2018-00232951-CU-BC
Theodoros Avdalas vs. Mike Jeremiah

Nature of Proceeding:

Filed By: Motion to Strike (SLAPP) — Joinder by Michael GeremiaLeLievre, Andre J.

Defendant Northern California Collection Service, Inc.’s (“NCCS”) special motion to strike plaintiff in pro per Theodoros Avdalas’ (“Plaintiff”) first, second, and fourth causes of action on the complaint is UNOPPOSED, but is DENIED.

Co-Defendant Michael Geremia’s (“Geremia”) joinder to NCCS’ special motion to strike is DENIED. If a party desires to receive the same relief as another party and files papers “joining” another party’s motion, the court will not consider the papers to be a separate motion and will not grant relief to the party joining the motion unless that party has complied with all procedural requirements for the filing of motions, including payment of filing fees, proper notice, format of motion and method of service. (Sacramento Superior Court L.R. 2.09.) Geremia’s joinder was filed and served by overnight delivery on July 9, 2013, which counting backward from the date of hearing pursuant to Code of Civil Procedure section 1005 was only 11 court days prior to hearing. Pursuant to Code of Civil Procedure § 1005(b), moving party was required to mail-serve the moving papers 16 court days plus two additional calendar days prior to the date of hearing. Defective service deprives the court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

Overview

This action arises from a levy on a bank account pursuant to a writ of execution in the underlying case of Northern California Collection Service, Inc. v. Theodoros Avdalas, et al., case number 34-2014-00164759. In the underlying action, judgment was entered for NCCS. NCCS then levied Plaintiff’s bank account to satisfy the judgment. After the levy, Plaintiff failed to file a claim of exemption, failed to file an undertaking, and the money was released to NCCS. NCCS then filed an acknowledgment of satisfaction of the judgment in 2015. On September 4, 2015, the Court granted Plaintiff’s motion to set aside the judgment based on Plaintiff’s attorney’s affidavit of fault. However, as the judgment had been satisfied, NCCS dismissed the action on October 19, 2015.
Plaintiff then filed a number of motions that were denied by this Court due to lack of jurisdiction.

Plaintiff filed the instant complaint relevant to this motion on May 14, 2018, alleging breach of contract, conspiracy to commit fraud, and fraud against NCCS and Geremia.

NCCS now moves to strike the entire complaint (the complaint does not contain a third cause of action) pursuant to the anti-SLAPP statute at Code of Civil Procedure section 425.16.

Legal Standards

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. 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].)

In order to sustain the initial burden on an anti-SLAPP motion, a defendant need only show that plaintiff’s lawsuit “arises from” defendant’s exercise of free speech or petition rights as defined in Section 425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) In other words, Defendants only need to make a prima facie showing that Plaintiff’s FAC “arises from” their constitutionally-protected free speech or petition activity. (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.) “While an anti -SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity.” (Id. at 382.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id.)

It is important to the initial analysis that the Court address whether the cause of action is based on the defendant’s protected free speech or petitioning activity. Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; see Greco v. Greco (2016) 2 Cal.App.5th 810, 819-820; Ulkarim v. Westfield LLC (2014) 227 Cal. App. 4th 1266, 1274. To make that determination, we look to the “principal thrust or gravamen of the plaintiff’s cause of action.” [Citations.]’ ” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217); see Ulkarim, at p. 1274.)

In order to satisfy the second prong, a 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.” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) In considering the second prong, the court “accept[s] as true the evidence favorable to the plaintiff and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Id. citations omitted.)
If the plaintiff’s showing is not sufficient to sustain a favorable judgment, “the allegations supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5 376, 396.)

Discussion

NCCS has wholly failed to meet its initial burden to demonstrate Plaintiff’s lawsuit arises from NCCS’ exercise of free speech or petition rights as defined in section 425.16(e). NCCS sets forth no arguments or analysis as to how the allegations contained in Plaintiff’s complaint arise from protected activity. NCCS does not endeavor to explain in any way how the allegations in the complaint relate to protected activity. At most, NCCS provides the general authority that levying on a bank account pursuant to a writ of execution is a protected communication and then summarily concludes the only connection between Plaintiff and NCCS is the prior litigation. This is insufficient. NCCS appears to skip over the first prong of the statute and focus, instead, only on whether Plaintiff can establish a probability of prevailing. Indeed, the second prong of the statute is Plaintiff’s burden and need not even be mentioned by NCCS.

Accordingly, as NCCS has failed to demonstrate Plaintiff’s complaint arises from conduct protected by Code of Civil Procedure section 425.16(e), the motion is DENIED. This ruling does not bar any further challenges to the pleading by way of demurrer or motion for judgment on the pleadings or a motion for summary judgment/adjudication.