Judge Wesley L. Hsu, Case 22PSCV01726 2023-04-13 Tentative Ruling

Defendant Karen Brown’s SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16

Defendant Karen Brown’s Special Motion to Strike Pursuant to Code of Civil Procedure § 425.16 is GRANTED.

Plaintiff Donald Ray Pierre (“Plaintiff”) alleges as follows: Karen Brown (“Brown”) coerced Plaintiff’s son, who is mentally challenged, to testify against him in court. Brown also defamed Plaintiff and presented undated exhibits in court proceedings.

On November 8, 2022, Plaintiff filed a complaint, asserting causes of action against Brown and Does 1-25 for:

On April 12, 2023, Plaintiff hand filed a “Notice of Objection to Motion and Special Motion to Stirke Pursuant to CCP 425.16 (Anti-SLAPP Motion). This filing is untimely and can be disregarded on that basis.[1]

“A special motion to strike under section 425.16—the so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4^th 1027, 1035.)

“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue [is] subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“When determining whether to grant an anti-SLAPP motion, the trial court engages in a two-step process. First the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4^th 941, 946 [internal quotation marks and citation omitted].)

Brown moves the court, per Code of Civil Procedure § 425.16, for an order striking Plaintiff’s complaint, on the basis that it arises from Brown’s constitutionally protected right of free speech and petition and that Plaintiff cannot establish a probability of prevailing on the merits of his claims.

At the outset, the court notes that Code of Civil Procedure § 425.16, subdivision (f) reads, in relevant part, that “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Emphasis added).

It would seem to the court that the instant motion was not filed within 60 days of the service of the complaint (i.e., based on the fact that Brown filed a “Motion to Declare Plaintiff a Vexatious Litigant” back on December 21, 2023). With that said, the court notes that on March 14, 2023, Plaintiff purported to file a “Proof of Service of Summons.” which reflects that the summons and complaint was mailed to Brown on November 7, 2022 pursuant to Paragraph 5(b)(4), which alone is not proper service. Brown confirms that she has not been served. (Reply, 1:12-13).

The motion, then, appears to have been timely filed based on the lack of a valid proof of service of the summons and complaint. Regardless, the court has the discretion to entertain a special motion to strike “at any later time.” The court will proceed to entertain the merits of the motion.

The anti-SLAPP statute is designed to protect “(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.” (Code Civ. Proc., § 425.16, subd. (e).) A “public interest” must be demonstrated only with respect to the activities described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4^th 1106, 1117-1121.)

Here, Plaintiff has asserted three causes of action against Brown, all relating to alleged conduct by Brown during a court hearing in Plaintiff’s divorce proceeding (i.e., Pierre v. Pierre, Case No. BD236138) in which Brown was appearing as counsel of record. (Brown Decl., ¶ 4.) Plaintiff has alleged that Brown “is an officer of the Court with a senior bar card number.” (Complaint, 7:4-5). Plaintiff has alleged that Brown, inter alia, “willfully coerced” Plaintiff’s mentally challenged son to testify against Plaintiff even though the judge had already made his decision prior to that time (Id., 3:3-6), made “numerous false conspiring statements. . . under oath” (Id., 3:6-8), presented numerous “undated exhibits to the court that was not presented to Plaintiff in the original declaration” (Id., 5:12-14), “declared in the courtroom that she omitted the exhibits and was in possession of the original infamous undated photograph” (Id., 5:5:15-16), called Plaintiff a “Sadistical, Mental Manipulator and a Psychological Torturer[2]” (Id., 4:15-17) and “used law breaking methods to win” (Id., 4:19-20). The excerpts of the court reporter’s transcript attached to the complaint confirm that a two-year restraining order was issued against Plaintiff on the date of the hearing. (Id., 21:2-4 [i.e., Transcript, 133:2-4].)

Again, statements made during judicial proceedings are protected by the anti-SLAPP statute. Plaintiff, in opposition, readily concedes that “. . . the alleged conduct of the Defendant are true upon which the Summon and Complaint is based was made in a Judicial proceeding with fabricated evidence and statements made and presented to the Court.” (Opp., 1:3-5). The court finds that Brown has made a threshold showing that the challenged cause of action arises from protected activity pursuant to subdivision (e)(1).

Again, once a claim is shown to fall within the ambit of the anti-SLAPP law, the burden shifts to the plaintiff to establish a “probability” of prevailing on that claim.

In determining whether a plaintiff has established a probability of prevailing on the claim, the court will “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2). “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4^th 204, 212 [emphasis added].)

“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendant's contrary showing, if any, does not defeat the plaintiff's as a matter of law.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4^th 811, 821.)

Plaintiff has not demonstrated a probability of prevailing on his claims in this lawsuit. Plaintiff has brought three causes of action against Brown, for (1) Elderly Abuse of a Two Wars Veteran, (2) Abuse of the Mentally Challenged and (3) Perjury, Suborning Perjury. Plaintiff makes no effort to articulate the elements of each of his causes of action, and fails to make any evidentiary showing.

Further, Plaintiff’s causes of action arises from Brown’s alleged conduct during a court proceeding, as set forth above. Brown attests that any and all statements that were made in court whether about Plaintiff or any other subject were made for the purpose of representing her client. (Brown Decl., ¶ 4.) Brown’s conduct appears protected by the litigation privilege espoused in Civil Code § 47, subdivision (b)^{^[3]} [i.e., “A privileged publication or broadcast is one made: . . . (b) In any . . . (2) judicial proceeding . . .”].)“The litigation privilege is . . . 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.” (Flatley v. Mauro (2006) 39 Cal.4^th 299, 323.)

The motion is granted, and Defendant is to give notice. Defendant to submit a proposed judgment, with service to the plaintiff, within 20 days of this order. The case management conference is vacated. Instead, an order to show cause re: entry of judgment is set for May 16, 2023, at 8:30 a.m. in Department L. Plaintiff to give notice.

[1] The court has read the filing. Even had the filing been timely, it would not change the decision reached herein because it merely contains unsworn accusations that, even if taken as true, do not affect the court’s analysis. The court does, however, wish to address Plaintiff’s repeated contention that the anti-SLAPP motion is somehow “untimely.” Plaintiff’s “Proof of Service of Summons” filed on March 14, 2023, demonstrates on its face that service of the complaint in this case was defective. Plaintiff simply had a third party mail the summons and complaint to Defendant and her counsel. As the form itself indicates, mailing alone is not sufficient to effect service of process. (See also Code of Civ. Proc. §§ 415.20, 415.30). Therefore, the time for filing the instant motion, demurrer, or answer has not yet begun to run. Moreover, as set forth further below, even if the court found this motion were filed within 60 days of service of the complaint, the court nevertheless has the discretion to hear the motion “at any later time.” The court would exercise that discretion here even if finding the motion untimely.

[2] The actual excerpt from the court transcript attached to the complaint reads as follows: “There’s an ongoing pattern here, Your Honor, or just sadistic, mental manipulation, really kind of a psychological torture.” (Transcript, 6:6-8).

[3] Although not referenced by either party, Section 47, subdivision (b)(1) provides an exception for “[a]n allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.” This exception is nonapplicable, however, inasmuch as no “pleading or affidavit” was involved, nor was the “allegation or averment” made “of or concerning a person by or against whom no affirmative relief [was] prayed in the action.” Neither of the parties address the applicability of any other of the section 47, subdivision (b) exceptions.