Judge: Stephen P. Pfahler, Case: 23STCV20543, Date: 2024-10-15 Tentative Ruling
Case Number: 23STCV20543 Hearing Date: October 15, 2024 Dept: 68
Dept.
68
Date:
10-15-24 c/f 8-29-24
Case
#23STCV20543
Trial
Date: Not Set
SPECIAL MOTION TO STRIKE
MOVING
PARTY: Defendant, Marc Garelick
RESPONDING
PARTY: Plaintiff, Ernest Calhoon, pro se
RELIEF
REQUESTED
Special
Motion to Strike the Complaint
SUMMARY
OF ACTION
On
August 25, 2023, Plaintiff Ernest Calhoon, in pro se, filed a form complaint
for Intentional Tort/Defamation/Slander/Libel against Marc Garelick, Judge Pro
Tem. The complaint arises from an alleged accusation that Plaintiff “was on
drugs.” The statement was made with the intent to “defame” plaintiff and
violate civil rights. On May 6, 2024, Plaintiff, pro se, filed a first amended
complaint for Defamation and Intentional Infliction of Emotional Distress.
RULING: Granted.
Request
for Judicial Notice: Granted.
The
court can take judicial notice of the existence of the trial court orders, but
not for the truth of the matter asserted in the subject context. The court
cannot cite to unpublished authority as a basis of support in the ruling.
“Objection
to Documents”: Overruled.
The
“objection” lacks any apparent identification of the challenged subject
documents.
Defendant Marc Garelick, Judge Pro
Tem, moves to strike the entire complaint on grounds
that the identified allegations and claims arise from privileged and protected
conduct. Furthermore, Plaintiff failed to comply with the pre-filing government
claim requirements. Plaintiff in opposition counters the motion was untimely
filed, Defendant improperly cites unpublished trial court material not citable
for purposes of supporting the motion, and the motion improperly deprives
Plaintiff of the ability to complete discovery necessary for the second part of
the special motion to strike. Defendant in reply emphasizes that all
communications occurred during the course and conduct of a court proceeding—a
protected proceeding. Defendant challenges any claim of illegal conduct.
Defendant, as a judge pro tem, is entitled to judicial immunity. Plaintiff
lacks facts in support of the defamation claim.
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 subdivision (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 August 25, 2023. The first amended
complaint was filed on May 6, 2024. An October 1, 2024, filed proof of service,
shows the first amended complaint was served on May 9, 2024, by electronic
service. It’s not clear whether electronic service was proper given no
indication of any appearance prior to the filing of the first amended
complaint. Regardless, Defendant offers no challenge to service.
Assuming valid service, the difference in time from service
to the filing of the motion is 64 days. The motion was therefore in fact late
filed. The court in its discretion finds the subject matter and circumstances
of the subject action justify consideration of the motion on the merits rather
than denial on timeliness. (Code Civ. Proc., § 425.16, subd. (f).)
Standard for
Special Motions to Strike
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 provisions apply 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 at p.
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.)
Declaration
and Additional Evidence
In addition
to citation to the complaint, Defendant also submit a request for judicial
notice in support. While the court can rely upon judicial notice in determining
whether moving party meets the threshold for shifting the burden in a special
motion to strike, the court declines to consider the content. (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].)
Statutory
Application
“[I]n ruling
on an anti-SLAPP motion, courts should consider the elements of the challenged
claim and what actions by the defendant supply those elements and consequently
form the basis for liability.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1063; see Simmons v. Bauer Media
Group USA, LLC (2020) 50 Cal.App.5th 1037, 1046-1047.) “[W]e do not
evaluate the first prong of the anti-SLAPP test solely through the lens of a
plaintiff's cause of action. Defendants' acts on which the counts alleged in
the complaint are based ...” (Stewart v. Rolling Stone LLC, supra,
181 Cal.App.4th at p. 679.)
The operative complaint arises from the appearance of
Plaintiff before Defendant during a court proceeding (e.g. settlement
conference). The subject proceeding categorically constitutes a judicial
proceeding or other proceeding authorized by law. (Civ. Code, § 47, subd.
(b)(2-3); Park v. Board of Trustees of California
State University, supra, 2 Cal.5th at
p. 1063.) Plaintiff offers no apparent challenge to the nature of the
proceeding under the auspices of a court action, whereby Plaintiff appeared on
behalf of a client. The court therefore finds the motion subject to special
motion to strike review, and Defendant therefore shifts the burden on the first
element.
The court declines to address the
illegality discussion in the reply. The court finds no argument in the
opposition raising the issue. Nothing in the conducting of the settlement
conference suggests any form of illegal conduct, even if the issue was more
clearly raised. (Flatley v. Mauro (2006) 39
Cal.4th 299, 317; Collier v. Harris (2015) 240 Cal.App.4th 41, 54 [acts
a plaintiff alleges are unlawful or illegal are nonetheless protected activity
under the anti-SLAPP statute if the acts assist or facilitate the defendant's
free speech rights [¶ ][unless] the defendant concedes or the evidence
conclusively establishes the defendant's conduct is illegal as a matter of
law”]; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal
Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296.)
Probability of Success on the Merits
The burden now shifts to plaintiffs 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.)
Defendant challenges the complaint on both the failure to
file a claim and judicial immunity. Other than citation to the claim standard,
it remains unclear whether Defendant acting pro tem constitutes a public
employee. Plaintiff challenges the application of any such requirement in
characterizing Defendant as a non-employee, and only serving as a “settlement
master.” The court declines to address the minimally supported discussion, and
instead addresses the judicial immunity section.
“Under the concept of ‘quasi-judicial immunity,’
California courts have extended absolute judicial immunity to
persons other than judges if those persons act in a judicial or
quasi-judicial capacity. Thus, court commissioners ‘acting either as
a temporary judge or performing subordinate judicial duties ordered
by the appointing court” have been granted quasi-judicial immunity.’” (Howard
v. Drapkin (1990) 222 Cal.App.3d 843, 852–853.)
‘“We therefore hold that absolute
quasi-judicial immunity is properly extended to these neutral
third-parties for their conduct in performing dispute resolution services which
are connected to the judicial process and involve either (1) the
making of binding decisions, (2) the making of findings or recommendations to
the court or (3) the arbitration, mediation, conciliation, evaluation or other
similar resolution of pending disputes. As the defendant was clearly engaged in
this latter activity, she is entitled to the protection of such quasi-judicial immunity.”
(Id. at p. 860.)
Further Discovery
Plaintiff references the necessity for further discovery,
but lacks any actual request for leave to conduct said discovery or the basis
for such a need given the immunity discussion. (Code Civ. Proc., § 425.16,
subd. (g).) Thus, even if a request were made, the court finds no basis of good
cause for such leave.
Conclusion
All communications and alleged conduct arise from the
settlement conference and is absolutely privileged under quasi-immunity
doctrine. The motion is therefore GRANTED as to the entire complaint.
Defendant may file a separate motion for attorney fees.
Defendant to submit a judgment.
The Case Management Conference will be concurrently
conducted.
Defendant to give notice.