Judge: Theodore R. Howard, Case: 21-1225942, Date: 2022-10-20 Tentative Ruling
MOTION 1: ANTI-SLAPP TO COMPLAINT
Defendant Stephen Sponer’s Special Motion to Strike (Anti-SLAPP) the Complaint is DENIED.
Plaintiff’s Failure to Oppose the Anti-SLAPP to Complaint
As an initial matter, Plaintiff did not file an opposition to the first anti-SLAPP. The first anti-SLAPP is directed to the original Complaint. Plaintiff’s Opposition clearly states it is in response to Defendant’s motion for SLAPP to the First Amended Complaint. Plaintiff may have erroneously believed the anti-SLAPP to the original Complaint to be moot by the filing of the FAC.
However, the original Complaint remains the operative pleading for purposes of this motion and Plaintiff cannot avoid an anti-SLAPP ruling by amending the complaint prior to the hearing. (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411 [holding plaintiff may not avoid anti-SLAPP ruling by amending the challenged complaint prior to hearing]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1279-1280.) The court automatically strikes/dismisses the FAC and determines the anti-SLAPP as to the original Complaint. (See Id. at 1294. [amended complaint filed while anti-SLAPP motion is pending is automatically dismissed].)
Accordingly, the anti-SLAPP to the Complaint is not moot and the FAC filed on 4/15/22 under ROA 37 is stricken pursuant to the authority noted above.
Should the Complaint be stricken under CCP §425.16? No
The statute
Code of Civil Procedure Section 425.16 provides in relevant part: “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 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.” This section is to be construed broadly. (Code Civ. Proc. § 425.16(a).)
The statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” “Resolution of ..[the] motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.’” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)
Categories of Speech/Activity
There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc., § 425.16(e)). The Motion is brought under CCP §425.16(e)(3) and (4).
Because those terms are so broad, "[C]ourts should engage in a relatively careful analysis of whether a particular statement falls within the ambit of” (e)(4). (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145.)
"… [A] court must consider the context as well the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest". (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149.) “Contextual cues” are relevant including “whether it was private or public, to whom it was said, and for what purpose—can bear on whether it was made in furtherance of free speech in connection with a public issue". (Id. at 148.) No single aspect is determinative.
The framework is this: “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech….Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150.)
For this first aspect, Defendants will always try to draw a line between their speech and some abstract issue of public interest, however tenuous. But it "demands “some degree of closeness” between the challenged statements and the asserted public interest". (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 150.) It “is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate", to “some public conversation on the issue.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 150, 151.)
E.g., in a case challenging who received a contract with a city, it was said: “The building of a sports stadium in the City …to host an NFL team is…an issue of public interest. Yet, .. the conduct providing the basis for plaintiffs' claims has only the slightest bearing on whether or not, or how, the stadium should be built, nor does it concern any comparable matter of public interest. Instead, the conversations underlying plaintiffs' action relate only to who should be responsible for the ordinary functions associated with representing the City in the negotiations with the NFL—plaintiffs or the other entities ". (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 616.)
“At a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 625, 623).
After the public issue is identified, "[T]he second part of the test moves from a focus on identifying the relevant matters of public interest to addressing the specific nature of defendants' speech and its relationship to the matters of public interest. " (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 152.) E.g., a defendant who "issues its [claimed protected] reports not to the wider public—who may well be interested in [the topic]—but privately, to a coterie of paying clients… [who], use the information … for their business purposes alone… [and where] [t]he information never entered the public sphere" are not protected. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 153.)
“[A] court must consider whether a statement—including the identity of its speaker, …, or the audience sought—contributes to or furthers the public conversation on an issue of public interest. It is by carefully observing this wedding of content and context that we can discern if conduct is ‘in furtherance of” free speech ‘in connection with’ a public issue or issue of public interest.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 154.)
Legal Standards on Step One, Arising From Protected Activity
"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them." Baral v. Schnitt (2016) 1 Cal.5th 376, 396.
