2013-00153430-CU-PO

Rolando Pimentel vs. Joaguin Ramirez

Nature of Proceeding:   Motion to Strike (SLAPP)

Filed By:  Bonsall, Robert
**If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issue(s) on which oral argument is sought.**

Defendant Joaquin Ramirez’ (“Ramirez”) special motion to strike pursuant to CCP §
425.16 is GRANTED in part and DENIED in part as follows:

Overview

In the complaint, Plaintiffs Rolando Pimentel (“Pimentel”) and Zacharias Salas
(“Salas”) (collectively “Plaintiffs”) allege that they and Ramirez have a common
employer, are represented by the same union, and each ran for the union board in
2013.  (Ramirez apparently withdrew his candidacy before the election took place.)
Plaintiffs further allege that, in the course of the campaign, Ramirez distributed two
flyers in the workplace, whereby he asserted inter alia that Plaintiffs were “known
criminals” who had either sold controlled substances “to our children” or had driven
under the influence of alcohol.  The flyers, which are attached as exhibits to the
complaint, further questioned whether Plaintiffs were “good for Local 601” and for “you
[or] your family.”

Furthermore, one flyer asserted that Pimentel was “unversed and illiterate” in union
contracts, violated the contracts for his own, personal benefit, engaged in “unethical,
illegal and lazy tactics,” and employed, exploited and underpaid undocumented
workers.  The handbill also attributes the following statement to Pimentel: “I don’t care
about people’s problems.  I worry about myself.”  (Emphasis in original.)  The Pimentel
handbill provided Pimentel’s personal cell phone number.  (Ramirez points out that
Plaintiffs distributed election-related handbills highlighting his own criminal conviction.)

Based on the allegations above, Plaintiffs have sued Ramirez for defamation and
invasion of privacy (false light).  Ramirez now moves to strike the complaint pursuant
to the anti-SLAPP statute at CCP § 425.16.  According to Ramirez, the causes of
action against him arise from speech in connection with a public issue under Section
425.16, subdivisions (e)(3) and (3)(4).  Those subdivisions define an “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” to include “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” and “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.”

Legal Standards

“The anti-SLAPP statute [at CCP § 425.16] is aimed at curbing lawsuits brought
primarily to chill the valid exercise of constitutional rights of freedom of speech and
petition for the redress of grievances.”  (City of Alhambra v. D’Ausilio (2011) 193
th
Cal.App.4   1301, 1305 [citation and additional quotation marks omitted; brackets
added].)  In ruling on the motion, the court follows a two-step analysis.  First, Ramirez
must make a prima facie showing that Plaintiffs’ causes of action arise from protected
free-speech or petition activity within the meaning of CCP § 425.16.  (See Digerati
Holdings, LLC v. Young Money Entert., LLC (2011) 194 Cal.App.4th 873, 883-884.)
The principal thrust or gravamen of Plaintiffs’ claims dictate whether Section 425.16
applies.  (See Premier Med. Mgmt Sys., Inc. v. California Guar. Ins. Ass’n (2006) 136  Cal.App.4th 464, 472.)  At the same time, however, the court may strike a portion of a
cause of action arising from protected activity while refusing to strike portions not
arising from protected activity.  (See Cho v. Chang (2013) 219 Cal.App.4th 521, 523,
527; accord City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 773-774.)                     In
deciding whether Ramirez has met his initial burden, the court considers the pleadings,
declarations and matter of which it may judicial notice.  (Governor Gray Davis Com. v.
American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.)

If Ramirez makes a sufficient showing, then the burden shifts to Plaintiffs to show with
admissible evidence that there is a reasonable probability that they will prevail and
thus receive a judgment in their favor.  (See ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993, 999 [citation omitted].)  To demonstrate a reasonable probability
of prevailing, Plaintiffs must make a prima face evidentiary showing.  (Gilbert v. Sykes
(2007) 147 Cal.App.4th 13, 31.)  The court does not weigh evidence that the parties
produce or make credibility determinations.  (See Midland Pac. Bldg. Corp. v. King
(2008) 157 Cal.App.4th 264, 271; Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th
1337, 1346.)

