Case Name: David Kilgore vs D. Ashley Cohen, PhD et al
Case No.: 19CV343637

Defendant Robert Perez, PhD.’s (“Defendant”) special motion to strike the entirety of the Complaint filed by Plaintiff David Kilgore (“Plaintiff) pursuant to Code of Civil Procedure section 425.16 is unopposed and is GRANTED for the following reasons.

Code of Civil Procedure section 425.16 authorizes a person to bring a special motion to strike claims “arising from any act [ ] in furtherance of [his or her] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

When a special motion to strike is filed, the initial burden rests with the defendant to demonstrate that the challenged cause of action arises from protected activity. (Code Civ. Proc. § 425.16, subd. (e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) The defendant need only make a prima facie showing that plaintiff’s complaint “arises from” defendant’s constitutionally-protected free speech or petition activity. (See Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.)

Courts evaluate special motions to strike using a two-step analysis. (Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1116.) “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.) “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.” (Ibid.)

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.” (Baral, supra, 1 Cal.5th at p. 396.) The moving party must demonstrate the allegations fall within one of the four categories of protected activity defined in Code of Civil Procedure section 425.16, subdivision (e). (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 877–78.) The four categories are as follows: “(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).)

At the second step, the plaintiff must “demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.) “If not, the claim is stricken.” (Ibid.) “Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Ibid.)

The Plaintiff alleges various actions and statements made by the Defendant who was a court-appointed expert in a criminal case to evaluate whether Plaintiff was competent to stand trial. In that context, Defendant issued a report to the court. Such statements are protected activity as pertaining to a pending criminal action and issues pending before a judicial body pursuant to section 425.16, subdivision (e). (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478 [statements, writings, and pleadings in connection with litigation are covered by the anti-SLAPP statute; Navallier v. Sletten (2002) 29 Cal.4th 82, 88.)

Here, although the complaint is confusing at best, the complaint clearly describes protected activity that falls within the scope of section 425.16. The Court finds that Defendant has made an adequate showing that the causes of action in the complaint are based on protected activity sufficient to meet his initial burden under section 425.16.

Accordingly, the burden shifts to Plaintiff to provide evidence demonstrating a probability of success on these claims. To establish a “probability” of prevailing on the merits, Plaintiff must demonstrate that the complaint is both: (1) legally sufficient; and (2) supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by plaintiff is credited. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

As Plaintiff did not file any opposition to the motion, he has not met his burden to provide evidence demonstrating a probability of success on his claims. Defendant’s special motion to strike the entirety of the complaint is GRANTED.

As this order fully disposes of the action, the demurrer to the Complaint is moot.

The Court will prepare the order. As this order disposes of all claims in the Complaint, and after the Court has served the signed order, Defendant shall also prepare a separate judgment of dismissal.