Judge Upinder S. Kalra, Case Number: 23STCV29612, Date: 2024-03-15 Tentative Ruling

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SPECIAL MOTION TO STRIKE PLANTIFF’S COMPLAINT UNDER CCP § 425.16; DEMURRER

MOVING PARTY: Defendants Los Angeles County Developmental Services Foundation d/b/a Frank D. Lanterman Regional Center and Srbui Ovsepyan

1. An Order striking Plaintiff’s Complaint and for reasonable attorneys’ fees;

2. Demurrer to the entire Complaint for failure to state sufficient facts to constitute a cause of action.

On December 4, 2023, Plaintiff Selma Blunk (Plaintiff) filed a Complaint against Defendants Frank D. Lanterman Regional Center, Inc. and Srbui Ovsepyan (Defendants) with four causes of action for: (1) Defamation, (2) Defamation Per Se, (3) False Light, and (4) Intentional Infliction of Emotional Distress.

According to the Complaint, Defendants sent a letter to the Honorable Judge Lynn Scaduto, Gloria Cohen and Rebecca Loo that contained statements about Plaintiff in connection with conservatorship proceedings of a third party. Plaintiff claims these statements were false.

On February 2, 2024, Defendants filed a Special Motion to Strike Pursuant to CCP § 425.16.

On March 4, 2024, Plaintiff filed an opposition to the Special Motion to Strike.

“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,¿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].)¿

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)¿¿

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). Defendants’ counsel attempted to meet and confer with Plaintiff’s counsel on December 22, 2023, January 2, 2024, and January 4, 2024 with no response. (Abramowitz Decl. ¶ 4.) Even if this is insufficient meet and confer efforts, that alone is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

Defendants contend the Complaint is subject to Special Motion to Strike under CCP § 425.16(e)(1) because it is wholly based on protected speech – namely, the Probate Code § 1827.5 report in connection with Plaintiff’s limited conservatorship petition. Plaintiff contends the report is not protected because it is false and was sent to a non-party to the conservatorship petition.

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); Park, supra, at p. 1060; Old Republic Const. Program Group v. Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 862.) 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).)

CCP § 425.16(e)(1) provides that an “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, it is undisputed that the Complaint is based on protected speech because it was made as part of a judicial proceeding.[1] (Compl., Exhibit 1 [referencing Case No. 23STPB08125].) Indeed, Plaintiff’s entire Complaint is based on this Report.[2]

Accordingly, Defendants have made a threshold showing that Plaintiff’s Complaint arises from protected activity.

Defendants contend Plaintiff cannot prevail on the merits because the Report is absolutely privileged under the litigation privilege codified in Civ. Code 47(b). Plaintiff argues that Defendants sent the Report to a non-party, Ms. Cohen, which was not protected speech. Plaintiff additionally argues that Defendants perjured themselves rendering the statements unprotected. Defendants reply that Ms. Cohen is N.J.’s co-conservator and is substantially interested in the outcome of Plaintiff’s limited conservatorship hearing.

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 the plaintiff to establish a probability that they 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.)¿ “If there is a conflict in the evidence (the existence of a disputed material fact), the anti-SLAPP motion should be denied. (Citizens of Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598.) As will be shown, Plaintiff has failed in their burden to establish a probability that they will prevail at trial on that claim by making a prima facie showing on that claim.¿

The litigation privilege is codified at Civil Code section 47, subdivision (b), and provides that “a privileged publication or broadcast is one made . . . [¶] [i]n any . . . judicial proceeding . . . .”

“’The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.’ [Citation.] Additionally, the privilege promotes effective judicial proceedings by encouraging ‘“open channels of communication and the presentation of evidence”’¿without the external threat of liability [citation]¿and ‘by encouraging attorneys to zealously protect their clients' interests.’ [Citation.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 321-322.)

The litigation privilege is “absolute,” and “it bars all tort causes of action except a claim of malicious prosecution.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) It applies not only to statements made before a court but broadly “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 have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Simply put, “communications in connection with matters related to a lawsuit are privileged under Civil Code section 47, subdivision (b).” (Sylmar Air Conditioning v. Pueblo Contracting Services (2004) 122 Cal.App.4th 1049, 1058.) Moreover, “[t]he 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.].” (Flickinger v. Finwall (2022) 85 Cal. App. 5th 822, 840.)[3] To be sure, “[t]he 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.].” (Ibid.)

Here, as discussed above, the protected activity that is the basis of liability in this action is the Report that Defendants submitted to the court during Plaintiff’s petition for limited conservatorship. A copy of that filing was also served on two other parties: the conservatee’s attorney, and to a Ms. Cohen. The initial reason for the report being sent to Cohen was because she was identified on the Petition as a co-conservator along with Plaintiff. This was an error. Cohen was not petitioning to be a co- co-conservator of N.J. Plaintiff contends that since Cohen was not a co-conservator, the litigation privilege does not apply. Plaintiff’s narrow reading of the litigation privilege is not supported by the facts or law.

While Plaintiff justifiably challenges labeling Cohen as a co-conservator, it cannot be disputed that Cohen is connected to N.J.’s Petition. First, on July 25, 2023, Petitioner filed the Petition for N.J. (23STBP08125).[4] The day before, on July 24, 2023, Plaintiff and Gloria Cohen jointly filed a petition to be co-conservators for C.C. (23STBP08032),[5] another consumer of Defendant. Second, C.C. and N.J. are roommates, who live together in a Glendale apartment. Third, Cohen is the mother of C.C. and Plaintiff is C.C.’s aunt. The fact that simultaneously with N.J.’s Conservator Petition, Plaintiff and Cohen were jointly petitioning to become co-conservators of C.C. demonstrates a clear connection to the two Petitions.

