 22 pages of points and authorities, and 106 additional pages of exhibits. As addressed in the other action currently pending in Department 49 involving Anderson, the court again cites to the standard for oppositions. The 43 pages of points and authorities well exceed the 15 page limit. (Cal. Rules of Court, rule 3.1113(d).) The court in its discretion declines to specifically consider all arguments raised in both oppositions, but will address the merits of the motion, including the timing.

 

Timing

A special motion to strike must be filed within 60 days from service of the complaint (with an additional five days under Code of Civil Procedure section 1013(a) for service by mail), or at any later time that the court deems proper. (Code Civ. Proc., § 425.16, subd. (f).) The complaint was filed March 2, 2022.

 

Plaintiff admits that a notice of acknowledgment of receipt was presented, but not executed by Defendants. The court electronic filing system lacks any proof of service showing the date of service. The October 5, 2022, certificate of mailing regarding the reassignment of the only show mail to Anderson, and NO other party. Notwithstanding, Defendants Automobile Club of Southern California, and Interinsurance Exchange of the Automobile Club, LLC concede to service of the summons and complaint on December 12, 2023, though denies any service as to the individual defendants Frances Schultz and Gail Louis. [Declaration of Barbara Mandell, ¶ 3.]

 

The subject motion was filed and served on February 6, 2022—56 days from the date of service. Plaintiff challenges the failure of Defendants to secure a date within 30 days of the filing of the motion. “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.” (Code Civ. Proc., § 425.16, subd. (f).) February 6, 2023 to March 8, 2023 is exactly 30 days.

 

Even if Defendants were unable to obtain a filing date within 30 days of the date of service, the plain language of the statute grants the court leeway to hear a special motion to strike where the court docket justifies such relief. The court therefore finds the motion categorically timely under both the facts as presented on the court docket, and would otherwise allow a later filing beyond the 30 days, if necessary, due to court docket unavailability, even if applicable. Nothing otherwise prevents or bars the timely filing of the motion simply based on the existence of a concurrently, previous, or subsequently filed responsive pleading with a hearing date. (Ibid.)

 

Public Interest Exception, Class Action, Private Attorney General

The court finds no basis for a public interest exception applicable to the instant action. The special motion to strike statute will therefore be considered. “It expressly provided that the public interest exception only applies if the entire action is brought solely in the public interest. If individualized relief is sought, a plaintiff must satisfy the requirements of the anti-SLAPP statute in order for the action to proceed.” (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 320.)

 

Nothing in the complaint or opposition in any way otherwise establishes a basis for seeking class action status or private attorney general classification.

 

Application of the Anti-SLAPP Statute

Defendants contend the complaint specifically arises from the allegations in the underlying complaint regarding transference of a report designating the vehicle as “total loss salvage,” which constitutes a protected act. In addition to citation to the complaint, Defendant Schultz also submits a declarations in support, which the court can rely upon in determining whether moving party meets the threshold for shifting the burden in a special motion to strike. (Code Civ. Proc., § 425.16, subd. (b)(2); Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679 [The court interprets the activities of the parties through the allegations in order to determine free speech activity but need not adhere to the strict form of the operative pleading in order to make such determinations].) Defendant offers the declaration in order to present the conclusions of the adjustment process, including the presentation of the settlement demand. The salvage determination was made due to the cost of repairs exceeding the value of the vehicle. The report to DMV was the result of company policy and law regarding reports of salvage vehicles. [Declaration of Frances Schultz.]

 

Plaintiff in opposition contends the report false outside any protections, due to “false reporting.” Plaintiff specifically contends the report misrepresents any agreement by Plaintiff to designate the vehicle as salvage, thereby constituting a malicious act. Plaintiff also seeks to purportedly bring a class action or public interest claim (see above). Plaintiff overall challenges that Defendants shift the burden, and contends sufficient facts to establish a probability of prevailing. Plaintiff challenges the main case relied upon by Defendants, Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595.

 

Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be 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.” (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

 

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution 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.” (Code Civ. Proc., § 425.16.)

 

The anti-SLAPP applies where the allegations of the defendant’s protected activity are the gravamen or principal thrust of the cause of action. (Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’”].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [“We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute”].) .) “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 889.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

 

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) “The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th 82, 92.)

 

“The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint.” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

 

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

 

The second through twelfth causes of action in fact alleges, incorporates, and relies on the claim of a false report of “total loss salvage,” thereby underpinning all claims for damages as well. [Comp., ¶¶ 1-8, 15-24, 37-40, 44-46, 48-51, 54-56, 60-62, 65-69, 71, 74-81, 83-87, 89-91, 96-98, 100-105, 108.] The court finds the reporting of the salvage title is absolutely integral to the claim, and therefore renders consideration of the special motion to strike statute.

 

The transmission of the report itself constitutes a qualified privilege activity thereby establishing application of the special motion to strike statute barring a showing of illegality. (Klem v. Access Ins. Co., supra, 17 Cal.App.5th at pp. 609-610, 616-618.) Other than a series of conclusions in opposition, the court finds no basis of illegality in any context caused by the transmission of the information to the Department of Motor Vehicles based on the reporting of such information as a matter of company policy and understanding of law, as well as upon the conceded agreement to the settlement terms by Plaintiff. [Schultz Decl.] (Veh. Code, § 11515, Civ. Code, § 47, subd. (c).) An argument seeking to establish a factual dispute will not prevent the moving party from shifting the burden on the first prong of the test. (Klem v. Access Ins. Co., supra, 17 Cal.App.5th at pp. 618-619.) The court finds Defendants shift the burden regarding the application of the special motion to strike.

 

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it 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.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)  

 

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

 

Plaintiff categorically relies on the conclusion of a malicious act without any actual evidentiary support. Again, the court finds no admissible evidence of the knowing submission of a false salvage report due to a reason other than the determination of the repair costs exceeding the value of the vehicle. Aspersions of racial animus or other motivations simply lack any evidence and only constitute inadmissible opinion.

 

Furthermore, while Plaintiff refuses to cash the tendered settlement checks potentially indicates a showing of a non-acceptance of the settlement terms themselves, as addressed above, such a refusal in no way renders the conduct of Defendants in any way illegal or improper or unqualified. Again, when it is absolutely established that the complaint categorically relies on the filing of the salvage title, and said report is conditionally privileged, the only means for an exception requires a showing of malice. (Klem v. Access Ins. Co., supra, 17 Cal.App.5th at pp. 618-619, 621-625.) Whether Plaintiff demands more money or wants possession of the vehicle back for the purpose of conducting repairs thereby allowing the repair shop to certify the vehicle was involved in an accident and repaired, in NO WAY supports any finding of an exception under the malice showing. The court also finds Defendants present valid challenges to the individual causes of action, but declines to further address the merits given the finding of protected activity. (Id. at p. 625.)

 

The special motion to strike is therefore granted. The court declines to consider any request for attorney fees in the instant motion. Defendants may proceed with a separate motion for the recovery of attorney fees pursuant to statutory guidelines, which can include recovery of fees associated with the motion for attorney fees itself. Upon either the hearing on the motion for attorney fees or lapse of time, the court will accept a proposed judgment from Defendants.

 

The complaint may proceed against individual defendant Avelar for the first cause of action only. The case is now at issue with the dismissal of all other defendants.

 

The demurrer of moving defendants set for March 23, 2023, is off-calendar. The court will conduct its scheduled Case Management Conference on the same date.

 

Defendants to provide notice.