Discussion

Ramirez’ Initial Burden

Ramirez has made a prima facie showing that the causes of action against him arise
th
from protected activity.  Macias v. Hartwell (1997) 55 Cal.App.4   669 is instructive.  In
Macias, the Court of Appeal held that statements in a political flyer distributed to
th
10,000 union workers constitute protected speech.  (See 55 Cal.App.4   at 671, 672-
673.)  The flyer in Macias was directed at a union candidate whose adversaries
asserted that she had been terminated for misappropriation of funds, insubordination
and excessive absence, and disloyalty.  (Id. at 671.)  The Court of Appeal held that the
statements in the flyer were protected: “Where, as here, a candidate speaks out on
issues relevant to the office or the qualifications of an opponent, the speech activity is
protected by the First Amendment.”  (Id. at 673 [citation omitted].)  Following Macias,
Ramirez’ election-related statements are protected as well.

In reaching this conclusion, the court rejects Plaintiffs’ argument that there is
insufficient evidence that Ramirez’ flyers were distributed to enough people to reflect a
“public issue” within the meaning of the anti-SLAPP statute.  Plaintiffs have themselves
admitted in the complaint that the flyers were published to more than 1,000 people
represented by the union.  (See Compl., ¶¶ 8, 12, 14.)  These admissions suffice in
their own right to defeat Plaintiffs’ argument.  Ramirez’ evidence, i.e., that he did in fact
distribute the flyers for his coworkers’ benefit, (Ramirez Decl. ¶¶ 17, 21), reinforces the
court’s conclusion.

Plaintiffs’ Responsive Burden

Preliminarily, the court notes a potential ambiguity in the complaint as to which of
Ramirez’ statements Plaintiffs allege were false.  After setting forth certain of the
alleged statements in the complaint, Plaintiffs have emphasized the alleged falsity by
inserting the word “false” into parentheses immediately after the statements in
question.  (See, e.g., Compl. at 4:2-3 and 4:5-6.)  Elsewhere, however, Plaintiffs
appear to allege that every statement set forth in the complaint supports their causes
of action.  (See Compl. at 3:20-27.)  In the court’s view, Plaintiffs recited each of the  statements in the complaint to support their causes of action, not merely those
specially designated in parentheses as false.  Thus, the instant motion encompasses
all the statements alleged in the complaint, and the court must determine, as to each
such statement, whether Plaintiffs have met their burden of showing a reasonable
probability of prevailing on the merits.

With respect to Ramirez’ publication of statements that (1) Plaintiffs were convicted of
crimes, (2) Plaintiff are “known criminals,” (3) Plaintiffs “violated state law,” (4) Pimentel
was convicted of a felony violation of H&S Code § 11351–possession of a controlled
substance with intent to sell–and (5) Salas drove under the influence of alcohol,
Plaintiffs have not met their burden, and the motion is granted.  Ramirez has produced
evidence that Pimentel suffered a felony conviction under H&S Code § 11351 and that
Salas was convicted of misdemeanor DUI (Cal. Veh. Code § 23152(A).)  (See RJN.)
As a consequence, Plaintiffs cannot show the falsity essential to predicate their causes
of action upon these statements, (see Smith v. Maldonado (1999) 72 Cal.App.4th 637,
645 [defamation]; Aisenson v. Am. Broad. Co. (1990) 220 Cal.App.3d 146, 161 [false
light]), and the motion must be granted as to the statements.

In concluding that Plaintiffs have not met their burden as to the statements above, the
court is aware that Pimentel’s felony conviction was ultimately dismissed under Penal
Code § 1203.4.  (See Pimentel Decl., Exh. A.)  That fact, however, does not show that
Ramirez’ statements about Pimentel’s conviction were false.  “The statute [PC §
1203.4] does not purport to render the conviction a legal nullity.”  (People v. Frawley
th
(2000) 82 Cal.App.4   784, 791 [brackets added].)  Moreover, a § 1203.4 dismissal
does not “purge a defendant of the guilt established thereby.”  (Adams v. County of
Sacramento (1991) 235 Cal.App.3d 872, 877.)  Rather, PC § 1203.4 releases the
defendant from “‘all penalties and disabilities resulting from the offense,'” subject to
th
“numerous and substantial” limitations.  (Frawley, 82 Cal.App.4   at 791.)  The court in
th
Chaker v. Mateo (2012) 109 Cal.App.4   1138, 1150 held that assertions of another’s
criminality were not untrue for purposes of defamation simply because the underlying
conviction was expunged in a sister-state court.  Accordingly, Pimentel’s dismissal
under PC § 1203.4 does not alter this court’s analysis or conclusion.

