17-CIV-04207 STEPHEN ODEN vs. RODERICK S. RUMLER, et al.

STEPHEN ODEN Pro/PER

RODERICK S. RUMLER PRO/PER

RODERICK S. RUMLER’s SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT

TENTATIVE RULING:

The motion is timely. (Code of Civ. Proc. sect. 418.10, subd. (b)

Plaintiff’s Opposition is untimely, but Defendant fails to demonstrate any prejudice from the late filing. Regardless, as set forth below, the Court’s ruling on this motion would be the same if Plaintiff filed no opposition at all.

DEFENDANT’S SPECIAL MOTION TO STRIKE IS DENIED. Defendant fails to meet his moving burden of establishing that the complaint or any cause of action is one arising from protected activity.

Defendant’s motion contends that the communications giving rise to this action are protected activity because they are settlement communications in the context of anticipated litigation. The motion, however, relies on a single email, dated January 5, 2017, in which Defendant demands that he be paid for his work. (Declaration of Rumler, paras. 10, 11, 15, 16, and Exhibit A.) The complaint, however, is based on much more than Defendant’s emails of January 5 and 8, 2017. The Complaint is also based on Defendant’s alleged threats to report Plaintiffs to the IRS, attorneys general, and law enforcement. (Complaint Exhibits C-6, C-7, C-11, C-13, C-16.) Such statements are alleged to constitute extortion, which falls outside protected activity. (Flatley v. Mauro (2006) 39 Cal.4th 299.) The Complaint is also based on statements Defendant allegedly made to third parties. (Complaint paras. 38, 39, 75.) Statements to third parties are not settlement communications in the context of prelitigation.

Since the complaint is based on communications that constituted extortion or were made to persons other than Plaintiffs, the complaint does not arise from protected activity under Code of Civ. Proc. section 425.16. Therefore, Defendant fails to meet his moving burden of establishing that the complaint arises from protected activity. For Defendant’s failure to meet his moving burden, the burden does not shift to Plaintiffs to show a probability of prevailing. The court need not engage in the second prong of the anti-SLAPP analysis (evaluation of Plaintiff’s probability of prevailing.)

Defendant’s request for attorney’s fees is denied. The motion, while lacking merit, does not appear frivolous or intended solely to cause unnecessary delay. (Code of Civ. Proc. sect. 425.16, subd. (c)(1).)

Defendant Roderick S. Rumler shall file his responsive pleading no later than February 2, 2018.