Judge Stephen P. Pfahler, Case Number: 23STCV24461, Date: 2024-08-15 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV24461, Date: 2024-08-15 Tentative Ruling

Case Number: 23STCV24461 Hearing Date: August 15, 2024 Dept: 68

Dept. 68

Date: 8-15-24 c/f 8-13-24

Case #23STCV24461

Trial Date: Not Set

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendant, Santos Leon

RESPONDING PARTY: Plaintiffs, Kevin De Leon

RELIEF REQUESTED

Special Motion to Strike the Complaint

SUMMARY OF ACTION

On October 18, 2021, Plaintiff Kevin De Leon, City of Los Angeles Councilman for District 14, met with Ron Herrera, former president of the Los Angeles County Federation of Labor (the “Fed”), along with former Los Angeles City Council members, Nury Martinez, and Gibert Cedillo. Plaintiff alleges Defendants Santos Leon and Karla Vasquez surreptitiously and non-consensually recorded the conversation. Partial content of the recording was released in October 2022, which Plaintiff alleges was for political and reputational damage.

On October 6, 2023, Plaintiff filed a complaint for 1. Invasion Of Privacy 2. Negligence 3. Negligence Per Se.

RULING: Denied

Evidentiary Objections:

· Declaration of Marc Geragos: Overruled/Not Relied Upon

· Declaration of Kevin De Leon: Overruled

· Declaration of Nury Martinez: Overruled

Defendant Santos Leon (Santos), a former employee of Los Angeles County Federation of Labor, moves to strike the entire complaint on grounds that the identified allegations and claims arise from privileged and protected conduct. More specifically, Santos denies conducting any actual recording of the conversation, or ever publishing the recordings to internet website Reddit. Santos was identified and terminated by Los Angeles County Federation of Labor, due to a copy of the recording, allegedly accessible from a shared work database, found on Santos’ work issued computer. Santos maintains the instant complaint constitutes an effort to “silence” persons exercising their legitimate First Amendment rights as a public citizen concerned with gerrymandering. Santos also notes that the Los Angeles District Attorney declined to press any charges due to a lack of evidence to charge Santos or his wife.

Plaintiff in opposition counters that the operative complaint arises from non-privileged, non-constitutionally protected conduct. Plaintiff emphasizes the gravamen of the complaint as the violation of the right to privacy brought on by the illegal recording of the conversation. Illegal conduct is not a protectable activity for purposes of considering a special motion to strike.

All parties dispute whether Plaintiff meets the standard for the second part of the motion regarding probability of prevailing on the claim.

Santos in reply emphasizes lack of support to any claim of wrongful conduct, including reiteration of the separately submitted objections to Plaintiff’s counsel Marc Geragos, and additional challenge to the declaration of Ron Herrera. The reply also restates the position of protected activity barring the complaint. Finally, Santos denies the claimed right of privacy by Plaintiff as superseding Santos’ First Amendment right to the constitutional expression of opinions in a public forum.

Santos frames the subject action, as an attempt to squelch Santos’ First Amendment protected participation in public forum expression of political opinion, which originated from the allegedly illegal recording and publication. Santos categorically relies on the protections of the First Amendment to support dismissal of the entire action.

In addition to citation to the complaint, Santos also submits a declaration 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].) Santos admits to over 100 “communications with concerned persons” both inside and outside the employer, as well as “participating in discussion concerning” the social and political issues. [Declaration of Santos Leon, ¶¶ 8, 11.] Santos concludes with a statement regarding the lawsuit constituting an effort to “silence” persons criticizing and finding the content both racist and corrupt. [Id., ¶ 14.]

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.)

The motion itself, especially the reply, emphasizes the protected conduct. Plaintiff offers no dispute over the legally supported argument establishing the existence of Reddit as public forum for First Amended protected activity. Plaintiff instead focuses on the underlying conduct leading to the publication of the secretively recorded conversation. The actual complaint only specifically alleges a violation of privacy rights under Penal Code sections 632 and 637.2 caused by the unpermitted and illegal recording, which led to specific harm upon the alleged uploading and dissemination of the recordings one year later by Defendants.

