Case Number: BC701357 Hearing Date: November 21, 2018 Dept: E

TENTATIVE RULING:

Cross-Defendant Tammy Woloski’s Special Motion to Strike Pursuant to Code of Civil Procedure § 425.16 is denied.

Cross-Defendant has failed to establish that the causes of action stated in the cross-complaint have as their gravamen protected activity subject to the anti-SLAPP statute. The notice of motion seeks to strike only the third cause of action for intentional interference with prospective economic advantage, and cross-complainant’s arguments concerning the first cause of action for statutory invasion of privacy and intrusion into private affairs appear to be based entirely on an allegation that “…Ms. Woloski kept the video recording and may be showing it to other prospective patients….”, which allegation appears only in the third cause of action. [See Cross-Complaint, para. 25]. This allegation is not incorporated into the other causes of action, and, in any case, does not form the gravamen of the first and second causes of action, which are based on the alleged wrongful conduct of Woloski’s intentional recording of Dr. Barnhart without his consent. [Paras. 12, 16]. Cross-complainant has failed to establish that such conduct is protected activity subject to the anti-SLAPP statute.

As to the third cause of action for intentional interference with prospective economic advantage, cross-complainant appears to argue, particularly given the citation to Wong v. Jing (2010) 189 Cal.App.4th 1354, that the cause of action is subject to the statute because the alleged conduct of showing the video recording to other prospective patients arises from protected speech, in effect, “a writing made in a place open to the public or a public forum in connection with an issue of public interest.” CCP § 425.16(e)(3). Cross-defendant fails to explain how in this case the alleged showing of the video to other patients constitutes a writing made in a place open to the public, particularly as there is no allegation of posting on a website, and also fails to explain how the recording, which appears to have concerned a post-treatment argument about recording in the office, would qualify as an issue of public interest.

Request for Attorneys’ fees in the opposition is granted. The court finds that the motion is frivolous or is solely intended to cause unnecessary delay. No reasonable person would conclude that the conduct in cross-complainant’s medical examination room arose from an act of cross-defendant’s right of petition or free speech in connection with an issue of public interest. Attorney fees are awarded to cross-complainant in the amount of $7,463.00.