Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Joseph Benaron et al vs John Cardilino et al
Case No: 19CV04835
Hearing Date: Fri Dec 13, 2019 9:30

Nature of Proceedings: Motion: Strike/Anti-SLAPP

TENTATIVE RULING:

For the reasons set forth herein, the special motion of defendant Frances Cardilino is granted to strike counts 3, 4, and 5 of the fifth cause of action (defamation) from the complaint. Claims for fees and costs are to be made by separate motion.

Background:

(1) Allegations of the Complaint

As alleged in the complaint: Plaintiffs Joseph Benaron and Emily Benaron reside at 9 Fellowship Circle, Santa Barbara (the Benaron Property). (Complaint, ¶ 1.) Defendants Cardilino and Frances Cardilino reside at 15 Fellowship Circle (the Cardilino Property). (Complaint, ¶ 2.) The Cardilino Property is located in the center of Fellowship Circle, with neighboring homes surrounding it. (Ibid.) The Cardilino Property faces the Benaron Property. (Ibid.)

In February 2016, plaintiffs began a permitted remodel of their home. (Complaint, ¶ 8.) Within one month, defendants began to harass plaintiffs, continuously expressing their opposition to the remodel and making multiple complaints about the labors and the process of the remodel. (Ibid.) During that remodel, defendants frequently trespassed on the Benaron Property, taking videos, photographs, and measurements as they walked around plaintiffs’ home. (Complaint, ¶ 10.) Upon learning of each trespass, Mr. Benaron immediately contacted defendants to inform them that they did not have permission to be on his property and to stop trespassing. (Ibid.) Defendants disregarded these instructions and continued to trespass. (Ibid.) As a result of defendants’ conduct, plaintiffs installed a temporary fence to prevent further intrusions onto their property. (Complaint, ¶ 11.)

After construction was complete, the Benarons moved into their home on November 28, 2016. (Complaint, ¶ 12.)

On December 2, 2016, defendants began to mount multiple high intensity lights as well as high-powered construction lights in and around their property. (Complaint, ¶ 13.) Over the next few years, defendants continued to install additional high intensity LED lights, which were illegally installed without the necessary permits. (Ibid.) Defendants intentionally positioned the light fixtures to face away from their home and aim directly at the Benaron Property. (Complaint, ¶ 14.) The light fixtures illuminate the entire front portion of the Benaron Property that is so bright that light is still visible through “black-out” curtains. (Ibid.) The extreme glare prevents plaintiffs from going into their front yard at night and from keeping windows open to allow a breeze. From December 2, 2016, defendants have used the light fixtures as a way to harass plaintiffs. (Complaint, ¶ 15.) The light fixtures are sometimes not turned on for weeks and are sometimes turned on almost daily. (Ibid.)

About the time defendants installed the light fixtures, Mr. Cardilino also installed several video cameras, of which at least three are pointed directly at the Benaron Property. (Complaint, ¶ 17.) One video camera is about 15 feet up a palm tree on the outer edge of defendants’ property, providing them with a clear and direct view of plaintiffs. (Ibid.) The video cameras are used to annoy and harass plaintiffs by inappropriately watching plaintiffs. (Complaint, ¶ 18.)

There were numerous incidents between the parties. The incident applicable this motion occurred on April 18, 2019. During the early evening hours of April 18, defendants began to play loud music. (Complaint, ¶ 33.) As the evening continued, the music became louder and louder. (Ibid.) Defendants’ light fixtures were also turned on, brightly shining into plaintiffs’ home. (Ibid.) Plaintiffs and other neighbors called law enforcement. (Ibid.) Two Student Neighborhood Police Coordinators (SNAP Officers) arrived first. (Ibid.) Upon arrival, they heard loud music coming from the defendants’ property. (Ibid.) The SNAP Officers attempted to speak with the Cardilinos about the noise and various complaints. (Ibid.) In an extremely agitated and aggressive state, Mrs. Cardilino yelled at the SNAP Officers to get off her property, calling them liars. (Ibid.) Mrs. Cardilino yelled that her daughter could play her music anytime she felt like. (Ibid.) When the SNAP Officers tried to educate Mrs. Cardilino about the City’s noise ordinances, she became argumentative and refused to listen. (Complaint, ¶ 34.) Mrs. Cardilino yelled to the SNAP Officers that the Plaintiffs are “drug dealers” and that “the police department should spend more time investigating them” rather than telling her she can’t play music in her yard. (Ibid.)

