Ryan vs. Village Property Management

“To succeed in opposing a special motion to strike, the nonmoving party must ‘demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.’ [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.] The moving party prevails by ‘defeat[ing]’ the ‘claim as a matter of law’ [citation] in ‘a summary- judgment-like procedure’ [citation].” (Olson v. Doe (2022) 12 Cal.5th 669, 679; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) “If the plaintiff fails to meet that burden, the court will strike the claim.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

Protected Activity

A “cause of action arising from acts committed by attorneys in representing clients in litigation may appropriately be the subject of an anti-SLAPP motion.” (Wittenberg v. Bornstein (2020) 50 Cal.App.5th 303, 312, citing to PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1221 [acts committed by attorneys in representing clients in litigation may appropriately be the subject of an anti-SLAPP motion].)

This includes communications made in preparation for, or in anticipation of, bringing an action or other official proceeding. (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789–790; see Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 472 [prelitigation letters constitute conduct in preparation or anticipation of litigation, and they fall within the protection of section 45.16, subdivision (e)(2)]; see Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1245 [service of a three-day notice to quit, as well as the filing of an unlawful detainer action, is protected activity].)

“ ‘[P]relitigation communications may qualify for this protection so long as they “ ‘concern[] the subject of the dispute’ and [are] made ‘in anticipation of litigation “contemplated in good faith and under serious consideration.” ’ ” ’ [Citations.]” (Medallion Film LLC v. Loeb & Loeb LLP (2024) 100 Cal.App.5th 1272, 1284–1285; Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 832-833.)

“ ‘The “good faith [and under] serious consideration” requirement is not a test for malice. [Citation.] Instead, it focuses on whether the litigation was genuinely contemplated’ [citation], and it protects prelitigation communications made in genuine contemplation of litigation while excluding from protection communications made when litigation is ‘just a negotiating tactic or a hypothetical possibility. [Citations.] [¶] The requirement to show that litigation is seriously contemplated ensures that prelitigation communications are actually connected to litigation and that their protection therefore furthers the anti-SLAPP statute’s purpose of early dismissal of meritless lawsuits that arise from protected petitioning activity. [Citations.]’ [Citation.]” (Medallion Film LLC v.

Loeb & Loeb LLP (2024) 100 Cal.App.5th 1272, 1285–1286; see People ex rel. Allstate Ins. Co. v. Rubin (2021) 66 Cal.App.5th 493, 499 [prelitigation communications may constitute protected activity if they were related to litigation that is contemplated in good faith and under serious consideration, but litigation is not under serious consideration if it is only a possibility].)

For example, settlement negotiations and communications, whether preceding the filing of a lawsuit or after the lawsuit has been filed, are protected activity for anti-SLAPP purposes. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1024-1025; see Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 833 [defendant’s letter responding to a prelitigation demand from plaintiff is protected petitioning activity].)

The Law Firm Defendants present evidence that their communications with Plaintiff were made exclusively in their capacity as legal counsel for Huntington Pointe 2019, LP, and its property management company, VPM Management, Inc., sued in this action as Village Property Management. (Bringham Declaration, ¶¶ 4-6, 8; see Eastwood Declaration, ¶¶ 3-5, 7 [legal assistant’s communications with Plaintiff were made in connection with ongoing legal representation, and they were made under the direction and supervision of licensed attorneys]; see also Exhibits A & B to First Amended Complaint.)

Moreover, these communications were made on behalf of the Law Firm Defendants’ clients, and the communications concerned an ongoing landlord-tenant dispute between Plaintiff and the Law Firm Defendants’ clients. (Bringham Declaration, ¶ 6.)

In fact, the communications, particularly the Settlement Agreement attached to Exhibit B of the First Amended Complaint, show they were made in direct response to a small claims action Plaintiff brought against VPM Management, Inc., as well as Plaintiff’s complaint with the California Civil Rights Department.

Given the foregoing, the Court finds the Law Firm Defendants have met their burden of showing that Plaintiff’s claims against them arise from protected activity, as Plaintiff’s claims arise from acts committed by attorneys in representing clients in litigation. (Wittenberg v. Bornstein (2020) 50 Cal.App.5th 303, 312.)

Probability of Prevailing on the Merits

Once the moving party establishes the challenged claim arises from protected activity, “the burden shifts to plaintiffs in the second step to demonstrate a prima facie case that would enable them to prevail on the challenged claims. [Citation.] Plaintiffs only need to show ‘minimal merit’ to defeat the special motion to strike. [Citation.] At this stage, ‘[t]he court does not weigh evidence or resolve conflicting factual claims ... [but rather] accepts the plaintiff’s evidence as true,

and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.’ [Citation.]” (Dziubla v. Piazza (2020) 59 Cal.App.5th 140, 148; see Olson v. Doe (2022) 12 Cal.5th 669, 679 [“To succeed in opposing a special motion to strike, the nonmoving party must ‘demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim’ ”].)

However, “[i]f the opposing party fails to make the requisite showing, the motion must be granted. [Citation.]” (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 318.)

By failing to oppose the anti-SLAPP, Plaintiff failed to make the requisite showing that there is a probability of prevailing on the merits, i.e., that her claims are legally sufficient, and that there is sufficient evidence to establish a prima facie case with respect to her claims against the Law Firm Defendants. (See Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a ... motion”].)

In any case, a “plaintiff cannot show a probability of prevailing on the merits of a cause of action for anti-SLAPP purposes where the cause of action is barred by the litigation privilege codified in Civil Code section 47. [Citations.]” (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 840.) A prelitigation communication that relates to litigation that is contemplated in good faith and under serious consideration is privileged. (Ibid.; see Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1272 [litigation privilege applies to communications may extend to steps taken prior to, or after, legal proceedings or trial].)

More importantly, “ ‘[t]he privilege is absolute and applies regardless of malice.’ [Citation.]” (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 840.)

As noted, the Law Firm Defendants’ communications relate directly to a small claims case Plaintiff filed against the Law Firm Defendants’ client, as well as a complaint Plaintiff filed with the California Civil Rights Department. The communications also directly relate to the allegations Plaintiff makes in the present lawsuit. Thus, Plaintiffs claims against the Law Firm Defendants are barred by the litigation privilege.

Since Plaintiff failed to meet her burden, the Court shall grant the Law Firm Defendants’ anti-SLAPP motion.

Moving parties are ordered to give notice.

12 Cadence Bank OFF CALENDAR N.A. vs. Richardson 13 Carrillo vs. Bryant TENTATIVE RULING:

Motion for Summary Judgment or Summary Adjudication

Defendant Curtis Bryant moves for summary judgment on the Second Amended Complaint (SAC) of Plaintiff Lauretta Joyce Carrillo. For the following reasons, the motion is DENIED.

Defendant moves in the alternative for summary adjudication on each cause of action. For the following reasons, the alternative motion is DENIED as to the fifth cause of action and GRANTED as to the first, second, third, fourth, and sixth causes of action.

Statement of Law

Under Code of Civil Procedure section 437c(c), a summary judgment or summary adjudication motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets its initial burden by showing that the plaintiff cannot prove its causes of action, or by establishing a complete defense to the plaintiff’s causes of action. (Code Civ. Proc., 437c(p)(2).) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.)

A motion for summary adjudication may be granted only “if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c(f)(1).)