Case Number: 18STLC03464 Hearing Date: April 25, 2018 Dept: 77

Defendant Kimberly Ann Navarro’s Special Motion to Strike Pursuant to California Code of Civil Procedure Section 425.16 is GRANTED.

Background

On February 28, 2018, Plaintiff Shari Tinsley, as an individual and dba Kidsvoicesmatter (“Plaintiff”) filed a complaint against Defendant Kimberly Ann Navarro (“Defendant”). On March 27, 2018, Defendant filed the instant motion. No opposition has been filed.

Legal Standard

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16(a).) Code of Civil Procedure section 425.16, subdivision (b)(1), provides:

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 shall be 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.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16(b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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(e).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16(b)(1).)

Request for Judicial Notice

Defendant requests judicial notice of the Order on Respondent’s Request for Order re: Modification of Child Custody and Visitation dated August 14, 2017 in Tinsley v. Figueroa, LASC Case No.: BF051023. Defendant’s request is granted.

Discussion

First Prong: Claims Arising from Protected Activity

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16(b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “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, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).)

Plaintiff has asserted a cause of action for intentional tort against Defendant. (See Zopatti Decl., ¶ 2, Ex. A.) Although the allegations under the intentional tort cause of action do not explicitly state what intentional tort Plaintiff is asserting, the caption of the complaint indicates Plaintiff is asserting defamation. The gravamen of Plaintiff’s claim is that Defendant provided false testimony in a report that was submitted as evidence in family law case BF051023. (See id., Ex. A.) Given this report was made in a legal proceeding, it is protected activity pursuant to CCP section 425.16(e)(1) as a statement made before a judicial proceeding.

To the extent Plaintiff’s claims are also based on emails from Defendant, these are also protected as statements in connection with a legal proceeding. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) A statement is made in connection with litigation if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation. (See Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.) Defendant was retained to conduct reunification therapy pursuant to a court order in the underlying family law matter. (See Navarro Decl., ¶¶ 3, 6.) The emails attached to the complaint show that the communication was with respect to the reunification therapy sessions, including updates on how sessions went, what to expect in upcoming sessions, and advice to facilitate the reunification process. (See Zopatti Decl., ¶ 2, Ex. A, Complaint, Ex. B.) The emails were thus made in connection with the underlying family law matter.

Therefore, the Court finds that Defendant has carried her initial burden of showing that Plaintiff’s claim arises out of protected activity.

Second Prong: Plaintiff’s Likelihood of Prevailing on the Merits

As Defendant has met her burden, the burden now shifts to Plaintiff to establish a probability of succeeding on the merits. (See Kyle v. Carmon, 71 Cal.App.4th 901, 907 (1999).) Plaintiff has not filed an opposition. Therefore, Plaintiff has failed to meet her burden.

Accordingly, the special motion to strike is granted.

Costs and Attorneys’ Fees

Code of Civil Procedure section 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Under section 425.16, an award of fees and costs is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

As Defendant is the prevailing party, she is entitled to reasonable attorney’s fees and costs. The amount shall be determined upon Defendant filing a noticed motion for attorneys’ fees and memorandum of costs.

Conclusion

Based on the foregoing, Defendant’s special motion to strike pursuant to CCP section 425.16 is granted. The complaint is stricken in its entirety. Judgment is hereby entered in favor of Defendant.

Moving party to give notice.