Judge: Theresa M. Traber, Case: 23STCV10824, Date: 2023-12-01 Tentative Ruling

Case Number: 23STCV10824    Hearing Date: March 20, 2024    Dept: 47

Tenative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 20, 2024                      TRIAL DATE: NOT SET

CASE:                         Larry Gross v. Joy Freiberg

CASE NO.:                 23STCV10824           

SPECIAL MOTION TO STRIKE (CODE CIV. PROC. § 425.16)

MOVING PARTY:               Defendant Joy Freiberg

RESPONDING PARTY(S): Plaintiff Larry Gross

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for defamation that was filed on May 15, 2023. Plaintiff alleges that Defendant made numerous false statements about him on social media.

Defendant specially moves to strike the Complaint in its entirety under Code of Civil Procedure section 425.16.

TENTATIVE RULING:

Defendant’s Special Motion to Strike is GRANTED.

            Plaintiff’s Complaint is stricken in its entirety.

DISCUSSION:

Defendant specially moves to strike the Complaint in its entirety under Code of Civil Procedure section 425.16.

Legal Standard

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (Code Civ. Proc. § 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc. § 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations, the trial court is to consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  

Timeliness of Motion

            Plaintiff argues that this motion is untimely because it was not filed within 60 days of service of the Complaint. The Code of Civil Procedure requires that a special motion to strike must be filed within 60 days of service of the Complaint, subject to the Court’s discretion to permit late filing. (Code Civ. Proc. § 425.16(f); see, e.g., Newport Harbor Ventures LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 639.) Here the Court affirmatively exercised that discretion in granting Defendant’s Motion to Set Aside Default and expressly authorized the filing of this motion. Defendant’s special motion to strike is not untimely. (December 18, 2023 Ruling on Matter Taken Under Submission.)

Protected Activity

            Defendant contends that the entire Complaint is based on protected activity.

To satisfy the first prong of the two-prong test, the defendant’s acts underlying the cause of action must themselves have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16(e): (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e); City of Cotati, supra, 29 Cal.4th at 78; Equilon Enterprises, supra, 29 Cal.4th at 67.)   

In determining whether a cause of action is based on protected activity, we “examine the¿principal thrust¿or¿gravamen¿of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP¿(2017) 18 Cal.App.5th 95, 110, citation omitted.) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing¿conduct¿... that provides the foundation for the claim.’” (Id. at 111, bold emphasis added, citation omitted.) In other words, section 425.16 does not apply if Defendant’s constitutionally protected activity is “merely incidental” or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”¿(Ibid.)  

Plaintiff alleges causes of action for defamation per se against Defendant in his capacity as a public figure and as a private figure. (Complaint ¶¶ 18-28.) Both claims arise out of a common occurrence: that Defendant made a series of posts on various social media platforms accusing Plaintiff of presiding over and permitting animal abuse and neglect, misappropriation of funds, and abuse of power, and calling for Plaintiff to be removed from his position. (Complaint ¶¶ 8-17; 19.) Defendant contends that these allegations necessarily concern protected activity because the statements described involve operation of the Los Angeles animal shelters, misuse of public funds, and breach of public trust, all of which are matters of public concern. The Court concurs. The statements which form the factual basis of the claims are written statements made in public in connection with issues that are on their face matters of public interest. Defendant has therefore satisfied the first prong of the test for a special motion to strike.

Probability of Success

Plaintiff bears the burden on the second prong of an Anti-SLAPP analysis to demonstrate that there is a probability he will prevail on his claims. (Code Civ. Proc. § 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)   

“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the [cross-complainant] has established that there is a probability that the [cross-complainant] will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that [cross-complainant] will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court's responsibility is to accept as true the evidence favorable to the [cross-complainant] … .’ [Citation.] ‘[T]he [cross-]defendant's evidence is considered with a view toward whether it defeats the [cross-complainant]'s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].) 
 

(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-909.) 

 “We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700 [61 Cal. Rptr. 3d 29].) [¶] That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5 [97 Cal. Rptr. 2d 179, 2 P.3d 27].) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ . . .”  

(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469). 

1.      Defamation Per Se

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. ‘In general, . . . a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.’ The defamatory statement must specifically refer to, or be ‘ “of [or] concerning,” ’ the plaintiff.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1249 [internal citations omitted].)

