Case Number: BC648344    Hearing Date: July 13, 2017    Dept: 37

CASE NAME:                       Bustamonte v. Castellanos

CASE NUMBER:                 BC648344

HEARING DATE:                 7/13/17

CALENDAR NUMBER:      12

DATE FILED:                        1/30/17

TRIAL DATE:                        None

NOTICE:                                OK

PROCEEDING:                    Special Motion to Strike the Complaint ( Code Civ. Proc., §                                                     425.16)

MOVING PARTY:                 Defendant Elizabeth Castellanos

OPPOSING PARTY:           Plaintiff Anthony M. Bustamonte

 

COURT’S TENTATIVE RULING

Defendant’s special motion to strike is GRANTED with respect to Plaintiff’s complaint.  Defendant’s request for attorney fees is GRANTED in the amount of $5,037.50.  Counsel for Defendant to give notice.

PROCEDURAL BACKGROUND

Plaintiff Anthony M. Bustamonte (“Bustamonte”) alleges that Defendant Elizabeth Castellanos (“Castellanos”) made libelous and defamatory statements about Plaintiff to the police and third parties, including officers of the Pico Rivera Special Victims Unit, and as a result, criminal charges were filed against him.  Defendant filed the special motion to strike the complaint (Anti-SLAPP) on May 15, 2017, pursuant to Code of Civil Procedures, section 425.16. The opposition was not timely filed, and the court subsequently continued the hearing to July 13, 2017 at the moving party’s request.

STATEMENT OF THE CASE

This action concerns statements made by Defendant Castellanos to the police and other individuals alleging that Plaintiff Bustamonte criminally sexually assaulted her on the night of November 11, 2016 or early morning of November 12, 2016.  As set forth in the complaint, filed on January 30, 2017, the factual background is as follows.  On or about November 16, 2016, Castellanos made statements to Detective Escobedo Fuchs (“Detective Fuchs”) of the Pico Rivera Special Victims Unit, among others, alleging that Plaintiff had committed violations of the Penal Code as alleged in the complaint (Compl. ¶ 4.)  Castellanos’s allegations specifically referenced Plaintiff by name, were made of and concerning Plaintiff, and resulted in criminal charges being asserted and filed against Plaintiff by Detective Fuchs, under a “Ramey Warrant.”  (Compl. ¶ 5.)  Plaintiff contends that these statements were false and malicious, that Castellanos and Detective Fuchs knew or should have known that Defendant’s statements were false and malicious when they proceeded to cause criminal charges to be brought against him, and that these acts damaged Plaintiff’s reputation and caused him to suffer emotional damages and distress.  (Compl. ¶ 6.)

 

Plaintiff’s complaint is unclear as to what specific causes of action he is alleging.  In his complaint, Plaintiff alleges that Defendant made false and malicious statements to the police and third parties, and the civil case cover sheet states that Plaintiff’s claim is for defamation. The cause of action alleged appears to be for defamation. However, Plaintiff contends in his amended opposition to Defendant’s special motion that “the allegations of Mr. Bustamonte’s complaint plainly sound in malicious prosecution, not defamation.”  (Am. Opp. 7; see also id. at 1, 4.) Based on that statement, the court will analyze the motion based on a malicious prosecution cause of action.  The court will also analyze Plaintiff’s complaint with respect to defamation for the purpose of completeness.

 

EVIDENTIARY OBJECTIONS

 

Defendant objects to certain statements in the amended declaration of Anthony Bustamonte (“Bustamonte Declaration”) which was submitted in support of Plaintiff’s amended opposition to Defendant’s special motion.

 

Overruled: 1, 3, 5 in-part

Sustained: 2, 4, 5 in-part, 6

 

Objection 5 is overruled in-part and sustained in-part.  Plaintiff establishes foundation for the fact that he received the social media messages.  Plaintiff does not establish foundation for the fact that the identified individual is Defendant’s boyfriend.

 

Defendant also objects to a statement in the declaration of Gregory Safian (“Safian Declaration”) which was submitted in support of Plaintiff’s amended opposition to Defendant’s special motion.

 

Overruled: 1

 

Plaintiff objects to certain statements in the declaration of Julie Boyton (“Boyton Declaration”) which was submitted in support of Defendant’s Reply.

