Motion to strike the first amended complaint; Demurrer
contractors, and parties affiliated with its employee benefit and health plans,” while obligating only SAG, but not any of the foregoing “third-party beneficiaries,” to arbitrate their own claims against Mr. Fernandez. The overly harsh and one-sided consequence of the Arbitration Agreement arises from those provisions defining the scope of disputes subject to arbitration and the parties subject thereto. It does not appear controversial to suggest that the central purpose of any arbitration agreement is defined by those of its provisions defining the scope of claims to arbitrated thereunder, and identification of the parties thereto. For this reason, the Court finds that the overly harsh and unfair advantage to SAG arising under the terms of the Arbitration Agreement permeate the entirety thereof.
The Court does not find that it can eliminate this unfair advantage – by, for example, converting the Arbitration Agreement into one whose central purpose is “the speedy resolution of disputes between Plaintiff and Defendant arising from Plaintiff's employment” – merely by severing one or more collateral provisions from the Arbitration Agreement. Rather, in order to accomplish the foregoing, the Court would be forced to redraft those provisions relating to the agreement’s scope and to the identification of the parties subject to and covered thereby.
Moreover, doing so would amount to a windfall for SAG. Again, given the adhesive nature of the agreement, SAG had every opportunity to draft precisely the arbitration agreement it desired. Having drafted it in a fashion that provided SAG and its third-party beneficiaries with significant potential unfair advantage, it now asks the Court to tailor the agreement to fit only those claims now asserted by Mr. Fernandez – those arising out of the employment relationship. To do so would constitute a windfall to SAG.
The Court finds that the overly harsh and one-sided scheme created by these provisions at the heart of the Arbitration Agreement, particularly in the context of the significant oppression characterizing the Arbitration Agreement’s formation, “indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 124.)
Based on the foregoing, the Court elects to exercise its discretion and not enforce the Arbitration Agreement. (See Civil Code § 1670.5
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** at 11:30 a.m. ** Mark Andrews v. Richard Rockwell et al 24CV000304
DEFENDANT ENTERPRISE RENT-A-CAR CO. OF SAN FRANCISCO, LLC’S MOTION TO STRIKE THE FIRST AMENDED COMPLAINT AND DEMURRER
TENTATIVE RULING: The Anti-SLAPP motion is GRANTED. The Demurrer is therefore MOOT.
A. PROCEDURAL MATTERS
Defendant Enterprise Rent-A-Car Co. of San Francisco, LLC (“Enterprise”) moves, pursuant to Code of Civil Procedure section 425.16, subdivision (e)(1), 4 for an order striking all causes of action asserted against Enterprise in the Amended Complaint (“Amended Complaint”) filed by Plaintiff Mark Andrews (“Plaintiff”) on 12/3/2025 or, in the alternative, dismissing the Amended Complaint. If the Court declines to grant Enterprise’s anti-SLAPP motion, Enterprise demurs to all causes of action against Enterprise due to failure to state a claim upon which relief can be granted. (Notice, 3:4-7.)
1. Enterprise’s Request for Judicial Notice
Enterprise’s Request for Judicial Notice is DENIED on the ground that none of the subject documents are relevant to the Court’s resolution of the issues raised by the present motion. (In re Tobacco Cases, II, JCCP 4042 (2004) 123 Cal.App.4th 617, 626 [“Although a court may take judicial notice of a variety of matters, only relevant material may be noticed.”].)
2. Nature of Amended Complaint Against Enterprise
The nature of the Amended Complaint against Enterprise is that: (1) following a vehicle collision between Plaintiff and Defendant Richard Rockwell (“Rockwell”), for which Rockwell admitted fault, Rockwell’s vehicle insurer, Defendant Tesla Insurance Services (“Tesla”), arranged for Plaintiff to obtain a rental vehicle from Enterprise on or about March 5, 2022; (2) Tesla agreed to pay Enterprise directly for all rental charges; (3) Tesla stopped paying Enterprise on or about April 19, 2022;5 and (4) Enterprise filed a false stolen-vehicle police report against Plaintiff with the Santa Rosa Police Department without probable cause and without first contacting Tesla about payment. (Amd. Compl., ¶¶ 8-16, 57.)