            The undisputed facts, as Plaintiff states, are that Defendant made numerous posts on social media claiming that Plaintiff misappropriated funds donated to support animals in Los Angeles’s animal shelters, that he misrepresented the conditions of those shelters, that he was responsible for the suffering and death of healthy animals, and that he smears whistleblowers protesting the conditions in the shelters. (Declaration of Larry Gross ISO Opp. ¶¶ 6-10.) Plaintiff categorically denies these accusations, stating that his role as President of the Board of Commissioners does not grant him the authority to carry out the acts of which Defendant accuses him. (Id. ¶¶ 11-14.) Plaintiff argues that these statements are defamatory per se because they are assertions of fact which impute dishonesty and professional misconduct on their face. (Burrill v. Nair (2013) 217 Cal.App.4th 357, 383 [disapproved on other grounds in Baral, supra, 1 Cal.5th 376].) In both her moving papers and her reply brief, Defendant attempts to characterize these statements as mere opinion or hyperbolic statements. (See Declaration of Joy Freiburg ISO Mot. ¶ 29.) The Court is not persuaded that these statements are mere opinions. Even if the Court accepts Defendant’s argument that she accused Plaintiff of presiding over misconduct rather than being an active and direct participant, those statements are assertions of fact, not opinions. (See Issa v. Applegate (2019) 31 Cal.App.5th 689, 702.) Plaintiff has thus offered evidence that these statements are defamatory per se, for which Defendant might be liable if Plaintiff can also demonstrate actual malice.

2.      Actual Malice

A public figure cannot recover on a claim for defamation without proving that the statement was made with “actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Id. at 1259 [internal quotations and footnotes omitted].) A private figure must also prove actual malice to recover punitive or presumed damages for defamation on a matter of public concern but need only prove negligence to recover on actual injury to reputation. (Khawar v. Globe International. (1998) 19 Cal.4th 254, 273-74.) Plaintiff expressly states in his opposition that he is seeking presumed damages and does not need to allege actual damages because he is claiming defamation per se. (Opp. p.11:18-12:18.) Thus, both causes of action are essentially identical for the purpose of this motion.

“To show actual malice, plaintiffs must demonstrate [defendant] either knew his statement was false or subjectively entertained serious doubt his statement was truthful.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84.) “[A]ctual malice can be proved by circumstantial evidence.” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.)

Plaintiff first contends that Defendant’s declaration evidences actual malice because she entertained doubt of the truth of her statements. Plaintiff draws this conclusion from Defendant’s statement in her declaration that she does not believe that Plaintiff himself engaged in the misconduct which she claimed, but that he is responsible because he presides over the General Manager of the Department of Animal Services. (Freiburg Decl. ¶ 29.) Even under the most favorable interpretation, this is an explanation of Defendant’s theory of Plaintiff’s culpability, not evidence of a serious doubt of the truth of her claims. Plaintiff also claims that Defendant admitted her motive is to damage his reputation and remove him from his position because “[a]ll changes for the better start with Plaintiff” and that “public figures, public employees and elected or appointed officials don’t take the initiative unless they are concerned about their jobs.” (Freiburg Decl. ¶¶ 29-30.)  Even in the light most favorable to Plaintiff, these statements are not evidence of actual malice, but expressions of the reasoning which undergirds the right of petition.

Plaintiff next claims that Defendant is motivated by anger over her termination from her volunteer position at South Los Angeles Animal Shelter. This argument ignores that Defendant believes her termination was in retaliation for protesting the conditions at Los Angeles Animal Shelters. (See Freiburg Decl. ¶¶ 2-13.) Further, Plaintiff’s claim that the true reasons for Defendant’s termination were her conduct “harassing members of the public” and “film[ing] a family surrendering a dog and post[ing] it on social media” is based entirely on a statement in an email in Defendant’s Declaration by an LAAS employee. (Freiburg Decl. Exh. 10.) This statement is hearsay which, unlike the declaration itself, may not be relied upon for the truth of the matter asserted in this motion. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.) 

Finally, Plaintiff claims that Defendant has begun attacking him in forums unrelated to animals. However, the statements which Plaintiff cites in support of this allegation directly reference Defendant’s claim -- attacked by Plaintiff in this lawsuit -- that he is responsible for misappropriation of donations. (See Gross Decl. ¶¶ 18.)

In sum, Plaintiff offers no evidence that Defendant acted with either knowledge of falsity or reckless disregard of the truth of her accusations. Plaintiff has therefore failed to demonstrate a probability of success on his defamation claims. Defendant is thus entitled to an order striking the Complaint in its entirety.

CONCLUSION:

            Accordingly, Defendant’s Special Motion to Strike is GRANTED.

            Plaintiff’s Complaint is stricken in its entirety.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 20, 2024.                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.