Judge: Thomas S. Mcconville, Case: 2022-01278337, Date: 2023-05-15 Tentative Ruling

Cross-Defendant Barry Brooks’ motion to strike the 1st and 2nd causes of action in the cross-complaint under Code of Civil Procedure section 425.16 is DENIED.

To succeed under CCP 425.16, the moving party must make a prima facie showing that the opposing party’s lawsuit arises from the moving party’s exercise of protected activity.  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)  A moving party can meet his initial burden by demonstrating that the act underlying the plaintiff’s cause of action fits one of the categories spelled out in the anti-SLAPP statute.  (Ibid; Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1008-1009 [the moving party’s “burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. [Citation.]”.) 

“[T]he anti-SLAPP statute often will not apply to cross-complaints:  ‘Although a cross-complaint may be subject to a section 425.16 motion, not all cross-complaints would qualify as SLAPP suits. A defendant may file a cross-complaint against the plaintiff for any existing cause of action regardless of its nature and origins. [Citation.] Only those cross-complaints alleging a cause of action arising from the plaintiff's act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action.’ [Citation.]”  (Kajima Engineering and Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 933-934.)

Here, Cross-Complainant is suing Cross-Defendant for breach of contract.  The 1st cause of action alleges a promise to return monies paid in excess of $200,000, Cross-Complainant paid in excess of $170,000, Cross-Complainant has demanded the excess, and Cross-Defendant has refused to pay.  The 2nd cause of action alleges that Cross-Complainant loaned Cross-Defendant $60,000 that Cross-Defendant agreed to repay upon demand, Cross-Complainant has demanded repayment, and Cross-Defendant has refused to pay. 

While Cross-Defendant cites to Navellier, supra, 29 Cal.4th at p. 92, for the proposition that conduct alleged to constitute breach of contract may also come within constitutionally protected speech or petitioning, the underlying conduct here is Cross-Defendant’s breach of contract, not any petitioning or free speech activity by Cross-Defendant that falls within the anti-SLAPP statute.  Because Cross-Defendant failed to make a prima facie showing that both of causes of action in the cross-complaint arose from Cross-Defendant’s exercise of protected activity, the special motion to strike and for attorney’s fees is DENIED.

Cross-Complainant to give notice of ruling.