 

Overruled: 1, 2, 3

 

DISCUSSION

 

I.          Legal Standard

 

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.  In pertinent part, the statute provides, “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 Constitution or the 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.”  ( Code Civ. Proc., § 425.16, subd. (b)(1).)[1]  The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech.  (§ 425.16, subd. (a); see Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

 

Courts employ a two-step process to evaluate anti-SLAPP motions.  (Equilon Enters. v. Consumer Cause, Inc.(2002) 29 Cal.4th 53, 67.)  To invoke the protections of the statute, the defendant must first show that Plaintiff’s lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech.  (Ibid.) From this fact, courts “presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.”  (Id. at p. 61.)  “It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.”  (Ibid.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” ( Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) “When assessing the plaintiff’s showing, the court must also consider evidence that the defendant presents.”  (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)  “The court does not, however, weigh that evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.  [Citation.]”  (Ibid.)

 

II.         First Prong: Whether the Alleged Conduct Arises From Protected Activity

 

On the first step of the analysis, Plaintiff alleges that Defendant made false and malicious statements to Detective Fuchs and unidentified third parties and that, as a result, criminal charges were filed against him.  In sum, Plaintiff contends that the false statements led directly to an unjustified arrest, which is the basis for his malicious prosecution claim.  Defendant contends that Plaintiff’s allegations are based on protected conduct—specifically, her constitutionally protected rights to free speech and to petition the police.

 

As an initial matter, the special motion to strike applies to Plaintiff’s causes of action for both malicious prosecution and defamation.  (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 919; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.)  The California Supreme Court has noted “the Legislature’s intent consistently has been to protect all direct petitioning of governmental bodies . . .  [Citation.]”  (Jarrow Formulassupra, 31 Cal.4th at p. 736.)  And it is well-established that “communications to the police are within SLAPP.  [Citation.]”  (Comstock,supra, at pp. 941-942.)  As such, Plaintiff’s statements to the police prima facie arise from protected activity.

 

Plaintiff cites Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 to contend that “[f]iling a false criminal complaint is an illegal activity, not a constitutionally protected exercise of the right of petition or free speech.”  Lefebvre, however, is distinguishable because the trial court in that case found “that the record ‘conclusively’ established that Alice’s and Toothman’s statements to the police were ‘illegal activity’ under Penal Code section 148.5, and as such, not ‘protected activity’ within the meaning of the anti-SLAPP statute.”  (Id. at p. 701; see also Comstocksupra, 212 Cal.App.4th at pp. 951-952.)  No similar determination has been made with regard to Castellanos’ statements to Detective Fuchs.  (See Kenne v. Stennis (2014) 230 Cal.App.4th 953, 967 [“[W]hen allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16.”].)  Lacking such a determination, Defendant’s statements constituted protected activity within the meaning of the anti-SLAPP statute.  (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712 [“An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful.”]; see also ibid. [“mere allegation that [defendant] engaged in unlawful coaching and conspiracy activities is insufficient to render her alleged actions unlawful as a matter of law and outside the protection of Code of Civil Procedure section 425.16.”.)

 

Although Plaintiff alleges that text messages with Castellanos confirm that her claim to the police was false and malicious, his contentions regarding the truth or falsity of Plaintiff’s statements are irrelevant to the first step of the anti-SLAPP analysis.  Further, the fact that the District Attorney declined to charge Plaintiff for lack of evidence, even if this alleged fact were admissible, is insufficient to establish that Defendant filed a false criminal complaint.  (Ibid.) In sum, Defendant’s statements to the police arise from protected activity—satisfying the first prong of the anti-SLAPP analysis.

 

Plaintiff additionally pled in the complaint that Defendant made false and malicious statements to unidentified third parties.  California Courts of Appeal have recognized that “[a] mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity.”  (Comstocksupra, 212 Cal.App.4th at p. 946.)  This reflects the fundamental concept that “[a] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of ‘one cause of action.’  [Citation.]”  (Ibid.) Applying these legal principles here, Bustamonte’s causes of action for Castellanos’ alleged defamatory statements made to “various third parties” are incidental to his defamation and malicious prosecution based on Castellanos’ statements to the police, and are within SLAPP.

