Zuniga vs. 4Gen Digital, Inc.

Discovery Motions

Plaintiff Gene Moran’s Motion to Compel Further Responses to Requests for Admission and Form Interrogatories are CONTINUED to ___.

“All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Code Civ. Proc., § 425.16(g).)

No good cause has been shown to permit discovery prior to the ruling on the Anti-SLAPP motion currently scheduled for hearing on 11/12/26.

19 23-01343055 Motion to Reinstate Default

Surdyk's Decorating vs. Plaintiff’s request to reinstate default and default judgment against McAllister Douglas McAllister is CONTINUED to___.

Plaintiff has informed the Court that the probate court continued the hearing to reopen the estate to December 9, 2026. Thus, this hearing shall be continued to allow for the probate court to complete its hearing regarding the reopening of the estate.

Additionally, the Court orders the 3-year time limitation on serving a defendant, tolled (from 1/27/25 to present) for impossibility. (Code Civ. Proc., §§ 583.210(a), 583.420(d).)

20 25-01533027 Motion to Strike - Anti SLAPP

Zuniga vs. 4Gen Defendants 4Gen Digital, Inc., Craig M. Thomas, Jacqueline Thomas, Digital, Inc. and Alexandria C. Phillips’ Special Motion to Strike the Complaint (Anti-SLAPP) is GRANTED in part and DENIED in part.

Defendants’ evidentiary objections

Defendants object to certain portions of the Declaration of Gilberto Orozco Zuniga.

Defendants’ objections are SUSTAINED.

Plaintiff’s allegations

Plaintiff Gilberto Orozco Zuniga filed a complaint against Defendants 4Gen Digital, Inc., Craig M. Thomas, Jacqueline Thomas, and Alexandria C. Phillips alleging the following causes of action in connection with his employment with Defendants:

1) Retaliation in Violation of FEHA Cal. Gov. Code § 12940(h); 2) Disability Discrimination Perceived Disability - FEHA Cal. Gov. Code § 12940(a);

3) Whistleblower Retaliation Cal. Lab. Code § 1102.5; 4) Wrongful Termination in Violation of Public Policy; 5) Aiding and Abetting FEHA Violations Cal. Gov. Code § 12940(i) (against Phillips); and 6) Intentional Infliction of Emotional Distress (against Jacqueline Thomas and 4Gen Digital Inc.)

Plaintiff alleges he was terminated in retaliation for whistleblowing fraudulent conduct.

Specifically, Plaintiff alleges that on 5/31/24, Plaintiff sent a text message to a coworker, Jennifer Visoso, raising concerns with potential customer overcharging. (Compl. ¶ 35A.) On 5/31/24, eight hours after the text message to Visoso, Plaintiff sent a text message to Steve Orosco, a coworker with whom Plaintiff alleges maintained a friendly, joking relationship, stating, “Do not worry sweetie, I don’t have any AK-47 or grenade, and even if I could have it . . . You think I will ruin my future slapping scumbags in my workplace? Aww poor little things [winking emoji].” (Compl. ¶ 39, Ex. H.)

Plaintiff alleges Orosco did not report the text right away but reported the text to J. Thomas on 6/4/24 only after his wife showed him allegedly inappropriate texts she had received from Plaintiff, creating a martial dispute. (Compl. ¶ 42.) On 6/5/24, J. Thomas filed a police report with the Costa Mesa Police Department regarding the 5/31/24 text message. (Compl. ¶ 48.) Plaintiff alleges the report contained multiple false statement designed to portray Plaintiff as mentally unstable and dangerous. (Compl. ¶ 47.)

Plaintiff was terminated the same day J. Thomas filed the police report. (Compl. ¶ 66.) On the same day, Phillips, Defendants’ attorney, sent Plaintiff a cease and desist letter demanding Plaintiff “immediately CEASE & DESIST from contacting, in anyway, the officers, employees, vendors or associates of 4GenDigital.” (Compl. ¶ 69.) Plaintiff alleges the language referencing vendors and associates was designed to prevent Plaintiff from reporting fraud. (Compl. ¶ 72.)

Following Plaintiff’s termination, Defendants contested his unemployment benefits and an evidentiary hearing before the California Unemployment Insurance Appeals Board was held on 12/13/24. (Compl. ¶¶ 5, 53.) Plaintiff contends Defendants’ sworn testimony contained material contradictions that prove pretext and consciousness of wrongdoing. (Compl. ¶¶ 5, 12, 53, 60, 76, 111.)

Legal standard “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.’ Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [cleaned up].)

Protected activity

Section 425.16, subdivision (e) defines protected activity to include: (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.”

“At this first step, courts are to ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’” (Bonni, supra, 11 Cal.5th at p. 1009 [citation omitted].) The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. (Ibid. [citation omitted].)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief — 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 and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Id. at p. 1010 [citation omitted].)

As such, where the motion is aimed at an entire cause of action, the court does not consider whether the gravamen of the entire cause of action was based on protected or unprotected activity, but rather whether a plaintiff’s various allegations supply the elements of a claim or merely provide context. (Id. at pp. 1011-1012.) It is then the defendants’ burden to show each allegation supporting plaintiff’s claim of recovery is one that rests on protected activity. If the defendants carry that burden, the plaintiff will then need to demonstrate some merit to his claim that those protected acts were taken for impermissible retaliatory reasons; if he cannot, those particular allegations will be stricken. Conversely, to the

extent any acts are unprotected, the claims based on those acts will survive. (Id. at p. 1012.)