The court further concludes that Ramirez’ statements that each Plaintiff attempted to
run for union office “flagrantly in spite of” their violations of state law is inactionable
th
opinion.  (See, e.g., Chaker, supra, 209 Cal.App.4   at 1147 [for purposes of
defamation, whether a statement contains actionable facts or inactionable opinions is a
question of law for the court]; see id. [“In determining whether an opinion is actionable,
we must look at the totality of the circumstances which gave rise to the statements and
in particular the context in which the statements were made”] [citation omitted].)
Whether each Plaintiff acted “flagrantly” by running for union office notwithstanding his
criminal history involves purely inactionable opinion and, therefore, compels an order
striking Plaintiffs’ claims base on those statements.

Next, the court concludes that Ramirez’ loaded questions whether Plaintiffs were
“good for Local 601[…f]or you[…and f]or your family” are inactionable because they
are not statements of fact and, if anything, only express Ramirez’ opinion that Plaintiffs
lack the character needed to hold union office.  Thus, Plaintiffs cannot meet their
burden of showing a reasonable probability of prevailing based upon these loaded
questions.

The balance of the motion, however, is denied because Plaintiffs have produced
evidence sufficient to demonstrate a reasonable probability of prevailing.  Pimentel
expressly denies having used undocumented workers at his house, having sold drugs
to children, having been convicted of selling drugs to children, and of having used
”unethical or illegal tactics.”  (Pimentel Decl., ¶¶ 7, 11(c).)  Moreover, he asserts that
each of the contested statements in Ramirez’ flyers was false.  (Id. ¶¶ 6-7.)  Salas
similarly denies the truth of Ramirez’ assertions and asserts instead that he did not
endanger any children, was not convicted of a felony, and was only convicted of a
misdemeanor four years earlier than Ramirez asserted in the flyers.  (Ramirez Decl.,
¶¶ 5-8.)  As noted above, this court may not assess the credibility of Plaintiffs’ denials
and assertions at this juncture.

In denying the balance of the motion, the court rejects Ramirez’ argument that his
misreporting the years in which Plaintiffs suffered their convictions (he asserted in the
flyers that both convictions occurred more recently than they did) are minor
inaccuracies that are inactionable.  The recency vel non of the convictions could
reasonably affect a person’s view of Plaintiffs’ characters and thus encompasses
actionable falsity.

The court similarly rejects Ramirez’ argument that it is irrelevant that he asserted
Salas’ conviction to have been a felony instead of a misdemeanor.  The fact of a felony
conviction, which can result in a state prison term, could reasonably affect a
reasonable person’s perception of another’s character differently than the fact of a
misdemeanor conviction.

The court also rejects Ramirez’ argument that the entire defamation cause of action
should be stricken because Plaintiffs have not produced sufficient evidence of malice
to overcome the qualified privilege at CC § 47(c).  Absent a showing of malice, that
subdivision provides a privilege for communications made to other interested persons.
In Ramirez’ view, the statements he made in the flyers can only be construed as
intended to affect the outcome of the union election, not to publish falsehood about
Plaintiffs with any ill will, intent or recklessness.  (See Cabrera v. Alam (2011) 197
th
Cal.App.4   1077, 1093 [defining “malice” for purposes of defamation].)  The court
disagrees because Plaintiffs have produced evidence that, before Ramirez posted the
flyers, he approached them to join their candidate slate and was rejected.  (See Salas
Decl., ¶¶ 3-4.)  Plaintiffs have also produced evidence that, subsequent to the
rejection, Ramirez demonstrated open hostility toward them.  (See id., ¶ 11 [Ramirez
repeatedly displayed his middle finger and stared at Salas after being rejected from the
slate].)  This evidence suffices to establish a reasonable probability of proving malice.

Judicial Notice

Ramirez’ request for judicial notice of criminal court records is GRANTED.

Conclusion

The following claims are stricken from Plaintiffs’ complaint: (1) claims that Ramirez
defamed Plaintiffs by stating that (a) they were “known criminal,” (b) they were
convicted of crimes, (c) they violated state law, (d) they ran for union office flagrantly
despite their convictions, (e) whether they were good for the union, “you” and “your
family”; and (2) the claim that Pimentel suffered a felony conviction for violating H&S
Code § 11351.
The balance of the motion is denied.

Pursuant to CRC 3.1312, Plaintiffs are directed to lodge a formal order for the court’s
signature.

