Plaintiff/Cross-Defendant Isabel Chavez seeks an order striking and dismissing, in whole or in part, Defendant Raplisa Medical Management, Inc.’s (“RMMI”) Cross-Complaint and its causes of action for breach of agreement and breach of implied covenant of good faith and fair dealing with prejudice and without leave to amend.

CCP § 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits which are primarily brought to chill the valid exercise of constitutional rights.  The purpose of a SLAPP suit is to punish and distract those that oppose the suing party [plaintiff or cross-complainant] by threatening ruinous damages and imposing litigation costs for exercising their free speech rights.  (Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 741.)  To protect the constitutional right of petition and free speech, the SLAPP statute is broadly construed.  (Code Civ. Proc. § 425.16(a).)  A SLAPP Motion may be addressed to the entire complaint, or to any cause of action therein.  (Code Civ. Proc. § 425.16(b)(1).)

A two-step process is used to determine whether an action or a claim is a SLAPP suit subject to a special motion to strike.  First, the moving party has the burden of making “a threshold showing that the challenged cause of action is one arising from protected activity”, i.e. whether the lawsuit against the moving party is predicated on his or her exercise of a constitutional right of free speech or petition.  If this burden is not met, then the motion will be denied.  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)

If the moving party meets this initial burden, the burden shifts to the opposing party to show the probability of success on the merits of the claim or complaint, i.e. a showing of facts that would, if proved at trial, support a judgment in the plaintiff’s favor.  (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)  In other words, even if the conduct for which a party is being sued implicates that party’s free speech or petition rights, the lawsuit may proceed if there is a prima facie showing that the claim has merit.

Here, Plaintiff contends that RMMI’s Cross-Complaint arises from Plaintiff’s constitutional right of petition because the Cross-Complaint was filed in retaliation for the filing of Plaintiff’s lawsuit. Plaintiff also argues that RMMI cannot prevail on the its claims because it has not alleged facts, nor can it present evidence, to support a prima facie claim for breach of contract or breach of the implied covenant of good faith and fair dealing.

In Opposition, RMMI contends that Plaintiff’s failure to properly report her time is independent of Plaintiff’s lawsuit and unlawful and fraudulent.  RMMI also contends that Plaintiff’s claims are not a matter of widespread public interest, and that it can present evidence to support its claims.

Plaintiff has the better argument.  First, it is undisputed that RMMI did not file its Cross-Complaint complaining Plaintiff failed to properly report her time or follow procedures until after Plaintiff filed her lawsuit against Defendants.  Second, RMMI’s Cross-Complaint expressly notes that Plaintiff filed a Complaint with multiple wage and hour claims against it and then alleges that Plaintiff breached the alleged agreement by “not reporting her time properly and not following company policies and procedures that relate to her position”.  Cross-Complaint, at ¶¶ 11-12.  RMMI admits in its Opposition that it was through this lawsuit that RMMI “discovered” Plaintiff allegedly did not properly report her time.  Opp., at p. 2:27-29.  The Cross-Complaint was thus filed specifically in reaction to the wage and hour claims.  Plaintiff has satisfied her burden of a prima facie showing that the Cross-Complaint arises from protective activity, i.e. Plaintiff’s constitutional right to petition.  (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.)

Although not required since Plaintiff has demonstrated the Cross-Complaint arises from her constitutionally-protected petition activity, Plaintiff has also demonstrated that her wage and hour claims do involve a public issue because she has asserted a PAGA claim based on those wage and hour violations.

Regarding the second prong, RMMI has failed to meet its burden of demonstrating the probability of success on the merits of its claims.  RMMI presents no evidence to support any of its allegations in the Cross-Complaint as required under CCP § 426.16(b), or the arguments in its Opposition.  There are no facts alleged in the Cross-Complaint or evidence presented to demonstrate Plaintiff engaged in any actionable conduct.  At best, the Cross-Complaint alleges Plaintiff failed to follow RMMI’s policies and procedures.  This does not amount to wrongful, illegal, unlawful or fraudulent conduct as argued in the Opposition.  There are also no factual allegations in the Cross-Complaint to support the existence of any “agreement” between Plaintiff and RMMI.  RMMI does not identify whether the purported agreement is express or implied, written or oral, and does set forth any of the terms of the alleged agreement.

Accordingly, the motion to strike RMMI’s Cross-Complaint is GRANTED.

Plaintiff is order to give notice.

The status conference remains on calendar.