Case Number: 19CMCV00077 Hearing Date: September 24, 2019 Dept: A

# Add-on 2. Howard Hunter v. Paramount Unified School District

Case No.: 19CMCV00077

Matter on calendar for: Anti-SLAPP Motion; Motion for Judgment on the Pleadings

Tentative ruling:

I. Background

Plaintiff Howard Hunter is the parent and guardian ad litem for minor Konyae Hunter. Konyae Hunter was a student at Defendant Paramount Unified School District. The Complaint alleges that Defendant contacted local police to have Hunter arrested for the theft of a phone. Hunter further alleges he was kept in jail for six days and the charges were later dropped.

The Complaint alleges the following causes of action:

(1) General Negligence;

(2) Breach of Fiduciary Duty;

(3) Defamation;

(4) Assault;

(5) Battery;

(6) False Imprisonment;

(7) Violation of Bane Act (Civil Code § 52.1)

Defendant now moves to strike the Complaint as a strategic lawsuit against public participation (“SLAPP”) and separately for judgment on the pleadings. Oppositions and replies have been filed and considered.

For the reasons set forth below, the Court denies the Anti-SLAPP motion and grants the motion for judgment on the pleadings.

II. Standard

a. Anti-SLAPP Motions

The anti-SLAPP statute (C.C.P., § 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.)

b. Judgment on the Pleadings

A motion for judgment on the pleadings may be brought on the basis that the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (C.C.P., § 438(c)(1)(B)(ii).) A failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from a judicially noticed matter. (See Hall v. Chamberlin (1948) 31 Cal.2d 673, 679–680.)

In reviewing a motion on the pleadings, courts “apply the same rules governing… sustaining a general demurrer.” (County of Orange v. Assn. of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32.) A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

III. Analysis

a. Timeliness of Anti-SLAPP Motion

An anti-SLAPP motion must generally be brought within 60 days of the service of the Complaint or, in the court’s discretion, “at any later time upon terms it deems proper.” (C.C.P., § 425.16(f).) The motion must then be scheduled to be heard within 30 days unless docket conditions require otherwise. (Ibid.) Defendant acknowledges that this motion was filed 105 days after the service of the Complaint, but urges the Court use its discretion to allow the motion. Plaintiff argues the motion is untimely.

“A court ‘enjoys considerable discretion’ in determining ‘whether to allow [a] late filing of an anti-SLAPP motion.’ [Citation.] However, the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60-day deadline is the general rule. [Citation.]” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624.) “ [A] ‘trail court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60 day-day deadline’ [Citation.] In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff. [Citation.]” (Ibid.)

The Court is not convinced it must deviate from the general rule. Defendant’s attached declaration of Lisa Larriva, a claim adjuster employed by Defendant, shows Plaintiff granted answer filing extensions while Defendant determined if it would be willing to settle the matter. (Decl. Larriva, ¶¶ 5–7.) Although Defendant argues the delays were caused by settlement negotiations, the declaration makes it clear the extensions were required because of Defendant’s own internal delays. (Ibid.)

The anti-SLAPP motion is denied as untimely.

b. Motion for Judgment on the Pleadings

Defendant argues that all of Plaintiff’s causes of action are based on the alleged false reporting of Plaintiff to local law enforcement, an action that is privileged under Civil Code § 47(b).

Civil Code § 47(b) “provides that a statement made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by writ of mandamus]’ is privileged, with certain exceptions that are inapplicable here. [Citation.] This privilege applies even if the statement was false and made with malice. [Citation.] ‘[T]he only tort claim … falling outside the privilege established by section 47(b) is malicious prosecution.’ [Citation.]” (Cox v. Griffin (2019) 34 Cal.App.5th 440, 448.)

“ ‘[C]itzen reports of suspected criminal activity to law enforcement personnel enjoy an absolute privilege of immunity from civil liability under section 47(b).’ [Citation.] Such reports, designed to instigate or prompt an investigation, can only be the basis for tort liability if the plaintiff can establish the tort of malicious prosecution. [Citation.]” (Cox, supra, 34 Cal.App.5th at 449.)

All of Plaintiff’s causes of action stem from school staff calling local law enforcement. Even if this was done with malicious intent, such actions are privileged under Civil Code § 47(b). Plaintiff argues that Government Code § 820.21 prevents the application of Section 47(b), but Government Code § 820.21 applies to those authorized to conduct investigations under the Welfare and Institutions Code, which is inapplicable in this case. (Gov. Code, § 820.21(a).)

Plaintiff then argues that Defendant is not entitled to the protection of Section 47(b) because the school owed a heightened duty to Plaintiff. This is unpersuasive. Regardless of the duty owed, the complained of conduct is protected communicative conduct.

The motion for judgment on the pleadings is granted without leave to amend.

IV. Ruling

The Anti-SLAPP motion is denied.

The motion for judgment on the pleadings is granted without leave to amend. Defendant to prepare a proposed judgment.