Judge: Upinder S. Kalra, Case: 22STCV20378, Date: 2023-02-01 Tentative Ruling

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Case Number: 22STCV20378    Hearing Date: February 1, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 1, 2023                                            

CASE NAME:           Wilfred J. Killian v. Marc Anthony Cubas, et al.

CASE NO.:                22STCV20378

DEFENDANTS’ MOTION TO STRIKE – ANTI-SLAPP

MOVING PARTY: Defendants Marc Anthony Cubas, Patrick O’Greene, and Sydney Susana Cubas

RESPONDING PARTY(S): Plaintiff Wilfred J. Killian

REQUESTED RELIEF:

1.      An order striking the Complaint and all causes of action in the Complaint

TENTATIVE RULING:

1.      Motion to Strike is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 22, 2022, Plaintiff Wilfred J. Killian (“Plaintiff”) filed a complaint against Defendants Marc Anthony Cubas, Vlaze Media Networks, Inc., Patrick O’Greene, Sydney Susana Cubas, Jose Hernandez (“Defendants.”) The complaint alleges five causes of action: (1) Trade Libel, (2) Intentional Infliction of Emotional Distress, (3) Negligent Infliction of Emotional Distress, (4) Misrepresentation, and (5) Intentional Interference with Contractual Relationship. This filing is founded on two prior complaints. First, Plaintiff alleges that that AMAG and Vlaze entered into a Loan Agreement in 2007. However, AMAG filed a complaint for breach of the loan agreement in 2015, which resulted in a judgment for AMAG in LASC No. BC587406. As part of the judgement, VLAZE was to provide AMAG certain collateral. When the transfer of collateral did not occur, AMAG filed another lawsuit naming VLAZE and member of the Cubas family in LASC Case No. 18STCV01201. During the second lawsuit, a Motion to Disqualify Plaintiff’s counsel was filed, Plaintiff Killian. That Motion to Disqualify was based upon several declarations alleging misconduct by Plaintiff Killian. This complaint alleges causes of action based upon the filing of the Motion to Disqualify in LASC Case No. 18STCV01201.

On July 28, 2022, Defendant Marc Anthony Cubas, Patrick O’Greene, Sydney Susan Cubas filed a Special Motion to Strike, Anti-SLAPP. Plaintiff’s Opposition was filed on December 5, 2022. Defendants’ Reply was filed on December 9, 2022.

On September 13, 2022, Defendant Jose Hernandez filed an Answer and Cross-Complaint.  

On October 14, 2022, Defendants Marc Anthony Cubas and Sydney Susan Cubas filed an Answer to the Cross-Complaint.

LEGAL STANDARD:

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.)  “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech.  It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”  (Id. at p. 384.)   

“Resolution of an anti-SLAPP motion involves two steps.  First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.  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.”  (Baral v. Schnitt, supra, 1 Cal.5th at p. 384 [citation omitted].)  The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’  The court does not weigh evidence or resolve conflicting factual claims.  Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.  It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.  ‘[C]laims with the requisite minimal merit may proceed.’”  (Id. at pp. 384-385 [citations omitted].) 

PROCEDURAL ISSUES:

Length of Memorandum

Under rule 3.1113(d), the length of the memorandum must not exceed 15 pages. Here, Plaintiff’s Opposition is 30 pages, double the maximum length allowed for oppositions. However, the Court will still review the opposition. 

ANALYSIS:

Defendants argue that Plaintiff’s complaint is subject to the Anti-SLAPP statute. As stated above there are two prongs to determine if the Anti-SLAPP motion should prevail.

1. First Prong: Arising from Protected Activity

Defendants argue that the first prong has been met. The statements that form the basis for Plaintiff’s complaint are protected activity. Specifically, the facts concern statements made by Defendants in another pending case, not any other type of conduct. (Motion 9: 24-26.)

Plaintiff argues that Defendants did not demonstrate that the claims arise from protected activity. Specifically, Plaintiff asserts that the declarations are not the basis of the causes of action, but rather statements made prior to the Declaration. (Opp. 11: 21-23.) Because this statement arose before the declarations existence, the complaint does not fall within the “arising from protected activity” prong. (Id. at 12: 12-18.) Additionally, Plaintiff argues that Hernandez defamatory statement about stealing mail occurred prior to the declaration and therefore was not “made ‘in connection with an issue under review.’” (Opp. 16: 7-8.)

The first prong of the anti-SLAPP analysis requires the defendant to make “a threshold showing that the challenged cause of action is one arising from protected activity.”  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon); § 425.16, subd. (b)(1).)  “[T]he statutory phrase ‘cause of action . . .  arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.  [Citation.]  In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.”  (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) As such, a trial court must examine the elements of a claim and determine what actions supply those elements and consequently form the basis for the defendant’s alleged liability.  (Park, supra, 2 Cal.5th at p. 1063.) Allegations of protected activity that are “ ‘merely incidental’ or ‘collateral’ ” or that “merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 394 (Baral).)  “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ”  (City of Cotati, at p. 79, quoting § 425.16, subd. (b).) 

