Case Name: James West v. Alma Place Associates, L.P., et al.

Case No.: 18CV333764

(1) Peter O. Glaessner’s and Christina M. Forst’s Demurrer to Complaint for Damages Declaratory and Injunctive Relief
(2) Peter O. Glaessner’s and Christina M. Forst’s Special Motion to Strike Pursuant to C.C.P. § 425.16
(3) Defendants Alma Place Associates, L.P., Palo Alto Housing Corporation, Georgina Mascarenhas, and Evangeline Granadosin’s Joinder in Peter O. Glaessner and Christina M. Forst’s Demurrer to Complaint
(4) Defendants Alma Place Associates, L.P., Palo Alto Housing Corporation, Georgina Mascarenhas, and Evangeline Granadosin’s Joinder in Peter O. Glaessner and Christina M. Forst’s Special Motion to Strike Complaint

Factual and Procedural Background

Plaintiff James West (“West”), a disabled African American male, qualified for and rented a federally subsidized but state administrated unit at Alma Place in Palo Alto from July 2008 until April 2015. (Complaint, ¶12.) Alma Place is owned by defendant Alma Place Associates, L.P. (“APA”) and operated and managed by defendant Palo Alto Housing Corporation (“PAHC”). (Id.)

Plaintiff West and defendants APA and PAHC entered into a confidential move-out agreement on or about January 26, 2015. (Complaint, ¶13.) The move-out agreement became an order of the Santa Clara County Superior Court and it was further ordered that access to this file remain restricted. (Complaint, ¶14.)

Defendant Georgina Mascarenhas (“Mascarenhas”), Vice-President of defendant PAHC, was present in court when the foregoing court order was made and acted as an agent for defendants PAHC and APA. (Complaint, ¶¶6 and 15.) Defendant Evangeline D. Granadosin (“Granadosin”), a property supervisor for defendant PAHC, was present in court when the foregoing court order was made and acted as an agent for defendants PAHC and APA. (Complaint, ¶¶7 and 16.)

Defendants Peter O. Glaessner (“Glaessner”) and Christina Forst (erroneously sued as Christina Furst; hereafter, “Forst”) are attorneys representing PAHC, APA, Mascarenhas, and Granadosin in a federal housing discrimination lawsuit filed in federal district court by West (“Federal Lawsuit”). (Complaint, ¶¶17 – 18.)

On [August] 29, 2017, Defendant Glaessner filed a motion to dismiss the Federal Lawsuit and, in doing so, Glaessner filed a request for judicial notice which included the entire and complete copy of the confidential move-out agreement in violation of the terms and conditions of the court order and order sealing those records. (Complaint, ¶¶19 – 20.) Glaessner violated the court order to gain an unfair advantage in the Federal Lawsuit. (Complaint, ¶20.)

On or about September 8, 2017, Defendant Forst filed an administrative motion in federal district court requesting an order which would permit Forst to file the move-out order under seal. (Complaint, ¶22.) The federal district court judge never granted or approved the filing of the document under seal. (Id.)

Despite Glaessner’s repeated assurances he would not repeat his action to disclose details of the confidential move-out agreement, defendant Glaessner continues to do so to plaintiff West’s detriment. (Complaint, ¶24.)

On August 29, 2018, plaintiff West filed the instant complaint against APA, PAHC, Mascarenhas, Granadosin, Glaessner, and Forst asserting causes of action for:

(1) Retaliation in Violation of Public Policy – Housing Rights
(2) Violation of Santa Clara County Superior Court Order
(3) Negligence
(4) Negligence Per Se
(5) Civil Conspiracy
(6) Negligent Hiring Retention and Supervision
(7) Unfair Business Practices

On December 26, 2018, defendants Glaessner and Forst filed the two motions now presently before the court, a demurrer to plaintiff West’s complaint and a special motion to strike plaintiff West’s complaint pursuant to Code of Civil Procedure section 425.16.

On January 7, 2019, defendants APA, PAHC, Mascarenhas, and Granadosin filed joinders to the demurrer and special motion to strike.

