2017-00223097-CL-DF

Ms. Kathryn L. Gerwig vs. Mr. Patrick De Alva

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Valenti, Anthony P.J.

The Special Motion to Strike, filed by Defendants Patrick DeAlva and Nancy DeAlva, is unopposed and is GRANTED.

Defendants’ Request for Judicial Notice is granted.

FACTS

Though difficult to decipher, the Court understand Plaintiff’s operative Complaint to allege the following.

The DeAlva Defendants, along with their parents and two daughters, moved into a house on the same property being leased by Plaintiff Kathryn Gerwig, at Ms. Gerwig’s suggestion. (Compl. pp. 1-2.) The DeAlvas apparently were given a lease for the entire property, save and except the residence and patio occupied by Plaintiff. (Compl. p. 2.) After the DeAlvas moved in, Plaintiff alleges that she was subject to ongoing harassment and threats by Defendants that ultimately led to her obtaining a restraining order and caused her to have to relocate. (Compl. pp. 2, 9-13.) Defendants also accused Plaintiff of scratching their vehicle, which was the subject of small claims suit against Plaintiff, and subsequently scratching Defendants’ second vehicle at a later time. (Compl. pp. 3-4.) The small claims action went to trial, in which the Court awarded judgment in favor of Defendants (DeAlvas). (See Exh. A to Defs. Motion.) Plaintiff appealed that ruling and, following a trialde novo, the Court again awarded judgment in favor of the DeAlvas. (See Exh. B to Defs. Motion.)

Plaintiff contends that there is no evidence that she scratched Defendants’ vehicles, and that Defendants’ small claims suit against her (which was decided in favor of Defendants [DeAlvas]) was malicious prosecution.

APPLICABLE LAW

California’s anti-SLAPP statute provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech … shall be subject to a special motion to strike, unless the court determines … there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) To amplify, California Code of Civil Procedure Section 425.16, provides, in part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” CCP § 425.16(b)(1). An “‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ “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; (4) or 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.” CCP § 426.16 (e).

The statute establishes a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one “‘arising from’” protected activity. (City of Cotati v. Cashman(2002) 29 Cal.4th69, 76.) The moving defendant must demonstrate 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 Constitution or the California Constitution in connection with a public issue[.]” (CCP § 425.16 (b)(1); seeEquilon Enterprises v. Consumer Cause, Inc.(2002) 29 Cal.4th 53, 67.) Section 425.16(e), clarifies what speech constitutes an “act in furtherance of a person’s right of petition or free speech

under the United States or California Constitution … Such speech 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.” ( Grenier v. Taylor(2015) 234 Cal.App.4th 471, 480-481 (citing and quoting CCP § 425.16(e)).) Only if the court concludes that this preliminary showing has been made must it then determine whether the plaintiff or cross-complainant has demonstrated a probability of prevailing on the claim. (SeeNavellier v. Sletten(2002) 29 Cal.4th 82, 88.)

It is the principal thrust of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies, and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on non-protected activity, collateral allusions to protected activity should not subject the cause of action

to the anti-SLAPP statute. (Martinez v. Metabolife Internat., Inc.(2003) 113
Cal.App.4th 181, 188.) The Court’s preliminary inquiry in an action such as the instant matter is to determine exactly what act is being challenged by the plaintiff; to do so, the Court primarily reviews the operative complaint, as well as the papers filed in opposition to the motion to the extent that they might give meaning to the words in the complaint. (CCP § 425.16(b);Dible v. Haight Ashbury Free Clinics, Inc.(2009) 170 Cal.App.4th 843, 849; see Navellier, supra, 29 Cal.4th at 89.)

DISCUSSION

Code Civ. Proc. § 425.16 (e) provides: “As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, orany 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, orany 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; (4) or 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.” (Italics added.) A defendant who invokes either subparagraph (1) or (2), above, need not “separately demonstrate that the statement concerned an issue of public significance.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)

It is clear that Defendants’ small claims action lawsuit arises from protected activity and therefore falls within the scope of section 425.16. “The filing of lawsuits is an aspect of the First Amendment right of petition. Accordingly, defendants have fulfilled the required threshold showing.” (Soukup v. Law Offices of Herbert Hafif(2006) 39 Cal.4th 260, 291.)

Since Defendants have made the required threshold showing, the Court must consider whether Plaintiff demonstrates a probability of prevailing on her malicious prosecution

claim. Parenthetically, it bears noting, the litigation privilege found in Civil Code section 47(b) applies to fraud and all torts other than malicious prosecution. (Kuehn v Kuehn (2000) 85 Cal.App.4th 824.) The trial court must deny an anti-SLAPP motion if “the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff.” (Robinzine v. Vicory(2006) 143 Cal.App.4th1416, 142; see CCP § 425.16(b)(1).) Unfortunately, Defendants’ motion is unopposed and Plaintiff has not submitted any facts or argument to establish the likelihood of her obtaining a favorable judgment. Nevertheless, based on the limited facts available, and based on Plaintiff’s complaint, the Court concludes that Plaintiff has no possibility of success in prevailing on the sole cause of action of her complaint, alleging malicious prosecution.

Under prevailing case law, a malicious prosecution lawsuit inevitably arises out of an underlying lawsuit and such a claim is potentially subject to the anti-SLAPP statute as a matter of law. In addressing the probability of prevailing, the burden is upon the plaintiff to demonstrate there is a probability she will prevail on the merits of her claim. To satisfy this prong on the malicious prosecution claim, plaintiff must state and substantiate a legally sufficient claim. (SeeZamos v. Stroud,(2004) 32 Cal. 4th 958, 965.) 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 them is credited. (SeeJarrow Formulas Inc. v. La Marche, (2003) 31 Cal. 4th 728.)

To prevail on a malicious prosecution claim, Plaintiff must show that the underlying action (the small claims case) (1) was initiated by or at the direction of the respondents, (2) was brought without probable cause, (3) was initiated with malice, and (4) was legally terminated in Plaintiff’s favor. (Soukup, supra, at 292.)

Since it is wholly dispositive of the issue presented here, the Court focuses on the fourth element – whether the underlying small claims action was legally terminated in Plaintiff’s favor. Defendants submit uncontested evidence in support of the motion (Exhs. A and B) reflecting that the small claims action was conclusively determined in favor of Defendants. Since the basis for Plaintiff’s malicious prosecution action is the DeAlvas’ filing of the small claims action against her, there are no factual grounds upon which Plaintiff can base a claim for malicious prosecution. Notably, the trial court in the small claims action determinedtwicethat Plaintiff was liable for the damage to Defendants’ vehicles, specifically finding in the second trial that “[the DeAlvas’] version of events were more credible than [Ms. Gerwig’s] version.” (See Exh. B.)

For the foregoing reasons, Defendants’ anti-SLAPP motion is GRANTED as to the entire Complaint.

Prevailing defendants on a motion to strike must file a separate noticed motion to recover their attorneys’ fees and costs.

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