Case Number: 19NWCV00582 Hearing Date: January 21, 2020 Dept: SEC

MARTINEZ v. AZTECA INTERNACIONAL, INC., et al.

CASE NO.: 19NWCV00582

HEARING: 1/21/20

JUDGE: OLIVIA ROSALES

#3

TENTATIVE ORDER

Defendants Azteca Internacional, Inc. and Palencia’s motion to strike complaint pursuant to CCP 425.16 is DENIED. No sanctions.

Plaintiff to give NOTICE.

Defendants Azteca Internacional, Inc. and Palencia move for an order striking Plaintiff’s Complaint pursuant to CCP § 425.16.

Defendants’ Burden of Proof

The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 742; Wilcox v. Superior Court (1994) 17 Cal.App.4th 809, 819.) A defendant need not first establish that his actions are constitutionally protected under the First Amendment as a matter of law. (Wilcox v. Superior Court, supra, 17 Cal.App.4th at 820.) However, a defendant is required to make a prima facie showing that plaintiff’s suit arises from any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state constitution in connection with an issue of public interest. (CCP 425.16(e); Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 67.) The act which forms the basis for the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-78; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1003; Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1417; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.)

A defendant may meet this burden by showing that the act which forms the basis for the plaintiff’s suit was (1) any written or oral statement made before a legislative, executive or judicial proceeding; (2) a statement or writing made in connection with an issue under consideration in such a proceedings or “any other official proceeding authorized by law;” (3) any written or oral statement 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 an issue of public interest. (CCP 425.16(e); Equilon Enterprises, supra, 29 Cal.4th at 66; Dixon v. Superior Court, supra, 30 Cal.App.4th at 742.)

Whether the anti-SLAPP statute applies is determined by the “principal thrust or gravamen” of Plaintiff’s claim. It cannot be invoked where allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 187.)

Plaintiff Martinez alleges that on 8/16/18, in retaliation for filing a worker’s compensation claim, Defendant Palencia falsely reported to the Whittier Police Department that Plaintiff had embezzled money from Azteca by using his fuel car to fuel the vehicle of his co-worker Carlos Guerra in 18 unauthorized transactions. Plaintiff was placed under arrest by Palencia, was in custody for five days, and had to defend the false charges. On 1/29/19, the court dismissed the case for insufficiency of evidence because Defendants gave Plaintiff permission to use the fuel card to fuel his co-worker’s vehicle. Based on these facts, the Complaint asserts causes of action for:

1. Retaliation

2. Wrongful Termination

3. Discrimination

4. Malicious Prosecution

Without any explanation or analysis, Defendants contend that all causes of action stem from the malicious prosecution cause of action. (Motion, 5:10-12.) Defendants do not analyze the claims or make any showing that retaliation, wrongful termination, and discrimination are subsumed in the malicious prosecution claim. The anti-SLAPP statute cannot be invoked where allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 187.)

Here, Plaintiff alleges that he was retaliated against and was wrongfully terminated because he filed a worker’s compensation claim after being instructed by Palencia not to file such claim. (Complaint, ¶¶ 27, 36.) Therefore, the malicious prosecution claim is only “incidental” to the Retaliation and Wrongful Termination claims.

Plaintiff also alleges that he was an individual with physical disabilities who was discriminated against for his disabilities. (Id. at ¶¶ 44-45.) Therefore, the malicious prosecution claim is only “incidental” to the Discrimination claim.

Accordingly, the motion is DENIED as to the 1st – 3rd causes of action because these claims do not arise from protected activity.

The only claim remaining is the 4th cause of action for Malicious Prosecution. Citing Hagberg v. California Federal Bank (2004) 32 Cal. 4th 350 and Silberg v. Anderson (1990) 50 Cal.3d 205, Defendant contends that calling the police and making an oral statement is protected activity.

However, both Hagberg and Silber deal specifically with the litigation privilege pursuant to CC § 47(b). Neither case dealt with the anti-SLAPP statute.

Plaintiffs also cite Salmon v. Capon, which deals with statements made to the police that may prompt investigation leading to the initiation of official proceedings. The court finds that Salmon v. Capon is distinguishable because here, Palencia made a citizen’s arrest (Motion, 4:7-9), not any report of a crime that would prompt police investigation.

A citizen’s arrest is not protected conduct under Section 425.16. (Wang v. Hartunian (2003) 111 Cal.App.4th 744, 751-752.)

In Reply, Defendants argue that Wang v. Hartunian is not applicable because in Wang, the police refused to arrest Wang. Here, Defendants did not restrain Plaintiff, and the police arrested Plaintiff based on probable cause. However, Defendants do not cite any case authority supporting this distinction. Therefore, the court finds that Defendants failed to carry their initial burden on the Malicious Prosecution claim.

Regardless, even if Defendants met their initial burden, the court finds that Plaintiff has presented sufficient evidence to establish a probability of prevailing on the Malicious Prosecution claim against Defendants. (See below.)

Plaintiff’s Burden of Proof

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. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 4464, 476.)

To establish a cause of action for Malicious Prosecution, Plaintiff must prove: 1) an action commenced by or at the direction of defendant; 2) pursued to a legal termination favorable to the plaintiff; 3) brought without probable cause; and 4) initiated with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 292; Robinzine v. Vicory 143 Cal.App. 4th 1416, 1422.)

Plaintiff has submitted evidence establishing that Plaintiff’s arrest was commenced by Defendant’s citizen’s arrest on 8/16/18. (Defense Ex. 4.) The action was terminated in Plaintiff’s favor on 1/29/18 when the court dismissed the case for insufficiency of evidence. (Shah Decl., Ex. B.) Thus the prior action was terminated in Plaintiff’s favor. Further, based on the testimony of Gonzalez, manager at Azteca and Guerra, a co-worker at Azteca, Plaintiff had authority from his Supervisor, Vivanco, to use the gas card to fuel up the trucks of his co-workers. (Gonzalez and Guerrera Decls; Martinez Decl., ¶4.) Further, malice is established by evidence that Defendant retaliated against Plaintiff for making a worker’s compensation claim. (Martinez Decl., ¶¶ 4-11.)

In Reply, Defendants point out that Plaintiff was only authorized to use the card to purchase diesel fuel, not regular unleaded fuel. (Palencia Decl., ¶ 10.) However, the Police Report (Reply, Ex. 6) does not differentiate between diesel or unleaded fuel. Regardless, this evidence goes towards the ultimate merits at trial. At this stage, the court is only concerned with whether Plaintiff has sufficient evidence to establish a prima facie claim. Plaintiff has met that burden.

Accordingly, motion is DENIED.

Sanctions: If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (CCP 425.16(c).)

Sanctions are denied. Although Defendant did not prevail, the court finds that the motion was brought on the good faith belief that the claims were protected by anti-SLAPP statute.