2013-00153005-CU-FR

Donald Gilsvik vs. Waterfall Victoria Master Fund

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Plesset, Sonia A.

Defendants Robert J. Jackson & Associates, Inc., David J. Boyer, and Amy E. Starrett
(“J&A Defendants”) Motion to Specially Strike the Complaint of Self-represented
Plaintiff Donald Gilsvik is GRANTED.
C.C.P., sec. 425.16.

At the outset, the Court would note that a self-represented party is to be treated like
any other party and is entitled to the same, but no greater consideration than other
litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co . (1986) 186 Cal. App. 3d
941, 944) Thus, as is the case with attorneys, self-represented litigants must follow
correct rules of procedure. Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247;
see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.

Plaintiff’s “Response” is untimely filed and served by US Mail on May 30, 2014, only
four court days before hearing, instead of the required nine court days, with service by
overnight mail. Moving party has been denied the opportunity to reply. Although the
Court has considered the Response, it consists of argument only, supported by no
admissible evidence, thus the plaintiff has failed to meet his burden of establishing that
there is a probability that he will prevail on the claim.

The Court declines to consider self-represented plaintiff’s “Response to Defendant’s
Reply” as the Code of Civil Procedure makes no provision for such a filing.

Defendants’ Request for Judicial Notice is GRANTED.

On or about July 14, 2006 Plaintiff Gilsvik obtained a loan from Fremont General
Credit Corporation secured by the improved real property commonly known as 9468
Blue Diamond Way, Elk Grove, CA 95624. (Request for Judicial Notice, Exh. A).
Thereafter, Plaintiff defaulted on his loan and nonjudicial foreclosure proceedings were
initiated. (See, NOD, Exhibit B to RJN). On February 23, 2011, the Property was sold
at a Trustee’s Sale and reverted to Waterfall Victoria. (Exhibit C to the RJN). On April
5, 2011, the J&A Defendants, on behalf of Waterfall Victoria, filed the UD Complaint
bearing case number 11UD02998. (Exhibit D to RJN), against Plaintiff, the former
owner of the Property.

On June 21, 2011, a judgment for possession was entered in favor of Waterfall
Victoria. (Exhibits E and F to RJN). A writ of possession was issued on July 14, 2011
and Plaintiff was evicted from the Property. (Exhibit G to RJN).

The only connection between Plaintiff and the J&A Defendants was their action as
attorneys of record for Waterfall Victoria in the UD.

There are two components to a motion to strike brought under section 425.16. Initially,
the party challenging the lawsuit has the threshold burden to show that the cause of
action arises from an act in furtherance of the right of petition or free speech. (Zamos
v. Stroud (2004) 32 Cal.4th 958, 965; Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) Once that burden is met, the burden shifts to the
complaining party to demonstrate a probability of prevailing on the claim. (Zamos v.
Stroud, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76).) To
satisfy this prong, the plaintiff “ ‘must demonstrate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.’ ” ( Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Under Code of Civil Procedure § 425.16, a cause of action against a person arising
from any act of that person in furtherance of the person’s constitutional right of petition
or free speech in connection with a public issue is subject to a special motion to strike
unless plaintiff establishes that there is a probability that plaintiff will prevail on the
claim. (CCP §425.16(a), (b)).

Statements and writings made during judicial proceedings are expressly protected by
the Anti-SLAPP statute. (CCP § 425.16(e)). Filing a lawsuit is an exercise of a party’s
constitutional right to petition for grievances. A claim for relief filed in court is
“indisputably a statement or writing made before a judicial proceeding.” (Navellier v.
Sletten (2002) 29 C4th 82, 90.) Attorneys representing clients in an action are
considered a “person” protected under the statute, and may invoke the Anti-SLAPP
statute. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)
The representation of clients in a UD action is a protected activity and is a proper
subject of a motion made pursuant to the anti-SLAPP statute. Trapp v. Naiman (2013)
218 Cal. App. 4th 113, 121. All communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are
per se protected by the anti-SLAPP statute. Cabral v Martins (2009) 177 Cal.App.4th
471, 478. All communications made in the judicial proceeding are absolutely
privileged pursuant to Civil Code 47(b). Hagberg v California Federal Bank (2004) 32
Cal.4th 350, 360-361. Even communications preparatory to or in anticipation of the
bringing of an action are also within the protection of the litigation privilege. Briggs v
Eden Council for Hope & Opportunity, supra, at p. 1115.

Moving party J&A Defendants have met their burden of showing that all of the
allegations of the plaintiff’s complaint against them are protected as arising from an act
of that person in furtherance of the person’s constitutional right of petition or free
speech in connection with a public issue. The burden therefore shifts to the plaintiff to
provide sufficient evidence to determine that there is a probability that the plaintiff will
prevail on the claims. The plaintiff cannot simply rely on the allegations in the
complaint. ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th 993, 1010

Here, as plaintiff has failed to file any evidence in support of his belated opposition, he
has failed to meet his burden of establishing that there is a probability that he will
prevail on the claim.

The special motion to strike is granted.

A prevailing defendant on a special motion to strike shall be entitled to recover his or
her attorney’s fees and costs. Code Civ. Proc. § 425.16(c)(1). While fees are
mandatory, they must be reasonable. The trial judge has discretion to determine the
value of professional services rendered in his or her court. In determining the
reasonableness of the award, the Court is first required to calculate the lodestar
amount. Under the lodestar method, a party who qualifies for a fee should recover for
all hours reasonably spent unless special circumstances would render an award
unjust. (Vo v. Las Virgenes Municipal Water Dist.,(2000) 79 Cal. App. 4th 440) The
Court must determine the reasonable hourly rate and the reasonable number of hours
expended in this matter. The reasonable market value of the attorney’s services is the
measure of the reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th
1084, 1094.) Here, the Court finds that a reduction in the amount of hours is
appropriate. The Court awards reasonable attorneys’ fees of $2,000 incurred in
preparing the special motion to strike and request for attorneys’ fees, together with the
filing fee of $60, for a total of $2,060.00 to be paid by plaintiff to counsel for the moving
defendants.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.