I. Procedural violations.

As a preliminary matter, the court notes that plaintiff West’s opposition is untimely filed. Code of Civil Procedure section 1005, subdivision (b) states, “All papers opposing a motion … shall be filed with the court and a copy served on each party at least nine court days … before the hearing.” Based on a hearing date of June 18, 2019, plaintiff West’s opposition had to be filed no later than June 5, 2019. Plaintiff West did not file his opposition until June 7, 2019, two court days late.

Further, the court notes that plaintiff West’s memorandum of points and authorities in opposition exceeds the page limitations set forth in California Rules of Court, rule 3.1113, subdivision (d) which states, “no opening or responding memorandum may exceed 15 pages.” Plaintiff West’s responding memorandum of points and authorities is 19 pages. Plaintiff did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) California Rules of Court, rule 3.1300, subdivision (d) states, “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Since the court has discretion to consider a late filed paper, since defendants have not established any prejudice from the late filing, and to avoid the expenditure of any further judicial resources, the court will look past these procedural violations and consider the opposition on its merits. However, plaintiff West is hereby admonished for the procedural violations. Any future violation may result in the court’s refusal to consider plaintiff’s papers.

Although a judge should ensure that self-represented litigants are not being misled or unfairly treated (see Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), self-represented litigants are not entitled to special treatment with regard to the Rules of Court or Code of Civil Procedure. “[W]e cannot disregard the applicable principles of law and accord defendant any special treatment because he instead elected to proceed in propria persona. [Citations.]” (Stein v. Hassen (1973) 34 Cal. App. 3d 294, 303.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’” (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)

II. Defendants Glaessner and Forst’s special motion to strike plaintiff West’s complaint and the joinder thereto is GRANTED.

A. The two-step procedure for anti-SLAPP motions.

Code of Civil Procedure section 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue. 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. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

B. Step one – threshold showing that the challenged cause of action arises from protected activity.

Defendants Glaessner and Forst have the initial burden to demonstrate that the claims asserted by plaintiff West in the complaint “arise from” some protected activity. “Defendant need only make a prima facie showing that plaintiff’s complaint ‘arises from’ defendant’s constitutionally-protected free speech or petition activity. The burden shifts to plaintiff to establish as a matter of law that no such protection exists.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶7:991, pp. 7(II)-54 to 7(II)-55 citing Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458 – 459.)

“A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: ‘(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; (4) or 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.’” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (Siam).)

Defendants Glaessner and Forst contend each of the six causes of action directed against them arise from a writing made either before a judicial proceeding or in connection with an issue under consideration by a judicial body. “ ‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 [special] motion to strike.’ [Citation.] ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]” (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154; emphasis added.)

Defendants point to the relevant allegations of plaintiff West’s complaint. Paragraph 19 alleges, “On November 29, 2017, Defendant Glaessner filed a motion to dismiss Plaintiff’s federal district court lawsuit and in doing so Defendant Glaessner filed a request for Judicial notice which included the entire and complete copy of the confidential move-out agreement filed with the Superior Court in violation of the terms and conditions of the court order and the order sealing those records.” Paragraph 22 alleges, in relevant part, “On or about September 8, 2017, Defendant Christina [Forst] filed with the U.S. Federal district court in San Jose, California an administrative motion requesting that the Federal Judge permit Defendant Christina [Furst] to file the Santa Clara County Superior movement our order sealed and confidential under seal.”

The first cause of action charges, “Defendants retaliated in violation of public policy in housing rights against Plaintiff by disclosing the full contains and details in public view on the federal court docket in San Jose, California of the confidential move-out agreement that was ordered seal and restricted was done to punish Plaintiff for filing a housing discrimination lawsuit in federal court.” (Complaint, ¶26; emphasis added.)

The second cause of action charges, “Plaintiff intends to file with the court a motion and order to show cause for the violation of the Santa Clara County Superior Court order.” (Complaint, ¶32; emphasis added.)

The third cause of action charges, “Each Defendant had an express duty to maintain the confidentiality of the movement by agreement of the parties and involved and by order of the Superior Court of the County of Santa Clara. Defendants breached that duty by allowing the confidential movement out agreement to be filed on the public docket of the federal district court in San Jose, California.” (Complaint, ¶34; emphasis added.)

