Case Number: BC681826 Hearing Date: March 01, 2018 Dept: 53

ADRIENNE LARGE vs. WILLIAM B. DECLERCQ, ESQ. , et al.; BC681826, March 1, 2018

[Tentative] Order RE: SPECIAL MOTION BY DEFENDANT DIANA M. MAY TO TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 425.16

The Special Motion By Defendant Diana M. May to Strike Plaintiff’s Complaint Pursuant to California Code of Civil Procedure 425.16 is DENIED.

BACKGROUND

On October 31, 2017, Plaintiff Adrienne Large (“Plaintiff”) initiated the instant action by filing a Complaint for Quiet Title and Fraud (“Complaint”) against Defendants Diana M. May (“May”), William B. DeClercq (“DeClercq”), and the Superior Court of California. The causes of action are not specified in the body of the Complaint, and the Complaint itself reads as a memorandum finding fault with various aspects of a prior lawsuit for quiet title initiated by May (the “Prior Action”). In the Prior Action, May prevailed on her quiet title claim to the real property located at 287 E. Penn Street, Pasadena, CA (the “Subject Property”). May served notice of judgment on Plaintiff on October 17, 2016. (DeClercq Decl., ¶ 10, Ex. 17.) The gravamen of the Complaint appears to be that the Court lacked jurisdiction over Plaintiff and over the Subject Property in the Prior Action, and therefore, that the judgment is void.

May now moves to strike Plaintiff’s Complaint under Code of Civil Procedure section 425.16 as a strategic lawsuit against public participation. No opposition to the special motion to strike was filed.

Legal Standard

The anti-SLAPP statute (Code Civ. Proc., § 425.16) is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (internal quotations omitted).) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

Discussion

A. Prong One – Arising from Protected Speech

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes 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.

(CCP §425.16(e).)

The Court acknowledges at the outset that the Complaint is difficult to understand, and as such, almost certainly would be subject to a special demurrer on the basis of uncertainty. However, May decided to bring a special motion to strike, and so the Court proceeds with analysis of the first SLAPP prong.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Id.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified Sch. Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 (internal citations omitted).)

May contends that the protected conduct here is the litigation of the Prior Action. However, as May herself concedes, the Complaint contains not only no viable cause of action, it appears to contain no cause of action. There are no facts that the Court can discern to support a quiet title cause of action or a fraud cause of action. Indeed, there are no facts regarding the title to which a determination of quiet title is sought nor a prayer for the determination of title against adverse claims. (See Code Civ. Proc., § 761.020.) Moreover, there are no facts regarding any representations made by May, Declercq, or the Superior Court directed to Plaintiff, as required to state a fraud claim. (See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) The only remedy Plaintiff appears to be seeking is an order “finding that she is the trustee of [that certain trust belonging to her grandfather, Albert S. Jackson] and that the Property is part of the trust.” (Complaint, p. 2: 20-21.) Plaintiff seems to be under the impression that this Court is a probate court. (See Complaint, p. 2: 21-22.) Notwithstanding the uncertainty of the Complaint’s allegations, the Court finds that May has not demonstrated that any of the “causes of action” in the Complaint are based on May’s filing and prosecution of the Prior Action. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) The Complaint seeks to invalidate the Prior Action somehow, but the Complaint is not directed at the Prior Action and does not seek to hold May liable for the Prior Action. Accordingly, the Court finds that May has failed to shoulder her burden on the first prong.

B. Prong Two – Probability of Prevailing

Because the Court finds that Defendant has failed to establish that the challenged claim arises from protected speech, the inquiry ends there.

CONCLUSION

Based on the foregoing, the Special Motion By Defendant Diana M. May to Strike Plaintiff’s Complaint Pursuant to California Code of Civil Procedure 425.16 is DENIED.

Defendant is ordered to provide notice of this ruling.

DATED: March 1, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court