Judge: Thomas S. Mcconville, Case: 2022-01267816, Date: 2023-08-07 Tentative Ruling

There are several motions on the court’s calendar today.  They are addressed in turn below.

 

  1. Anti-SLAPP filed by Defendant Don

 

Defendant Joel C. Don’s Special Motion to Strike Plaintiff’s Complaint [anti-SLAPP], is DENIED.  CCP 425.16

 

 

The Two-Step Anti-SLAPP Analysis

 

 

Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged. [CCP 425.16(b) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67]  If the defendant carries his burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” [Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384]   

 

         

Based upon the allegations in the First Amended Complaint (“FAC”), the basis for anti-SLAPP protection is either CCP §425.16(e)(3) or (e)(4).  For purposes of this ruling, the court need not reach which provision applies as both require that the speech claimed in the FAC must be in connection with “an issue of public interest.” 

 

 

The FAC does not allege protected speech

 

 

After a careful review of the FAC, the speech alleged is not protected speech within the meaning of CCP §425.16 (e)(3) or (e)(4).  Whatever statements were allegedly made by defendant Don did not concern a matter of public interest.   The statements made were about a personal dispute—awning installation--between plaintiff and defendant which is not a matter of widespread public interest, even if the internet was involved. [Jepson v. Ley (2020) 44 Cal.App.5th 845 (neighbors); see also Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122 (collectors)].

 

 

Defendant’s argument that the event was a matter of public interest is of the type decried by the court in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 152.  As stated in Jepson, quoting FilmOn, a “broad and amorphous public interest,” even if it can be connected to a specific dispute, is not enough.  [Id., at 856]

 

 

Because defendant has not shown the speech was protected, the court is not required to address the “minimal merit” of the plaintiff’s allegations.

 

 

Plaintiff Golka’s request for attorney’s fees is DENIED.  The court does not find that this Motion was frivolous or solely intended to cause unnecessary delay.  [CCP §425.16(c)(1)]

 

 

Defendant Don shall give notice.

 

  1. Demurrer by Defendant Don

 

Defendant Joel C. Don’s Demurrer to each cause of action of the First Amended Complaint [“FAC”] is SUSTAINED, on the ground of failure to state a cause of action.  Specifically, facts have not been alleged to show that the action is not barred by the applicable statutes of limitations because of the discovery rule.

 

         

Plaintiff Golka has alleged that he did not learn of the media sites that had published the allegedly offending statements about him until January, 2023.  The allegations suggest that defamatory information was published as early as 2011.  [FAC, ¶¶7-11]  Plaintiff argues that the discovery rule applies.

 

 

In order for the FAC to state a claim that the statutes of limitation did not accrue until 2023, Golka must allege not only that he didn’t discover defendant’s wrongdoing until 2023.  He must also allege the inability to discover the wrongdoing through reasonable diligence.  He must “demonstrate that he conducted a reasonable investigation of all potential causes of [his] injury.”  [Fox v. Ethicon Endo-Surgery, Inc.  (2005) 35 Cal.4th 797, 807, 811]

 

 

Plaintiff is granted 15 days’ leave to amend.

 

 

Defendant Don shall give notice.

 

  1. Motion to strike by Defendant Don

         

Defendant Joel C. Don’s Motion to Strike is GRANTED in part and DENIED in part. 

 

The court DENIES the motion to strike each cause of action based on the bar of the statute of limitations.  The Court has already ruled on this issue in its decision on Don’s  concurrently filed Demurrer.  This issue is MOOT. 

 

The motion to strike punitive damages allegations is GRANTED.  The allegations do not allege facts sufficient to support the malice, fraud or oppression required for punitive damages.  [Civil Code §3294; Smith v. Superior Court (1992) 10 Cal.App.4th 1033]

 

Plaintiff is granted 15 days’ leave to amend.

 

Defendant Don shall give notice.

 

  1. Demurrer by Defendant Brindis

 

 

Defendant Adrian Brindis’ Demurrer to each cause of action of the First Amended Complaint [“FAC”] is SUSTAINED, on the ground of failure to state a cause of action.  Specifically, facts have not been alleged to show that the action is not barred by the applicable statutes of limitations because of the discovery rule.

 

         

Plaintiff Golka has alleged that he did not learn of the media sites that had published the allegedly offending statements about him until January, 2023.  The allegations suggest that defamatory information was published as early as 2011.  [FAC, ¶¶7-11]  Plaintiff argues that the discovery rule applies.

 

 

In order for the FAC to state a claim that the statutes of limitation did not accrue until 2023, Golka must allege not only that he didn’t discover defendant’s wrongdoing until 2023.  He must also allege the inability to discover the wrongdoing through reasonable diligence.  He must “demonstrate that he conducted a reasonable investigation of all potential causes of [his] injury.”  [Fox v. Ethicon Endo-Surgery, Inc.  (2005) 35 Cal.4th 797, 807, 811]

 

 

Plaintiff is granted 15 days’ leave to amend.

 

 

The court also notes that defendant Brindis filed the demurrer without the memorandum of points and authorities, as required by California Rule of Court  Rule 3.1112.(a)(3).  The court knows of no authority allowing serial filings of the required parts of a demurrer.  In the future, Brindis should conform all filings with appropriate rules, or the court may decline to consider the merits.

 

 

Defendant Brindis shall give notice.

         

  1. Motion to Strike by Defendant Brindis

 

Defendant Adrian Brindis’ Motion to Strike is GRANTED in part and DENIED in part. 

 

 

The court DENIES the motion to strike each cause of action based on the bar of the statute of limitations.  The Court has already ruled on this issue in its decision on Brindis’  concurrently filed Demurrer.  This issue is MOOT. 

 

 

The motion to strike punitive damages allegations is GRANTED.  The allegations do not allege facts sufficient to support the malice, fraud or oppression required for punitive damages.  [Civil Code §3294; Smith v. Superior Court (1992) 10 Cal.App.4th 1033]

 

 

Plaintiff is granted 15 days’ leave to amend.

 

The court also notes that defendant Brindis filed the motion to strike without a memorandum of points and authorities, as required by California Rule of Court  Rule 3.1112.(a)(3).  The court knows of no authority allowing serial filings of the required parts of a motion.  In the future, Brindis should conform all filings with appropriate rules, or the court may decline to consider the merits.

 

 

Defendant Brindis shall give notice.