Judge: Theresa M. Traber, Case: 24STCV08483, Date: 2024-08-02 Tentative Ruling
Case Number: 24STCV08483 Hearing Date: August 2, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 2, 2024 TRIAL
DATE: NOT SET
CASE: Del Rio Marketing, Inc. v. Belinda G.
Blasé
CASE NO.: 24STCV08483 
SPECIAL
MOTION TO STRIKE (CODE CIV. PROC. § 425.16)
MOVING PARTY: Defendant Belinda Blasé
RESPONDING PARTY(S): Plaintiff Del Rio
Marketing, Inc.
CASE
HISTORY:
·
04/04/24: Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for defamation and intentional interference with
contractual relations. Plaintiff alleges that Defendant accused Plaintiff and
its principal officer and shareholder of violating federal obscenity and child
pornography laws, racism, and engaging in fraudulent business practices.
Defendant specially moves to strike
the Complaint in its entirety.
TENTATIVE RULING:
Defendant’s Special Motion to
Strike is GRANTED.
DISCUSSION:
Defendant specially moves to strike
the Complaint in its entirety.
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.)
Defendant’s Reply Papers
Defendant
originally served and filed this motion on June 11, 2024, with a hearing set
for Friday, July 26, 2024. Pursuant to Code of Civil Procedure section 1005(b),
Defendant’s reply papers were due July 19, 2024, five court days before the
hearing. However, the Court experienced a ransomware attack on that date which
rendered the Court’s systems, including electronic filing, inoperative until
Wednesday, July 24, 2024. Defendant’s reply papers were therefore not received
by the Court until July 24, two days before the original hearing. However, the
included proof of service indicates that the reply papers were timely served on
Plaintiff on July 19, 2024 via U.S. Mail. (Reply Proof of Service.) Because
Defendant’s reply was timely served on Plaintiff, and because the Court
continued this matter to August 2, 2024 to account for the delays resulting
from the ransomware attack, the Court finds that Defendant’s tardy filing was
inadvertent and not prejudicial to any party. The Court will therefore consider
Defendant’s reply papers as if they had been timely filed.
Plaintiff’s Evidentiary Objections
Plaintiff
objects to portions of Defendant Blasé’s declaration in support of her motion.
The Court rules on Plaintiff’s objections as follows:
Objection No. 1: SUSTAINED as
lacking foundation. (Evid. Code § 702.)
Objection No. 2: SUSTAINED. This
statement is a conclusion and therefore has no evidentiary value.
Objection No. 3: SUSTAINED as lacking foundation. (Evid. Code § 702.)
Objection No. 4: OVERRULED. This
statement is not a conclusion. Moreover, lack of authentication is not a valid
basis for objection in the context of a Special Motion to Strike, as evidence
sufficient to authenticate the exhibit could be offered at trial. (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019)
6 Cal.5th 931, 947-948.)
Objection
No. 5: SUSTAINED as lacking
foundation. (Evid. Code § 702.)
Objection
No. 6: SUSTAINED as lacking
foundation and inadmissible hearsay. (Evid. Code §§ 702, 1200.)
Defendant’s Evidentiary Objections
Defendant
objects to portions of the Declaration of Brian Acquafresca in support of
Plaintiff’s Opposition to the Motion. The Court rules on these objections as
follows:
Objection No. 1: SUSTAINED as
lacking foundation with respect to “when Motor Trend and its parent company,
Warner Bros., received emails and other communications from Blasé defaming me.”
(Evid. Code § 702.)
Objection No. 2: SUSTAINED as
inadmissible hearsay. (Evid. Code § 702.)
Objection No. 3: SUSTAINED as
improper argument with respect to “scurrilous false statements,” and “evidencing
that these defamatory communications are […] for the express purpose of
interfering with Del Rio’s relationship with its licensor and sponsors.” (E.g. Gilbert
v. Sykes (2007) 147 Cal.App.4th 13, 26.)
Objection No. 4: OVERRULED. The
statement does not lack foundation because the declarant is describing things
which were said to him and is not hearsay because it is being offered to establish
what he was told, not whether the statements are true. The statement is not a
conclusion.
Objection No. 5: SUSTAINED as
inadmissible hearsay. (Evid. Code § 702.)
Objection No. 6: SUSTAINED as
improper argument. (E.g. Gilbert v. Sykes (2007) 147 Cal.App.4th 13,
26.)
Protected Activity
Defendant
contends that all the statements on which the Complaint is premised are
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.)
The
Complaint alleges that Defendant made statements accusing Plaintiff of various
forms of criminal activity and other misconduct to “various third parties,
including the Department of Justice, Motor Trend, Warner Bros. Discovery,
Monster Energy and Coca-Cola.” (Complaint ¶ 12.) Defendant divides these
statements into three categories of protected activity: (1) communications with
the Department of Justice; (2) public press releases and internet posts; and
(3) communications with private corporations. The Court addresses each type of
communication identified in turn.
