Bowie vs. NuEyes Technologies, Inc.

There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc. § 425.16(e)(1)-(4)):

1. statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 2. 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; 3. statements 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.

Defendants do not need to show that an entire cause of action is subject to the anti-SLAPP statute, but rather “each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected.” (Bonni v. St. Joseph Health System (2021) 11 Cal.App.5th 995, 1010.)

Allegations of protected activity supporting stricken causes of action must be eliminated from the complaint unless they also support a distinct cause of action on which the plaintiff has shown a probability of prevailing. (Baral v Schnitt (2016) 1 Cal.5th 376, 396; Sheley v Harrop (2017) 9 Cal.App.5th 1147, 1175.)

A defendant meets its burden by showing that the act underlying the claim fits one of the categories enumerated in CCP § 425.16(e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Baral v. Schnitt (2016) 1 Cal.5th 376, 396—at first step, defendant has “burden of identifying all allegations of protected activity, and the claims for relief supported by them”; Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

Step two: If the moving defendant meets his initial burden, the burden shifts to the plaintiff and the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a prima facie

showing of facts to sustain a favorable judgment. (Premier Med. Mgt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 472.) Whether a complaint could be amended to state a valid claim is immaterial. (Id.) The “probability of prevailing” standard is the same standard governing a motion for summary judgment, and it is plaintiff’s burden to show facts that would support a judgment in plaintiff’s favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

In opposing a SLAPP motion, plaintiff must present admissible evidence and cannot rely on the allegations in its complaint. (Roberts v. Los Angeles County Bar Ass’n (2003) 105 Cal.App.4th 604, 613- 614.) Affidavits or declarations “on information and belief” are hearsay and inadmissible evidence to show a probability that plaintiff will prevail. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)

“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.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 89.)

In prong one, “the focus of the statute is not the form of plaintiff's cause of action, but the defendant’s activity that gives rise to the asserted liability.” (Midland Pacific Bldg. Corp. v. King (2007) 157 Cal.App.4th 264, 272.) The statute identifies four categories of protected petitioning and free speech activities. (Civ. Proc. Code § 425.16, subd. (e)(1) to (4).) The law expressly provides that it “shall be construed broadly [Civ. Proc. Code § 425.16, subd. (a)] to encourage participation in free speech and petition activities.” (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.)

Where the motion to strike is directed to the entire complaint, the trial court must deny the motion if there is any claim that does not arise from protected activity. The burden is on the moving party to identify the specific claims it seeks to strike. “This is crucial because complaints frequently include claims arising from protected activity alongside claims arising from unprotected activity, as well as ‘socalled’” mixed causes of action that combine the two. (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1107-1109, (quoting Baral v.

Schnitt (2016) 1 Cal.5th 376, 381)—“If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions”] If the motion seeks to strike discrete allegations within a cause of action, the notice of motion should make that clear; and the moving papers should set forth “exactly what factual allegations it wishes to have stricken, in a table or chart showing exactly how each such

allegation aligns with elements of the cause of action or causes of action the motion attacks.” (Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 100, fn. 15.)

Merits Here, the Bowie parties argue that both Counterclaims should be stricken; the Notice of Motion and Memorandum of Points and Authorities fails to identify any specific language or claims.

NuEyes alleges the following three counterclaims against Bowie: breach of contract – NDA; misappropriation of trade secrets; and unfair competition.

Greget alleges the following counterclaims against Bowie: defamation per se – false accusation of drug use; defamation per se – false accusation of embezzlement/misappropriation; intentional infliction of emotional distress; and negligent infliction of emotional distress. While the Court sustained part of the demurrer to the Greget’s Counterclaim, no amended pleading has been filed.

Instead, the crux of the argument in the Motion is that the pleadings are “retaliatory” and impinge on his free speech under Code of Civil Procedure section 425.16, subdivision (e)(2).

The Bowie parties argue that where liability is based on speech itself, the claim necessarily arises from protected activity. (Motion, p. 3:2- 21.)

This assertion is inaccurate.

FilmOn.com v. DoubleVerify, Inc. (2019) 7 Cal.5th 133, 246 directs courts applying section 425.16, subdivision (e)(4) to evaluate whether the alleged wrongful statements contributed to a public discussion or conversation on the issue, and in conducting this inquiry to evaluate the specific context in which the statements were made. Under this test, some alleged defamatory statements that are not made in connection with a public conversation or discussion of the issues are not protected by the anti-SLAPP statute. (See also Murray v.

