Case Name: Silverman v. Family Matters In-Home Care, LLC, et al.
Case No.: 18CV322947

Defendants Family Matters In-Home Care, LLC (“FMIHC”), Carol Pardue, Jacob Laffen, James Laffen and Marcus Laffen (collectively, “Defendants”) move to strike the complaint (“Complaint”) filed by plaintiff Kenneth Silverman (“Plaintiff”) in its entirety pursuant to Code of Civil Procedure section 425.16. Alternatively, Defendants demur to the Complaint and each of the ten causes of action asserted therein.

Defendants’ requests for judicial notice are GRANTED IN PART and DENIED IN PART. While the Court may properly take judicial notice of the Complaint as a court document pursuant to Evidence Code section 452, subdivision (d), it may not properly take judicial notice of the existence of a contract between private parties. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The requests are GRANTED as to Exhibit A and DENIED as to Exhibit B.

Plaintiff’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

Defendants’ special motion to strike is DENIED. It is Defendants’ contention that portions of the ten claims asserted against in the Complaint arise out its right to petition this Court, i.e., its litigation-related activities, or those activities which qualify as oral or written statements “made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subd. (e)(1) [emphasis added].) Those activities, Defendants continue, include FMIHC instructing Davila to report the alleged sexual harassment to the police and the actual reporting itself. It’s instructing Davila to report the incident to the police, they explain, was necessary to preserve their affirmative defense against potential claims by Davila under the Fair Employment and Housing Act (the “FEHA”). Under the FEHA, an employer may be responsible for the acts of nonemployees with respect to sexual harassment of its employees if it knew or should have known of the conduct and failed to take “immediate corrective action.” (Gov. Code, § 12940, subd. (j)(1).) When the employer’s culpability with regard to the acts of nonemployees is reviewed, “the extent of the employer’s control and any other legal responsibility that the employer may have with respect to [that nonemployee individual’s conduct] shall be considered.” (Id.)

Without even addressing whether or not the aforementioned conduct is protected, it is clear upon review of the Complaint that many of the claims asserted therein are not actually predicated on the acts that are claimed by Defendants to be protected. This is important because, to reiterate, in the anti-SLAPP context “the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) If it is not, it is not subject to the anti-SLAPP statute. Here, Plaintiff’s second cause of action for breach of contract is based on FMIHC providing substandard care to Carol Silverman- including sending an unqualified aide in Davila and “ceasing care in the middle of a day shift” which left Plaintiff’s mother without assistance for many hours. FMIHC’s provision of care is not (nor claimed to be) a protected activity and thus the second cause of action is not SLAPPable. The same can be said about the third cause of action for intentional misrepresentation (predicated on Defendants’ alleged false representations that it only hired highly skilled, experienced home care aids who were fully vetted and properly trained), the fourth cause of action for negligent misrepresentation (predicated on similar allegations), the seventh cause of action for violation of the Consumer Legal Remedies Act (predicated on Defendants alleged false representations regarding the quality of services it provided) and the eighth cause of action for unfair business practices (predicated on FMIHC’s failure to meet state standards with regards to Davila’s training and completion of a tuberculosis test). Thus, the special motion to strike is denied with respect to the second, third, fourth, seventh and eighth causes of action.

The remaining claims are predicated, at least in part, on the conduct claimed by Defendants to be protected: their act of encouraging Davila to report her allegations of sexual harassment by Plaintiff to the police and Davila filing a “false” claim alleging criminal conduct by him. (Complaint, ¶¶ 48, 67, 70, 87, 88, 92, 93.)

There is no question that reporting potentially criminal conduct to the police (unless it is proven to have been made while knowing it was false ) is protected activity. (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563.) However, Davila is not being sued in this action for filing a report with the police (she is not a party) and Defendants did not actually file the report themselves. Thus, none of the claims in the Complaint are actually based on Davila filing a “false” claim against Plaintiff.

