Judge: Virginia Keeny, Case: 21VECV00780, Date: 2022-10-05 Tentative Ruling

Case Number: 21VECV00780    Hearing Date: October 5, 2022    Dept: W

Amanda Idoko v. Markini R. Martin, et al.

special motion to strike under ccp § 425.16 (anti-slapp)

Date of Hearing:          October 4, 2022                      Trial Date:       None set.

Department:               W                                             Case No.:         21VECV00780

Moving Party:             Plaintiff/Cross-Defendant Amanda Idoko  

Responding Party:       None.

BACKGROUND

            On June 14, 2021 Plaintiff Amanda Idoko (“Plaintiff”) filed a Complaint alleging causes of action for (1) fraud/intentional misrepresentation, (2) negligent misrepresentation, (3) conversion, (4) breach of contract against Defendants Makini Regal Designs, LLC (“MRD”), Fete Atelier (“FA”), Makini R. Martin (“Martin”), and Nia Jervier (“Jervier”).  This matter arises from defendants breach of contract relating to the interior design of Plaintiff’s home (the “subject contract”), and their fabrication of receipts related to the interior design.

            On June 24, 2022, MRD, Martin, and Jervier (hereinafter referred to collectively as “Defendants”) filed a Cross-Complaint asserting causes of action for (1) civil extortion, (2) IIED, (3) NIED, (4) breach of contract, and (5) interference with prospective economic advantage against Plaintiff.  The Cross-Complaint alleges in relevant part that Plaintiff’s prelitigation communication (demand letter) constituted extortion because Plaintiff threatened civil litigation against Defendants for their alleged fraud.  In addition, in the letter Plaintiff threatened to publish false allegations regarding Defendants if they did not pay Plaintiff a settlement.  Plaintiff’s threat to publish those statements caused Defendants IIED and NIED.

            Plaintiff moves to strike the first, second, and third causes of action of the Cross-Complaint pursuant to CCP § 425.16 on the grounds that those causes of action arise from protected speech and Defendants cannot demonstrate a reasonable probability of prevailing on those causes of action.

[Tentative] Ruling

            Plaintiff Amanda Idoko’s Motion to Strike the First, Second, and Third causes of Action from Defendants MRD, Martin, and Jervier’s Cross-Complaint Pursuant to CCP § 425.16 is GRANTED.

LEGAL STANDARD

CCP section 425.16 permits the court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.  

            The defendant bears the initial burden of showing that the claims fall within the class of suits subject to a motion to strike under CCP section 425.16, i.e., that plaintiff's claim is based on an act of defendant in furtherance of his right to free speech.  (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 304.)  Under CCP section 425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination.  A defendant meets his initial burden by demonstrating that the act underlying the plaintiff’s case fits one of the categories identified in section 425.16(e).  (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)  Subdivision (e) defines the protected acts as the following:

1)      any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

            2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

            3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

            4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

            If the defendant meets this initial burden, the plaintiff then has the burden of demonstrating a probability of prevailing on the claim.  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 741.)  The plaintiff satisfies this burden by demonstrating 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.  (Id.)  Under CCP section 425.16(b)(2), a plaintiff may use affidavits to meet the plaintiff’s burden.

            In order to determine whether a cause of action is subject to a SLAPP motion, the court examines the principal thrust or gravamen of the plaintiff's cause of action.  (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal. App. 4th 510, 519-520.)  The critical consideration for section 425.16 analysis is whether the cause of action is based on the defendant's protected free speech or petitioning activity.  Feldman v. 1100 Park Lane Associates (2008) 160 Cal. App. 4th 1467, 1478-1479.  The anti-SLAPP statute’s definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.  (Id.)

ANALYSIS

            Plaintiff moves to strike the first, second, and third causes of action (the “Causes of Action”) in Defendant’s Cross-Complaint pursuant to CCP § 425.16.

A.           First Prong – Plaintiff’s Burden

CCP section 425.16(e) defines the protected acts as the following:

            1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

            2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

            3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

            4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The Anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but “extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.”  (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.)  “[C]ourts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’” (Id.)

“Statements made ‘in anticipation of a court action’ may be entitled to protection under the anti-SLAPP statute.”  (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1005.)  “‘‘[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege . . . [,] such statements are equally entitled to the benefits of section 425.16.’’”  (Id. (quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115) (alteration in original).)  “A prelitigation communication is privileged only if it ‘relates to litigation that is contemplated in good faith and under serious consideration.’”  (Id. (quoting Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251).) 

Plaintiff contends that the Causes of Action are protected speech because they arise from Plaintiff’s pre-litigation demand letter (the “Letter”) to Defendants that if they did not pay Plaintiff for damages suffered that she would have no choice but to file a complaint with the California Superior Court and notify all relevant vendors and prior customers of Defendants’ deceitful practices.  (Cross-Compl., ¶¶ 18, 32, 36.; Defs. 8/9/22 Not. Errata Exh. 1.)

A review of the Cross-Complaint along with the demand Letter reveals that the Causes of Action relate to and arise from Letter that Plaintiff sent to Defendants prior to filing the instant lawsuit.  (Id.)  In the Letter Plaintiff represents that the Letter relates to a “potential lawsuit” against Defendants for their fraud, theft, and property damage relating to the subject contract.  (Defs. 8/9/22 Not. Errata Exh. 1.)  In addition, Plaintiff demands $100,000 for release of satisfaction of her claims, and if Defendants did not respond to the Letter with a “good faith offer” of settlement, she would be filing a formal complaint with the California Superior Court.  (Id.)  Plaintiff also represents that they are prepared to notify all relevant vendors and prior customers of Defendants’ deceitful practices if they did not respond to the Letter in good faith.  (See id.)

Here, Defendants’ causes of action for civil extortion, IIED, and NIED all arises from Plaintiff’s Letter.  Plaintiff’s Letter was sent in preparation of litigation, and will be protected if litigation was contemplated in good faith and under serious consideration.  A review of the Letter reveals that Plaintiff was contemplating a lawsuit against Defendants in good faith, as she sent the Letter in an attempt to settle the case without Court intervention, but, to the extent that Defendants did not respond to the Letter and make a “good faith offer,” then she would be left with no choice but to move forward with filing a complaint.  In addition, the Letter reveals that Plaintiff was seriously considering filing suit, as she starts the Letter by stating that the Letter related to a “potential lawsuit” and in the last paragraph states that she will move forward with filing suit if a good faith offer is not received.  Defendants have failed to file an opposition and point the Court to any facts or evidence suggesting that Plaintiff’s Letter was made in bad faith, was not contemplating filing suit in good faith, or that she was not seriously considering filing suit.

Thus, Plaintiff has shown that the Causes of Action in the Cross-Complaint fall under protected activity.  The burden now shifts to Defendants to establish a prima facie case for civil extortion, IIED, and NIED.   

A.     Second Prong – Defendants’ Burden

Here, Defendants failed to meet their burden of showing that the Cross-Complaint is both legally sufficient and that they have evidence to establish each element of the Causes of Action because they failed to file any opposition and provide evidence to demonstrate a probability of prevailing on the Causes of Action.

Accordingly, Defendants have failed to meet their burden, and the Court will strike the first, second, and third causes of action from Defendant’s Cross-Complaint.

CONCLUSION

            The Court GRANTS Plaintiff’s Motion to Strike Pursuant to CCP § 425.16.