Case Number: 19STCV19832 Hearing Date: December 17, 2019 Dept: 24

Plaintiff/Cross-Defendant Alexander Sviridov’s special motion to strike is DENIED.

On June 6, 2019, Plaintiff Alexander Sviridov (“Sviridov”) filed a complaint against Green Lion Trading Inc. (“GLT”) and Oleksandr Nazarchuk (“Nazarchuk”) (collectively, “Defendants”) for various wage and hour violations, misclassification, and Unfair Competition. The Complaint arises out of Defendants’ employment of Plaintiff and violation of California wage and hour laws.

On July 29, 2019, Nazarchuk filed a cross-complaint against Sviridov. The Cross-Complaint alleges four causes of action for: 1) wrongful use of administrative proceedings; 2) abuse of process; 3) fraud/intentional misrepresentation; and 4) intentional infliction of emotional distress. The Cross-Complaint arises out of allegations that Sviridov filed a groundless complaint (the “Labor Commission Complaint”) with the Department of Industrial Relations Labor Commissioner’s Office against GTL and Nazarchuk. The Cross-Complaint alleges that the Labor Commission Complaint contained false allegations regarding his rates and distances he drove for Defendants.

On September 25, 2019, Sviridov filed the instant special motion to strike against the Cross-Complaint. On December 2, 2019 Plaintiff filed an opposition. No reply was submitted.

Legal Standard

CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“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. 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.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ 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. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

Timeliness

Nazarchuck argues that the instant motion is untimely. CCP section 425.16(f) requires that a special motion to strike be filed within 60 days of service of complaint, or later with court permission.

Nazarchuk correctly notes that the instant motion was served 62 days after service of the cross-complaint. However, he fails to note that the cross-complaint was served via mail. In the context of the anti-SLAPP statute, courts have held that service via mailing extends the 60-day period as provided in CCP section 1013(a). (Lam v. Ngo (2001) 91 Cal.App.4th 832, 842.) Lam specifically stated:

Ngo’s motion was filed 64 days after the amended complaint. This fact raises the additional question of whether the moving party on an anti-SLAPP suit motion gets an extra five days for mailing.

The answer is yes, when, as here, the complaint at which the special motion to strike is directed has itself been mailed. Section 1013, subdivision (a) provides in part: “[A]ny right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five days, upon service by mail, if the place of address is within the State of California….” The plain terms of the statute would thus add five days for Ngo’s “right” to file a special motion to strike to “respond” to the amended complaint.

(Ibid. [emphasis added])

As service of the Cross-Complaint was via mail, CCP section 1013(a) adds an extra 5 days for filing an anti-SLAPP. Therefore, the instant anti-SLAPP is timely. Even if it were not, the Court would exercise its discretion and hear the anti-SLAPP on the merits.

First Prong

Sviridov moves to strike the entire cross-complaint.

CCP section 425.16(e) defines protected acts as the following: 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.

Indeed, each cause of action is based on Sviridov’s filing of his Labor Commission Complaint against Defendants. (CC ¶¶ 14-36.) All conduct relates to filings and statements made before the Labor Commissioner’s Office and constitutes protected activity pursuant to 425.16(e)(1). Accordingly, the burden shifts to Nazarchuck to demonstrate a probability of success.

Second Prong

Nazarchuck fails to meet his burden in this regard. Nazarchuck brings no evidence to support his claims. Nazarchuck simply requests a continuance to prepare opposition on the merits. However, Nazarchuk was already given the opportunity to oppose on the merits and evidently chose not to. Further, Nazarchuk has not demonstrated good cause for a discovery-based continuance. (See CCP § 425.16(g).) Nazarchuck does not point to any potential evidence that may support his claims.

Even if Nazarchuck had minimal merits evidence, he has not explained how the majority of his claims may survive in light of the litigation privilege. Civ. Code Section 47 provides, in pertinent part, “[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…”

The privilege is an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution. (Kenne v. Stennis (2014) 230 Cal.App4th 953, 965.) Because Civil Code § 47(b) “protects any statements or writings that have ‘some relation’ to a lawsuit, communications made both during and in anticipation of litigation are covered by the statute.” (Ibid.)

The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing. (Greco v. Greco (2016) 2 Cal.App.5th 810, 826.) For example, where the plaintiff’s defamation action is barred by Civil Code section 47, subdivision (b), the plaintiff cannot demonstrate a probability of prevailing under the anti-SLAPP statute. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927; see Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783–785 [the defendant’s prelitigation communication privileged and trial court therefore did not err in granting motion to strike under the anti-SLAPP statute].) Any doubt as to whether the privilege applies is resolved in favor of applying it. (Greco, supra, 2 Cal.App.5th at 826.)

Here, as noted above, each of the causes of action are fundamentally premised on the Labor Commission Complaint. Each cause of action, except for wrongful use of administrative proceedings, is therefore based on privileged conduct. (Civ. Code § 47(b).) Wrongful use of administrative proceedings is a variant of malicious prosecution, and thus subject to an exception to the otherwise absolute privilege. (See Hardy v. Vial (1957) 48 Cal.2d 577, 580; see also Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 759.) Even so, Nazarchuck provides no evidence to support the wrongful use of administrative proceedings claim.

Accordingly, Sviridov’s motion to strike is GRANTED.

Attorney’s Fees

The Court finds that Sviridov is the prevailing party, as the motion was successful on all grounds. Therefore, he is entitled to his attorneys’ fees.

Sviridov’s counsel declares that he incurred $4,375.00 in fees and $61.65 in costs. Reviewing the fees, the Court finds them unreasonably high. First, there was no reply submitted, so the anticipated reply should be excised from the calculations. Moreover, the Court finds the time spent on a relatively simple anti-SLAPP slightly excessive. Accordingly, the Court will grant Sviridov’s fees and costs in the total amount of $3,386.65.

Moving party is ordered to give notice.