The first part of the test squarely requires consideration of the underlying allegations in the complaint itself. Other than a denial of any participation in the recording, the court finds a lack of address on the substantial claim of underlying, undisputed illegal conduct. Other than a denial of any participation in the activity, the court finds no way to doubt the veracity of the accusation for purposes of determining privileged activity.

“[S]ection 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition. A contrary rule would be inconsistent with the purpose of the anti-SLAPP statute as revealed by its language.” 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.)

(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) For the purposes of this section, “person” means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

Pen. Code, § 632

Every person not a party to a telegraphic or telephonic communication who willfully discloses the contents of a telegraphic or telephonic message, or any part thereof, addressed to another person, without the permission of that person, unless directed so to do by the lawful order of a court, is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.

Pen. Code, § 637

(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

(1) Five thousand dollars ($5,000) per violation.

(2) Three times the amount of actual damages, if any, sustained by the plaintiff.

(b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

(d) This section shall not be construed to affect Title 4 (commencing with Section 3425.1) of Part 1 of Division 4 of the Civil Code.

Pen. Code, § 637.2

The court finds the underlying conduct leading to the creation of recording, and the “October surprise” dissemination of the recording one year later individually and collectively constitutes a series of illegal acts, and therefore unprivileged conduct. Again, the court declines to consider the factual veracity of the denial of any participation in the recording process or dissemination. The court therefore finds Santos fails to shift the burden of proof on the first part of the required showing on this basis. The strongly emphasized arguments challenging the probability of prevailing on the merits improperly “puts the cart before the horse” for purposes of special motion to strike analysis.

Even assuming the conduct remains to be factually determined however, thereby preventing a finding of illegal conduct (though not specifically addressed by Santos), the court finds the conflation of conduct improperly disregards the underlying claims. As addressed in the standard, non-privileged conduct preceding the purported protected conduct (e.g. open discussion and expression of political and social views following public presentation of the news reports), precludes a finding of protected conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89, 92; Martinez v. Metabolife International, Inc., supra, 113 Cal.App.4th at p. 188; White v. Western Title Ins. Co., supra, 40 Cal.3d at p. 888.) While the court appreciates the 1913 quote from Justice Louis Brandeis, “sunlight is said to be the best of disinfectants,” the argument of Santos engaging in First Amendment protected expression as an entirely protected course of political activity would effectively eviscerate any illegally underlying conduct claims on grounds of free speech protection. The court finds no legal support for this position. The motion is denied on this basis.

The court otherwise finds no basis for challenging the probability of success on the merits.

The subject motion is not presented as a means of determining the factual veracity of whether Santos actually arranged or conducted the recording or the publication. Santos offers no address of this particular element from the operative complaint, and instead cites to the Brown Act under California Government Code section 54950.

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Gov. Code, § 54950

The court finds citation to the Brown Act and the policy of transparency in no way supports a finding of a superseding interest of the inalienable rights of individual privacy founded in the California Constitution and protected in this part by the California Penal Code. [See Declaration of Kevin De Leon.] The court also finds no support for the argument under the Public Records Act otherwise justifying the course of alleged conduct. (See Gov. Code, § 7920.000, et seq.) The lack of felony or misdemeanor criminal charges, or reliance on the alleged lack of potential forensic proof of the ability to establish the civil claim integral to the subject complaint, also lacks support for purposes of establishing an insufficient showing of a probability of success on the merits, even if Santos met the first element of the claim. [See Declaration of Nury Martinez and De Leon Decl.]

The motion is denied in its entirety.

The court will concurrently conduct the case management conference.

Defendant Santos Leon to provide notice.

Dept. 68

Date: 8-15-24

Case #23STCV24461

Trial Date: Not Set

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendant, Karla Vasquez

RESPONDING PARTY: Plaintiffs, Kevin De Leon

RELIEF REQUESTED

Special Motion to Strike the Complaint

SUMMARY OF ACTION

On October 6, 2023, Plaintiff filed a complaint for 1. Invasion Of Privacy 2. Negligence 3. Negligence Per Se.