Turning to the other conduct at issue, in making the argument that their act of encouraging Davila to report her claims to the police is protected activity as prelitigation conduct relating to a potential affirmative defense, Defendants principally rely on the case of Comstock v. Aber (2012) 212 Cal.App.4th 931, in which an employee filed suit against her employer, supervisor and a co-worker for sexual harassment and failure to investigate and prevent said harassment. The co-worker filed a cross-complaint alleging defamation that was stricken by the court pursuant to the employee’s special motion to strike. The court found, among other things, that the employee’s statements to her employer’s HR manager were protected under subdivision (e)(2) of section 425.16 as statements made prior to litigation or other official proceedings. The employee persuasively argued that her statements were necessary to address the commonly used affirmative defense by an employer in a sexual harassment action by an employee- that the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer- and thus were protected because they were statements made prior to litigation. (Comstock, 212 Cal.App.4th at 944.) Defendants maintain that encouraging Davila to report her allegations concerning Plaintiff to the police was part of its obligations under the FEHA and qualifies as a valid affirmative defense to any potential claim brought by Davila against them.
Defendants’ argument is not persuasive given the notable differences between Comstock and the action at bar. First, Comstock involved actual litigation between an employer and employee that was predicated, in part, on the employer’s alleged failure to prevent the sexual harassment experienced by the employee. Because of this, the court was able to relatively easily characterize the employee’s statements to the HR manager as protected pre-litigation activity. It should be noted that not all statements made prior to potential litigation qualify as protected. Generally, communications made in anticipation of litigation constitute protected activity for the purposes of the anti-SLAPP statute if the communications “concern the subject of the dispute” and are made in anticipation of litigation “contemplated in good faith and under serious consideration.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268; Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789 (Bailey).) The “good faith” and “serious consideration” requirements exist because “[n]o public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action); Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889 (Digerati) [“The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘‘‘connection or logical relation’ ’ ’ to a contemplated action and is made ‘‘to achieve the objects’ ’ of the litigation.”].)

Here, Defendants offer nothing which establishes that litigation between themselves and Davila, where such an affirmative defense presumably would have been implicated, was contemplated in good faith and under serious consideration by her, in contrast to the employee in Comstock. Additionally, in Comstock the focus was on the statements made by the employee to the employer rather than the employer to employee and related to the employee’s ability to combat any assertions by her employer that she had unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer. Defendants offer no authority for the proposition that encouraging an employee to report allegations of sexual harassment against a nonemployee is a “corrective action” or should be deemed to have qualified as one in the circumstances of this case. Per the allegations of the Complaint, Defendants had already taken actions that could be deemed corrective by removing Davila from Plaintiff’s home and terminating the contract with him by the time they “encouraged” her to report Plaintiff’s alleged conduct to the police.

Further, while Davila making a report to the police clearly involves her exercising her free speech and petition rights as defined in the SLAPP statute, the same cannot be said for FMIHC when it encouraged her to do so. FMIHC was not itself engaged in petitioning activity. No authority has been located which suggests that the act of encouraging another person to engage in petitioning activity or assisting them in doing so qualifies as protected activity. Indeed, to find this to be the case would conflict with the express language of the anti-SLAPP statute, which applies only to “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech.” (Code Civ. Proc., § 425.16, subd. (b)(1).) By its plain language, it does not apply to an act of a person in furtherance of another person’s possible exercise of their right of petition or free speech at some point in the future. Thus, the Court finds that FMIHC’s act of encouraging Davila to report Plaintiff’s alleged conduct to the police does not qualify as protected activity under Section 425.16. Consequently, to the extent that they are predicated on that act, the first, fifth, sixth, ninth and tenth causes of action do not arise out of protected activity and therefore the anti-SLAPP motion is denied with respect to these claims.

Turning to the demurrer, most of the motion is predicated on the following two arguments: (1) Plaintiff is not a party to the agreement for the provision of services by FMIHC to Carol Silverman; and (2) any action arising out of Davila reporting sexual harassment to the police or Defendants encouraging her to do so is barred by the litigation privilege.

Defendants’ first argument presumes that the Court will take judicial notice of the contract for services at issue. However, as set forth above, the Court cannot properly do so, and the authorities cited by Defendants for purportedly holding to the contrary in their supporting memorandum are distinguishable. In those cases, Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743 and California Assn. of Highway Patrolmen v. Dept. of Personnel Admin. (1986) 185 Cal.App.4d 352, neither of which involved a demurrer, the court was able to evaluate and interpret the language of the agreements because it was pleaded by attachment to and incorporation into the complaint. Here, the client service agreement at issue is not attached to and incorporated into the Complaint, and because the Court cannot take judicial notice of the agreement, it cannot endeavor to interpret its terms at this stage of the proceedings. It is also worth noting that Plaintiff has alleged in the Complaint that he is a party to the client services agreement; when a court is tasked with reviewing whether a plaintiff has properly stated a cause of action for breach of contract, it must determine whether the alleged agreement is “reasonably susceptible to the meaning ascribed to it in the complaint. [Citation.].” (Russell City Energy Company, LLC v. City of Hayward (2017) 14 Cal.App.5th 54, 62.) “So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, [the court] must accept as correct the plaintiff’s allegations as to the meaning of the agreement.” (Id. [internal citations omitted].” There is nothing to suggest that Plaintiff’s reading of the agreement to include himself as a party to its terms is a clearly erroneous construction and therefore the Court must accept as correct his allegation to this effect. Accordingly, the Court finds that Defendants’ argument that Plaintiff is not a party to the client service agreement is without merit at this juncture and consequently does not provide a basis upon which to sustain the demurrer to those claims based on FMIHC allegedly breaching that agreement.

