Case Name: Action Urgent Care, Inc. v. Sofes
Case No.: 1-14-CV-261663

After full consideration of the evidence, the arguments made in the parties’ papers, and the authorities submitted by each party, the Court makes the following rulings:

Defendant Erika Sofes (“Defendant”) is a former medical assistant/medical receiptionist of plaintiff Action Urgent Care, Inc. (“Plaintiff”) who posted defamatory reviews on Yelp upon her termination under several pseudonyms to harm Plaintiff’s business. (See complaint, ¶¶ 2, 4-10.) On March 5, 2014, Plaintiff filed a complaint against Defendant, asserting causes of action for: defamation per se; intentional interference with prospective economic relations; fraud; and, breach of contract.

On April 7, 2014, Defendant filed a “motion to strike Plaintiffs complaint.” The motion itself is a one-paged document that indicates that it is actually a special motion to strike pursuant to Code of Civil Procedure section 425.16; however, there is no notice of hearing on the motion or a memorandum in support of the motion in violation of Rule of Court 3.1112, subdivision (a). (See Rule of Court 3.1113, subdivision (a) (stating that “[a] party filing a motion… must serve and file a supporting memorandum… [and t]he court may construe the absence of a memorandum as an admission that the motion… is not meritorious and cause for its denial”).) Defendant also fails to file any evidence filed in support of her motion.

On May 7, 2014 at 11:46 a.m., Defendant filed an additional pleading entitled “Memorandum of Points and Authorities in Support of Motion to Strike and in Objection to Plaintiff’s Request to Deny Special Motion.” No declaration is included, although unauthenticated exhibits are attached. An incomplete proof of service claims that this document was served by mail on counsel for Plaintiff May 7, 2014. It is apparent that counsel will not see this document before the hearing on Defendant’s motion. This pleading is untimely and was not properly served. The Court orders that this document be stricken, and it will not be considered by the Court.

Here, the defendant has not made a threshold showing that the challenged cause of action is one arising from protected activity, as she has not demonstrated 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,” as defined in section 425.16. (See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see also Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1133-1134 (stating that “[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people”).) Accordingly, Defendant’s special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 is DENIED.

In opposition, Plaintiff does not discuss the issue of attorney’s fees, but merely states that “Plaintiff will request that Attorney’s fees be granted under [Paragraph One of the Mutual Non-Disclosure Agreement] as well as under CCP Section 425.16(c)(1).” (Pl.’s opposition to motion to strike, p.9:1-2.) Here, Plaintiff does not address the requirements for the award of attorney’s fees for a prevailing plaintiff as stated in section 425.16, subdivision (c)(1), and it does not appear that the motion was frivolous and solely intended to cause unnecessary delay. Accordingly, Plaintiff’s request for attorney’s fees is DENIED.

The Court will prepare the order.