Item   19   2013-00153430-CU-PO

Rolando Pimentel vs. Joaguin Ramirez

Nature of Proceeding:   Motion to Strike Second Cause of Action as Surplusage

Filed By:  Bonsall, Robert

Defendant Joaquin Ramirez’ (“Ramirez”) motion to strike pursuant to CCP §§ 435-437
is GRANTED with leave to amend.

Overview

In the complaint, Plaintiffs Rolando Pimentel (“Pimentel”) and Zacharias Salas
(collectively “Plaintiffs”) allege that they and Ramirez have a common employer, are
represented by the same union, and each ran for the union board in 2013.  (Ramirez
apparently withdrew his candidacy before the election took place.)  Plaintiffs further
allege that, in the course of the campaign, Ramirez distributed two handbills in the
workplace, whereby he assert that Plaintiffs were “known criminals” who had either
sold controlled substances “to our children” or had driven under the influence of
alcohol.  The handbills, which are attached as exhibits to the complaint, further
questioned whether Plaintiffs were “good for Local 601” and for “you [or] your family.”

Furthermore, one handbill asserted that Plaintiff Pimentel was “unversed and illiterate”
in union contracts, violated the contracts for the own personal benefit, engaged in
“unethical, illegal and lazy tactics,” and employed, exploited and underpaid
undocumented workers.  The handbill also attributes the following statement to
Pimentel: “I don’t care about people’s problems.  I worry about myself.”  (Emphasis in
original.)  The handbill provided Pimentel’s personal cell phone number.  (Ramirez
points out that Plaintiffs distributed election-related handbills highlighting Ramirez’ own
criminal conviction.)

Based on the allegations above, Plaintiffs have sued Ramirez for defamation and
invasion of privacy (false light).  Ramirez now moves to strike the second cause of
action on grounds that is surplusage.

Discussion

There is no dispute that court is authorized to strike a false light cause of action as
duplicative of an accompanying cause of action for libel.  (See McClatchy Newspapers
v. Superior Court (1987) 189 Cal.App.3d 961, 965 [“When an action for libel is alleged,
a false-light claim based on the same facts (as in this case) is superfluous and should
be dismissed”] [citation omitted] [parentheses in original]; accord Couch v. San Juan
Unified School Dist. (App. 3 Dist. 1995) 33 Cal.App.4th 1491, 1504 [citations omitted].)
Ramirez argues that Plaintiffs’ false light cause of action is based on all the same
allegations as the defamation cause of action and, therefore, should be stricken.
Plaintiffs counter that their false light cause of action is not surplusage because it is
based in part on publication, not of defamatory statements, but of private details of
Plaintiffs’ lives.  (See Opp. at 2:4-8.)  Having reviewed the allegations supporting the
false light cause of action, the court rejects this argument and concludes that
allegations do not describe private details of Plaintiffs’ lives.  Rather, Plaintiffs allege
that Ramirez published statements and pictures that placed them in a false light in the
public eye.  Such allegations are “in substance equivalent to a libel claim.”  (Selleck v.
Globe Int’l (1986) 166 Cal.App.3d 1123, 1133 [citations omitted].)

Plaintiffs further argue that the false light cause of action is not surplusage because,
even if some of the allegations supporting both causes of action are insufficient to
establish defamation, i.e., statements found to be inactionable opinions or hyperbole,
such allegations could suffice to establish false light.  (See Opp. at 6:23-27.)  The court
rejects this argument as well because (1) Plaintiffs do not cite any authority to support
it and (2) the argument ignores the proposition that allegations of published statements
placing a plaintiff in a false light in the public eye are the substantive equivalent of
allegations of libel.  (Selleck, supra, 166 Cal.App.3d at 1133.)  Hence, if allegations do
not state libel, they do not state false light either.

The court grants Plaintiffs leave to amend their false light allegations in an attempt to
state a cause of action distinct from the First Cause of Action for Defamation.  If
Plaintiffs file a first amended complaint (“FAC”) for this purpose, they may not advance
any of the allegations that the court has stricken in its concurrent order granting in part
Ramirez’ special motion to strike pursuant CCP § 425.16.

Conclusion

The motion is granted with leave to amend.

No later than June 9, 2014, Plaintiffs may file and serve an FAC in an attempt to
remedy the defects in their false light cause of action; Ramirez to file and serve his
responsive pleading(s) within 10 days thereafter, 15 days if the FAC is served by mail.
(Although not required by any statute or rule of court, Plaintiffs are requested to attach
a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.