Case Name: San Jose Nihonmachi LLC v. Miraido Corporation, et al.
Case No.: 17CV316504

Plaintiff/cross-defendant San Jose Nihonmachi LLC (“Nihonmachi”) and cross-defendants Larry Yamaoka (“Yamaoka”) and Albert Kogura (“Kogura”) each move to strike portions of the Cross-Complaint filed by defendants/cross-complainants Miraido Corporation (“Miraido”) and Yoshihiro Uchida (“Uchida”) (collectively, “Cross-Complainants”) pursuant to Code of Civil Procedure section 425.16.

SJN’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d).)

Yamaoka and Kogura’s (collectively, “Cross-Defendants”) request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d).)

Cross-Complainants’ request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to Exhibit A and otherwise DENIED. (See Walgreen Co. v. City & County of San Francisco (2010) 185 Cal.App.4th 424, 443 [contents of newspaper articles are not proper subjects of judicial notice as such contents are not necessarily indisputably true].)

SJN’s special motion to strike is GRANTED IN PART and DENIED IN PART. The motion is MOOT as to the second cause of action due to Cross-Complainants’ clarification that the claim is only asserted against Yamaoka, and is GRANTED as to the first cause of action and DENIED as to the fourth cause of action. The Court finds that SJN has sufficiently demonstrated that its first cause of action arises out of protected activity- namely pre-litigation communications and the filing of the underlying action against Miraido/Uchida. However, the Court disagrees with SJN’s contention that the fourth cause of action similarly is based on protected conduct. While it is true that SJN is currently pursuing claims against Cross-Complainants, a protected act, “the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at 89.) As alleged in the Cross-Complaint, there is a disagreement between the parties over the scope and effect of the 2003 Settlement Agreement. The declaratory relief cause of action is predicated on this disagreement and seeks to resolve it, and preceded the filing of the underlying complaint by SJN. Thus, while the declaratory relief claim may have been “triggered” by SJN’s action, it is not based on its filing. Consequently, the first prong of the anti-SLAPP test is not satisfied by the fourth cause of action of the Cross-Complaint and therefore this claim is not subject to being stricken.

As SJN has met its initial burden with respect to the first cause of action, the burden shifts to Cross-Complainants to demonstrate a probability that they will prevail on this claim. (See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) Cross-Complainants have the burden to make a prima facie showing of facts, supported by admissible evidence, that is sufficient to support each of the following elements of the first cause of action for breach of contract: (1) the existence of a contract; (2) Cross-Complainants’ performance or excuse for nonperformance; (3) SJN’s breach; and (4) resulting damages to Cross-Complainants. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The existence of the subject agreement, the 2003 Settlement Agreement, is clear and undisputed. In its opposing memorandum, Cross-Complainants assert that Miraido, a signatory to the agreement, performed all terms it was required to perform, including the agreement to be bound by release of all claims, but does not cite to any admissible evidence which establishes as much. Further, Cross-Complainants do not clearly articulate and establish in their papers how SJN has breached the 2003 Settlement Agreement, seemingly leaving it to the Court to determine the answer to this question. Given this failure, the Court finds that Cross-Complainants have not met their burden on the second prong as it relates to the first cause of action. Thus, the first cause of action is stricken from the Cross-Complaint.

Cross-Defendants’ special motion to strike is GRANTED. Given the fact that, based on the letters exchanged by counsel for the parties during the time when the subject letters containing the allegedly defamatory statements were sent to SJN’s members, litigation was clearly being considered by SJN against Miraido/Uchida, and that the August letter by Kogura and the September memo by Yamaoka discussed issues that would later form part of the lawsuit ultimately filed by SJN and suggested to other members that litigation might be necessary, the Court finds that these materials qualify as writings made in connection with litigation that is pending or “contemplated in good faith and under serious consideration.” Thus, Cross-Complainants have established that the third cause of action arises out of protected activities.

As for paragraph 26, though worded somewhat artfully, the allegations contained therein attempt to place liability on Yamaoka for one specific action: his election to file the underlying complaint on behalf of SJN. Filing a lawsuit is protected activity and thus the first prong of the anti-SLAPP analysis is met by paragraph 26 of the second cause of action. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)

As Cross-Defendants have met their initial burden with respect to the third cause of action and paragraph 26 of the second cause of action, the burden shifts to Cross-Complainants to demonstrate a probability that they will prevail on the foregoing claims.

Cross-Complainants have the burden to make a prima facie showing of facts, supported by admissible evidence, that is sufficient to support each of the elements of the third cause of action for defamation. Defamation is the intentional publication to a third party or parties of a false, unprivileged statement of fact that either has a natural tendency to injure or causes special damage. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Libel, the type of defamation alleged here, is “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) To this end, Cross-Complainants utterly fail. While they insist in their opposing memorandum that the statements made by Kogura and Yamaoka regarding Uchida’s mental competency were defamatory, Cross-Complainants offer no admissible evidence which establishes that those statements were false. Without establishing this element of their claim, Cross-Complainants cannot meet their burden on the second prong and therefore the third cause of action is stricken.

As for paragraph 26 of the second cause of action, Cross-Complainants do not specifically address this component, or any part of the second cause of action for that matter, and thus fail to meet their burden here as well. Consequently, paragraph 26 is also stricken.