2018-00226255-CU-BT

Arsany A. Said vs. Visione Enterpises, LLC

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Cuzzolina, J.D.

Plaintiff and Cross-Defendant Arsany Said’s special motion to strike pursuant to CCP § 425.16 is ruled upon as follows.

Cross-Defendant initiated the instant action by filing a complaint alleging causes of action arising from an incident in December 2017 when his car was towed by Defendants/Cross-Complainants Folsom Lake Towing, LLC and David Hart in an area where there allegedly was no signage warning of towing. He also alleged that Defendants caused him to be arrested by the police. He alleges causes of action under the Vehicle Code relating to towing companies, conversion, trespass to chattels, conspiracy and abuse of process premised on allegations that Cross-Complainants attempted to collect an unlawful towing fee and caused misdemeanor charges to be filed against him. Cross-Complainants Folsom Lake Towing, LLC and David Hart filed the FACC alleging causes of action for abuse of process, trespass to chattels, negligence, false imprisonment, and assault and battery alleging that Cross-Defendant impermissibly retook possession of the vehicle.

Cross-Defendant moves to strike the first cause of action for abuse of process in the FACC pursuant to CCP § 425.16. The first cause of action is expressly based on Cross-Defendant’s act of filing the complaint as it alleges that Cross-Defendant “filed a law suit against Cross-Complainant Hart claiming that Cross-Complainant had pursued criminal charges against Cross-Defendant since the District Attorney filed charges against Said.” (FACC ¶ 15.) Cross-complainants allege that Cross-Defendant “misused the civil process because individuals cannot pursue criminal charges; however, it is the District Attorney’s duty to pursue those claims. This use of the process was not authorized in the regular course of the proceeding.” (FACC ¶ 17.) They allege that Cross-Defendant “ulterior purpose and motivation” in misusing the process was to “obtain the following collateral advantage over the Cross-Complainants: to extort money out of Cross-Complainant and to prevent Cross-Complainant from recovering money for the damage to the tow truck and Cross-Complainant Hart’s person.” (Id. ¶ 18.)

The Court’s review of an anti-SLAPP motion involves a two-prong process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, Defendant must establish that the challenged causes of action arose from “an act…in furtherance of [their] right of petition or free speech.” (CCP § 425.16(b)(1).) If Defendant meets that burden, then the second prong requires Plaintiffs to establish “that there is a probability that [Plaintiffs] will prevail on the claim.” (Id.) Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech 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.) Indeed, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some

different act for which liability is asserted.” (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.) Thus, initially, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1046. ) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)” (Braun v. Chronicle Publishing Co. (1997) 52 Cal. App.4th 1036, 1043.)

Subdivision (e) provides: “As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing 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 a public issue or an issue of public interest.”

At the outset, the Court addresses Cross-Complainants’ argument presented at the conclusion of their opposition, after they argued that the first cause of action does not arise from protected activity and that they have claims on which they are likely to succeed. They argue that they have “irrevocably withdrawn their first cause of action” prior to the instant motion being filed which renders the motion moot and frivolous. They argue that they indicated in their opposition to Cross-Defendant’s demurrer (which was not directed to the first cause of action) that they were withdrawing the first cause of action and that they filed a second amended cross-complaint withdrawing the cause of action. As would appear apparent from the record, Cross-Complainants are incorrect. While they did indicate they would be withdrawing the cause of action, and the Court noted as much in its December 20, 2018 ruling on the demurrer and motion to strike, they have not [yet] dismissed the cause of action and so it remains in the FACC. In fact, the Court previously noted that while they had agreed to drop the cause of action, they could file a dismissal to accomplish that purpose. They have not done so. Further, they did not file a second amended cross-complaint on November 14, 2018 as they argue. Rather, they attached a proposed second amended cross-complaint to a declaration in opposition to Cross-Defendant’s motion to strike pursuant to CCP § 435, 436. That pleading has never been filed. In short, the motion is not moot as the first cause of action for abuse of process remains in the FACC.

