Judge: Theodore R. Howard, Case: 20-1157517, Date: 2022-08-04 Tentative Ruling

Cross Defendant Peters moves to strike as to ¶¶ 1, 2 and 4-21 of the XC, and COAs 1 and 4 in the XC under C.C.P. § 425.16 on the grounds that those COAs arise from Peters’ exercise of her right of free speech and public participation, and she cannot show “probable prevailment.”


An anti-SLAPP Motion involves a two-step process for determining whether an action or a claim is subject to a special motion to strike under C.C.P. § 425.16.  First, the defendant must make a prima facie showing that the plaintiff's claim arises from an act by the defendant in furtherance of the right of petition or free speech in connection with a public issue (“Prong 1”). (C.C.P. § 425.16(b)(1); Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 21.)  If a defendant satisfies the first prong, the burden shifts to the plaintiff to establish a probability of prevailing on the claim (“Prong 2”). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)


Here, Peters moves to strike as to ¶¶ 1, 2 and 4-21 of the Cross-Complaint filed by Gloria Esposti on 1/24/22 (the “XC”), and the First and Fourth Causes of Action (each a “COA”) therein.


For Prong 1, the moving party may move to strike an entire COA or only those portions of what is presented as a single COA which describe protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395-396.)  When relief is sought based on allegations of both protected and unprotected activity, if the court determines that relief is sought based on the protected activity, Prong 2 must be addressed. But the moving party must show that a claim for recovery rests on that protected activity. (Id.; Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011-1012.)


For the allegations in ¶¶ 5 and 6 about complaints made to the City about code violations, such conduct is plainly protected activity under §425.16(e). The Opposition effectively concedes that this is so, and states that those paragraphs should be stricken. (Opp, p. 3.) The Motion is therefore GRANTED as to ¶¶ 5 and 6 in the XC, and any claims in the XC to the extent based thereon. 


The remainder of the Motion is DENIED.  Peters has not shown that ¶¶ 1, 2 or 4 involve protected activity.  For ¶¶ 7-9, protected activity is referenced in ¶ 7 (as to amending the complaint) and in ¶ 8 (in disputing what is claimed in Peters’ pleading), but those references appear to simply provide context for the claim that an Association exists and that Peters has failed to participate therein, rather than any basis for liability. For ¶¶ 10-21, protected activity is referenced (as to communications about potential alternative dispute resolution), but per ¶ 20, those allegations are offered as a basis to deny fees under C.C.P. § 5960 if Peters prevails, rather than as a basis for liability. The Motion as to those allegations is thus DENIED.  (Bonni, supra, 11 Cal.5th at 1011.)


Nor does the Motion show that COAs 1 or 4 are based on protected activity. COA 1 asserts a claim for breach of fiduciary duty, based on failing to participate in the “Association” and failing to act in its best interests (¶¶ 50-53).  COA 4 asserts a claim for intentional infliction of emotional distress based on the “conduct as described herein” (¶ 66).  Peters argues that both COAs should be stricken under §425.16, as the XC alleges only three categories of activity, the first two of which are protected conduct (making reports to the City and filing this action), while the last lacks merit (failing to participate in the Association) based on the facts here.  (Motion, pp. 1-2, 11-12.)  But as discussed above, the protected activities in ¶¶ 7-21 do not appear to be a basis for either COA, while Peters has not shown that failing to participate in the Association is “protected activity” under §425.16, so the burden does not shift for that claim. (Bonni, supra, 11 Cal.5th at 1012 [“to the extent any alleged acts are unprotected, claims based on those acts will survive”].)  The Motion as to COAs 1 and 4 is thus also DENIED.


Counsel for Peters is to give notice.