Tran (2020) 55 Cal.App.5th 10, allegedly defamatory statements about a dentist’s malpractice by a former business partner of the dentist to the dentist’s new employer were protected. We concluded these statements had a sufficient nexus to the public issue of protecting dental patients from sub-standard care and “promoted the public conversation on that issue because they were made to a person who had direct connection to and authority over the patient population with whom” the dentist cared for. (Id. at p. 35.)

As in FilmOn.com, the

communications “never entered the public sphere, and the parties never intended [them] to.” (FilmOn.com, supra, 7 Cal. 5th at p. 153.)

But here, instead of looking at the fourth catch-all category, Bowie argues that the alleged defamatory statements are statements made in connection with anticipated or actual litigation are protected under Code of Civil Procedure section 425.16, subdivision (e)(2).

The ONLY basis for this assertion is the sequence of events, i.e. that Greget only raised these issues after Bowie asserted wage claims.

A cross-complaint may be subject to an anti-SLAPP motion based on the plaintiff’s right to petition. (Takhar v. People ex rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5th 15, 24, 237 Cal.Rptr.3d 759.) However, such a cross-complaint must allege a cause of action arising from the plaintiff’s act of filing the complaint itself. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1373-1374.) That is, a cross-complaint will ordinarily not be considered a SLAPP suit because a cross-complaint usually arises from the underlying dispute alleged in the complaint, and not out of the litigation process itself; a defendant’s oppressive litigation tactics alone will not trigger a dismissal under the anti-SLAPP statute. (Kajima Engineering & Construction, Inc. v.

City of Los Angeles (2002) 95 Cal.App.4th 921, 933-934; Third Laguna Hills Mutual v. Joslin (2020) 49 Cal.App.5th 366, 371–372, after a homeowner’s association filed a complaint alleging that a homeowner violated its covenants, the homeowner’s cross-complaint alleging that the HOA prevented him from renting his home was not anti-SLAPP protected because the cross-complaint arose from the HOA’s “alleged tortious acts, but not from the HOA's protected act of filing a complaint.”)

Here, the allegations date back to conduct from October 2023 and involve separate bad acts by Bowie that have nothing to do with the filing of his Complaint or seeking relief for his own wage-related claims. (See Greget Counterclaims, ¶¶39-42, 50-58; NuEyes Counterclaims, ¶¶78, 82-88, 93.)

The Bowie parties have not met their burden under the first step of this analysis.

Thus, the Motion is denied.

Now that the Anti-SLAPP has been adjudicated, the Court will address the issue of the combined answers and counterclaims.

California Code of Civil Procedure section 431.30(c) states plainly that affirmative relief may not be claimed in the answer. (CCP § 431.30)

The answers and counterclaims must be filed in separate documents.

Greget and NuEyes are ordered to file and serve their second amended answer and first amened cross-complaint within 20 days. The Court notes that Greget and NuEyes have a motion for leave to amend pending and The Bowie parties have a motion to strike portions of their answers. Greget and NuEyes have represented that their amendments will resolve some or all of the issues in the Motion to Strike. Greget and NuEyes are permitted to remove/narrow claims and affirmative defenses, fix typos, and add allegations regarding the existing defamation claims by Greget. No additional cross-claims are permitted, only facts supporting existing claims. For Greget, that is only two claims for defamation. (See ROA 90, 94.)

The Bowie parties will then have 30 days from service to respond to the first amended cross-complaints.

The Court takes off calendar the 7/13/26 Motion to strike and the 11/30/26 Motion for leave to amend as they will be mooted by this Order.

The Bowie parties are ordered to serve notice of this ruling.

3 Comer vs. Mercury Insurance Company

2023-01322938 Motion to Reinstate Punitive Damage Allegations and Prayer and Compel Asset Discovery

Plaintiff James Comer’s Motion to Reinstate Punitive Damage Allegations and Prayer and Compel Asset Discovery is denied.

On or about 8/28/24, the Court granted Defendant Mercury Insurance Company’s motion to strike punitive damage allegations “without prejudice to Plaintiff bringing a motion to amend after conducting discovery.” In doing so, the Court stated: “Plaintiff has not alleged facts showing acts reflecting malice, oppression or fraud that were authorized or ratified by an officer, director, or managing agent of Defendant rather than the conclusions.” (ROA 96.)

Plaintiff’s current motion is denied, because it does not comply with the procedural requirements for a motion for leave to amend. (See Code Civ. Proc. § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend