Case Number: BC543788    Hearing Date: August 12, 2014    Dept: 34

Moving Party: Defendants Yoav Botach, Barkochaba Botach, and Botach Tactical

Resp. Party: Plaintiff Jonathan Botach

Defendants’ special motion to strike is DENIED.

Objection
1 OVERRULED
2 OVERRULED
3 SUSTAINED
4 SUSTAINED
5 SUSTAINED
6 SUSTAINED
7 SUSTAINED
8 SUSTAINED
9 SUSTAINED
10 SUSTAINED
11 SUSTAINED
12 SUSTAINED
13 SUSTAINED
14 SUSTAINED
15 SUSTAINED
16 SUSTAINED
17 SUSTAINED
18 SUSTAINED
19 SUSTAINED
20 SUSTAINED
21 SUSTAINED
22 SUSTAINED
23 SUSTAINED
24 SUSTAINED
25 SUSTAINED
26 SUSTAINED
27 SUSTAINED
28 SUSTAINED
29 SUSTAINED
30 SUSTAINED
31 SUSTAINED
32 SUSTAINED
33 SUSTAINED
34 OVERRULED
35 SUSTAINED
36 SUSTAINED
37 SUSTAINED

PRELIMINARY COMMENTS:

1. Both parties spend much of their time and effort — and waste a good deal of the Court’s time — hurling irrelevant vituperous accusations intended to impugn the motives and character of the other party. These irrelevant and unnecessary attacks do not help either party’s cause. The fact that Plaintiff Jonathan Botach has filed three other cases against “his elderly brother” [see, e.g., Reply, p. 1:24-25] is irrelevant to the merits of defendants’ anti-SLAPP motion in this case. The fact that Yoav Botach has been a party in at least 250 lawsuits in Los Angeles County during the past decade is equally irrelevant. Also irrelevant is plaintiff’s threat to file additional motions in this case and/or additional lawsuits against parties, counsel or witnesses in this case, or defendants implied threat to have plaintiff declared a vexatious litigant.

The court would appreciate the parties limiting their arguments to the relevant facts and law that are necessary for the court to determine the specific motion being heard.

2. The Court also notes that had plaintiff simply alleged a breach of contract claim in his verified complaint – and not burdened the complaint with irrelevant facts about alleged defamations – he might have avoided this entire anti-SLAPP motion.

3. Plaintiff’s argument that the motion should be denied as untimely because defendants did not ensure that the motion would be heard within 30 days of service is not well taken. The Legislature amended section 425.16(f) in October 2005. That section 425.16(f), “as amended, requires the court clerk to schedule a special motion to strike for a hearing no more than 30 days after the motion is served if such a hearing date is available on the court’s docket, but does not require the moving party to ensure that the hearing is so scheduled and does not justify the denial of a special motion to strike solely because the motion was not scheduled for a hearing within 30 days after the motion was served.” (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)

4. The Court would appreciate the parties complying with California Rules of Court – in particular Rule 2.109 and Rule 3.1113(f) – in future pleadings.

5. It would also be easier for the court if, when filing objections to evidence, the parties would number each objection consecutively.

BACKGROUND:

Plaintiff commenced this action on 4/25/14 against defendants to enforce contract payment. Plaintiff alleges that he worked for defendants from 1994 until March 2011 without ever getting paid. (Compl., ¶ 3.) In March 2011 plaintiff asked for his pay and in return defendants began to defame him. (Ibid.) In October 2011, plaintiff sued defendants to recover $3.7 million for his labor, including $105,000.00 for out of pocket expenses, and damages for defamation and emotional distress. (Id., ¶ 4.) On 5/31/12, defendant Yoav agreed on behalf of all defendants to pay plaintiff $1.5 million to settle the claims. (Id., ¶ 5.) Plaintiff agreed, but then on 6/7/12 defendants’ counsel appeared at a hearing on a demurrer and, even though the demurrer was overruled, plaintiff alleges that this caused him mental distress and a physical injury. (Ibid.) On 10/4/12, Yoav offered to pay $2 million to settle the claim, but plaintiff refused because of his medical condition. (Id., ¶ 6.) On 10/21/12, Yoav signed a settlement agreement wherein he agreed to pay plaintiff $2.6 million. (Id., ¶ 7.) Plaintiff alleges that defendants’ attorney then sent a letter requesting that certain conditions be added to the agreement and warned plaintiff that the agreement would be canceled if the terms were not accepted. (Id., ¶ 8.) Plaintiff refused to agree, and defendants refused to pay him. (Id., ¶ 9.) Plaintiff alleges that he was told that if he dismissed the case the payment would be made, but after he dismissed the case defendants failed to pay. (Id., ¶ 9.) Plaintiff alleges that the language in the agreement providing for approval of attorneys only meant that the parties would seek the advice of a real estate attorney on the best way to execute the agreement. (Id., ¶ 11.) Plaintiff is seeking payment on this settlement agreement. (Id., ¶ 12.)

