Case Name: Drew Moxon, et al. v. Alana Pague, et al.
Case No.: 17-CV-312553

I. Background

Drew Moxon (“Moxon”) and his girlfriend Cynthia Than (“Than”) commenced this action against defendants Alana Pague (“Alana”), Moxon’s ex-girlfriend, Ana Pague (“Ana”), Alana’s mother, and several doe defendants identified by Twitter handle, including “Doe 1 aka @Desimarcello1.” (Compl. at p. 1:20.) Gloria Romero has now been substituted for Doe 1. (Doe Am. at p. 2:4-9.) In essence, this lawsuit arises from a private, offline, domestic dispute that spurred an online dispute over Twitter.

Moxon and Alana previously lived together along with their young son and Ana, who moved in to help care for their son. Moxon alleges Alana and Ana verbally and physically abused him and the child. Moxon also alleges Alana threatened to hurt him and file false police reports to extort money from him. In February 2016, Moxon ended his relationship with Alana, but Alana and her mother continued to reside with him because they did not have enough money to move out and wanted to help care for the son. Alana threatened to file a false police report accusing him of abuse if he forced her to move out.

When Moxon began dating Than in May 2016, the abusive and threatening behavior continued. Alana and her mother stole private messages and photographs from Moxon’s phone and also stalked and surreptitiously photographed Moxon and Than during some of their dates. Alana threatened to disseminate the messages and photographs to Moxon’s friends, family, and colleagues unless he paid her money. And so in June 2016, Moxon signed a letter stating he would pay Alana $3,000 a month for six months and then $2,500 a month for another six months.

Shortly after Moxon signed this letter, he and Alana had an argument about her continued demands for money during which she brandished a steak knife at him. Moxon fled the apartment and called the local domestic violence hotline. He was instructed to file a police report, which he did, and he subsequently obtained a domestic violence restraining order against Alana. The day after the restraining order was issued, Alana abducted the son and did not return him to Moxon until ordered to do so at a subsequent court hearing. Around the time of this hearing, Alana, Ana, Gloria Romero, and several other Twitter users began posting false statements or “tweets” about Moxon. In these tweets, Moxon was accused of infidelity and abuse.

Based on these allegations, Moxon and Than (collectively, “Plaintiffs”) assert causes of action against Alana, Ana, Gloria Romero, and the other doe defendants for: (1) defamation (against all defendants); (2) invasion of privacy (against all defendants); (3) violation of the Tom Bane Civil Rights Act (against Alana); (4) civil extortion (against Alana and Ana); (5) unauthorized computer access (against Alana); and (6) intentional infliction of emotional distress (against all defendants).

Currently before the Court is a special motion to strike the complaint by defendant Gloria Romero (“Defendant”). She filed a request for judicial notice in support and seeks an award of attorney’s fees and costs in connection with the motion.

II. Standard of Review

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).)

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.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Ibid.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Ibid.) As with a motion for summary judgment, the burden does not shift and a court need not reach the second step of the analysis if the moving party fails to demonstrate there are claims arising from protected activity in the first instance. (Id. at p. 384.)

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.)

III. Defendant’s Request for Judicial Notice

The matters of law and fact that are proper subjects of judicial notice are set forth in Evidence Code sections 451 and 452. Even if authorized to do so, a court need not take judicial notice of a matter if it is not “necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)

Defendant requests judicial notice of a document prepared by the Santa Clara County District Attorney’s Office showing Alana submitted a “good cause report.” (Def. Req. for Jud. Not., Ex. A.) Defendant does not identify a statutory basis for her request. Presumably, she intended to request judicial notice of this document pursuant to Evidence Code section 452, subdivision (c), which authorizes a court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” Courts have interpreted this particular provision as authorizing judicial notice of official records prepared by a government entity. (See Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 772-73.) Because the document was prepared by the Santa Clara County District Attorney’s Office, it comes within that particular provision. With that said, it is fundamentally unclear how it is necessary, relevant, or helpful to the resolution of the motion. The document is essentially just a receipt; it reflects nothing about the merits or veracity of the report. Furthermore, Defendant does not rely on this document in addressing the merits of the motion. Accordingly, Defendant’s request for judicial notice is DENIED.

IV. Merits of Motion

Defendant states her special motion to strike is directed to the entire complaint. (Mem. of Pts. & Auth. at p. 4:16.) The entire complaint relative to Defendant consists of the first cause of action for defamation, second cause of action for invasion of privacy, and sixth cause of action for intentional infliction of emotion distress; these are the only claims asserted against her. As the moving party, Defendant bears the initial burden of identifying the allegations of protected activity in the complaint and demonstrating these three claims arise from this protected activity.