Shortly thereafter, two Santa Barbara Police Officers (Police Officers) arrived at defendants’ property and issued the Cardilinos a citation. (Complaint, ¶ 35.) Plaintiffs spoke with the Police Officers, reminding them of the ongoing harassment and that they did not feel safe as a result. (Ibid.) As they were speaking, Mrs. Cardilino came outside of her house in a fit of rage. (Ibid.) Mrs. Cardilino ripped up the ticket and told the Police Officers that she refused to pay it. (Ibid.) While staring at plaintiffs and the Police Officers, Mrs. Cardilino gave plaintiffs “the finger” and yelled to the Police Officers that plaintiffs are “drug dealers” and that Mrs. Benaron “is running an illegal yoga studio out of her home.” (Ibid.) Mrs. Cardilino then lunged forward to attack plaintiffs, but was stopped by one Police Officer blocking her movement forward. (Ibid.) As they were leaving, the Police Officers encouraged plaintiffs to file restraining orders and to continue calling them with any issues. (Ibid.)

(2) Procedural Background

On September 10, 2019, plaintiffs filed their complaint in this action asserting 10 causes of action: (1) private nuisance; (2) public nuisance; (3) nuisance per se; (4) infliction of emotional distress; (5) defamation; (6) trespass; (7) invasion of privacy by intrusion; (8) violation of Santa Barbara Municipal Code section 22.75.010 et seq.; (9) assault; and, (10) injunction.

On October 28, 2019, the defendants filed their demurrer and ordinary motion to strike. Defendants concurrently filed their cross-complaint.

On November 15, 2019, defendant Frances Cardilino filed this special motion to strike (sometimes referred to as an anti-SLAPP motion). This motion is directed to counts 3, 4, and 5 of the fifth cause of action for defamation. This motion is opposed by plaintiffs.

On December 6, 2019, the court heard the demurrer and motion to strike of defendants. The court sustained the demurrer, with leave to amend, as to the third, fifth (as to counts 1 and 2), seventh, ninth, and tenth causes of action. The court’s ruling on the demurrer and on the motion to strike do not address issues raised in this motion.

Analysis:

“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) (Note: Section 425.16 is sometimes referred to as the “anti-SLAPP” statute.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id. at p. 396.)

“A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’ [Citation.] To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

The claims at issue are counts 3, 4, and 5 of the fifth cause of action. All three counts are causes of action for defamation. In count 3, the publication underlying the claim is the statement by Mrs. Cardilino that plaintiffs are “drug dealers” and that the “police should spend more time investigating them” to plaintiffs in the presence of the SNAP Officers. (Complaint, ¶ 66.) In count 4, the publication underlying the claim is the statement by Mrs. Cardilino that plaintiffs are “drug dealers” to the plaintiffs in the presence of the SNAP Officers and the Police Officers. (Complaint, ¶ 70.) In count 5, the publication underlying the claim is the statement that Mrs. Benaron “is running an illegal yoga studio out of her home” to Mrs. Benaron in the presence of the SNAP Officers and the Police Officers. (Complaint, ¶ 74.)

Defendants argue that these statements are both protected by the anti-SLAPP statute and privileged under the privilege of Civil Code section 47, subdivision (b). As discussed below, the same issues underlie both prongs of the analysis.

(1) “Arising from” Prong

The first prong of the anti-SLAPP analysis is whether the underlying claims arise from protected activity. “As used in this section, “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 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, subd. (e).)

“The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941 (Comstock).) The reasoning, as set forth in the cases cited in Comstock, is that a complaint to the police is petitioning activity and that the complaint is “made in connection with an official proceeding authorized by law.” (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439; accord, Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511; Lee v. Fick (2005) 135 Cal.App.4th 89, 97.)

Despite this general rule, plaintiffs argue that the statements made to SNAP Officers were not made in an official proceeding because SNAP Officers are non-sworn civilian employees who cannot investigate or commence an official proceeding. (Note: The court grants plaintiffs’ request for judicial notice of the officially published job description of a SNAP officer.) The court notes that the allegations of the complaint are slightly inconsistent in that paragraphs 66, 70, and 74 allege that the statements were made to plaintiffs in the presence of officers, whereas paragraphs 33 through 35 alleged that the statements were made directly to the officers. Paragraphs 33 through 35 provide a detailed description of the events generally; paragraphs 66, 70, and 74 are charging allegations. But even paragraphs 66, 70, and 74 allege the publications were made in the third person (“they are drug dealers,” “investigate[] them,” “she is running an illegal yoga studio”), which would be appropriate for a conversation about plaintiffs to third persons, rather than in the second person (i.e., “you”), which would be appropriate for a conversation to another person directly. The only reasonable construction of these allegations is that the statements were made to the officers about the plaintiffs and not to plaintiffs merely in the presence of the officers. This construction is consistent with plaintiffs’ supporting declarations. (J. Benaron decl., ¶ 4; E. Benaron decl., ¶ 11.)