Plaintiff alleges that, as a result of Tesla’s and Enterprise’s conduct, (1) Plaintiff was stopped by law enforcement on June 5, 2022; (2) at least five police vehicles executed a felony stop on Highway 29 in Napa County; (3) Plaintiff was ordered out of the rental vehicle at gunpoint, handcuffed, and arrested; (4) Plaintiff spent one day in jail before being released; (5) a second arrest warrant was issued in Sonoma County for the same alleged offense; (6) Prosecutors informed Plaintiff they intended to pursue felony charges carrying a possible ten-year sentence; (7) the Napa criminal case was dismissed on April 17, 2024 following a finding that the matter was civil in nature; and (8) Plaintiff has not been reimbursed for any losses or received an apology from Enterprise. (Id., ¶¶ 18-27.)
The Amended Complaint asserts eight causes of action. The First and Second Causes of Action are against Tesla only. The Eighth Cause of Action for Malicious Prosecution is against Enterprise only. The Amended Complaint fails to clearly specify against which of the three
4 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified. 5 This date in the Amended Complaint is April 19, 2023, but the evidence presented by the parties in connection with the present motion confirms the date is April 19, 2022. (Declaration of Gregory Burgos (“Burgos Decl.”), ¶ 17; Declaration of Mark Andrews (“Andrews Decl.”), ¶ 3.)
Defendants the Third, Fourth, Fifth, Sixth, and Seventh Causes of Action are asserted, only vaguely using “Defendants” in the allegations.
Enterprise does not specify which causes of action it contends are asserted against it; however, it appears to understand that more than the Eighth Cause of Action is asserted against it. (See Mem., 18:24-19:9; Reply, 6:20-22.) Plaintiff’s Opposition does not clarify which causes of action are asserted against Enterprise. The only cause of action specifically referenced in Opposition is the Eighth Cause of Action for Malicious Prosecution. Otherwise, Plaintiff generally references “remaining tort claims.” For purposes of the anti-SLAPP motion, the Court will assume that the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action are intended to be asserted against Enterprise. The Court’s review of the Amended Complaint confirms that the sole factual basis upon which Enterprise is purportedly liable is Enterprise’s alleged filing of a false police report.
B. LEGAL STANDARD
“The special motion to strike established in section 425.16 may be used to attack a cause of action if (1) the cause of action arises from ‘any act [by the defendant] in furtherance of the person’s right of petition or free speech under the United States or California Constitution,’ and (2) the defendant was exercising his or her right of free speech ‘in connection with a public issue.’ (Citation.) If the moving defendant establishes those two elements, the burden shifts to the plaintiff to establish there is a probability he or she will prevail on the cause of action.” (Chabak v.
Monroy (2007) 154 Cal.App.4th 1502, 1511.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability – and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 (Navellier).)
C. DISCUSSION
1. It is Undisputed that the Activity Giving Rise to Plaintiff’s Claims Against Enterprise is Protected Activity Under the Statute
Plaintiff expressly does not dispute that the factual basis for the claims against Enterprise in the Amended Complaint—Enterprise filing a police report—arises from protected activity under section 425.16. (See Mem., 15:9-17:14; Opp. 9:19-21 [“Plaintiff concedes for purposes of this motion that Enterprise’s report to the Santa Rosa Police Department constitutes protected petitioning activity....”].)
As such, the burden shifts to Plaintiff to establish there is a probability he will prevail on the causes of action.
2. Plaintiff has Failed to Establish a Probability of Prevailing on his Claims Against Enterprise
“[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘‘stated and substantiated a legally sufficient claim.’ [Citations.] ‘Put
another way, the plaintiff ‘must demonstrate that 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.’’ [Citations.]’ (Navellier, supra, 29 Cal.4th at 88_89.) “To show a probability of prevailing for purposes of section 425.16, a plaintiff must make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff’s favor.” (Alpha & Omega Dev., LP v.
Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 663.) Because the burden on the plaintiff is similar to the standard used in determining motions for summary judgment, “[t]he showing must be made through ‘competent and admissible evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)
a. Plaintiff Fails to Meet his Burden to Show a Probable Likelihood of Prevailing on his Claims Under the Theory Against Enterprise Pled in the Complaint
Plaintiff’s only discussion, under the second prong, regarding the theory that Enterprise filed a false police report is brief. (See Opp., 14:21-15:15.) Plaintiff’s entire argument is simply to dispute Enterprise’s claim that the false police report allegations are barred by the litigation privilege under Civil Code section 47, subdivision (b). (Ibid.) Plaintiff argues that the Malicious Prosecution claim and “remaining tort claims” survive the litigation privilege because the exception under subdivision (b)(5) allows in communications made with reckless disregard for their truth, or falsity. (Id.)