Defendants’ second argument also fails to provide a basis upon which to sustain the demurrer, a conclusion that can be reached without even considering the substantive merits of the argument itself. As explained above in the analysis of the anti-SLAPP motion, none of the claims in the Complaint are predicted on Davila reporting Plaintiff’s alleged conduct towards her to the police or solely on FMIHC advising her to do so. Because a demurrer does not lie to a part of a cause of action (see, e.g., PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778), even if Defendants were correct that the litigation privilege operates to render their act of encouraging Davila to contact the police inactionable, unless the other portions of the claims also fail, the demurrer cannot be sustained on this basis.

Even if the Court were to consider the merits of Defendants’ litigation privilege argument, it would not provide a basis upon which to sustain the demurrer. The litigation privilege, which is codified in Civil Code section 47 (“Section 47”), subdivision (b), immunizes litigants from liability for torts, other than malicious prosecution, which arise from communications in judicial proceedings. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege generally applies to any communication by a litigant in a judicial proceeding that is made “to achieve the objects of the litigation” and has “some connection or logical relation to the action.” (Id., at 212.) Its purpose is to “afford litigants free access to the courts without fear of being harassed by later derivative tort actions; encourage open channels of communication and zealous advocacy; promote complete and truthful testimony; give finality to judgments; and avoid unending litigation.” (People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274.) If otherwise applicable, the litigation privilege applies even if the communication was made with malice or intent to harm. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)

Here, the elements for application to the privilege do not appear to be met in connection with FMHIC’s act of encouraging Davila to report Plaintiff’s allegedly criminal conduct towards her to the police. As they did with their anti-SLAPP motion, Defendants assert that encouraging Davila to contact the police was a necessary aspect of avoiding liability under the FEHA based on the conduct of a non-employee and is privileged prelitigation communications. However, the litigation privilege as applied to prelitigation conduct is subject to the same qualifications as the protected activity determination for such conduct in anti-SLAPP motions- namely, it is privileged only when it relates to litigation that is “contemplated in good faith and under serious consideration.” (Action Apartment Ass’n/. Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) There is no indication that litigation against FMIHC by Davila was contemplated in good faith and under serious consideration. As explained previously, by the time FMIHC encouraged Davila to go to the police, it had already taken corrective actions such that its obligations under the FEHA to her were likely satisfied. It should also be emphasized that whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is generally an issue of fact. (Id.) Factual determinations cannot properly be made on demurrer. (See Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) Thus, while courts have considered on demurrer whether a plaintiff’s claims are barred by the litigation privilege (see, e.g., Wentland v. Wass (2005) 126 Cal.App.4th 1484), it is not always possible to do so. At least based on what is currently pleaded and argued in this matter, the Court finds that to the extent Plaintiff’s claims are predicated on FMIHC advising Davila to go to the police, they are not definitively barred by the litigation privilege.

With respect to the first cause of action for negligent hiring/failure to warn, the only argument asserted by Defendants is that the claim is barred by the litigation privilege. As the applicability of this privilege has not been established and, more importantly, the claim is predicated on more than just Davila or FMIHC’s communications regarding Plaintiff’s alleged criminal conduct, Defendants’ demurrer to this cause of action is OVERRULED.

With regards to the second cause of action for breach of contract, the sole argument advanced by Defendants in support of their demurrer to this claim is that Plaintiff is not a party to the client services agreement. As this has not been established for the reasons set forth above, Defendants’ demurrer to this cause of action is OVERRULED.

The third cause of action is for intentional misrepresentation and alleges that Defendants intentionally misrepresented, among other things, the skill, qualifications, training and experience of the care aides that they placed in the homes of their clients, and did so in order to induce Plaintiff to enter into the client services agreement. (Complaint, ¶ 56.) Defendants assert that this claim fails because of both the litigation privilege and because they were fulfilling their obligations under the FEHA to take corrective action when they terminated the client service agreement after Davila’s allegations. This claim, however, is broader than Defendants appear to understand it to be, as neither of the foregoing arguments account for Plaintiff’s allegations that Defendants intentionally misrepresented the experience, qualifications and training of their staff and did so in order to induce him to enter into an agreement with FMIHC. Consequently, Defendants have not established that a claim for intentional misrepresentation has not been stated and their demurrer to the third cause of action is OVERRULED.