The fourth cause of action charges, “Disclosing the contents of the confidential move out agreement, defendants violated a lawful order of the Superior Court of California for Santa Clara County.” (Complaint, ¶37; emphasis added.)

The fifth cause of action charges, “…defendants conspired to disclose the contents of the confidential move out agreement.” (Complaint, ¶42; emphasis added.)

The seventh cause of action charges, “the acts and conduct of the defendants described above constitute unfair and deceptive business practices and unlawful activities.” (Complaint, ¶51.)

Thus, each of the claims being asserted against defendants Glaessner and Forst arise from the alleged filing of the confidential move-out agreement in the Federal Lawsuit. Clearly, this conduct falls into the first or second categories of conduct described in section 425.16, subdivision (e), i.e., “(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.”

In opposition, plaintiff West cites Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108 (Applied) to argue that the enforcement of a settlement agreement is not subject to a special motion to strike. In Applied, a customer agreed to discontinue use of software as part of settlement of federal lawsuit. When the customer failed to discontinue use of the software, the software company brought action against customer for breach of settlement agreement and specific performance. The customer moved to strike the lawsuit as a strategic lawsuit against public participation. The claims for breach of settlement agreement, however, do not arise from the mere filing of the lawsuit. The court in Applied explained:

Here, the gist of plaintiff’s complaint is not that defendant did something wrong by acts committed during the course of the underlying federal action, but rather that defendant did something wrong by breaching the settlement agreement after the underlying action had been concluded. Under the explanatory provisions in subdivision (e) of section 425.16, defendant’s entering into the settlement agreement during the pendency of the federal case was indeed a protected activity, but defendant’s subsequent alleged breach of the settlement agreement after the federal case was concluded is not protected activity because it cannot be said that the alleged breaching activity was undertaken by defendant in furtherance of defendant’s right of petition or free speech, as those rights are defined in section 425.16. Thus, the instant suit is based on alleged conduct of the defendant that is not protected activity.

(Applied, supra, 164 Cal.App.4th at p. 1118.)

Here, however, plaintiff West is not asserting claims against defendants Glaessner and Forst for breach of the settlement or specific performance. Instead, plaintiff West’s claims against defendants Glaessner and Forst are based upon their conduct in publicly filing the move-out agreement in the Federal Lawsuit. Even here where the act of filing the move-out agreement before a judicial proceeding or body is the same conduct that would constitute a breach of the move-out agreement, it does not change the court’s analysis.

Plaintiff West argues further that a defendant who has “contracted not to speak or petition has in effect ‘waived’ the right to the anti-slapp statute protection in the event he or she later breaches.” Plaintiff West offers no legal authority in support of this position and the court is aware of none.

C. Step two – probability of prevailing.

“[I]f a court ruling on an anti-SLAPP motion concludes the challenged cause of action arises from protected petitioning, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. To satisfy this prong, the plaintiff must state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate 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.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow); internal citations and punctuation omitted.) “The court does not weigh credibility or comparative strength of the evidence. The court considers defendant’s evidence only to determine if it defeats plaintiff’s showing as a matter of law.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

1. Litigation privilege.

Defendants Glaessner and Forst urge the court to find, as a matter of law, that their conduct in filing the move-out agreement and in filing an administrative motion to allow the filing of the move-out agreement under seal, respectively, are privileged publications pursuant to Civil Code section 47, subdivision (b) which states, in relevant part, “A privileged publication or broadcast is one made in any … judicial proceeding” for which no exception applies.

“For well over a century, communications with “some relation” to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47 (b). [Footnote.] At least since then-Justice Traynor’s opinion in Albertson v. Raboff (1956) 46 Cal.2d 375 [295 P.2d 405], California courts have given the privilege an expansive reach. [Footnote.] Indeed, as we recently noted, “the only exception to [the] application of section 47(2) [now section 47(b)] to tort suits has been for malicious prosecution actions. [Citations].” (Silberg v. Anderson, supra, 50 Cal.3d at p. 216 (Silberg).)

