Warren v. Glenshire Residents Assoc. Case No. TCU18-7184

Superior Court of Nevada County
Tentative Ruling
Truckee Branch

Cross-Defendant Warren�s Anti-Slapp Motion is denied.

Moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304. Specifically, courts decide whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants� right of petition, or free speech, under a constitution, in connection with issues of public interest. Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 671; Quinlon Ent. v. Consumer Cause (2002) 29 Cal.4th 53, 67; Gov. Gray Davis Committee v. Amer. Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-59; Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2012) �7:244.1; CCP �425.16(e).

Here, cross-defendant has failed to demonstrate that each cause of action arise from Warren�s protected activity.

Specifically, as to the conversion and breach of fiduciary duty causes of action, there are no allegations whatsoever set forth in the cross-complaint that the improperly applied comp time related to any right of petition, free speech, or has any public interest. In fact, the motion states only that this cause of action is based on a �malicious lie.� This is not a prima facie showing of a protected activity.

As to the causes of action for intentional misrepresentation and negligent misrepresentation, the cross-complaint does not allege that statements relating to whether or not the board meetings needed to be open or closed occurred during an open board meeting. Rather, this appears to be a private conversation between Pres. Pam stock and cross-defendant Warren. Thus, again, cross-defendant fails to show any protected activity whatsoever.

As to the cause of action for extortion, cross-defendant has failed to demonstrate that his statements were made in a public forum. In fact, the opposite is alleged. It is stated that these statements were set forth in a closed forum, not open to the public. Thus, this cause of action does not arise from any protected activity.

Moreover, even if this court were to find that each of the causes of action arise from conduct by cross-defendant during a protected activity, cross-defendant has failed to demonstrate that Glenshire cannot prevail on its claims.

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 -1142; CCP �425.16(c); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2012) �7:259.

The attorneys� fees and costs recoverable are only those incurred as to the special motion to strike, and not as to other litigation events. Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) �7:261.

Here, the court finds that Glenshire�s request for attorneys fees as it relates to opposing this meritless motion at 15 hours at $250 per hour is reasonable. Thus, the court awards attorneys fees to cross-complainant in the amount of $3,750.

Glenshire�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court�s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court�s law and motion secretary at (530) 582-7835 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court’s expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.