Case Name: White v. Webby, et al.
Case No.: 18CV333877

Defendant Michele Dauber (“Defendant”) moves to strike the complaint (“Complaint”) filed by plaintiff Stephen P. White (“Plaintiff”) pursuant to Code of Civil Procedure section 425.16.

I. Background

A. Factual

This is an action in which Plaintiff alleges that the defendants interfered with his free speech rights, defamed him and caused him emotional distress. According to the allegations of the Complaint, Defendant and co-defendant Sean Webby conspired to steal a sign possessed by Plaintiff which expressed disapproval of the campaign to recall then-judge Aaron Persky. (Complaint, ¶ 1.) Plaintiff further alleges that Defendant suppressed his free speech rights by “sending her minions to … shout him down at public events so that it was impossible for [him] to expose [Defendant]’s lies regarding Judge Persky,” caused several of his social media accounts to be suspended, and caused him to be harassed at the Commonwealth Club in San Francisco. (Id. at ¶ 2.) A third co-defendant, Jennifer Bradadini, is alleged to have defamed Plaintiff by publically identifying him as a rapist. (Id., ¶ 3.)

B. Procedural

Based on the foregoing allegations, Plaintiff filed the Complaint on September 4, 2018, asserting the following causes of action: defamation; conversion; intentional infliction of emotional distress; and “interference with free speech rights.” On July 17, 2019, Defendant filed the instant special motion to strike. Plaintiff opposes the motion.

II. Defendant’s Special Motion to Strike

Defendant moves to strike the second paragraph in the Complaint (which contains all of the claims against her) in its entirety or, in the alternative, to strike all causes of action against her on the grounds that they arise out of her protected activity and Plaintiff cannot establish a probability that he will prevail on those claims.

Code of Civil Procedure section 425.16 provides a summary procedure by which defendants may dispose of “strategic lawsuits against public participation” or “SLAPP” lawsuits, i.e., lawsuits brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances.” (See Code Civ. Proc., § 425.16, subd. (a).) Courts broadly construe the anti-SLAPP statute to further the legislative intent of “encouraging continued participation in matters of public significance by preventing the chilling of such participation through abuse of the judicial process.” (See Kimbler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199, internal citations omitted.)

The court’s approach to ruling on a special motion to strike has been summarized thusly:

Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from the protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which 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” as defined in the statute. (§ 425.16, subd. (b)(1.) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers “the pleadings, and supporting and opposing affidavits stating facts upon which the liability or the defense is based.

(See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.)

A. Propriety of Plaintiff’s Opposition Papers

On September 27, 2019, Defendant filed a reply in which she requests that the Court strike Plaintiff’s opposition for failure to serve her counsel as required by Code of Civil Procedure section 1005, subdivision (b), which provides that papers opposing a motion must be filed and served at least nine court days before the hearing. Such service must be made by personal delivery, fax, express mail, or other means consistent with Code of Civil Procedure sections 1010, 1011, 1012 and 1013, and reasonably calculated to ensure delivery to the other party not later than the close of the next business day after the time the opposing papers are filed. (Code Civ. Proc., § 1005, subd. (c).) As established by the declaration of Defendant’s counsel, such service was not effectuated here, despite repeated responses by counsel to phone messages left by Plaintiff in which he advised Plaintiff that he needed to serve counsel with his opposition papers. (See Declaration of William Staples in Support of Reply.) While Plaintiff is self-represented in this matter, this status does not afford him greater consideration than any other party that appears before this court. (See Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Given Plaintiff’s failure to properly serve Defendant, his opposition is stricken by the Court.

In addition, Plaintiff filed a declaration on October 15 and a document on October 25 titled “PLAINTIFF’S REQUEST TO DISMISS Anti-SLAPP MOTION AND/OR OPEN DISCOVERY.” Both documents were filed well after the deadline for Plaintiff’s opposition brief, but seem to supplement his brief. Thus, these filings are essentially sur-replies. Because they were not authorized by the Court, the Court will strike them.

B. Defendant Satisfies the First Step of the Anti-SLAPP Analysis

Turning to the substantive merits of the instant motion, in order to satisfy the first step of the anti-SLAPP analysis, Defendant need only make a prima facie showing that Plaintiff’s claims against her “arise[] from” its exercise of free speech or petition rights as defined in Code of Civil Procedure section 425.16, subdivision (e), i.e., protected activity. (See Governor Gray Davis Committee v. American Taxpayer Alliance (2002) 102 Cal.App.4th 449, 458-459.) Code of Civil Procedure section 425.16, subdivision (e) provides that:

[An] “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (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 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.