ANALYSIS:

In determining whether to grant or deny a defendant’s section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing that the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in section 425.16, subdivision (e).

If the defendant meets his or her initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim; i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Shekhter, supra, at pp. 150-151.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus (2007) 40 Cal.4th 683, 729.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) The opposing parties’ burden as to an anti-SLAPP motion is like that of a party opposing a motion for summary judgment. (See, e.g., DaimlerChrysler Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 352.) The court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 [internal quotations omitted].) Whether complainants have satisfied their burden is a question of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

In determining whether a defendant seeking to strike a claim under the anti-SLAPP statute has made a prima facie showing that the plaintiff’s action arises from activity protected by statute, the critical consideration is whether the plaintiff’s cause of action itself, and the act which the plaintiff complains of, is based on an act taken by defendant in furtherance of his right of petition or free speech. (See, e.g., Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “The anti-SLAPP statute’s definitional focus is not on the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [emphasis in original].) The statute is to be broadly applied and includes four categories of protected conduct:

(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(e).)

Defendants argue that plaintiff’s complaint is based on defendants’ protected speech because it includes allegations of facts related to purported defamation, court appearances, settlement negotiations, and defendants’ conduct regarding a separate action. (See Compl., ¶¶ 3, 5-7, 13.) Defendants are correct that such conduct could constitute protected speech to the extent that the conduct occurred in relation to a litigation. (See, e.g., Miller v. Filter (2007) 150 Cal.App.4th 652, 665 [the protected right to petition includes filing litigation, seeking administrative action and communications in anticipation of such proceedings].)

Regardless of whether the allegations as to defamation and conduct relating to other litigation constitute protected activity, plaintiff’s cause of action is not based on this conduct. “[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 ‘ “unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” ’ [Citations.]” (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 614.) Here, the allegations as to defamation and the other litigation are merely incidental – and irrelevant – to plaintiff’s claims. The gravamen of plaintiff’s complaint is that the parties entered into a settlement agreement for $2.6 million and defendants have breached that agreement by failing and refusing to pay the settlement amount. (See Compl., ¶¶ 7-12, Exh. A.) In the prayer for relief, plaintiff seeks an order for defendants to pay the settlement amount, plus interest and costs. (See Prayer, ¶¶ 1-3.) Though plaintiff makes conclusory allegations about defamation, plaintiff alleges no facts to establish the elements of this action and does not appear to be seeking damages for any defamatory comments by defendants. (Cf., Compl., ¶¶ 3, 13 [discussing alleged defamation] with Prayer for Relief [asking for damages for breach of contract].) The allegations pertaining to the demurrer and the settlement negotiations in the underlying action appear to have only been alleged to provide background information; plaintiff is not seeking relief for any mental or physical injuries or any misconduct during the settlement negotiations. (See id., ¶¶ 5-6; Prayer for Relief.) The allegation in paragraph 9 that Barkochba Botach told plaintiff that he would be paid the settlement amount if he dismissed the action, but then failed to pay once the case was dismissed, at most suggests that defendants breached the settlement agreement. (See id., ¶ 9.)

Plaintiff’s action is based solely on defendants’ alleged breach of the settlement agreement. Allegations of a simple breach of a settlement agreement are not actions in furtherance of a right of petition covered by the SLAPP statute. (Applied Bus. Software v. Pac. Mortg. Exch. (2008) 164 Cal.App.4th 1108, 1118.)

Since defendants have not met their initial burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances, the court need not determine whether plaintiff has demonstrated a probability that he will succeed in this action.

Defendants’ anti-SLAPP motion is DENIED.