RULING: Denied

Defendant Karla Vasquez a former employee of Los Angeles County Federation of Labor, moves to strike the entire complaint on grounds that the identified allegations and claims arise from privileged and protected conduct. More specifically, Vasquez denies conducting any actual recording of the conversation, or ever publishing the recordings to internet website Reddit. Vasquez was identified due to a copy of the recording, allegedly accessible from a shared work database, found on Vasquez’s work issued computer. Vasquez maintains the instant complaint constitutes an effort to “silence” persons exercising their legitimate First Amendment rights as a public citizen concerned with gerrymandering. Vasquez also notes that the Los Angeles District Attorney declined to press any charges due to a lack of evidence to charge Vasquez or her husband.

All parties dispute whether Plaintiff meets the standard for the second part of the motion regarding probability of prevailing on the claim.

The court electronic filing system shows no reply specifically from Vasquez at the time of the tentative ruling publication cutoff.

Counsel for Vasquez concedes that the subject motion substantially duplicates the motion of Santos. (Declaration of Jeffrey Zinder.) Thus, while the orders share similar foundations, the court acknowledges the factual differences where applicable, such as the lack of a reply and evidentiary objections.

Vasquez frames the subject action, as an attempt to squelch Santos’ First Amendment protected participation in public forum expression of political opinion, which originated from the allegedly illegal recording and publication. Santos categorically relies on the protections of the First Amendment to support dismissal of the entire action.

In addition to citation to the complaint, Vasquez also submits a declaration 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].) Vasquez admits to “many communications” with other persons both within and outside the employer. [Declaration of Karla Vasquez, ¶¶ 8, 9.] Vasquez concludes with a statement regarding the lawsuit constituting an effort to “silence” persons criticizing and finding the content both racist and corrupt. [Id., ¶ 14.]

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.)

Plaintiff offers no dispute over the legally supported argument establishing the existence of Reddit as public forum for First Amended protected activity. Plaintiff instead focuses on the underlying conduct leading to the publication of the secretively recoded conversation.

The actual complaint only specifically alleges a violation of privacy rights under Penal Code sections 632 and 637.2 caused by the unpermitted and illegal recording, which led to specific harm upon the alleged uploading and dissemination of the recordings one year later by Defendants.

Pen. Code, § 632

Pen. Code, § 637

(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

(1) Five thousand dollars ($5,000) per violation.

(2) Three times the amount of actual damages, if any, sustained by the plaintiff.

(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

(d) This section shall not be construed to affect Title 4 (commencing with Section 3425.1) of Part 1 of Division 4 of the Civil Code.

Pen. Code, § 637.2

Even assuming the conduct remains to be factually determined however, thereby preventing a finding of illegal conduct (though not specifically addressed by Vasquez), the court finds the conflation of conduct improperly disregards the underlying claims. As addressed in the standard, non-privileged conduct preceding the purported protected conduct (e.g. open discussion and expression of political and social views following public presentation of the news reports), precludes a finding of protected conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89, 92; Martinez v. Metabolife International, Inc., supra, 113 Cal.App.4th at p. 188; White v. Western Title Ins. Co., supra, 40 Cal.3d at p. 888.) While the court appreciates the 1913 quote from Justice Louis Brandeis, “sunlight is said to be the best of disinfectants,” the argument of Vasquez engaging in First Amendment protected expression as an entirely protected course of political activity would effectively eviscerate any illegally underlying conduct claims on grounds of free speech protection. The court finds no legal support for this position. The motion is denied on this basis.

The court otherwise finds no basis for challenging the probability of success on the merits.

The subject motion is not presented as a means of determining the factual veracity of whether Vasquez actually arranged or conducted the recording or the publication. Vasquez offers no address of this, and instead cites to the Brown Act under California Government Code section 54950.

Gov. Code, § 54950

The court finds citation to the Brown Act and the policy of transparency, while noble neglects the inalienable rights of individual privacy founded in the California Constitution and protected in this part by the California Penal Code. [See Declaration of Kevin De Leon.] Nothing in the Public Records Act otherwise justifies the course of alleged conduct. (See Gov. Code, § 7920.000, et seq.) The lack of felony or misdemeanor criminal charges, or reliance on the alleged lack of potential forensic proof of the ability to establish the civil claim integral to the subject complaint, also lacks support for purposes of establishing an insufficient showing of a probability of success on the merits, if Vasquez even met the first element of the claim.

The motion is denied in its entirety.

The court will concurrently conduct the case management conference.

Defendant Vasquez to provide notice.