Case Name: Paul F. Davis v. Damaris Davis and Kevin Hutcheson

Case No: 19CV345102

I. Background
II.

Plaintiff Paul Davis (“Plaintiff”) brings this action against Damaris Davis and her attorney Kevin Hutcheson (collectively, “Defendants”) for damages associated with malicious prosecution.

According to the complaint, Defendants made material false claims and planted false evidence during judicial proceedings. (Complaint, 1st COA.) The allegedly false claims include police reports, Child Protective Services (“CPS”) reports, school complaints, as well as allegations of child abuse and domestic violence. (Ibid.) As a result Defendants wrongfully obtained a restraining order against Plaintiff which has prevented him from working or passing a background check. (Complaint, p. 3.)

Based on the foregoing, Plaintiff filed the complaint alleging causes of action for (1) malicious prosecution; (2) intentional infliction of emotional distress; and (3) giving materially false testimony.

Defendants specially move to strike the complaint in its entirety or alternatively the individual causes of action.

III. Judicial Notice
IV.

In support of their motion, Defendants request judicial notice of various court records from Santa Clara County in case number 09FL002962. The request is made pursuant to Evidence Code section 452, subdivision (d) which allows a court to take judicial notice of “[r]ecords of any court of this state.” The court may “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

The matters for which judicial notice is sought include: judicial council forms submitted in support of temporary and permanent restraining orders; declarations and other supporting documents filed therewith; Mandatory Settlement Conference Statements; a request for order (on judicial council form) with accompanying declaration, seeking a modification of visitation in the family law matter; and temporary and permanent restraining orders. Each has been filed with the family court for various aspects of the litigation and appear appropriate subjects for judicial notice. Likewise, Plaintiff does not oppose the request.

Accordingly, the request for judicial notice of court records is GRANTED. The court takes judicial notice of the existence of the documents, however not the truth of any matters asserted therein.

V. Motion to Strike
VI.

Defendants specially move to strike the entire complaint or alternatively each cause of action pursuant to Code of Civil Procedure section 425.16, subdivision (e)(1) on the basis that the acts complained of include statements or writings made before a judicial proceeding.

A. Legal Standard
B.

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. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (Ibid.) 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. (Ibid.) 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. (Ibid.) 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. (Ibid.)

C. Defendants Meet their Burden
D.

Defendants have the initial burden to demonstrate that the acts complained of arise from some protected activity under Code of Civil Procedure section 425.16, subdivision (e) .

Defendants contend that the causes of action arise from conduct associated with judicial proceedings in a family law matter, and are protected activity as defined by section 425.16, subdivision (e)(1) which involve any “written or oral statement or writing made before a … judicial proceeding.”

As Defendants argue, the allegations of the complaint focus exclusively on “false statements during judicial proceedings, “malicious prosecution,” “planting false evidence… during a judicial proceeding,” and “knowingly making materially false accusations of child abuse during a judicial proceeding.” In fact none of the allegations appear to concern activity outside of judicial proceedings.

The Court also takes judicial notice of the court records submitted by Defendants in the parties’ family law case in which defendant Ms. Davis was represented by defendant Kevin Hutcheson. (RJN, request for order 10/24/2017.) In seeking an order that Plaintiff’s visitation with his children be supervised, Defendants provided statements to the court regarding a CPS report made against Plaintiff by a therapist. (Id. at Attachment 10.) They also submitted a copy of the permanent restraining order issued against Plaintiff and entered into the California Law Enforcement Telecommunications system (“CLETS”), protecting Defendant Davis from him for fifty years. (Id. at Exhibit G.) They also include documents admitted when that permanent restraining order was obtained, protecting Defendant Damaris Davis from Plaintiff, including declarations regarding police reports made as Plaintiff had violated the prior restraining order. (Id. at Exhibit E.)

These all constitute statements, writings, or communications made before or in connection with the family law case which is protected by the anti-SLAPP statute. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs) [the constitutional right to petition includes filing litigation, prosecuting litigation, testifying, and making statements preparatory to or in anticipation of judicial proceedings]; Ludwig v. Super. Ct. (1995) 37 Cal.App.4th 8, 19–20 (Ludwig) [Code of Civil Procedure section 425.16 extends to “any act … in furtherance of … the … right to petition ….”].)

Similarly, calls to the police regarding Plaintiff’s violation of the restraining order were made in anticipation of judicial proceedings and in connection with that action. (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 941 [“The law is that communications to the police are within anti-SLAPP.”]; see also Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [statements made to police in response to perceived wrongdoing for the purpose of garnering police assistance are within the scope of the anti-SLAPP statute]; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.)

Reports of child abuse to CPS are also communications protected by the anti-SLAPP statute as statements designed to prompt action by law enforcement or child welfare agencies. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) Thus, Plaintiff’s cause of action cannot be predicated on any CPS reports.

Furthermore, as Defendants argue, the activity in the complaint qualifies for protection under the Civil Code section 47, subdivision (b) litigation privilege. “It has long been the law that communications that bear ‘some relation’ to an anticipated lawsuit fall within the privilege.” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919, internal citation omitted.) “[I]f the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege. … If it applies, the privilege is absolute.” (Ibid.) Courts look to the Civ. Code §47(b) litigation privilege as an aid in determining whether a given communication falls within the ambit of §425.16(e)(1) and (2). (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Statements made under the Civ. Code § 47(b) litigation privilege are “equally entitled to the benefits of section 425.16.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)

Here, through their request for judicial notice, Defendants have shown that the statements, communications and evidence complained of by Plaintiff were submitted to the family court in support of litigation regarding restraining orders and family court custody and visitation orders. It is also clear that Plaintiff’s cause of action for “falsifying testimony/evidence/allegations” arise solely from these litigation activities as in argument he describes an allegedly false “RAP” sheet that belongs to another, similarly named individual. Thus, as statements and activities protected by the litigation privilege, they are equally entitled to anti-SLAPP protections.

Therefore, Defendants meet their initial burden to demonstrate the activity complained of by Plaintiff arises from protected activity, namely Defendants’ right of petition to the courts.

E. Plaintiff Does Not Meet His Burden
F.

If the defendant makes the required showing for the first prong, the burden shifts to the plaintiff to demonstrate the merits of the claim by establishing a probability of success. (San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 94.) The second prong measures the plaintiff’s showing against a standard similar to summary judgment. (Ibid.) Thus, plaintiff may not rely solely on his or her complaint, even if verified, and proof must be made upon competent admissible evidence. (Id. at 95.) However, the court does not weigh the plaintiff’s evidence but only assesses whether he or she demonstrates a probability of prevailing on the merits. (Ibid.)

Plaintiff does not submit any evidence to meet his burden to show a likelihood of prevailing on the merits. His sole submission on the merits is his memorandum of points and authorities and arguments therein. However, the facts he relies on are not supported by declarations or other evidence. Thus, he makes an insufficient showing of a likelihood of prevailing on the merits.

In any case, as Defendants note, Plaintiff cannot prevail on a cause of action for malicious prosecution as he did not prevail in the underlying cause of action. (See Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827 [for malicious prosecution, the “plaintiff must demonstrate that the prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in… plaintiff’s favor”].)

Likewise, as previously stated, the litigation privilege would bar any other cause of action based on the activity of which Plaintiff complains and further demonstrates an inability to prevail on the merits.

Based on the foregoing, the Court cannot find that there is a probability that Plaintiff will prevail on the merits, so he has not met his burden.

Consequently, Defendants’ motion to strike the complaint is GRANTED. Defendants shall submit a judgment in accordance with this order.

The Court will prepare the order.

Defendants may file a motion to seek their attorney fees.