(Rubin v. Green (1993) 4 Cal.4th 1187, 1193–1194.)

In opposition, plaintiff West’s citation to Civil Code section 47, subdivision (d)(2) is misplaced as that section creates exceptions to subdivision (d)(1) which is not being asserted nor is it applicable here. Subdivision (d) in its entirety states:

A privileged publication or broadcast is one made:
(d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(d)(2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.

It is clear from the plain language of Civil Code section 47, subdivision (b)(2) that the exceptions apply to a “communication to a public journal.” Thus, defendants Glaessner and Forst’s filings in the Federal Lawsuit are privileged publications.

2. Demonstrated probability of prevailing.

Even if the litigation privilege did not apply, plaintiff West has not met his burden of demonstrating a probability of prevailing on the six claims asserted against defendants Glaessner and Forst. As noted above, “the plaintiff must demonstrate 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.” (Jarrow, supra, 31 Cal.4th at p. 741.) Plaintiff West has not met this burden having presented no admissible evidence in support of his claims.

3. Timing.

As a separate basis for opposition, plaintiff West contends defendants Glaessner and Forst’s special motion to strike is untimely. “The 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.” (Code Civ. Proc., §425.16, subd. (f).) Proofs of service filed on December 6, 2018 declare personal service of the summons and complaint on defendants Glaessner and Forst on October 30, 2018. Defendants Glaessner and Forst filed the instant special motion to strike within 60 days on December 26, 2018. As such, the motion is timely.

4. SLAPPback.

As a further argument in opposition, plaintiff West asserts the instant motion is a SLAPPback and thus, presumably, also subject to a motion to strike. “ ‘SLAPPback’ means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.” (Code Civ. Proc., §425.18, subd. (b)(1).) Plaintiff West’s assertion that the present motion to strike is a SLAPPback is without any legal or factual support.

5. Joinder.

“Codefendants may join another defendant’s anti-SLAPP motion without filing a separate motion where the complaint challenges a protected First Amendment activity.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:1060, p. 7(II)-66 citing Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660 – 661.)

The same analysis above applies to defendants APA, PAHC, Mascarenhas, and Granadosin who have joined in the special motion to strike by defendants Glaessner and Forst. In addition to the six causes of action asserted against defendants Glaessner and Forst, plaintiff West includes a seventh cause of action against defendants APA, PAHC, Mascarenhas, and Granadosin for “negligent hiring retention and supervision.” Upon closer inspection, this cause of action also arises from protective activity as it charges, “Defendants [APA, PAHC, Mascarenhas, and Granadosin] know or should have known that Defendants Glaessner and [Forst] would disclose the contains [sic] of the confidential move out agreement in violation of the Santa Clara County Superior Court order. Defendants [APA, PAHC, Mascarenhas, and Granadosin] had a duty to properly hiring [sic] attorneys who would not violate the court order and defendants had a further duty to supervisor [sic] their work to ensure the confidentiality agreement was not violated.” (Complaint, ¶47.) Just as with all the other causes of action, this cause of action stems or arises from protected activity, i.e., defendants Glaessner and Forst’s filing of the move-out agreement in the Federal Lawsuit.

As discussed above, the special motion to strike is timely, even as to defendants APA, PAHC, Mascarenhas, and Granadosin who were served after defendants Glaessner and Forst.

For all of the reasons cited above, defendants Glaessner and Forst’s special motion to strike plaintiff West’s complaint pursuant to Code of Civil Procedure section 425.16 and defendants APA, PAHC, Mascarenhas, and Granadosin’s joinder thereto is GRANTED.

III. Defendants Glaessner and Forst’s demurrer to plaintiff West’s complaint for damages declaratory and injunctive relief and the joinder thereto is MOOT.

In light of the court’s ruling above, defendants Glaessner and Forst’s demurrer to plaintiff West’s complaint for damages declaratory and injunctive relief, and defendants APA, PAHC, Mascarenhas, and Granadosin’s joinder thereto is deemed MOOT.