However, Plaintiff does not specify the “remaining tort claims,” does not discuss the legal elements thereof, and does not identify or discuss the facts supplying each element. Thus, even assuming, arguendo, the false police report allegations that purportedly underlie those claims survive the litigation privilege, that fact, alone, is insufficient to make a prima facie showing that Plaintiff is likely to prevail on any tort claims.
With respect to the Malicious Prosecution claim, Plaintiff fails to identify which element thereof the false police report allegation supplies. Plaintiff has therefore failed to meet his burden on this ground alone.
Even assuming, arguendo, the false police report allegation, alone, would satisfy all elements of a malicious prosecution claim, Plaintiff fails to make a prima facie showing that Enterprise acted with reckless disregard for the truth, or falsity, with respect to the police report. Plaintiff’s sole argument is that Enterprise’s own evidence demonstrates that it urged the police department to treat the matter as grand theft, despite Enterprise telling the police officer that the issue arose from Tesla failing to pay on behalf of Plaintiff, and despite Enterprise’s internal records reflecting that the matter was simply a collections issue. (Opp., 15:1-5.) Plaintiff argues that, based on his interpretation of the evidence, there is a factual dispute as to whether Enterprise’s conduct satisfies reckless disregard, and, therefore, the issue cannot be resolved on this Motion.
First, Plaintiff misstates the facts presented by Enterprise. There is no evidence therein showing that Enterprise urged the police department to treat the matter as grand theft, or omitted
any facts from which the embezzlement circumstance arose. Rather, Enterprise’s evidence shows:
- On April 22, 2022, Enterprise sent Plaintiff a letter stating, in part, that if he failed to immediately return the vehicle, Enterprise will presume the vehicle is embezzled and will report the embezzlement to the local Police Department and ask that charges be filed. (Burgos Decl., ¶ 18, Exh. D (4/6/26 Amendment).) - On April 26, 2022, Enterprise advised Plaintiff in a phone conversation that he needed to return the vehicle as soon as possible or come in and update his payment, otherwise the vehicle would be reported stolen as is consistent with Enterprise’s standard business practice for unreturned vehicles. (Id., ¶ 19.) - On June 2, 2022, “Enterprise reported to Officer Alvarez at the Santa Rosa Police Department that the Subject Vehicle had been embezzled.
Enterprise communicated the history outlined [in the Burgos Decl.] and provided the relevant call log. Enterprise understands that Officer Alvarez memorialized his discussion with Enterprise in an Incident/Investigation Report. Enterprise obtained a copy of the Incident/Investigation Report via a Police Records Retrieval on LexisNexis [and attaches it as Exhibit E].” (Id., ¶ 21, Exh E. (4/6/26 Amendment).)
Second, Plaintiff’s contention that there is a factual dispute is not entirely accurate. Plaintiff does not object to the Burgos Decl. Rather, the issue Plaintiff raises in Opposition is a dispute of whether the undisputed facts presented by Enterprise satisfy reckless disregard or falsity. That dispute appears to be a legal determination appropriate for the Court on an anti- SLAPP. (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 217 [“[T]hough 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.”].)
The Court finds that the evidence supports Enterprise’s position that its police report is consistent with the Rental Agreement between Enterprise and Plaintiff, as well as Enterprise’s contemporaneous, internal business records and therefore was not made with reckless disregard for the truth or falsity, was made with probable cause, and without malicious intent. (See generally Burgos Decl.)
For all the foregoing reasons, Plaintiff has failed to establish a prima facie showing of success on his claims against Enterprise under the theory asserted in the Amended Complaint.
b. Plaintiff has Failed to Satisfy his Burden to Show a Probability of Prevailing on the Eighth Cause of Action for Malicious Prosecution Under his New Theory Advanced in Opposition
The main thrust of Plaintiff’s Opposition is that there is a probability of prevailing on his Eighth Cause of Action for Malicious Prosecution based on a theory that Enterprise failed to take any action once Plaintiff had been charged in two felony prosecutions; for example to correct, supplement, or withdraw the police report that Enterprise knew was predicated upon a civil insurance dispute. (Opp., 5:6-7, 7:17-20, 8:4-8, 10:1-14:17.) This primary theory advanced by
Plaintiff in Opposition does not appear in the Amended Complaint as a basis for Enterprise’s liability and, as such, is not a proper basis upon which to defeat an anti-SLAPP motion. (See Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883 [“issues in an anti- SLAPP motion are framed by the pleadings”].) The court will not “insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified .... It is not [the court’s] role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that [the court has] essentially drafted could survive the anti-SLAPP motion directed at it.” (Ibid.