 

Defendant contends that her additional statements to her mother, her college professor (Hope Weiss), school counselors, and the medical staff at Pomona Valley Hospital Medical Center fall within subdivision (e)(2) of section 425.16, as “oral statements 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.”  (See Code Civ. Proc., § 425.16, subd. (e)(2).)  Having found that Defendant’s statements to these third parties were incidental to her statements to the police, the court finds that these additional statements were made “in connection with” her statements to the police, and also arose from protected activity.  (See ibid.)

 

In sum, Defendant meets her burden under the first prong of the analysis to show that Plaintiff’s lawsuit arises from protected activity.  The court now turns to the second step of the analysis.

 

III.        Second Prong: Whether There Is a Probability that Plaintiff Will Prevail on the Claim

 

Once a defendant has met its initial burden, “[i]t is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.”  (Equilon Enters v. Consumer Cause, Inc.supra¸ 29 Cal.4th at p. 61.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  ( Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafifsupra, 39 Cal.4th at 269, fn. 3.)  The test for showing a probability of success under section 425.16 is similar to the standard applied to evidentiary showings in summary judgment motions, and the plaintiff must make a prima facie showing by competent admissible evidence within the personal knowledge of the declarant.  (Ludwig v. Superior Court (1995) 37 Cal.App.4th at 15-16.)

 

A. Malicious Prosecution

 

As noted at the offset, Plaintiff has clearly stated that he is alleging a cause of action for malicious prosecution, not defamation.  (E.g., Am. Opp. 7.)  “In order to prosecute a claim for malicious prosecution, it is the plaintiff’s burden to demonstrate: (1) institution of criminal proceedings at the instigation of defendants, (2) termination of those proceedings favorable to plaintiff, (3) lack of probable cause, and (4) malice.”  (Williams v. Taylor (1982) 129 Cal.App.3d 745, 754.)  There are a number of grounds on which Plaintiff’s malicious prosecution claim fails.  The court will discuss these in turn.

 

The first element consists of initiating or procuring the arrest and prosecution of another under lawful process.  (Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417.)  Plaintiff claims that criminal charges were asserted and filed against him under a “Ramey Warrant,” and that this arrest was sufficient to constitute the institution of criminal proceedings.  (Am. Opp. 12; Compl. ¶ 6; Amended Declaration of Anthony M. Bustamonte (“Bustamonte Decl.”) ¶ 10.)”

 

Defendant disagrees and contends that an arrest without the filing of formal charges is insufficient to meet the first element of the claim, and Defendant cites the recently decided case Van Audenhove v. Perry (2017) 11 Cal.App.5th 915 as governing legal authority.  (Reply 6.)  In Van Audenhove, the Court of Appeal held that “a cause of action for malicious prosecution cannot be premised on an arrest that does not result in formal charges (at least when the arrest is not pursuant to a warrant).”  The Court of Appeal reasoned: “An arrest is not a proceeding. Moreover, a favorable termination is one that ‘indicate[s] the innocence of the accused … .’  [Citation.]  However, release from arrest does not necessarily indicate innocence; the arrestee may yet be prosecuted.”  (Id. at 920.)  The Court further stated that a plaintiff’s right to relief in a cause of action for malicious prosecution “does not turn on what the prosecutor determines—it turns on whether a court gets involved.”  (Id. at 924.)

 

The prosecution element of malicious prosecution sets up a bright-line test.  Before charges are filed, the actions of the police and the prosecutor are merely investigatory.  [Citation.]  After charges are filed, the actions of the court are fully adjudicatory. It is up to the court to determine whether the charges are well founded; the court’s determination that they are not constitutes a favorable termination for purposes of malicious prosecution.

 

(Ibid.)  Van Audenhove was decided this year, and it is as of yet unclear whether an arrest under a Ramey warrant, as occurred in this case, qualifies as the institution of criminal proceedings for the purposes of a malicious prosecution claim.

 

In People v. Ramey (1976) 16 Cal. 3d 263, the California Supreme Court held that “the right of the people to be secure in their persons and houses against unreasonable seizures applies to arrests within the home, and that warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances.” (Id. at pp. 275-276, fn. omitted.)  “Subsequently, the United States Supreme Court likewise held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.  [Citation.]”  (Goodwin v. Superior Court (2001) 90 Cal.App.4th 215.)