First Prong-Arising From Protected Speech

In determining whether Cross-Defendant met his burden, the Court considers not only the pleadings, but also the “supporting and opposing affidavits stating the facts which the liability or defense is based.” (CCP § 425.16(b)(2).) ‘In deciding whether the ‘arising from’ requirement is met, a court considers the ‘pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) As noted by relevant authority, it is crucial to look past the allegations in the complaint and to consider affidavits in order to obtain the complete picture of the plaintiff’s claims. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630.)

CCP § 425.16(e)(1) and (e)(2) “encompass[ ] any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) “Thus statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) “[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b),…such statements are equally entitled to the benefits of section 425.16.” (Briggs, supra, 19 Cal.4th at 1115 [citations omitted].) “Accordingly, although litigation may not have commenced, if a statement ‘concern[s] the subject matter of the dispute’ and is made ‘in anticipation of litigation ‘contemplated in good faith and under serious consideration’ then the statement may be petitioning activity protected by section 425.16.” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-790.) California courts “have looked to the litigation privilege as an aid in construing the scope of section 425.16, subdivisions (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry.” (Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1479.)

Here, Cross-Defendant argues that the first cause of action for abuse of process in the FACC arises from protected activity because it is expressly premised on his act of filing the complaint. The Court agrees. As already summarized above, the first cause of action is specifically premised on the act of filing the complaint in which Cross-Complainants claim he alleged that Cross-Complainants pursued criminal charges against him. (FACC ¶ 15.) They further allege that Cross-Defendant misused the civil process because individuals cannot pursue criminal charges. (Id. ¶ 17.) Thus, Cross-complainants have expressly alleged that Cross-Defendant misused the civil process by filing his complaint. “A claim for relief filed in [ ] court indisputably is a ‘statement or writing made before a ….judicial proceeding’ (§ 425.16, subd. (e)(1)).” (Navellier v.

Sletten (2002) 29 Cal.4th 82, 90.) “[T]he constitutional right to petition…includes the basis act of filing litigation or otherwise seeking administrative action.’” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Here, the abuse of process claim is alleged against Cross-Defendant because of the complaint he filed. This cause of action falls squarely within the “arising from” prong of the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at 90.)

Cross-Complainants’ arguments to the contrary are entirely unpersuasive. In fact, they entirely miss the analysis. Rather than focus on the actual allegations of their first cause of action for abuse of process, they argue that Cross-Defendant claims that he was wrongfully prosecuted by the D.A. as a result of Cross-Complainants’ actions, which they state is not protected activity. (Oppo. 6:1-4.) They then argue that there is no evidence to support that they made any misstatements to the police at the time of the subject incident or changed statements made to the police. Again, this entirely misses the point and focuses on the underlying incident which gave rise to the complaint. Whether or not the dispute that occurred between the parties regarding the towing of Cross-Defendant’s vehicle related to a protected activity or a public issue is beside the point. Cross-Complainants have brought the first cause of action against Cross-Defendant based on his act of filing the complaint. It was the act of filing the complaint upon which the first cause of action was brought, not the conduct giving rise to the underlying incident. The filing of the complaint is indisputably protected activity

within the anti-SLAPP statute.

The Court is aware of Cross-Complainants’ arguments that Cross-Defendant’s motion is not supported by admissible evidence and instead based on unsubstantiated opinions regarding the warning signs for towage and inadmissible hearsay statements that the D.A. dismissed the criminal matter because Cross-Complaint Hart changed his story. They also complain that Cross-Defendant is relying on videos he cannot authenticate and that in any event the videos do not clearly show that the tow truck was not damaged. They argue that absent this evidence the motion is not supported by any evidence and should “be dismissed.” (Oppo. 7:23-24.) They have also offered their own evidence regarding their version of the towing incident. However, Cross-Defendant’s argument regarding the first prong did not rely upon any of the evidence challenged by Cross-Complainants and instead relied solely on the allegations of the FACC which clearly show that the first cause of action is based on protected activity. Indeed, it appears that the evidence was presented as a matter of factual background. As such, a purely legal argument is presented. Cross-Defendant did not bear any evidentiary burden on this motion and could, as he did here, simply rely on the allegations of the FACC. Thus, even if the Court agreed with Cross-Complainants and sustained their objections to all of the evidence it does not change the fact that the first cause of action is premised on Cross-Defendant’s act of filing the complaint.

