Defendants Michael Molfetta, Kenneth Reed and Klaudia Castellano bring a Special Motion to Strike Plaintiff’s Complaint pursuant to CCP § 425.16. Defendants assert that Plaintiff’s complaint arises entirely out of protected activity and Plaintiff has no likelihood of prevailing on the merits. The motion is unopposed.
Pursuant to CCP §425.16 (b) (1), “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 under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
As relevant here, an “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… 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.” CCP §425.16(e).
A cause of action arises from protected activity when the acts underpinning the plaintiff’s cause of action involve an exercise of the defendant’s constitutional right of petition or free speech. Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 702. In determining this, the Court disregards the label given to the cause of action and rather examines ‘the principal thrust or gravamen of the cause of action to determine if it “arises from” protected activity. “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim”. Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1520; Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 209; Old Republic Construction Program Group v. Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 868.
The party moving to strike a claim, has the initial burden to show that the claim arises from an act in furtherance of his right of petition or free speech. Once that burden is met, the burden shifts to the opposing party to demonstrate the probability that it will prevail on the claim. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Navelier v. Sletten (2002) 29 Cal. 4th 82, 88.
In ruling on the motion, the Court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. CCP §425.16(b)(2).
The first step in an anti-SLAPP analysis is determining whether the causes of action arise from “an act in furtherance of the [defendant’s] right of petition or free speech … in connection with a public issue.” CCP 425.16(b).
This protection covers: “(1) any written or oral statement or writing made before a … 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 … 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.” CCP § 425.16(e).
In the Complaint, Plaintiff asserts that Defendants committed perjury and made libelous statements in a proof of service, declaration and verified answer filed with the Court in a prior action. Complaint, ¶¶ 23, 26, 29, 31-32, 36, 39, and 41-44.
Statements, writings and pleadings in connection with litigation are protected under subdivision (e)(1) and (e)(2) of the anti-SLAPP statute. Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35. Courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of those sections. Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.
The statements and conduct which form the basis of Plaintiff’s complaint are protected under the first prong of the anti-SLAPP statute.
Does Plaintiff Show A Probability of Prevailing? No.
To meet the burden of showing a probability of prevailing on the merits, a plaintiff must demonstrate the complaint is 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. The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken pursuant to section 425.16. The plaintiff must meet this burden with “competent and admissible evidence. Chabak v. Monroy(2007) 154 Cal.App.4th 1502, 1512-13; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.
The Court neither weighs credibility nor compares the weight of evidence. It accepts as true the evidence favorable to Plaintiff and evaluates Defendant’s evidence only to determine if it has defeated that submitted by Plaintiff. If the plaintiff “can show a probability of prevailing on any part of its claim, the cause of action is not meritless.” Oasis West Realty, 51 Cal.4th at 820.
While Plaintiff filed an opposition, he did not present any evidence suggesting a probability of prevailing on the merits. In making its analysis, the Court must determine whether the defendant could defeat the claim by way of an affirmative defense such as the litigation privilege, CC §47. Chabak, 154 Cal.App.4th at 1513; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290.
The litigation privilege, codified in CC § 47, immunizes communications related to judicial proceedings from tort liability and bars such causes of action. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738; Rubin v. Green (1993) 4 Cal.4th 1187, 1194. The statute defines privileged publications or broadcasts to include those made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law,” subject to a number of specific exceptions not relevant here. CC § 47(b). Although originally developed as a defense to defamation based on publications made in the context of litigation, the privilege now applies to all torts except malicious prosecution and all communications required or permitted by law in any judicial proceeding for the purpose of litigation, even if made prior to trial or outside of the courtroom. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057. The privilege is absolute in nature, and applies “to all publications, irrespective of their maliciousness.” Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. It applies to fraudulent communications and perjured testimony. Cohen v. Brown (2009) 173 Cal.App.4th 302, 319; see also Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956 (concluding the litigation privilege bars civil actions based on claims of perjury); Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431 (a declaration “is exactly the sort of communication the privilege is designed to protect”); Carden v. Getzoff (1987) 190 Cal.App.3d 907, 913-15 (“We in no way condone the alleged perjury. If the allegations in the complaint are true, [the witness’s] conduct is indeed outrageous. However, when there is a good faith intention to bring a suit, even malicious publications `are protected as part of the price paid for affording litigants the utmost freedom of access to the courts.”)
Plaintiff’s claims arise from protected conduct and Plaintiff has not shown a likelihood of prevailing on the merit.
Defendant’s Special Motion to Strike is GRANTED.
The moving party is ordered to give notice.