 

To comply with Ramey and Payton, prosecutors developed the use of a Ramey warrant form, to be presented to a magistrate in conjunction with an affidavit stating probable cause to arrest. [Citation; see also Pen. Code, § 817, enacted 1995.]  In considering Ramey warrants before passage of Penal Code section 817, the California Supreme Court held that “neither constitutional nor statutory directives concerning warrants require that criminal proceedings must be instituted before an arrest warrant may be issued.”  [Citation.]  The court reasoned: “It is apparent that the ‘complaint,’ as the term is used in the Penal Code, serves two different purposes. One is to initiate criminal proceedings; the other to demonstrate probable cause for an arrest warrant. A complaint can be used to institute criminal proceedings without serving as a basis for an arrest warrant, and we see no reason why the converse may not also serve–that a complaint can furnish probable cause for arrest even though a different document is used to institute proceedings. The important point . . . is that probable cause was shown to support the issuance of the arrest warrant; it is immaterial whether that same document initiated criminal proceedings . . . .”

 

(Goodwinsupra, 90 Cal.App.4th at p. 225.)

 

Ramey warrant authorizes a residential arrest before the filing of criminal charges.  (Id. at p. 218.)  Moreover, the Supreme Court has recognized that the presentation of a probable cause affidavit and the issuance of a Rameywarrant do not institute a criminal proceeding.  (Id. at p. 226.)  As with an arrest without warrant, an arrest under aRamey warrant is primarily investigatory and in prelude to further adjudicatory proceedings.  And although a magistrate is required to determine that the peace officer’s declaration establishes probable cause for an arrest (Pen. Code § 817), a prosecutor may decline to thereafter bring charges, unlike with a criminal proceeding.  (See Van Audenhove v. Perrysupra, 11 Cal.App.5th at p. 924 [“After charges are filed, the actions of the court are fully adjudicatory. . . .  ‘[T]he prosecutor may not unilaterally abandon a prosecution [citation]; only the court may dismiss a criminal charge [citations].’  [Citation.]”].)  Here, Plaintiff does not show that there has been any adjudication, and Plaintiff thus has not established the first element of his malicious prosecution claim.

 

Plaintiff’s malicious prosecution claim also fails on the second element because he did not plead that any proceedings were terminated in his favor.  (See Code Civ. Proc. § 425.10 [a complaint must contain “[a] statement of the facts constituting the cause of the action. . .”].)   Although Plaintiff contends in his opposition brief and amended declaration that the District Attorney later dropped the criminal charges for lack of evidence, the statement lacks any context.  (Am. Opp. 12, Bustamonte Decl. ¶ 11.)  Even if Plaintiff’s evidence were admissible and this were true, Plaintiff does not allege this fact or any other fact about the termination of charges in his complaint.  (See Conroy v. Regents of Univ. of Cal. (2009) 45 Cal.4th 1244, 1254 [a defendant “[has] the burden on summary judgment of negating only those theories of liability as alleged in the complaint and [is] not obliged to refute liability on some theoretical possibility not included in the pleadings, simply because such a claim was raised in plaintiff’s declaration in opposition to the motion for summary judgment.  [Citation.]”], internal quotations omitted.)

 

Furthermore, under precedent established by Van Audenhove, a district attorney’s determination that criminal allegations “were without merit” and decision not to bring charges are insufficient to meet this element of a malicious prosecution claim.  (Id., at 111 Cal.App.5th at p. 920 [“[A] favorable termination is one that “indicate[s] the innocence of the accused … .”  [Citation.]  However, release from arrest does not necessarily indicate innocence; the arrestee may yet be prosecuted.].)  Here, there was no adjudicatory action in Plaintiff’s favor.  (See id. at 924 [“After charges are filed, the actions of the court are fully adjudicatory. It is up to the court to determine whether the charges are well founded; the court’s determination that they are not constitutes a favorable termination for purposes of malicious prosecution.”].)  Therefore, Plaintiff has not established the second element of his cause of action for malicious prosecution.

