Case Name: Lopez v. Ventura, et al.

Case No.: 19CV344554

This is an action for defamation. On October 16, 2018, plaintiff Marco E. Lopez (“Plaintiff”) filed a probate action regarding the property interests of his deceased wife, Graciela Soto Lopez. (See Lopez decl. in opposition to motion to strike, ¶ 1; see also complaint, ¶ 1; see also Ventura decl. in support of special motion to strike the complaint, ¶ 2, exh. A.) Defendant Ventura, Hersey & Muller LLP (“VHM”) is the law firm that represented Mariana Soto Hughes in the probate case. (See complaint, ¶ 3.) On January 31, 2019, defendant Anthony F. Ventura (“Ventura”) of VHM sent a letter to Plaintiff stating that:

As you know, this firm represents Mariana Soto Hughes in all matters related to the real property located at 678 N. 10th Street in San Jose, California (‘Property’). We are in receipt of the four hostile and threatening text messages that you sent to Mariana yesterday. Please cease and desist from contacting or communicating directly with Mariana. Instead, please direct all communications to our office. I have instructed Mariana to contact the police if you continue to contact her directly in this manner.

In one of your text messages, you threaten to file a partition action to force the sale of the Property. Your attempt to intimidate Mariana is misplaced. You are not on title as an owner of the Property and, as such, lack standing to file a partition action. I understand your probate action was continued again, this time to March 11. Until you actually own an interest in the Property, any discussion or negotiation related to your interest is premature.

Please be further advised that Mariana is willing to cooperate for a sale of the Property and does not object to a partition action being filed if other owners will not consent. As you know, Mariana has been trying for years to buy the other siblings out of the Property. If you were to file a partition action, this process becomes much simpler as Mariana is legally entitled to bid on any sale and each other sibling/owner would have to sign off on the sale as a party to the action. That ensures that Mariana would have time to obtain a loan and obtain insurable title.

Alternatively, if you obtain a court order providing you with a 1/27th (3.7%) interest in the Property, Mariana would consider purchasing your interest without the need for a partition action. However, any negotiated price would have to consider the fair market value of the Property as it exists such that it is real property with 11 owners, without a tenancy in common agreement, a high likelihood of litigation and the cost you would incur to litigate the sale of your interest. In other words, the value is far less than what is listed on Zillow or Redfin. Also, any sale would have to comply with all laws related to the tax that is owed and may be withheld by the seller.

Sincerely,

Anthony F. Ventura

On March 14, 2019, Plaintiff filed a complaint against defendants Ventura and VHM (collectively, “Defendants”), alleging that the “letter is libelous on its face, clearly exposing plaintiff to hatred, contempt and obloquy because it falsely accuses plaintiff with the commission of a crime and/or mean-spirited and reprehensible conduct.” (Complaint, ¶ 8.) Plaintiff alleges that “[t]he above-described publication was not privileged because it was published by defendants with malice, hatred and ill will toward plaintiff and the desire to injure him.” (Complaint, ¶ 11.)

Defendant specially moves to strike the complaint pursuant to Code of Civil Procedure section 425.16.

Defendants’ special motion to strike pursuant to Code of Civil Procedure section 425.16

In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, the California Supreme Court established the trial court’s duty in ruling on an anti-SLAPP motion to strike:

Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds [that defendant has made its threshold showing], it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’

(Id. at 67.)

“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1123.) “Put another way, the 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.’” (Id. at 88-89, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “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.” (Id. at 89.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Defendants meet their threshold showing that the complaint arises from protected activity

Here, the complaint plainly alleges and the letter shows that the allegedly defamatory letter is in connection with the probate action. “[S]tatements, 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; see also Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5 (stating same); see also GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 907 (stating same); see also Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478 (stating same).) “Thus, an action for defamation falls within the anti-SLAPP statute if the allegedly defamatory statement was made in connection with litigation.” (Healy, supra, 137 Cal.App.4th at p. 5; see also Rohde, supra, 154 Cal.App.4th at p. 35 (stating that “[s]ection 425.16 is ‘construed broadly, to protect the right of litigants to “the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions’”).) As in Rohde, supra, it is plain that these communications were made in connection with property that was the subject of the dispute in actual litigation, and constituted “a written or oral statement or writing made in connection with an issue under consideration or review by a… judicial body.” (See Code Civ. Proc. § 425.16, subd. (e)(2).) Defendants meet their threshold showing that the complaint arises from protected activity.

In opposition, Plaintiff fails to demonstrate a probability of prevailing on the complaint.

In opposition to the special motion to strike, Plaintiff does not file a memorandum of authorities. Instead, Plaintiff filed a five-page declaration and attached the letter. The declaration discusses: his actions in the Probate action (see Pl.’s decl., ¶ 1); his difficulty in communicating with the other parties (see Pl.’s decl., ¶ 2); his lack of desire to go to the subject property (see Pl.’s decl., ¶ 3); his prior relationship with Mariana (see Pl.’s decl., ¶ 4); his adoption of the evidence submitted by Defendants (see Pl.’s decl., ¶ 5); his intention in sending the first text to Mariana was to warn her to cooperate with her siblings and not to threaten her (see Pl.’s decl., ¶ 6); his subsequent communications asking Mariana if she were angry, super-pissed or homicidal, were not as an attorney but rather as a former brother-in-law (see Pl.’s decl., ¶¶ 7-8); and, he received the letter by email and the statements contained therein were false, and Defendant’s statements in the instant motion are also false (see Pl.’s decl., ¶¶ 9-10).

However, “a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 145 (emphasis added); see also Civ. Code § 45 (defining libel as “a false and unprivileged publication by writing”).) Here, the statement by the opposing counsel in connection with the probate action (and a potential partition action) is a statement logically related or connected to litigation, made by counsel of a litigant to achieve the objects of the litigation. (See GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 909 (stating elements for the litigation privilege, also stating that “under the litigation privilege, ‘communications with ‘some relation’ to judicial proceedings’ are ‘absolutely immune from tort liability’”), quoting Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057; see also Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1485-1486 (stating that “[t]he litigation privilege is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing’… [t]his privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness’… [t]he privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards’… [t]he principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions… [t]o achieve this purpose of curtailing derivative lawsuits, the courts have interpreted the litigation privilege broadly”); see also Healy, supra, 137 Cal.App.4th at p.5 (stating that allegedly defamatory statements in the letter “unquestionably came within the litigation privilege” and “it has been established for well over a century that a communication is absolutely immune from any tort liability if it has ‘some relation’ to judicial proceedings”); see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 (stating that “[t] he litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm… application of the privilege does not depend on the publisher’s ‘motives, morals, ethics or intent’… the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution… [t]he privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action… [i]f there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law… [a]ny doubt about whether the privilege applies is resolved in favor of applying it”); see also Rohde, supra, 154 Cal.App.4th at pp.37-38 (stating same).) Here, Plaintiff’s declaration and argument does not demonstrate as to how the litigation privilege does not apply such that he can demonstrate a probability of prevailing on his complaint. If anything, his submitted evidence demonstrates the applicability of the litigation privilege. Accordingly, as Plaintiff fails to demonstrate a probability of prevailing on his complaint, Defendants’ special motion to strike the complaint is GRANTED.

After compliance with Rules of Court, Rule 3.1312, Defendants shall submit a proposed judgment.

In light of the above ruling, Defendants’ demurrer to the complaint is MOOT.

The Court will prepare the Order.