There are four categories of protected activity. (Code Civ. Proc., § 425.16, subd. (e).) Protected activity includes: “(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.” Defendant asserts the tweets upon which Plaintiffs’ claims are based come within the latter three categories. (See Compl., ¶ 67.)

Defendant first argues her tweets constitute protected activity because she made them in connection with a judicial proceeding.

“A statement is ‘in connection with’ an issue under consideration by a court in a judicial proceeding within the meaning of clause (2) of section 425.16, subdivision (e) if it relates to a substantive issue in the proceeding and is directed to a person having some interest in the proceeding.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167.)

Defendant’s position appears to be that her tweets were in connection with a “pending domestic violence case” because she published them around the same time as a hearing attended by Moxon and Alana and the tweets concerned their personal relationship. (Mem. of Pts. & Auth. at p. 4:25.) Defendant does not cite any authority supporting her position or provide a clear explanation of her reasoning.

Plaintiffs do allege there was a hearing about “the restraining order [Moxon] obtained against [Alana]” on July 11, 2016, and that Alana was ordered to return their son to Moxon that day. With that said, Defendant does not articulate what substantive issues the court was considering at that particular hearing or in the proceeding as a whole as necessary to show her tweets had some connection to substantive issues in the litigation. It is not otherwise obvious how Defendant’s tweets about whether Moxon cheated and other statements, such as “[m]anipulative [sic] can go both way [sic]” and “[t]his is called trust in a relationship. . . ,” relate to a substantive issue considered by the court. (See, e.g., Optional Capital v. Akin, Gump, Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 114-15.) Additionally, these tweets appear to be general pronouncements of opinion by Defendant. They were not statements made to the court, a party, or some other person with an interest in the proceeding. (See generally Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1264-68 [compiling cases]; see, e.g., Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136.)

For these reasons, Defendant does not demonstrate her tweets were made in connection with an issue under review in a judicial proceeding.

Defendant also argues her tweets are protected as statements “made in a place open to the public or a public forum in connection with an issue of public interest” and as “other conduct in furtherance of the exercise of the constitutional right [ ] of free speech in connection with a public issue or an issue of public interest.” (See Code Civ. Proc., § 425.16, subd. (e).) Defendant’s argument is not persuasive because she fails to demonstrate her statements concerned a public issue or issue of public interest.

A public issue or issue of public interest is “something of concern to a substantial number of people.” (Baughn v. Dept. of Forestry and Fire Protection (2016) 246 Cal.App.4th 328, 335-36.) The issue may be one that is of interest to the public at large. (Id. at p. 336.) A public issue may also be of interest to a “limited, but definable portion of the public (a private group, organization, or community)” so long as it occurs “in the context of an ongoing controversy, dispute, or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Ibid. [internal quotation marks and citation omitted].)

Defendant asserts her statements pertain to the public issue of “domestic violence.” (Mem. of Pts. & Auth. at pp. 6:28-7:2.) But Defendant’s statements were not about domestic violence as a general matter or, for example, reducing domestic violence as a policy matter. (See, e.g., M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629-30.) Her statements were specifically about Moxon and Alana.

Courts have repeatedly held “[t]he fact that a broad and amorphous public interest can be connected to a specific dispute is not sufficient to meet the statutory requirements of the anti-SLAPP statute.” (World Fin. Group, Inc. v. HBW Insurance & Fin. Services, Inc. (2009) 172 Cal.App.4th 1561, 1570.) As one court explained, a defendant cannot rely on “what might be called the synecdoche theory of public issue in the anti-SLAPP statute.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.) “Selling an herbal breast enlargement product is not a disquisition on alternative medicine.” (Ibid.) “Lying about the supervisor of eight union workers is not singing one of those old Pete Seeger union songs (e.g., ‘There Once Was a Union Maid’).” (Ibid.) “And, [ ] hawking an investigatory service is not an economics lecture on the importance of information for efficient markets.” (Ibid.) Thus, here, Defendant’s statements about the turmoil in the relationship between Moxon and Alana are not synonymous with statements about domestic violence in general. Consequently, Defendant’s argument that her tweets concern a public issue is not persuasive.

In conclusion, Defendant does not demonstrate her tweets constitute protected activity. Accordingly, it is unnecessary to consider whether Plaintiffs can demonstrate there is a probability they will prevail on their claims. Defendant’s special motion to strike is therefore DENIED.

V. Defendant’s Request for Attorney’s Fees and Costs

Defendant requests an award of attorney’s fees and costs in the amount of $10,385. Only “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, subd. (c)(1).) Defendant did not prevail on her motion. Accordingly, her request for attorney’s fees and costs is DENIED.