Emphasis in Original.) This makes sense because a moving party has no possibility of meeting their burden of proof on an anti-SLAPP motion as to a theory not pled in a complaint.
Because a plaintiff cannot rely on a theory not identified in his or her pleading to prevail on an anti-SLAPP motion, Plaintiff’s new theory advanced in Opposition may properly be disregarded and the motion GRANTED.
That said, even to the extent the Amended Complaint could be viewed as having asserted this theory against Enterprise, Enterprise’s motion under this new theory is still successful. First, Plaintiff implicitly concedes that his new theory falls within protected activity under the anti- SLAPP statute, by failing to raise any argument with respect to it under the first prong of the anti-SLAPP analysis. Second, Plaintiff has failed to meet his burden that he has a likelihood of prevailing thereon.
A malicious prosecution requires a plaintiff to establish three elements: the underlying action was (1) initiated or maintained by, or at the direction of, the defendants, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (2) initiated or maintained without probable cause; and (3) initiated or maintained with malice. (Green Tree Headlands LLC v. Crawford (2023) 97 Cal.App.5th 1242.)
Plaintiff argues that Enterprise’s police report generated both the Napa and Sonoma prosecutions, the Sonoma County dismissal was terminated in Plaintiff’s favor, Enterprise’s police report lacked probable cause and was made with malice. As discussed above, Plaintiff failed to make a prima facie showing that Enterprise’s police report was made without probable cause or with malice, the second and third elements of a malicious prosecution claim. As such, Plaintiff has failed to establish a prima facie showing of probable likelihood to prevail on his malicious prosecution claim against Enterprise.
Based on the foregoing, the anti-SLAPP motion is GRANTED. The alternative demurrer is therefore MOOT.
D. ATTORNEYS’ FEES
Enterprise argues that it is entitled to recover its attorney’s fees and costs in connection with the Motion. The “prevailing defendant” on the motion to strike “shall be entitled” to recover the defendant’s attorney fees and costs. (§ 425.16, subd. (c).) As Enterprise is the prevailing defendant on the present Motion, it is entitled to recover its attorney fees and costs. The Court
does not herein determine the amount of reasonable attorney fees and costs to which it is entitled, as Enterprise states that it intends to bring a separately noticed motion thereon.
PROBATE CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.
In the Matter of Irrevocable Special Needs Trust 21PR000283 For Jamie J. Cooper, Dated June 30, 2009
SPECIAL NEEDS TRUST – PETITION FOR APPROVAL OF SECOND ACCOUNT, APPROVAL OF ATTORNEY’S FEES, APPROVAL OF TRUSTEES’ FEES; AND FOR SETTLEMENT THEREOF [Filed 4/9/26]
TENTATIVE RULING: The matter is CONTINUED to August 21, 2026, at 8:30 a.m. in Dept. B to allow Petitioners to remedy the following issues:
(1) The declaration attached as Exhibit C to the Petition is missing pages 1 and 3; (2) The Petition and Proposed Order do not include the three statements under Probate Code section 3604, subdivision (b), which the Court must find to continue the Trust.
Petitioners to provide notice of the continued hearing to all persons entitled thereto.
CIVIL LAW & MOTION CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.
Lesa K. Ward et al v. Mani NVR Napa LLC et al 23CV000033
MOTION BY DEFENDANT CHEM-AQUA, INC. TO ENFORCE SETTLEMENT AGREEMENT
TENTATIVE RULING: The motion is DENIED.
Defendant CHEM-AQUA, INC. (Chem-Aqua) moves, pursuant to California Code of Civil Procedure section 644.6, for an order granting its Motion to Enforce Settlement Agreement.
“If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6, subd. (a) (Section 664.6).)
On April 29, 2026, Chem-Aqua, co-defendant Homeyer Consulting Services, Inc. (Homeyer) and Plaintiffs stipulated orally before the Court for settlement of Plaintiffs claims against Chem-Aqua and Homeyer. (See Declaration of Lynn M. Dean, Exh. 1 at 1384:7, et seq
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