Case Number: BC676269 Hearing Date: April 11, 2018 Dept: 53

steven oliva vs. charter communications, inc. , et al.; BC676269, April 11, 2018

[Tentative] Order RE: DEFENDANT CHARTER COMMUNICATIONS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF STEVEN OLIVA’S COMPLAINT (ANTI-SLAPP MOTION) PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16

Defendant CHARTER COMMUNICATIONS, INC.’S Special Motion to Strike Portions of Plaintiff Steven Oliva’s Complaint (Anti-SLAPP Motion) Pursuant to Code of Civil Procedure § 425.16 is GRANTED.

BACKGROUND

On September 19, 2017, Plaintiff Steven Oliva (“Plaintiff”) initiated the instant action against Defendant Charter Communications, Inc. (“Defendant”). The Complaint asserts nine causes of action stemming from Plaintiff’s termination of employment by Defendant, as follows: (1) wrongful termination in violation of contract; (2) wrongful termination in violation of public policy; (3) harassment; (4) discrimination on the basis of sex, national origin, and genetic information; (5) failure to prevent discrimination and harassment; (6) defamation; (7) retaliation; (8) intentional infliction of emotional distress; and (9) negligent infliction of emotional distress.

On January 17, 2018, Defendant removed this action to the United States District Court, Central District on the basis of federal question jurisdiction. (Silverman Decl., ¶ 3.) On January 29, 2018, Plaintiff filed a Motion to Remand. (Silverman Decl., ¶ 4.) On February 19, 2018, Defendant filed an anti-SLAPP Motion in in federal court. (Silverman Decl., ¶ 5, Ex. 1.) On March 7, 2018, Defendant received notice of the federal court’s order remanding the case to state court, after dismissing Plaintiff’s federal claims. (Silverman Decl., ¶ 6.)

Defendant now moves to strike portions of the first cause of action for wrongful termination in violation of contract, second cause of action for wrongful termination in violation of public policy, fourth cause of action for discrimination, sixth cause of action for defamation, eighth cause of action for intentional infliction of emotional distress, and ninth cause of action for negligent infliction of emotional distress pursuant to Code of Civil Procedure section 425.16 on the basis that those causes of action contain allegations that are based on protected activity and that Oliva cannot show a likelihood of success on these claims. Plaintiff opposes.

Legal Standard

The anti-SLAPP statute (Code Civ. Proc., § 425.16) is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (internal quotations omitted).) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

EVIDENCE

The Court sustains Defendant’s objections to the exhibits attached to Plaintiff’s opposition on the basis that none of the exhibits are properly authenticated.

The Court grants Defendant’s request for judicial notice as to Exhibit 4 of the Declaration of Erika A. Silverman (the TRO, Workplace Violence Restraining Order, and Declaration of Anthony Lamonea in Support of the Workplace Violence Restraining Order.)

Discussion

A. Timeliness of Defendant’s Motion

Plaintiff objects that the instant motion was not timely filed. A special motion to strike may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. (Code Civ. Proc. § 425.16(f).) The Proof of Service of Summons filed on January 26, 2018 indicates that the summons and Complaint were served on January 26, 2018. Defendant acknowledges that the Complaint was, in fact, served earlier, on December 20, 2017. (Silverman Decl., ¶ 2.) In any event, the Court finds that the instant Motion was timely filed, as it was filed within 60 days of service of the complaint in federal court. (Silverman Decl., ¶ 5.) After the case was remanded to state court, Defendant promptly filed the instant motion. (Silverman Decl., ¶ 7.) Therefore, Plaintiff’s objection is overruled.

Plaintiff also objects on the basis that Defendant failed to meet and confer in good faith prior to the filing of the instant Motion. As there is no meet and confer requirement in Code of Civil Procedure section 425.16, the Court overrules Plaintiff’s objection.

B. Prong One – Arising from Protected Speech

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

(CCP §425.16(e).)

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “[T]he 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 p. 89.) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Id.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified Sch. Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 (internal citations omitted).)

In the Complaint, Plaintiff references a Workplace Violence Restraining Order and TRO that Defendant sought against him prior to his termination and alleges that Defendant wrongfully terminated him, among other things, for the assertions set forth in the restraining orders, that the restraining orders were a form of discrimination and defamation, and that the restraining orders caused him emotional distress. (Compl., ¶¶ 9, 14, 15, 16, 28, 46, 49, 50, 51, 54, 57, 58, 60, 73, 75, 80, 81, 83, 84, and 85.) Plaintiff does not dispute that he has asserted claims based on the fact that Defendant brought a TRO and a Workplace Violence Restraining Order against him. Plaintiff also does not dispute that the filing of a TRO and a Workplace Violence Restraining Order are protected activity under the anti-SLAPP statute. (See S.A. Maiden (2014) 229 Cal.App.4th 27, 35 [“initiating and maintaining requests for domestic violence restraining orders” is protected activity “thereby satisfying the first prong of the anti-SLAPP statute”].) Because Plaintiff is seeking relief sought based on allegations of protected activity, Defendant has satisfied its burden on prong one, and the burden shifts to Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

C. Prong Two – Probability of Prevailing

“[T]he 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 the plaintiff is credited.” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making its determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Here, the Court finds that Plaintiff has failed to make a prima facie evidentiary showing that would sustain judgment in Plaintiff’s favor. For one, as noted by Defendant, Plaintiff has submitted no admissible evidence in support of his opposition. Further, also noted by Defendant, the litigation privilege would preclude Defendant’s liability on Plaintiff’s claims involving the filing of the TRO and the Workplace Violence Restraining Order. (See Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888-889 [holding that filing of an application for a temporary restraining order is protected by the litigation privilege and thus precludes a plaintiff’s ability to show probability of prevailing for purposes of anti-SLAPP motion].)

The Court notes that Plaintiff makes certain extraneous arguments about Defendant’s removal of this case to federal court as well as a request for entry of default judgment, which are not properly before the court. Therefore, the Court declines to grant any such relief.

CONCLUSION

Based on the foregoing, Defendant’s Special Motion to Strike Portions of Plaintiff Steven Oliva’s Complaint (Anti-SLAPP Motion) Pursuant to Code of Civil Procedure § 425.16 is GRANTED. The portions of the Complaint identified by Defendant in its Notice of Motion and accompanying proposed Order are stricken.

Defendant is ordered to provide notice of this ruling.

DATED: April 11, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court