 

With respect to the third element, the question of whether probable cause exists is one of law to be determined by the court. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875.)  This is because the question “requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors.”  (Ibid.)  Ultimately, the question turns on the “reasonableness” of the defendant’s conduct.  (Id. at p. 878.)  In other words, the court must objectively determine whether, “on the basis of the facts known to the defendant, the institution [and maintenance] of the prior action was legally tenable.”  (Ibid.)  “When the claim of malicious prosecution is based upon initiation of a criminal prosecution, the question of probable cause is whether it was objectively reasonable for the defendant . . . to suspect the plaintiff . . . had committed a crime.”  (Ecker v. Raging Waters Group (2001) 87 Cal.App.4th 1320, 1330.)  If the court determines the defendant had an objectively reasonable basis for instituting and maintaining the underlying suit, “the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated.” (Sheldon Appelsupra, 47 Cal.3d at p. 875; see also Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [“This is an objective standard, and does not take into account the subjective mental state of the defendant; if the underlying claims were objectively tenable, the malicious prosecution claim fails, regardless of any evidence of malice on the part of the defendant”].)  In ruling on an anti-SLAPP motion, the court does not weigh the parties’ evidence in terms of credibility or persuasiveness, rather, “the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.  [Citation.]”  (1-800 Contacts, Inc. v. Steinbergsupra, 107 Cal.App.4th at p. 585.)

 

In this case, Defendant submitted evidence including (1) the declaration of Elizabeth Castellanos (“Castellanos Decl.”); (2) the declaration of Hope Weiss (“Weiss Decl.”); (3) Exhibit A, images of bruises on Defendant’s arms and throat; and (4) Exhibit B, the Los Angeles Sherriff’s Department Incident Report and the Forensic Medical Report, dated November 15, 2016 (which details bruising to the back of her left arm and left hip).  On reply, Defendant additionally submits the declaration of Julie Boyton (“Boyton Decl.”) who attests to being a licensed clinical social worker and declares that Defendant is a current patient and has been receiving counseling services since March 2017.  Plaintiff Bustamonte contends that statements in his declaration and accompanying exhibits and in the declaration of Gregory Safian[2] prove that Castellanos engaged in a consensual sexual encounter, felt romantic affection for Plaintiff, hoped to see him again the very next day, hoped to pursue a long term romantic relationship with him, and did not regret anything about the encounter.  (Am. Opp. 8.)  Plaintiff’s evidence does not refute or prove the falsity of Defendant’s contention that while the sexual encounter began consensually, she withdrew consent and requested Plaintiff stop before any act of intercourse occurred, and that her withdrawal of consent and refusals were ignored.  (Castellanos Decl., Ex. A; see also Bustamonte Decl. Ex. A at Nov. 13, 1:56 PM [“Ok well I didn’t know and I’m sorry I’m not as strong as I would like to be to hold myself back.  Idk what I can tell you or what I can do to make it up to you or help you through it.. i did not mean to be so rough with you. . . .”]; id. at 2:43 PM [“. . . I regret not taking things slow cause I would’ve rather been your friend and get to know you and learn everything about you, but I fucked up and couldn’t contain myself and now I gotta deal with it like a man. . . .”].)  Based on the presented evidence, the court finds that Castellanos had an objectively reasonable basis to make her statements to the police.[3]  Because Plaintiff fails to demonstrate that Castellanos lacked probable cause to make the statements at issue, he accordingly fails to establish a reasonable probability of success on the third and fourth elements.  (See Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333.)

 

In sum, Plaintiff fails to meet his burden to establish any of the elements of his cause of action for malicious prosecution, and thus cannot demonstrate a reasonable possibility of succeeding on the merits of his claim. Accordingly, the court GRANTS Defendant’s special motion to strike the complaint.

 

B. Defamation

 

For the sake of completeness, the court will also address Plaintiff’s likelihood of success on a cause of action for defamation.  “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.  (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)  Castellanos contends that Plaintiff’s cause of action for defamation fails since the statements at issue are protected by the litigation privilege.  (Civ. Code, § 47(b).)  Civil Code, section 47, subdivision (b) privileges, in relevant part, a statement made in “any (1) legislative proceeding, (2) judicial proceeding, [or] (3) in any other official proceeding authorized by law.”  (Civ. Code, § 47, subd. (b).)

