Greg Bomhoff vs. Michael Decarlo et al

Standard of Review

Cross-Defendant Ron Bomhoff (“Cross-Defendant” or “Bomhoff”) filed a special motion to strike Cross-Complainants’ entire Cross-Complaint under Code of Civil Procedure § 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute. “The anti- SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” Baral v. Schnitt (2016) 1 Cal.5th 376, 393 (emphasis added). “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” Id. at 384.

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success ....” Baral, supra, 1 Cal.5th at 384 (citations omitted). The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims.

Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It 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. ‘[C]laims with the requisite minimal merit may proceed.’” Id. at 384-385 (citations omitted).

Step One: Conduct in Furtherance of Right to Petition or Free Speech

Code of Civil Procedure § 425.16(b)(1) states, “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.” (Emphasis added.) Code of Civil Procedure § 425.16(e) states: “As used in this section, ‘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, (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.” “In the anti- SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.”

City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78. Therefore, the anti-SLAPP's statute focuses not on the form of crosscomplainant’s cause of action but, rather, cross-defendant’s underlying activity that gives rise to the asserted liability and whether that activity constitutes protected speech or petitioning. See, Navellier v. Sletten (2002) 29 Cal.4th 82, 92.

Here, Cross-Defendant moves to strike the entire Cross-Complaint. Cross-Defendant contends that his acts are protected because the causes of action arise from protected activity. 1 The Cross- Complaint alleges Bomhoff and Roe Cross-Defendants made a series of public statements falsely accusing Cross-Complainant Bothelio of misconduct including physical assault, emotional abuse or harassment, and unlawful acts. Cross-Complaint, ¶¶ 7-11, 24, 38-39. While the underlying Third Amended Complaint alleges civil assault and battery claims, it does not allege emotional abuse, harassment, commission of unlawful acts, illegal deeds, or bullying.

Thus, the gravamen of the Cross-Complaint is not based solely on oral or written statements made regarding the underlying litigation filed by Bomhoff. Moreover, Code of Civil Procedure § 425.16(b)(1) specifies a person is protected from a cause of action arising from any act of that person made in furtherance of his right of petition or free speech, meaning only Bomhoff’s actions are protected under the statute. Bomhoff has no standing to challenge statements that do not arise from his own acts, including written posts or speech made by Roe Cross-Defendants.

A motion to strike may be used to attack parts of a count as pleaded such as a complaint which includes “mixed causes of action” that combine allegations of activity protected by the statute with allegations of unprotected activity. Baral, supra, 1 Cal.5th at 393. In such instances, the moving party has “the burden of identifying the allegations susceptible to a special motion to strike. 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.”

Park v. Nazari (2023) 93 Cal.App.5th 1099, 1109. Here, Bomhoff’s motion is directed at the entire Cross-Complaint with no request in the alternative for narrower relief. Since Bomhoff does not indicate specific allegations in the Cross-Complaint should be stricken, the Court need not contemplate whether any specific allegations must be stricken. In other words, it is an all or nothing request.

Step Two: Probability of Prevailing on the Merits

“To establish a probability of prevailing, the plaintiff must demonstrate the complaint is both 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.”

Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74. However, the Court must accept as true the evidence favorable to Cross-Complainant. See, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. Cross-Complainant needs only to establish that the claim has minimal merit. Id.

1 While the Notice of Motion does not make clear the provisions of CCP § 425.16(e) Cross-Defendant is relying on, the body of the motion appears to argue the Cross-Complaint encompasses protected activity described in §425.16(e)(1) and (2). The Court notes, under Code of Civil Procedure § 425.16(e)(1), homeowners association meetings are not considered “official proceedings”. Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 732. Other cases addressing anti-SLAPP motions arising from statements made at homeowners association board meetings and writings in homeowners association forums have analyzed such under the rubric of Code of Civil Procedure § 425.16(e)(3) or (4). Id.; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468.

However, because the Court finds Cross-Defendant has not met his burden to show his conduct giving rise to the Cross-Complaint was protected under the anti-SLAPP statute, the burden does not shift to Cross-Complainants to show by competent and admissible evidence they will prevail on the merits of their claims. Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675.

Accordingly, for the reasons set forth above, Cross-Defendant’s Special Motion to Strike the Cross-Complaint pursuant to Code of Civil Procedure § 425.16 is hereby DENIED.

Attorney Fees

Cross-Defendant has not prevailed on his special Motion to Strike. Thus, his request for attorney fees is DENIED.

4. CU0001681 Randy Ryan Agno et al vs. James L Gould, IV. et al

Plaintiffs’ motion to waive or reduce undertaking is denied.

The conditioning of the issuance of a preliminary injunction upon the posting of an undertaking is statutorily required: “On granting an injunction, the court or judge must require an undertaking on the part of the applicant....” (Code Civ.Proc., § 529, subd. (a); emphasis added.)” Abba Rubber Co. v. Sequist (1991) 235 Cal.App.3d 1, 10. “That duty is mandatory, not discretionary.” Ibid.

Bond requirements can be waived or forfeited in narrow circumstances, outside the statutory exceptions in Code of Civil Procedure § 529(b). The California Supreme Court has approved waiver of an injunction bond in cases where the party seeking the injunction is indigent. Conover v. Hall (1974) 11 Cal.3d 842, 852-853. The requirement for a preliminary injunction can also be waived where the parties stipulate to an injunction. Greenly v. Cooper (1978) 77 Cal.App.3d 382, 385. At bar, the trial court’s waiver or forfeiture is currently unsupported by substantial evidence.

“[U]nder proper circumstances California courts do have the power to dispense with bond requirements intended to protect an adversary's financial interest.” Conover, supra, 11 Cal.3d 842, 851. Additionally, a formal in forma pauperis application is not required before relief can be granted. Id.; County of Sutter v. Superior Court (1966) 244 Cal.App.2d 770, 772 (“[The plaintiff] did not in so many words seek—nor did the court grant—leave to proceed In forma pauperis. The order simply grants her leave to proceed without security for costs.

Because it is grounded on her indigence, we view it by the same standards as an in forma pauperis order.”) If the court can “reasonably conclude from the facts before it that plaintiffs were ‘poor’ and could not afford to post an injunction bond to cover the state's potential damages,” the court may find a limited exception to the posting of an undertaking. Conover, supra, at 853-854.

In support of their reply, Plaintiffs filed a supplemental declaration attaching exhibits regarding their financial hardship. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” American Drug Stores, Inc. v. Stoh (1992) 10 Cal.App.4th 1446, 1453.

4