Applying these facts to the four Silberg factors results in one, inescapable conclusion: the litigation privilege applies to the report being sent to Cohen.

A communication need not occur in court to be made in a judicial proceeding. (Costa v. Superior Court (1984) 157 Cal.App.3d 673, 677 (Costa).) The report that Cohen was cc’ed was addressed to a Superior Court Judge who was adjudicating N.J.’s Petition. Thus, the Court finds that the communication was made in a judicial proceeding.

Cohen qualifies as “other participant qualified by law. First, she was a prospective witness, and thus was a participant who was authorized by law. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865.) Second, Cohen was “substantially interested” in the petition for N.J.’s limited conservatorship’s outcome. Since Plaintiff and Cohen were simultaneously seeking a conservatorship of C.C., N.J.’s roommate’s, who was her daughter and Plaintiff’s niece, it is reasonable to infer that the report could impact the Petition of her daughter. Stated otherwise, she was not just some random member of the general public who received the report. (Costa, supra, 157 Cal.App.3d at p. 687; Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 94 [“[T]he subsidiary lodge members to whom the letter was addressed possessed a substantial interest in the outcome of the pending litigation and as such were authorized participants therein.”].) Thus, the Court concludes that Cohen was another participant authorized by law.

(3) To achieve the objectives of the litigation and (4) Have some connection or logical relation to the action.

“The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action. . . (Silberg, supra, 50 Cal.3d 219.)[6] “ ‘In order that the privilege apply, it is unnecessary that the defamatory matter be relevant or material to an issue before the tribunal but need only have some proper connection or relation to the proceeding and in achieving its objectives.’ ” (Costa, supra, 157 Cal.App.3d at p. 677.) The connections to the N.J. Petition is self-evident. It appears that the investigation into C.C.’s petition was done concurrently with the investigation of N.J.’s petition. The court noted typographical errors that misgendered N.J. as she. And it only makes sense that there was overlap in the reports since two Petitions were pending for two roommates who were both consumers of Defendant and the Plaintiff was the Petitioner in both applications. Thus, the Court concludes that the communication to Cohen has a connection to or logical relation to the action.

Therefore, even if each fact in the Complaint is taken as true and even if Plaintiff has stated a claim with respect to each cause of action, the litigation privilege bars admission of all of Plaintiff’s evidence of Defendants’ wrongdoings. Because Plaintiff will be barred from presenting evidence to substantiate his claim, Plaintiff does not have a probability of success.

Even if the litigation privilege did not bar the admission of the report sent to Cohen, Plaintiff has, nonetheless, failed in her burden to show she has minimal probability of success. Plaintiff’s entire complaint is founded on statements in the report that she alleges are false. Below are the statements:

1. Expressed desire to become N.J.’s In-Home Supervisor and receive payment which suggested a financial conflict of interest. [7]

2. N.J. has stated numerous times that he did not want Plaintiff as conservator.

3. N.J. states that Plaintiff installed security cameras which makes N.J. feel that his privacy is being violated.

Plaintiff needed to proffer admissible evidence that these statements are false. While Plaintiff argues that they are false, Plaintiff has presented no admissible evidence that the above statements are false. Accordingly, she has failed to meet her minimal showing.

Accordingly, the court GRANTS Defendants’ Special Motion to Strike the Complaint.

Based on the foregoing ruling on the Special Motion to Strike, Defendants’ demurrer is OVERRULED as moot.

[1] Instead, as will be discussed more fully below, the parties dispute whether this document is absolutely protected by the litigation privilege.

[2] Specifically, Plaintiff alleges that the Report is defamatory, that it is defamatory per se for painting her as scheming to control financial affairs of N.J., that it damages her reputation in the community, and that Defendants’ creating the Report was meant to intentionally inflict emotional distress.

[3]Although the scope of protected activity under anti-SLAPP and the scope of the litigation privilege are not exactly coterminous, they are symmetrical for the purposes of this motion. (See Flatley, supra, at p. 323 [“The litigation privilege is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing”]; accord Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248 [litigation privilege applies to communications and communicative conduct, but not to noncommunicative conduct].)

[4]The Petition is replete with errors. In Box 2 Proposed conservatee is “Daniel Palacios.” The Court wonders, Who is Daniel Palacios? Moreover, the address of conservatee is the same address as Plaintiff. Other filings indicate the correct address of N.J. should be the same as C.C.’s.

[5]A quick comparison of the two Petitions indicate that they are identical in almost all respects. For example, in Box 5 in N.J.’s Petition which asks for the reason for the application, Plaintiff writes: “He is unable to make medical decisions. He cannot [sic] left alone. He gets easily confused. He does not know the date/time of day. He cannot use public transportation. He is susceptible to sexual abuse.” Box 5 of C.C.’s Petition, other than changing the gender, is a cut and paste duplicate, with the same grammatical errors: “She is unable to make medical decisions. She cannot [sic] left alone. She gets easily confused; She does not know the date/time of day. She cannot use public transportation. She is susceptible to sexual abuse.”

[6]Plaintiff’s reliance on Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818 is misplaced. The interest of justice test that its holding was founded on was expressly rejected by California Supreme Court in Silberg.

[7]The other alleged potential financial conflict of interest was leveled against Cohen—landlord of N.J.— and not Plaintiff.