Defendants make the exact same arguments in support of their demurrer to the fourth cause of action for negligent misrepresentation, which contains nearly the same allegations as the preceding claim, excluding the assertion that Defendants’ alleged misrepresentations were intentionally made. Instead, the representations are alleged to have been made by Defendants without reasonable grounds for believing them to be true. (Complaint, ¶ 62.) For the same reasons as discussed with regard to the demurrer to the third cause of action, Defendants’ demurrer to the fourth cause of action is OVERRULED.

In the fifth cause of action for intentional infliction of emotional distress (“IIED”), Plaintiff alleges that Defendants intended to cause him severe emotional distress by (1) pulling his mother’s home care aide off mid shift knowing that he and his mother would suffer great strain and (2) encouraging Davila to report her allegations against Plaintiff despite knowing that they were false. Defendants first argue, unpersuasively, that no claim for IIED has been stated due to the litigation privilege and their purportedly fulfilling their obligation to take corrective action under the FEHA. Defendants next assert that this claim fails because Plaintiff has not alleged conduct on their part which qualifies as “outrageous.”

The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant intended to cause, or done with reckless disregard of, the probability of causing emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1087.) “Conduct, to be ‘outrageous,’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of Cal.(1989) 209 Cal.App.3d 878, 883 [internal citations omitted].) If it is true, as alleged, that FMIHC knew that Davila’s allegations against Plaintiff were “patently false” when it encouraged her to report them to the police, the Court finds that such conduct, as a matter of law, could qualify as “so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (See Wilkins, supra, 71 Cal.App.4th at 1087.) Accordingly, Defendants’ demurrer to the fifth cause of action is OVERRULED .

As for the sixth cause of action for negligent infliction of emotional distress, Defendants contend that the action should fail for the same (rejected) reasons as asserted with respect to the IIED claim. They also argue, however, that this cause of action fails because California does not recognize an independent claim for negligent infliction of emotional distress; rather, all that can be alleged is the tort of negligence. Indeed, “it is well settled that negligent emotional distress infliction is not an independent tort; rather it is the tort of negligence to which the duty element applies.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) Plaintiff offers no viable response to this argument, stating only that the demurrer should be overruled because the litigation privilege does not operate as a bar on this claim. Thus, the demurrer is sustained. As for leave to amend, Plaintiff offers no explanation, as is his burden, to articulate how he can amend this cause of action to sufficiently state a claim. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Consequently, Defendants’ demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

With regard to the seventh cause of action for violation of the Consumer Legal Remedies Act (“CLRA”), Defendants again assert the failed argument that this claim fails as a matter of law due to the application of the litigation privilege. They also assert an additional argument that no claim for violation of the CLRA has been stated by Plaintiff because he has not pleaded that he suffered an actual injury.

The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices[.]” (Code Civ. Proc., § 1770, subd. (a).) This includes representing that “goods or services are of a particular standard, quality, or grade …” as Defendants purportedly did with their in-home care services. (Code Civ. Proc., § 1770, subd. (a)(7).) In general, in order to bring a CLRA claim, the plaintiff must establish that: (1) the defendant’s conduct was deceptive; and (2) that the deception caused the defendant to be harmed. (Stearns v. Ticketmaster Corp. (9th Cir. 2011) 65 F.3d 1013, 1022.) Contrary to Defendants’ assertion, the “’damage’ that a plaintiff in a CLRA action must show under Civil Code section 1780, subdivision (a) is ‘any damage,’ which is not synonymous with ‘actual damages’ and may encompass harms other than pecuniary damages.” (In re Steroid Hormone Prod. Cases (2010) 181 Cal.App.4th 145, 156 [internal citation and quotations omitted].) Here, Plaintiff alleges that he was harmed in a variety of ways by FMIHC’s services, including overpaying for in-home care for his mother which lacked the characteristics that were represented to him by FMIHC. This is sufficient to plead damages. Consequently, Defendants’ argument is without merit and their demurrer to the seventh cause of action is OVERRULED.

Next, Defendants insist that the litigation privilege operates to bar Plaintiff’s eighth cause of action for unfair business practices and that no claim has been stated because it fulfilled its obligation to take corrective action regarding Plaintiff’s alleged conduct towards Davila. Because these arguments have been shown to lack merit, Defendants’ demurrer to this cause of action is OVERRULED.

Finally, Defendants argue that the remaining claims for civil conspiracy and aiding and abetting fail because it was merely fulfilling its obligations under the FEHA. As this argument lacks merit, Defendants’ demurrer to these claims is OVERRULED.