"The defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.)
This means "Comparing its statements and conduct against the statute” and showing that it is “activity qualifying for protection” under subdivision (e). “[C]omparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff’s claims. " (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.)
Summarizing. “courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” “Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of “ ‘act[s]’ ” protected by the …statute". (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884)
A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.
Application: What is the Motion Directed to?
Here, Defendant fails to meet the burden to identify the allegations of protected activity to be stricken. This is a fundamental defect with the Motion. Per Baral, "…identification of causes of action arising from protected activity ordinarily occurs at the first step. For the benefit of litigants and courts involved in this sometimes difficult area of pretrial procedure, we provide a brief summary of the showings and findings required …. At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
The Complaint alleges a multitude of wrongdoings. (See, Complaint ¶¶ 11-26 and exhibits thereto). When a complaint alleges so many wrongs that appear to be the (alleged) injury producing events, it becomes crucial for the Defendant to meet the initial burden of identifying to a court the specific allegations to be stricken. It is not the role of the Court to try to figure out which allegations the Defendant wishes to strike, and then fish about in the papers, to try to see if the movant met the burden of demonstrating that each of those is protected, in order to sustain the motion.
Defendant cites general anti-SLAPP authorities, then states, “There are several cases involving anti-SLAPP motions in lawsuits between an HOA and homeowners, wherein there is an ongoing controversy, dispute or discussion.” (Motion pp. 7:3-5) The Motion goes on to cite HOA cases and concludes, “In the present matter, “The Complaint” itself admits it arises from protected speech. Please also see the declaration of Ms. Evans below. Undoubtedly, Defendant’s statements were made in a place open to the public/ a public forum under Code Civil Procedure §425.16(e)(3). Further, “The Complaint” arises from Defendants’s writings related to a Public Interest. Defendant clearly meets his burden.” (Id. at pp. 7:21-24.)
This is a broad or sweeping statement, but Defendant fails to alleged which purported act he is referencing. If Defendant is truly referencing to the whole Complaint, to strike everything, Defendant, as movant, must show how all aspects of the each cause of action are protected activity. It would have to address everything in them, but the Motion does not make that showing. Defendant has failed to establish that his speech/acts were made “in connection with a public issue or an issue of public interest.” While Defendant specifically references the police reports attached as exhibits to the Complaint, again, Defendant has failed to establish how and why these instances are in connection with a public issue or an issue of public interest.
Second Prong Analysis
Because Defendant has failed to establish the Complaint arises from protected activity, the Court need not consider Plaintiff’s probability of prevailing on their claim. (See California Back Specialists Med. Grp. v. Rand (2008) 160 Cal. App. 4th 1032, 1037 [“Because CBSMG's complaint did not arise from protected activity, we need not consider its probability of prevailing. (§ 425.16, subd. (b)(1).)”
Because Defendant has failed to establish the first prong of the Anti-SLAPP analysis, the motion is DENIED.
Moving Party to give notice.
MOTIONS 2 & 3: DEMURRER AND ANTI-SLAPP TO FAC
Demurrer and Anti-SLAPP to FAC are denied as moot.
As previously noted in the Anti-SLAPP to the Complaint, the original Complaint remains the operative pleading for purposes of this motion and Plaintiff cannot avoid an anti-SLAPP ruling by amending the complaint prior to the hearing. (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411 [holding plaintiff may not avoid anti-SLAPP ruling by amending the challenged complaint prior to hearing]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1279-1280.) The court automatically strikes/dismisses the FAC and determines the anti-SLAPP as to the original Complaint. (See Id. at 1294. [amended complaint filed while anti-SLAPP motion is pending is automatically dismissed].)
Accordingly, the FAC filed on 4/15/22 under ROA 37 is stricken pursuant to the authority noted above and the Demurrer and Anti-SLAPP to the FAC are denied as moot.
Moving Party to give notice.