2013-00156018-CU-PO

Tamara Evans vs. Enterprise Holdings Inc

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Stephan, Paul E.

Defendants Mike DiPietro (“DiPietro”), Anne Santos (“Santos”), and Lisa
Holmes’ (“Holmes”) (collectively “Defendants”) Special Motion to Strike Plaintiff’s
complaint (CCP §425.16) is ruled upon as follows.

As an initial matter, the Court notes that Defendants filed an “Amended Notice of
Special and Motion to Strike Plaintiff’s Complaint” on April 11, 2014. This Amended
Notice and Motion included new evidence and Defendants supplemented their
arguments based on the new evidence that Defendants obtained after the motion was
filed. Essentially, Defendants filed an entirely new Special Motion to Strike. The
Amended Notice and Motion, however, is untimely. A motion pursuant to CCP
§425.16 must 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. (CCP §425.16(f).) Here,
Defendants were served between January 15-17 2014. Thus, the Amended Motion
have been filed by no later than March 18, 2014. However, it was not filed until April
11, 2014 and the Court has not granted Defendants permission to file an untimely
motion.

Given the above, the Court declines to consider the amended notice and motion, and
hereby strikes the “Amended Notice of Special and Motion to Strike Plaintiff’s
Complaint” filed on April 11, 2014.

The Court, will, however, consider the original motion.

Defendants are also admonished for untimely filing and serving their reply to the
motion. The reply was filed and served via federal express on April 30, 2014, only
three court days prior to hearing in violation of CCP §1005.

Defendants are employees of National Car Rental. Plaintiff alleges that she has two
accounts, a private and a business account with National Car Rental. She alleges that
after she attempted to make complaints regarding service she received at the
Sacramento Airport National Car Rental Store that Santos made derogatory
statements about her to DiPeitro. Plaintiff alleges that Santos falsely stated that
plaintiff had called her a “*ucking dyke,” and that Plaintiff had harassed Santos based
on sexual identity, expression and/or orientation, acted in an irrational manner, was
disrespectful and unprofessional, and used profanity during the December 13, 2012
business transaction.

Plaintiff alleges that Santos then drafted a false statement regarding the incident.
Plaintiff alleges that DiPeitro then told Holmes about these statements and that
Holmes thereafter contacted Plaintiff’s employer to complain about Plaintiff and her
remarks to Santos. Plaintiff further alleges that DiPeitro then contacted Plaintiff’s
employer via email, published false and malicious accusations regarding Plaintiff and
attached Santo’s written statement. Plaintiff alleges that as a result of these
statements, she was terminated from her position at the California Commission on
Police Officer Standards and Training (“CCPOST”) and that they will continue to
adversely affect her in her occupation related to law enforcement.

The complaint includes causes of action for: (1) libel, (2) slander, (3) invasion of
privacy, and (4) intentional infliction of emotional distress.

The California legislature enacted Code of Civil Procedure section 425.16, known as
the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and
causes of action that are brought to chill the valid exercise of the constitutional rights to
free speech and to petition the government for redress of grievances. (See Rusheen v
Cohen (2006) 37 Cal.4th 1048, 1055-1056. “The analysis of an anti-SLAPP motion
thus involves two steps. First, the court decides whether the defendant moving to
strike has made a threshold showing that the challenged cause of action is one
“arising from” protected activity. If the court finds such a showing has been made, it
then must consider whether the plaintiff has demonstrated a probability of prevailing on
the claim. “When the trial court examines plaintiff’s affidavits, it must consider whether
he has presented sufficient evidence to establish a prima facie case, i.e., a showing by
competent and admissible evidence, of facts which, if proven at trial, would support a
judgment in his favor; when it considers defendant’s affidavits, the court cannot weigh
them against plaintiff’s, but must decide only whether they defeat plaintiff’s supporting
evidence as a matter of law.” (Du Charme v. International Brotherhood of Electrical
Workers (2003) 110 Cal. App. 4th 107, 112.) Only a cause of action that satisfies both
prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning
and lacks even minimal merit-is a SLAPP, subject to being stricken under the
statute.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820;
citations omitted.) The defendant has the burden on the first prong that the claim
arises from protected activity, and the plaintiff has the burden on the second prong of
affirmatively demonstrating a probability of prevailing on the claim. (See Governor
Gray Davis Com v American Taxpayers Alliance (2002) 102 Cal App.4th 449, 456; City
of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76.)

Protected Activity

Defendants argue that Plaintiff’s action arises out of protected activity because they
were: (1) made in connection with an issue under consideration or review, in an official
proceeding authorized by law (CCP §425.16(e)(2)), (2) made in a public forum in
connection with an issue of public interest (i.e. reporting hostile conduct of a law
enforcement employee to her employer) (CCP §425.16(e)(3)); and (3) made in
connection with a public issue or issue of public interest (CCP §425.16(e)(4).)

Defendants appear to argue that the statements were made “in connection with an
issue under consideration or review” (and are therefore protected by the litigation
privilege) because they were made prior to, but in connection with, Plaintiff’s
termination proceedings. “Statement made in anticipation of a court action or other
official proceeding may be entitled to protection under the anti-SLAPP statute.” (
Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th
873, 886.) Defendants, however, fail to proffer any evidence that they made these
statements “in anticipation of a court action or other official proceeding.” (Id.)

Defendants further argue that the communications to Evan’s employer was a matter of
public concern because she was employed in a law enforcement capacity. According
to Defendants “the conduct of individual who work for the CCPOST is unquestionably
a matter of public concern because, presumably, such individuals have a direct impact
on the training standards of police officers throughout the State of California. (Motion,
10:1-4.)

The most commonly articulated definitions of “statements made in connection with a
public issue focus on whether (1) the subject of the statement or activity precipitating
the claim was a person or entity in the public eye; (2) the statement or activity
precipitating the claim involved conduct that could affect large numbers of people
beyond the direct participants; and (3) whether the statement or activity precipitating
the claim involved a topic of widespread public interest.” ( Wilbanks v. Wolk (2004) 121
Cal. App. 4th 883, 898.)

Defendants’ moving papers wholly fail to analyze whether the statements were made
in connection with an issue of public concern. Defendants fail to proffer any legal
authority regarding the scope or meaning of “public concern.” Rather, as noted above,
Defendants merely make a conclusory statement that the conduct of a CCPOST
employee is a “matter of public of matter concern because such individuals have a direct impact on the training standards of police officers throughout the State of
California.” (Motion, 10:3-4.) Defendants attempt to buttress their argument with legal
authority in their reply, does not assist them because Defendants have the threshold
burden of showing that the causes of action arise from protected activity. Moreover,
Defendants’ argument in reply that the statements involved a public issue because
Plaintiff was a “public official” is unavailing. There is no evidence that Plaintiff was a
“public official.” Indeed, Plaintiff’s declaration states that her title is “Law Enforcement
Consultant.”

The Court is not convinced that the statements were made “in connection with an
official proceeding” or were matters of public concern.

Accordingly, Defendants have failed to satisfy their threshold burden of showing that
the causes of action arise from protected activity.

Probability of Prevailing

Having failed to demonstrate that the causes of action arise from a protected activity,
the burden does not shift to Plaintiff to demonstrate the probability of prevailing.

Accordingly, the motion is DENIED.

To the extent Plaintiff seeks sanctions pursuant to CCP §1008(d), she must file a
properly notice motion.

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