1.
Communications with Department of Justice
Defendant argues that any
communications made to the United States Department of Justice are
categorically protected as statements made before a judicial proceeding under
Code of Civil Procedure section 425.16(e)(1). As Defendant states, it is
well-established that reports made to law enforcement are protected activity as
a direct petition of a governmental body. (Chabak v. Monroy (2007) 154
Cal.App.4th 1502, 1511-12.) Plaintiff does not contest this position in its
opposition and merely argues that the allegation of reports to the Department
of Justice is incidental to the injury pled, which arises more directly from
Defendant’s public statements and alleged communications with corporate
entities.
2.
Public Press Releases and Internet Posts
Defendant argues that any
statements related to this case which she made in a press release or on the
internet were statements made in a public forum on issues of public interest. (See
Code Civ. Proc. § 425.16(e)(3).) In ruling on whether statements pertain to a
matter of public interest, the Court of Appeal in Rivero v American
Federation of State, County, and Municipal Employees, AFL-CIO identified
three categories of protected statements: (1) “statements [that] concerned a
person or entity in the public eye,” (2) “conduct that could directly affect a
large number of people beyond the direct participants,” and (3) statements on
“a topic of widespread public interest.” (Rivero v American Federation of
State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913,
924.)
Defendant’s press releases accused
Plaintiff and its principal officer, Brian Acquafresca, of, inter alia,
“exposing innocent babies and children to pornographic eye porn at his car
shows,” breaking obscenity laws, exploiting the Mexican-American community “for
monetization-only purposes,” and allowing “vulgar eye porn images to be exposed
to innocent babies and children.” (Complaint Exh. 2.) Defendant also accused
Plaintiff of exploiting car show promoters, vendors, and members, making unspecified
discriminatory statements, and engaging in “fraudulent business practices. (Id.
Exh. 3.)
Defendant contends that these
statements concern matters of public interest in that they pertain to child
safety and the protection of children from sexual exploitation. Defendant
maintains that Plaintiff has engaged in harmful practices in that it has
organized car shows targeted at the Mexican-American “Lowrider” subculture which
featured sexually explicit activities where minor children were present. Protecting
children from inappropriate sexual conduct is categorically a matter of public
interest. (Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1548-49
[accusations of inappropriate sexual relationship with a minor are an issue of
public interest].) Plaintiff fails to address this authority in its opposition,
instead arguing, without citation to evidence, that the context of this case
“clearly” shows that Defendant’s internet posts were intended to further her
own personal and financial interests, and therefore do not constitute protected
activity. Plaintiff’s unsupported arguments are not persuasive.
3.
Communications with Private Corporations
Finally, Defendant contends that
any alleged statements made to private corporate entities, such as Motor Trend,
Warner Bros. Discovery, Coca-Cola, and Monster Energy, (see Complaint ¶ 12) are
nevertheless protected activity because they are “conduct in furtherance of the
exercise of the constitutional right of petition in connection with a public
issue or an issue of public interest.” (Code Civ. Proc. § 425.16(e)(4).) Defendant
analogizes this case to Heicmovich v. Encinal School Parent Teacher
Organization, in which the Court of Appeal found that private
communications concerning the well-being of young children in an afterschool
sports program constituted protected activity under subdivision (e)(4). (Heicmovich
v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450,
465-66.) Defendant contends that the communications alleged in the Complaint,
which asserted inappropriate sexual activity directed at or in the presence of
minors at car shows organized by Plaintiff, are similarly connected to an issue
of public interest. As Defendant observes, Heicmovich relied on Terry
v. Davis Community Church, cited supra, in determining that the
communications concerned a matter of public interest. (Heicmovich, supra, 203
Cal.App.4th at 467-69.) Plaintiff offers no response in opposition except to
assert that the statements do not relate to issues of public interest. It shall
suffice to say that for the reasons stated above and in light of the authority
cited by Defendant, the Court does not share this view.
Defendant has demonstrated that all
the communications out of which the Complaint arises constitute protected
activity under Code of Civil Procedure section 425.16 subdivisions (e)(1), (3),
and (4). The burden now shifts to Plaintiff to demonstrate a probability of
success on the merits. 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, [cross-complainant] needs to show only a case of ‘minimal merit.’
. . .”
(Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450,
468-469).
Plaintiff asserts three causes of action against
Defendant: (1) defamation per se; (2) intentional interference with contractual
relations; and (3) intentional interference with prospective economic
advantage. Although Plaintiff has provided a declaration in support of its
opposition to this motion, no part of that declaration is cited anywhere in
Plaintiff’s opposition. Nor does the opposition cite any other evidence in
support of its assertion that Plaintiff’s claims have any merit. Setting aside
Plaintiff’s failure to cite to any evidence in its opposition brief, that
declaration, even if considered, is not sufficient to carry Plaintiff’s burden
to demonstrate minimal merit on any of the claims asserted.