Cross-Complainants also argue that Cross-Defendant has failed to read the first cause of action and that it does not relate to allegations of illegal and ethical practices by towing companies as claimed by Cross-Defendant but instead “on the allegations that Cross-Complainants falsely caused Cross-Defendant to be arrested and prosecuted by the District Attorney.” (Oppo. 2:12-13.) Not only did Cross-Defendant not argue that the first cause of action was related to the practices of the towing company (rather he argued it was based on his act of filing a complaint as alleged), but this actually confirms that the first cause of action is subject to the anti-SLAPP motion because they themselves confirm what their own allegations state: that the first cause of action is premised on the fact that Cross-Defendant filed a complaint in which he alleged that Cross-Defendants pursued criminal charges against him.

Cross-Complainants also seem to suggest that the first cause of action does not involve a public issue. Cross-Defendant was not required to make such a showing given he demonstrated that the first cause of action is premised on a writing before a judicial proceeding. Again, “statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.” (Rohde, supra, 154 Cal.App.4th at 35.)

As a result, the Court concludes that Cross-Defendant met his burden to demonstrate that the first cause of action for abuse of process in the FACC arises from “an act…in furtherance of [Cross-Defendant’s] right of petition or free speech” thereby shifting the burden to Cross-Complainants to establish “that there is a probability that [he] will prevail on the claim.” (CCP § 425.16(b)(1).)

Second Prong-Probability of Prevailing

To meet their burden, Cross-Complainants 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. Management Systems, Inc. v. California

Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)

Cross-Complainants have not met their burden. First, as shown by Cross-Defendant, the abuse of process claim is not adequately pled. To set forth an abuse of process cause of action, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a willful act in a wrongful manner. (State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)

Again, the first cause of action for abuse of process is expressly premised on the fact that Cross-Defendant filed the complaint. (FACC ¶ 15.) However, as shown by Cross-Defendant, abuse of process does not lie where a legal proceeding has been wrongfully initiated or maintained. (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523.) “While a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit-even for an improper purpose-is not a proper basis for an abuse of process action.” (Id.) “Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-42 [emphasis in original].)

In opposition, Cross-Complainants entirely fail to address the above authority or even analyze the elements of abuse of process claim. Rather, they argue that Cross-Defendant vandalized their property instead of waiting for the police to arrive to remedy the situation. Whatever the merits of this argument and/or the evidence in support of the argument, it is entirely non-responsive to whether they are likely to succeed on their abuse of process claim which as seen from the authorities, cannot be premised on the filing of a lawsuit. “[Cross-Complainants’] abuse of process claim is based on the allegation that [Cross-Defendant] misused the litigation process by filing [the complaint in this action]. Accordingly, [Cross-Complainants have] failed to carry [their] burden of a probability of success with regard to the abuse of process claim.” ( JSJ Limited Partnership, supra, 205 Cal.App.4th at 1523.)

Parenthetically, but perhaps relevant to the second prong is the litigation privilege. So long as the communication complained of was made to achieve the objects of the legal proceedings and is not “palpably irrelevant” to them, an abuse of process claim will not lie. (Loomis v. Superior Court (1987) 195 Cal.App.3d 1026, 1030.) “More important, ‘communications made in connection with litigation do not necessarily fall outside the privilege merely because they are, or are alleged to be fraudulent, perjurious, unethical, or even illegal’ assuming they are logically related to litigation.” (Blanchard v. DIRECTV (2004) 123 Cal.App.4th 903, 921 (intemal citation omitted.)) And, it is well settled that the privilege applies without regard to motives, morals, ethics, or intent. ( Silberg v. Anderson, (1990) 50 Cal.3d 205, 220.) For this reason, the privilege is characterized as “absolute” as opposed to qualified, because privilege applies regardless of malice, evil motive, or intent. (Id. at pp. 215-16.) The purpose of the privilege is to protect free access to the courts without the “threat of, and harassment by, derivative litigafion” and to “avoid ‘an unending roundelay of litigation’ derived from prior litigation.” (Brown v. Kennard (2001) 94 Cal.App.4th 40, 45.) Thus, any doubts as to whether the privilege applies are resolved in favor of its use. (Pollack v. University of Southern California (2003) 112 Cal.App.4th 1416, 1430; see also Brown v. Kennard, supra, at pp. 46-50.)