 

The privilege has been held to absolutely privilege a defendant’s statements reporting an alleged rape to the police and district attorney.  (Cote v. Henderson (1990) 218 Cal.App.3d 796, 806.)  The privilege is not limited to statements made during the proceeding, “but may extend to steps taken prior thereto, or afterwards.”  (Action Apartment Ass’n., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) [4]  Defendant’s statements to the police were thus absolutely privileged under Civil Code, section 47, subdivision (b), and Plaintiff cannot show a reasonable probability of success on the merits.  For these reasons, Plaintiff has not established a reasonable likelihood of success on a claim for defamation.[5]

 

IV.       Attorney’s Fees

 

Code of Civil Procedure, section 425.16 provides in relevant part:

 

(1)  . . . [A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. 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.

 

( Code Civ. Proc., § 425.16, subd. (c)(1).)  The fee-shifting provision is mandatory, and it is a mechanism intended to promote the policy underlying the anti-SLAPP statute generally—namely, to discourage SLAPP suits brought to chill the valid exercise of the constitutional rights of free speech and petition for the redress of grievances.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

 

As stated above, the court GRANTS Defendant’s special motion to strike the complaint.  Defendant is entitled to an award of the attorney fees incurred with respect to the underlying claims, as well as the fees incurred in enforcing the right to mandatory fees—i.e., those incurred in bringing the instant motion.  (Ketchumsupra, 24 Cal.4th at p. 1141.)

 

The anti-SLAPP statute permits the use of the lodestar adjustment method of calculating a reasonable attorney fee.  (Ketchumsupra, 24 Cal.4th at p. 1131.)  In using such an approach, the court’s objective is to award a fee at the fair market value for the services rendered in a particular action, and the analysis generally begins with a lodestar figure—i.e., “the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.”  (Id. at p. 1133.)  The court may then adjust the lodestar to arrive at the fair market value of the legal services provided.  (Id. at p. 1132.)

 

The prevailing party may only recover the attorney fees incurred in connection with the special motion to strike, not the action as a whole.  (See, e.g., Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383 [“[T]he Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit”]; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381 “the fee ‘provision applies only to the motion to strike, and not to the entire action’ ”]; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 218 [“The defendant can recover only its fees and costs in connection with the motion, not the entire action”].)  Thus, in analyzing the hours spent by defense counsel, the court considers whether the time was spent preparing for, drafting, or otherwise producing the anti-SLAPP motion and supporting documentation.

 

The hourly rate should reflect the local market for comparable representation.  (Ketchumsupra, 24 Cal.4th at pp. 1128, 1138.)  The reasonable hourly rate “is the product of a multiplicity of factors [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s representation, and the undesirability of the case.”  (Id. at p. 1139, internal quotations omitted.)  Where the record is bereft of evidence on the value of the attorney’s services, the court may rely on its own knowledge and experience to determine a reasonable fee.  (Frank v. Frank (1963) 213 Cal.App.2d 135, 137 [“The knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer’s fee, even though there was no specific evidence on the subject”]; accord, Dudman v. State of California (1983) 145 Cal.App.3d 617, 619.)

 

Defendant seeks a fee of $7,117.50, which is based on an hourly rate of $200 per hour for counsel Armstrong’s time and $175 per hour for Liu’s time.  In total, Defendant seeks fees for 30.9 hours of completed work and 10 hours of anticipated work on a reply brief and for the hearing. (Declaration of Pennie P. Liu (“Liu Decl.”) ¶¶ 3-4.)  Liu divides the work into the following seven categories:

 

  1. Reviewing file materials to determine the applicability of anti-SLAPP: $740 (3.7 hours, Armstrong)
  2. In-person meeting to discuss the details of the incident to draft the motion to strike and supporting declarations: $ 1,140 (5.7 hours, Armstrong)
  3. Researching statutory and case authority in support of the anti-SLAPP motion: $1,137.50 (6.5 hours, Liu)
  4. Drafting the notice, motion, memorandum, declarations, and proposed order: $2,625 (15 hours, Liu)
  5. Review of Plaintiff’s objection (anticipated): $175 (1 hour, Liu)
  6. Drafting reply brief (anticipated): $600 (4 hours, Liu)
  7. Preparation of and attendance at oral argument (anticipated): $600 (5 hours, Liu)