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].)].) 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.) Here, because Plaintiff
expressly claims that it is seeking presumed damages and need not establish
actual injury to reputation, Plaintiff must produce evidence of actual malice. (Opposition
p.14:1-2.)
The
Acquafresca declaration identifies other individuals, including Chino Vega and
Joe Ray, who produce “Lowrider” events and are purportedly friends and
associates of Defendant. (Declaration of Brian Acquafresca ISO Opp. ¶ 4.) Mr.
Acquafresca states that neither he nor Plaintiff have committed any of the acts
of which they are accused in Defendant’s statements. (Id. ¶ 16.) Plaintiff
contends that Defendant’s accusations are defamatory, unprivileged, and have a
tendency to injure on their face because they contain accusations of criminal
activity, moral depravity, and bigotry. Defendant, in response, argues that all
her statements are non-actionable opinions or are otherwise privileged. The
Court, however, need not resolve this dispute, because even if these statements
are defamatory, unprivileged, and have a tendency to injure, as Plaintiff
claims, there is no competent evidence produced by Plaintiff which demonstrates
that Defendant made these statements with actual malice. Exhibit 2 of the
Acquafresca Declaration, on which Plaintiff’s position appears to rest,
consists of an unverified and unauthenticated slideshow of social media posts
and photographs, surrounded by unsourced commentary accusing Defendant of
deception and hypocrisy. (Acquafresca Decl. Exh. 2.) This unsourced exhibit,
dated March 25, 2024, ten days before this action was filed, contains
statements whose origins are not established and which are not made under
penalty of perjury, and offers little explanation for its sweeping accusations
against Defendant.
In sum,
Plaintiff has not produced admissible evidence of actual malice, and,
consequently, has failed to demonstrate that its defamation claim has minimal
merit.
2. Intentional
Interference with Contractual Relations
To plead and prove a claim for
intentional interference with contractual relations, a plaintiff must establish
(1) a valid contract between the plaintiff and a third party; (2) defendant’s
knowledge of this contract; (3) defendant’s intentional acts designed to induce
a breach or disruption of the contractual relationship; (4) actual breach or
disruption of the contractual relationship; and (5) resulting damage. (Pacific
Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118,
1126.)
Plaintiff contends that it has a contractual
relationship with Motor Trend which was disrupted by Defendant to Plaintiff’s
detriment. The Acquafresca declaration states that Plaintiff has been licensed
by Motor Trend to produce and promote “Lowrider” events and sell merchandise.
(Acquafresca Decl. ¶ 3.) Plaintiff offers no evidence to demonstrate that this
existing relationship has been disrupted. Mr. Acquafresca only states—Defendant’s
objections to the declaration notwithstanding—that negotiations to purchase the
intellectual property outright had been disrupted. (Id. ¶ 11.) Further, Plaintiff
offers no evidence of any resulting damage to its business by Defendant’s
actions with respect to that contractual relationship. Moreover, although Plaintiff
claims that it also lost sponsorship deals with Monster and Coca-Cola, the
supporting declaration states only that those deals were being negotiated, not
that an actual contract already existed. (Id. ¶ 13.) Plaintiff has thus
failed to establish any existing contractual relationship which was disrupted
or breached by Defendant’s statements.
3. Intentional
Interference with Prospective Economic Advantage
To state a claim for intentional interference with
prospective economic advantage, a plaintiff must plead (1) an economic
relationship between the plaintiff and some third party with the probability of
future economic benefit to the plaintiff; (2) defendant’s knowledge of the
relationship; (3) intentional acts on the part of the defendant designed to
disrupt the relationship; (4) actual disruption of the relationship; and (5)
economic harm to the plaintiff caused by the acts of the defendant. (Youst
v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.)
As with the
second cause of action discussed above, Plaintiff has failed to carry its
minimal burden with respect to this claim. Plaintiff offers evidence of several
economic relationships with Motor Trend, Monster, and Coca-Cola which it
contends were disrupted by Defendant’s communications to those entities,
attributing the failure of the negotiations discussed above to Defendant’s
claims against Plaintiff. (Acquafresca Decl. ¶¶ 11-13.) However, Plaintiff
offers no evidence of actual economic harm from the failure of these
negotiations, nor any probability of future economic benefit absent Defendant’s
interference. Thus, Plaintiff has not demonstrated a likelihood of prevailing
on this claim.
In summary,
Plaintiff’s limited evidence does not suffice to address all of the elements of
each cause of action asserted against Defendant. Defendant is therefore
entitled to an order striking the Complaint in its entirety.
CONCLUSION:
Accordingly,
Defendant’s Special Motion to Strike is GRANTED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: August 2, 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.