Cross-Defendant has shown that the first cause of action for abuse of process in the FACC arises from an act “in furtherance of [his] right of petition or free speech” and Cross-Complainants failed to establish “that there is a probability that [they] will prevail on the claim.” The motion to strike pursuant to CCP § 425.16 is granted.

The Court need not rule on Cross-Complainants’ evidentiary objections. As discussed above, none of the evidence offered by Cross-Defendant was relied upon by the Court as a basis for the Court’s conclusion on either the first or second prong on the anti-SLAPP analysis. Indeed, even if the Court sustained all of the objections, the motion would still be granted.

Cross-Defendant may seek fees pursuant to CCP § 425.16(c)(1) by way of a separately noticed motion.

Cross-Defendant shall prepare for the court’s signature an order pursuant to CRC rule 3.1312.

Item 5 2018-00226255-CU-BT

Arsany A. Said vs. Visione Enterpises, LLC

Nature of Proceeding: Motion for Order Allowing the Late Filing of Said’s Special Motion to

Filed By: Cuzzolina, J.D.

Plaintiff and Cross-Defendant Arsany Said’s unopposed motion to allow late filing of a special motion to strike pursuant to CCP § 425.16 is granted.

Cross-Defendant seeks an order authorizing the late filing of his special motion to strike the first cause of action for abuse of process in the First Amended Cross-Complaint (“FACC”) pursuant to CCP § 425.16, which is the subject of the Court’s ruling in item 5 on this day’s calendar.

Pursuant to CCP § 425.16(f), a special motion to strike “may be filed within 60 days of service of the complaint, or, in the court’s discretion, at any later time.” [emphasis added] The cross-complaint which contained the abuse of process claim was served on June 21, 2018. Cross-Defendants’ counsel met and conferred with Cross-Complainants’ counsel by way of a letter outlining the reasons why the first cause of action was subject to an anti-SLAPP motion. Cross-Complainants agreed to amend the cross-complaint which was not served until September 28, 2018. The FACC continued to allege the first cause of action for abuse of process. Cross-Defendant’s counsel attempted to further meet and confer as to why the first cause of action remained subject to the anti-SLAPP statute by way of an October 3, 2018 letter. He did not hear anything and filed the anti-SLAPP motion on November 16, 2018. After the motion was filed the parties communicated and while Cross-Complainants indicated they would withdraw the first cause of action, it still remains in the FACC.

Here, while the motion was filed within 60 days of the service of the FACC, it was not filed within 60 days of the service of the cross-complaint which also contained the abuse of process claim. “In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the

proceedings. Other relevant factors include the length of the delay, the reasons for the late filing and any undue prejudice to the plaintiff.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624 [citations omitted].) The Court “enjoys considerable discretion” in determining “whether to allow

[a] late filing of an anti-SLAPP motion.” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787.)

Moreover, “the 30-day period of section 425.16, subdivision (f) is not jurisdictional in the fundamental sense of subject matter jurisdiction or personal jurisdiction.” San Ramon Valley Fire Protection Dist. v. Contra Costa County, (2004) 125 Cal. App. 4th 343, 351. Accordingly, failure to comply with the 30-day deadline set out in section

425.16(f) does not deprive the court of the power to hold a hearing on respondent’s SLAPP motions, i.e., the court did not lose either personal jurisdiction or subject matter jurisdiction.

The above presented factual circumstances support the late filing. The delay between the service of the original cross-complaint and the motion was less than five months and in the interim, Cross-Defendant’s counsel was meeting and conferring with Cross-Complainants’ counsel regarding the reasons why the abuse of process claim was subject to the anti-SLAPP statute and should be dismissed. Indeed, Cross-complainants agreed to amend the original cross-complaint but did not actually serve the FACC until September 28, 2018 and Cross-Defendant was unaware that the FACC would not withdraw the subject abuse of process claim. The delay here has been minimal and was justified. Moreover, Cross-Complainants have not opposed the motion. Parenthetically, courts are “not permitted to deny the [anti-SLAPP] motion on the ground that the hearing was not scheduled within 30 days of service of the motion . . . .” (Karnazes v. Ares (2016) 244 Cal.App.4th 344, 352.)

The motion is granted.

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