 

(Ibid.)[6]

 

Although counsel’s declaration provides some detail as to the nature of the tasks performed, the documentation submitted to the court in support of the present motion consists primarily of block billing.[7]  As a general rule, block billing is an undisciplined practice, and block-billed entries “render it virtually impossible to break down hours on a task-by-task basis between those related to the [particular claims at issue] and those that are not.”  (Bell Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.)  For instance, counsel claims 15 hours were spent “[d]rafting the notice, motion, memorandum, declarations, and proposed order.”  This description is not sufficiently specific to permit the court to analyze with a reasonable degree of certainty what particular tasks were reasonably necessary for purposes of drafting and filing the motion.  Given that Plaintiff only asserts two causes of action, the court determines that 12 hours of work ($2,100) is reasonably compensable for the preparation and filing of Castellanos’ anti-SLAPP motion.  Similarly, the 3.7 hours spent reviewing the file materials to determine the applicability of anti-SLAPP and 5.7 hours of in-person meetings to discuss the details of the incident is not justified, given that Liu was the person who drafted the notice, motion, memorandum, declarations, and the proposed order. The court finds that 5 hours total ($1,000) is reasonably compensable for both entries.  The court, however, finds the requested time of 6.5 hours researching statutory and case authority and the anticipated 1 hour requested for review of Plaintiff’s opposition brief to be reasonable.  Defendant additionally seeks $600 for the drafting of the reply brief, which the court finds reasonable.  Finally, the court finds it reasonable to grant counsel $200 for 1 hour of Armstrong’s time for the hearing.

 

Plaintiff does not challenge the reasonableness of the specific fees requested and only contends that Defendant cannot be considered the prevailing party and is, at most, only entitled to fees associated with the special motion to strike.  Accordingly, the court GRANTS Defendant $5,037.50 in attorney’s fees.

[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

 

[2] In support of her reply, Defendant submits the supplemental declaration of Elizabeth Castellanos in which she attests: “With respect to the declaration from Gregory Safian, I do not know and have never known this person.  I did not have any conversations with him on November 12, 2016 from 9 a.m. to 12 p.m., or at any time ever. Furthermore, I have never said to anyone that I was ‘positive and excited about [my] new relationship’ with plaintiff.” (Supp. Castellanos Decl. ¶ 5.)


[3]
 Defendant additionally contends that the arrest was made with probable cause because the Ramey warrant was signed by Judge Salvadore Sima and because a Ramey warrant is issued only “when a declaration of probable cause is made by a peace officer of this state” and “the magistrate [is] satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense.”  (Cal. Pen. Code, § 817, subd. (a)(1).)  The issue here is not whether the peace officer had probable cause in seeking the warrant, but whether the defendant had probable cause to complain to the police in the first instance.  Accordingly, the court need not decide whether the approval of the Ramey warrant by the judicial officer constitutes a finding of probable cause as a matter of law.

[4] The litigation privilege is not without limit, and does not extend to actions for malicious prosecution. (Action Apartment Ass’n., Inc. v. City of Santa Monicasupra, 41 Cal.4th at p. 1242 [“The policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.”].)


[5]
 While Plaintiff has made it clear that he regards his cause of action as solely one for malicious prosecution and not one for defamation, as noted above, nevertheless, even if it were considered a cause of action for defamation, Plaintiff would still not have demonstrated a reasonable probability of success on the merits.  Regardless of whether the cause of action is for malicious prosecution or defamation, Defendant’s special motion to strike would be granted.


[6]
 The court recognizes that counsel requests a smaller amount of fees for certain tasks such as the drafting of the reply brief and preparation of and attendance at oral argument than would be mathematically awardable for the stated amount of either attorneys’ time.

 

[7] The court notes that counsel has not submitted copies of Castellanos’ bills as evidence.  Although Liu did not identify the individuals who claim each line-item requested, simple mathematics identifies who billed the claimed time.  Counsel may discuss this at the hearing.