The “official proceeding” is the investigation initiated by plaintiffs’ call to the police. Both the SNAP Officers and the Police Officers were responding to and participating in that investigation. While the typical anti-SLAPP action in this context usually involves statements made by the complaining party, there is no analytical difference between making a complaint and responding to an investigation of that complaint. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 [“ a ‘ “communication to an official administrative agency … designed to prompt action by that agency” ’ is ‘ “as much a part of the ‘official proceeding’ as a communication made after the proceedings had commenced.” ’ ”].) As discussed further below, it does not matter whether SNAP Officers are sworn law enforcement for the court to conclude that the claims of liability arising from statements made by Mrs. Cardilino are claims arising from protected activity within the meaning of the anti-SLAPP statute. The allegations of the complaint show that all of the publications underlying counts 3, 4, and 5, were publications made within the “official proceeding” of a police investigation. Mrs. Cardilino has therefore made her required showing under the anti-SLAPP statute.

(2) Probability of Success

“If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.) “As to the second step, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ [Citations.]” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)

For purposes of this motion, the court accepts as true the facts stated in the declarations of plaintiffs that Mrs. Cardilino made the statements alleged, that plaintiffs are not drug dealers, and that Mrs. Benaron did not run a yoga studio illegally out of her house. (J. Benaron decl., ¶¶ 2-8; E. Benaron decl., ¶¶ 2-11.) Defendants argue that even if these facts are true and would otherwise constitute actionable defamation, these claims are barred by the privilege of Civil Code section 47, subdivision (b).

“A privileged publication or broadcast is one made: [¶] … [¶] (b) In 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 pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….” (Civ. Code, § 47, subd. (b).)

In Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (Hagberg), the California Supreme Court addressed the issue of “whether tort liability may be imposed for statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person.” (Id. at p. 355.) The court concluded that “such statements are privileged pursuant to Civil Code section 47, subdivision (b) (section 47(b)), and can be the basis for tort liability only if the plaintiff can establish the elements of the tort of malicious prosecution.” (Ibid., fn. omitted.) In reaching this conclusion, the court discussed the purpose behind the section 47 privilege:

“ ‘An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on “[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.” [Citation.]’ [Citation.]” (Hagberg, supra, 32 Cal.4th at p. 362, quoting Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.)

“ ‘[A] communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an “official proceeding” as a communication made after an official investigation has commenced. [Citation.] After all, “[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.” [Citation.] In order for such investigation to be effective, “there must be an open channel of communication by which citizens can call … attention to suspected wrongdoing. That channel would quickly close if its use subjected the user to a risk of liability for libel. A qualified privilege is inadequate under the circumstances…. [¶] The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential.” [Citation] And, since the privilege provided by section 47 [(b)] is absolute, it cannot be defeated by a showing of malice.’ [Citation.]” (Hagberg, supra, 32 Cal.4th at pp. 364-365, quoting Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754.)

The “official proceeding” here was initiated by plaintiffs requesting that law enforcement investigate the defendants. Both the SNAP Officers and the Police Officers appeared in response to that request and were therefore participants in that official proceeding. Regardless of the SNAP Officers’ official duties, statements made to the SNAP Officers responding to plaintiffs’ request to investigate would be made with the expectation that such statements were made to law enforcement. No case states or suggests that being sworn as a peace officer is necessary to invoke the section 47 privilege. Indeed, it may be reasonably inferred from the fact that the section 47 privilege applies to complaints made to a whole host of persons who are not sworn in governmental agencies under the same “official proceeding” element of the section 47 privilege (see, e.g., Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1388 [State auditors]) that sworn status is not necessary to invoke the privilege.

Because the statements made by Mrs. Cardilino were made in an official proceeding, that is, in the investigation, those statements are within the scope of the absolute privilege. This is consistent with the policy behind this privilege explained in Hagberg. A person who is being investigated, as much as the person initiating the investigation, needs the ability to communicate with law enforcement without fear that candid statements could give rise to subsequent litigation. Effective law enforcement requires that all persons providing statements in an investigation—complainants, witnesses, and all others—not be under a cloud that a mistake in phrasing could involve them in defamation litigation. The absolute privilege is in place as a legislative policy choice to protect all such communications—even those communications that are on their face defamatory.

The statements made by Mrs. Cardilino upon which counts 3, 4, and 5 are based are all within the absolute privilege of section 47. It is therefore not possible for plaintiffs to prevail on those counts as a matter of law. Plaintiffs have not met their burden to show a probability of success on these claims. Accordingly, the special motion to strike will be granted to strike these counts from the complaint.

In ruling on the prior demurrer and ordinary motion to strike, the court granted leave to amend. Leave to amend does not extend to amending or otherwise repleading the counts that are stricken by this motion. (See Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 171.)

Fees and costs are to be addressed by separate motion.