California Code of Civil Procedure § 425.16(e) states, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law…” Here, the entire complaint is based on protected activity and is not just evidence as Plaintiff claims. The complaint begins by referencing numerous declarations (Complaint Paragraph 16, 17, 18 and 19) that were filed (published) in a court action as part of a Motion to Disqualify Plaintiff as counsel in LASC Case No. 18STCV01201. Plaintiff continues by alleging that “[d]efendants knowingly submitted false statements that were perjurious and contrived to support the Motion to Disqualify Plaintiff, as the attorney of record. (Complaint Paragraph 20.)  Moreover, Plaintiff specifically references those exact declarations as the basis of each of the five causes of action.: To be sure, the first cause of action for trade libel alleges that publication of these declarations make up the allegedly defamatory statements. (Complaint Paragraphs 22-24, 31.)  The complaint alleges that the act of publishing the declarations in a court filing caused the intentional and negligent emotional distress alleged in the second and third causes of action. (Complaint Paragraphs 37-39, 46-48; 54-56, 63-65.) The complaint alleges that the declarations presented to the Court constitute the fraudulent acts alleged in the fourth cause of action. (Complaint Paragraphs 71-73, 78-80.) Finally, the fifth cause of action alleges that by filing the “declarations in support of Defendants’ Motion to Disqualify Plaintiff,” Defendants intended to disrupt the performance of a contractual relationship. (Complaint Paragraphs 90-92, 100.) It cannot be reasonably disputed that these declarations, filed in a court proceeding, squarely meet the definition of “any written or oral statement or writing made before a  . . . judicial proceeding.” (CCP 425.16(e)(1)) Stated otherwise,  each cause of action arises from an act in furtherance of a person’s right of petition . (See CCP 425.16(b)(1).)

Thus, Defendant has met its initial burden, and the first prong of the Anti-SLAPP statute has been satisfied. Thus, the burden shifts to Plaintiff.

2.      Second Prong: “Probability of prevailing on the claims”

Defendants argue that Plaintiff does not have a probability of prevailing on the claims because it is a privileged publication. Specifically, under Civil Code § 47, a privileged publication is one made: ((b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law…” This privilege is absolute; therefore, because the statements were made in a judicial proceeding, the statements are privileged and Plaintiff has no probability of prevailing.

            Plaintiff asserts that there is a probability of prevailing because the causes of action alleged in the complaint can be and have been met; the Compliant provides sufficient evidence of the required elements. Moreover, Plaintiff argues that the litigation privilege does not apply, citing to Flatley for the contention that these statements were illegal and false. (Opp. 29: 14-24, citing to Flatley v. Mauro (2006) 39 Cal. 4th 299.)

When Defendants carry their initial burden to make a prima facie showing that the claims are subject to CCP § 425.16, the burden shifts to Plaintiff to establish a probability that it will prevail at trial on that claim by making a prima facie showing on that claim.  (Roberts v. Los Angeles County Bar Assoc. (2003) 105 Cal.App.4th 604, 613.)  “Put another way, the plaintiffs ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.]”  (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-78).  “Thus, plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.”  (Id.)  While the Court does not weigh the evidence, “the trial court must consider facts so as to make a determination whether [Cross-Complainants] can establish a prima facie probability of prevailing on [their] claims.”  (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 921.) 

Here, Plaintiff has failed to meet its burden of demonstrating a probability of prevailing. First, the litigation privilege established in Civil Code § 47 applies. Here, the entire complaint is premised on declarations attached to the Motion to Disqualify Plaintiff as counsel in LASC No. 18STCV01201, with paragraphs 16-19 providing quotes from the alleged declarations. Defendant points to the Litigation Privilege, as set forth in Civil Code section 47 as authority for the proposition that Cross-Complainant cannot possibly prevail. “The litigation privilege precludes liability arising from a publication or broadcast made in a judicial proceeding or other official proceeding. ‘ “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” [Citation.] The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” [Citation.]’ [Citation.] The litigation privilege is interpreted broadly in order to further its principal purpose of affording litigants and witnesses the utmost freedom of access to the courts without fear of harassment in derivative tort actions. [Citation.] The privilege is absolute and applies regardless of malice.” (Digerati Holding, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888-889, fn. omitted.) The Court agrees that the litigation privilege undoubtedly applies. As such, Plaintiff cannot possibly show a probability of prevailing.

Second, Plaintiff misconstrues Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) crime-as-a-matter-of-law exception to section 425.16 protection. Flatley is limited to the “narrow circumstance [where] the defendant concedes the illegality of [the] conduct or the illegality is conclusively shown by the evidence. (Id. at p. 316.) Plaintiff alleges that Defendant engaged in the crime of False Impersonation in violation of Penal Code section 529 by filing a fraudulent declaration of a Jose  Hernandez in LASC No. 18STCV01201. In support, Plaintiff has presented a declaration of a Jose Hernandez denying that he signed any such declaration or witnesses any events in described in the allegation. Defendants do not concede the illegality of the conduct. Even more, Defendants have presented evidence that the Jose Hernandez that Plaintiff has contacted is an altogether different Jose Hernandez —a person whose true full name is Jose Mario Hernandez Castillo and who was never employed at the location where observations of mail theft were witnessed. In other words, Defendants agree that this Jose Mario Hernandez Castillo is not the author of the declaration signed by Jose Hernandez in  Defendant LASC No. 18STCV0120. In any event, the Court need not resolve whether Plaintiff has evidence of a violation of Penal Code section 529 because what is clear to the Court is Plaintiff has failed to conclusively prove the crime and therefore the crime-as-a-matter-of-law exception does not apply. Furthermore, the current matter is much closer to Flickinger v. Finwall, where the Court strictly limited the Flatley exception and found “a plaintiff cannot show a probability of prevailing on the merits of a cause of action for anti-SLAPP purposes where the cause of action is barred by the litigation privilege codified in Civil Code section 47.” (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 840.)

.

Thus, Plaintiff has failed to establish its burden as to the second prong.

Therefore, the first prong has been met by Defendants, establishing that the basis for the suit is a protected activity, i.e., the declarations were attached to the Motion to Disqualify counsel, and the second prong has not been met by, as the litigation privilege applies.

The Motion to Strike is GRANTED.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Strike is GRANTED.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 1, 2023                     __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court