(Code Civ. Proc., § 425.16, subd. (e).)

In determining whether a defendant has sustained its initial burden, the court considers the pleadings, declarations, and matters that may be judicially noticed. (See Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324.) Here, Defendant persuasively establishes that Plaintiff’s claims against her arise out of protected conduct by her, particularly statements she “made in a place open to the public or a public forum in connection with an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(3).) For the purposes of this subdivision of the anti-SLAPP statute, the term “public forum,” which is construed broadly, is defined as “a place open to the use of the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) The phrase “public issue” is also broadly construed and includes “not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.)

Here, there is no question that the issue about which Defendant’s statements and communications were made—the sentencing practices of Judge Persky and the campaign to recall him—qualifies as one within the scope of subdivision (e)(3), having made national and international headlines. Further, the Complaint itself acknowledges that the statements and interactions were made at “public events.” (Complaint at 2:3.) Thus, it is clear that Plaintiff’s claims, which are predicated on the foregoing conduct, arose out of protected activity and therefore fall within the ambit of the anti-SLAPP statute. Consequently, the Court finds that Defendant has met the first prong of the anti-SLAPP analysis. The burden therefore shifts to Plaintiff to establish a probability of prevailing on the merits of his claims.

Even if the Court had not stricken Plaintiff’s opposition and considered its contents, it is of no help to Plaintiff as to the first prong. In his opposition, Plaintiff appears to suggest that some of Defendant’s conduct towards him that he complains of in the operative pleading (e.g., purportedly conspiring to steal his anti-recall sign at a pro-recall rally, causing his social media accounts to be suspended) was illegal. As a general matter, conduct that is indisputably illegal, i.e., criminal, is not protected conduct. However, where a plaintiff claims that a defendant’s speech or petitioning activity is illegal and thus not protected, he or she “bears the burden of conclusively proving the illegal conduct.” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 385.) The defendant need not prove that its conduct was legal in order to meet its burden under the first prong of the anti-SLAPP statute. (Id.) Here, Plaintiff fails to make such a showing. That is, he offers no evidence which establishes that Defendant engaged in any criminal conduct towards him.

C. Plaintiff Fails to Establish a Probability of Prevailing on the Merits

Because Plaintiff’s opposition and sur-replies have been stricken by the Court, Defendant’s motion is unopposed and he cannot establish a probability of prevailing on the merits of his claims. Accordingly, Defendant’s motion to strike is GRANTED in its entirety WITHOUT LEAVE TO AMEND.

Even if the Court had considered Plaintiff’s opposition, it finds that he still would not have established a probability of prevailing on the merits. In order to meet his burden on the second prong of the anti-SLAPP analysis, 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.” (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukop).) This “probability of prevailing” standard is tested by the same standard governing a motion for summary judgment in that it is the plaintiff’s burden to make a prima facie showing of facts that would support a judgment in the plaintiff’s favor. (See Taus v. Loftus (2007) 40 Cal.4th 683, 714.) A plaintiff must show that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) The court may not weigh credibility or comparative strength of the evidence; the court must consider the defendant’s evidence only to determine if it defeats the plaintiff’s showing as a matter of law. (See Soukop, supra, 39 Cal. 4th at 291.) “In making this assessment it is the court’s responsibility … to accept as true the evidence favoring the plaintiff …. The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP.” (Id., internal quotations and citations omitted.)

Plaintiff fails to meet his burden. Plaintiff cannot prevail on his claim against Defendant for “interference with free speech rights” because the First Amendment of the U.S. Constitution and Article 1 of the California Constitution only protect speech against state action. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1016.) The Complaint completely lacks the requisite state action element necessary to establish a free speech cause of action. Plaintiff otherwise offers no evidence which supports the state action element required.

Plaintiff has a defamation claim, but does not allege that this Defendant (as opposed to other defendants) defamed him. Plaintiff also has an intentional infliction of emotional distress claim, but he did not present any admissible evidence—as opposed to supposition—to show that Defendant engaged in conduct that was so outrageous as to support that claim. And his conversion claim fails because there was no evidence Defendant converted any of Plaintiff’s property.