Case Number: TC028952 Hearing Date: May 08, 2018 Dept: A

# 5. William Camacho v. Bertha Gonzalez, et al.

Case No.: TC028952

Matter on calendar for: Hearing on Anti-SLAPP motion

Tentative ruling:

I. Background

Plaintiff William Camacho has filed a wage and hour action against Defendant Bertha Gonzalez, et al. Camacho alleges that he was an employee at Gonzalez’ restaurant, and that he was not properly compensated pursuant to California law.

On February 1, 2018, Gonzalez filed a Cross-Complaint against Camacho alleging that Camacho committed fraud pertaining to a breached Lease Agreement between the parties concerning the restaurant. Gonzalez alleges that Camacho concealed material facts, represented himself as a lessee, executed an agreement with Gonzalez to lease the premises of the restaurant, abandoned the premises before the lease agreement terminated, and caused Gonzalez substantial economic harm.

Camacho has filed an Anti-SLAPP motion to strike Defendant’s Cross-Complaint. Camacho argues, in relevant part, that the Complaint is protected by the litigation privilege. (The alleged free speech here is the filing of the Complaint.)

II. Standard

The anti-SLAPP statute (CCP § 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.” (Id.)

“[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).)

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.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[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 (2002) 29 Cal.4th 82, 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).)

However, “a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant.” (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 (citations omitted).) An action is not a SLAPP suit simply because of “[t]he additional fact that protected activity may lurk in the background – and may explain why the rift between the parties arose in the first place.” (Episcopal Church Cases (2002) 45 Cal.4th 467, 478.)

“[W]hile discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidence by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.” (Park v. Board of Trustees of California State University (2017) 393 P.3d 905, 911.) “Conflating, in the anti-SLAPP analysis, discriminatory decisions and speech involved in reaching those decisions or evidencing discriminatory animus could render the anti-SLAPP statute ‘fatal for most harassment, discrimination and retaliation actions against public employers.’ ” (Citations omitted.) (Id.)

Civil Code § 47(b), also known as the “litigation privilege,” applies to “any communication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation.” (Rusheen v. Cohen (2006) 37 Cal.App.4th 1048, 1055.) The filing of pleadings in a litigation are protected by the litigation privilege. (Id.) Pleadings are “generally viewed as privileged communications” under Civil Code § 47(b). (Id.)

III. Analysis

The Court grants Plaintiff’s unopposed Request for Judicial Notice under Evidence Code sections 452 and 453.

The Court overrules Camacho’s objections to the Merrill and Gonzalez Declarations. In any event, they are immaterial to the disposition of this motion.

The Court denies the Anti-SLAPP motion because Camacho has not established that the challenged claim arises from Camacho’s protected speech (the filing of the Complaint). Camacho’s Complaint is a wage and hour case based on alleged Labor Code violations. Gonzalez’ Cross-Complaint arises from an alleged breached lease agreement and fraudulent conversion of the restaurant cash receipts. The Cross-Complaint is thus based on a different set of facts, and asserts different causes of action (breach of contract, fraud, and conversion, among others.). Gonzalez’ allegations do not concern protected conduct by Camacho, and do not pertain to an issue, writing, or oral statement made before an official proceeding authorized by law. Simply put, Gonzalez’ allegations are wholly separate from the filing of the Complaint for unpaid wages. Camacho otherwise fails to demonstrate that the Cross-Complaint was filed in retaliation for Camacho’s Complaint to thwart Camacho’s constitutional right of petition and free speech. Gonzalez’ subjective motive for filing the Cross-Complaint is irrelevant. (See Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 494.)

Camacho has failed to satisfy the first prong of the Anti-SLAPP analysis. The Court need not reach the second.

The Court denies this Anti-SLAPP motion.

The Court also denies Gonzalez’ request for attorney fees. The Court does not find that this motion was “frivolous or solely intended to cause unnecessary delay…” (See CCP § 425.16(c)(1).)