Judge Upinder S. Kalra, Case 22STCV20378 2023-03-29 Tentative Ruling

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MOVING PARTY: Cross-Defendants Diane Mancinelli, Mentis Law Group, PLC, Marc Anthony Cubas, and Sydney Susana Cubas

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

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. 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. Another lawsuit resulted after part of the judgment, which required Vlaze to provide AMAG collateral, was not completed. During the second lawsuit, a Motion to Disqualify counsel was filed, which had various declarations about Plaintiff, which Plaintiff alleges are false and fictious.

On July 28, 2022, Defendant Marc Anthony Cubas, Patrick O’Greene, Sydney Susan Cubas filed a Special Motion to Strike, Anti-SLAPP, which was GRANTED. The court dismissed the complaint.

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.

On December 20, 2022, Cross-Defendants Diane Mancinelli, Mentis Law Group, PLC, Marc Cubas, Sydney Cubas filed a Special Motion to Strike, Anti-SLAPP. Cross-Complainant’s Opposition was filed on March 17, 2023. Cross-Defendants’ Reply was filed on March 23, 2023.

“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].)

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

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

Cross-Defendants argue that the first prong has been met. The statements that form the basis of the Cross-Complainant’s claims are those that were made in a declaration “that was submitted in another pending case. There are no allegations of any other conduct.” (Motion 8: 20-22.)

Cross-Complainant argues that the Cross-Defendant did not demonstrate that the claims arise from protected activity. Specifically, the issue raised by Cross-Complainant concerns the signature, not the statements in the declaration. The declaration “is mere evidence of the forgery and misappropriation of the signature of Jose Hernandez.” (Opp. 19: 2-3.) Moreover, the signature was not made in support “of any claim or defense in the underlying matter.” (Id. at 27: 24-25.)

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, looking at the cross-complaint, paragraph 7 states that “statements attributed to Cross-Complainant were not made by Cross-Complainant, nor did Cross-Complainant sign the Declaration.” (Cross-Complaint ¶ 7.) Moreover, throughout the rest of the Cross-Complaint, Cross-Complainant refers to the declarations as the basis for each cause of action. The first cause of action for fraud/misrepresentation alleges that Cross-Defendants alleged that Cross-Complainant’s statement was memorialized in a Declaration and filed with the Motion to Disqualify. (Cross-Complaint ¶ 13, 16-18, 19-26.) The second cause of action for False personation and Violation of California Penal Code §§ 528.5 and 529 alleges that Cross-Defendant submitted forged Declarations, which Cross-Complainant alleges he did not sign. (Cross-Complaint ¶ 34-37.) And as for the third cause of action for misappropriation of Cross-Complainant’s name, Cross-Complainant alleges that Cross-Defendant misappropriated his name when the “forged declarations” were sent to the Court. (Cross-Complaint ¶ 45-47.) All of these allegations directly concern the declarations, which 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 aperson’s right of petition. (See CCP § 425.16(b)(1).)

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

Cross-Defendants argue that Cross-Complainant 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 Cross-Complainant has no probability of prevailing.

Cross-Complainant asserts that there is a probability of prevailing because the causes of action alleged in the complaint can be and have been met; the Cross-Compliant provides sufficient evidence of the required elements. Cross-Defendant also argues that illegal activity is not protected under this statute, citing to Flatley v. Mauro (2006) 39 Cal. 4th 299, 320.

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, Cross-Complainant 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, with various paragraphs referring to the statements. Second, Flatley is incomparable to the current matter. In Flickinger v. Finwall, the Court stated, “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.) While Cross-Defendant attempts to argue that statements and signature were made prior to the declaration being filed, , this argument fails because this exception also applies to prelitigation statements. Flickinger stated “A prelitigation communication is privileged only if it ‘relates to litigation that is contemplated in good faith and under serious consideration’ [citation] .... The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘ “ ‘connection or logical relation’ ” ’ to a contemplated action and is made ‘ “ ‘to achieve the objects’ ” ’ of the litigation.” (Id.)

Second, Cross-Complainant 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.) Cross-Complainant alleges that Cross-Defendants 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, Cross-Complainant has presented a declaration denying that he signed any such declaration or witnesses any events in described in the allegation. Cross-Defendants do not concede the illegality of the conduct. Even more, Cross-Defendants have presented evidence that the Jose Hernandez that Plaintiff Killian 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, Cross-Defendants agree that Cross-Complainant 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 Cross-Complainant has evidence of a violation of Penal Code section 529 because what is clear to the Court is Cross-Complainant 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; See also Geragos v. Abelyan (2023) 88 Cal.App.5th 1005.)

Thus, Cross-Complainant has failed to establish its burden as to the second prong.

Therefore, the first prong has been met by Cross-Defendants, establishing that the basis for the suit is a protected activity, i.e., the declarations were included in a prior court proceeding, and the second prong has not been met by, as the litigation privilege applies.

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.

[1]Since the Court is Granting the special motion to strike, the Court need not address Cross-Defendants contention that Plaintiff purposely served the wrong “Jose Hernandez.”