While Plaintiff relies on the rule in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, “which thought an anti-SLAPP motion must defeat an entire cause of action where some factual allegations involved protected activity and some did not,” the Mann rule was disapproved of in Baral v. Schnitt (2016) 1 Cal.5th 376, 396 in favor of the analysis set forth above.

Defendants contend the first prong is satisfied as Plaintiff’s causes of action are based on the following protected activities:

(1) The police report to law enforcement made on 6/5/24; (2) Attorney Phillips’ cease and desist letter; and (3) Sworn testimony made in administrative proceedings.

Police report

Making a report to the police may be considered arising from the right to petition the government and thus protected activity under anti-SLAPP. (Chabek v. Monroy (2007) 154 Cal.App.4th 1502, 1512.)

Defendants contend the police report falls within the litigation privilege of Civil Code section 47, subdivision (b).

“[A]lthough courts may use the litigation privilege ‘as an aid’ in determining whether a given communication arises out of protected activity, the litigation privilege and anti-SLAPP statute serve different purposes and are not necessarily coextensive.” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal.App.5th 413, 428 [citations omitted].)

The Court finds the police report to be protected activity for purposes of prong one but addresses the issue of litigation privilege in its discussion of prong number two below.

Cease and desist letter

“[C]ommunications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], [and] such statements are equally entitled to the benefits of section 425.16.” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789 [citation omitted].) “Accordingly, although litigation may not have commenced, if a statement ‘concern[s] the subject of the dispute’ and is made ‘in anticipation of litigation ‘contemplated in good faith and under serious consideration’ [citation] then the statement may be petitioning activity protected by section 425.16.’” (Id. at pp. 789-790 [citations omitted].) “Cases applying the litigation privilege have held that ‘if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected

to litigation and will be protected by the litigation privilege.” (Id. at p. 790 [citation omitted; emphasis in original].)

Defendants contend, “[t]he Complaint confirms the letter was sent in response to workplace conflict arising from Plaintiff’s violent threat and to prevent further contact while legal issues were being evaluated, bringing it squarely within section Code of Civil Procedure section 425.16 (e)(2).” (Mtn. at 7:1-3.) The cease and desist letter sent by Phillips states:

This firm has been retained by 4GenDigital. This letter is a formal demand that you immediately CEASE & DESIST from contacting, in anyway, the officers, employees, vendors or associates of 4GenDigital. Further, this letter is a formal demand that you immediately CEASE & DESIST sending Jennifer Visoso explicitly sexual text messages. Please confirm in writing that you have received and will comply with this demand to CEASE & DESIST. Please provide the above requested written confirmation via email no later than close of business Friday, June 7, 2024. (Compl., Ex. N)

Plaintiff contends the purpose of the letter was “to prevent Plaintiff from reporting fraud to clients and vendors” as part of Phillips’ effort to protect her daughter, J. Thomas’, business by demanding Plaintiff cease all contact with anyone who could verify the fraud allegations. (Compl. ¶ 16C.) Conversely, Defendants provide no support for its conclusory statements the letter was sent in anticipation of litigation nor does the language in the letter itself suggest it was sent “in serious contemplation of litigation.”

As such, the Court does not find the cease and desist letter sent by Phillips to be protected activity for purposes of prong one.

Sworn testimony made in administrative proceedings

Section 425.16, subdivision (e)(2) defines protected activity to include any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. Statements made during an evidentiary hearing before the California Unemployment Insurance Appeals Board are oral statements made before an “official proceeding authorized by law.”

The Court finds testimony made during this proceeding to be protected activity for purposes of prong one.

Termination decision reflected in the 6/5/24 termination letter

Defendants contend “[t]he termination is inseparable from the protected communications because it followed and was based upon the police report and attorney consultation” and is thus protected activity. (Mtn. at 7:11-12.)

“A claim is subject to the anti-SLAPP statute only if conduct constituting protected activity ‘itself is the wrong complained of.’ Thus, where a plaintiff’s claim is based upon ‘an action or decision’ of the defendant, it is not enough that some protected activity by the defendant precedes that action or decision, that some protected activity is the means of communicating that action or decision, or that some protected activity constitutes evidence of that action or decision. To fall under the anti-SLAPP statute, the challenged action or decision itself must be protected activity.

Accordingly, where a plaintiff’s claim attacks only the defendant’s decision to undertake a particular act, and if that decision is not itself protected activity, that claim falls outside the ambit of the anti-SLAPP statute.” (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 700-701 [cleaned up; emphasis in original].)

Accordingly, in Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 897-898, the court found the employer’s termination constituted protected activity under the anti-SLAPP statute where it was, in and of itself, an act in furtherance of its speech and petitioning rights, specifically, its decision to enforce journalistic standards by terminating a writer for alleged plagiarism.

Here, while Defendants contend protected activity preceded the decision to terminate Plaintiff, Defendants have not demonstrated the termination, in and of itself, was an act in furtherance of Defendants’ speech and petitioning rights.

As such, the Court does not find the decision to terminate Plaintiff to be protected activity for purposes of prong one.

Whether Plaintiff’s claims arise from protected activity

Having determined the police report and testimony given at the evidentiary hearing before the California Unemployment Insurance Appeals Board are protected activity, the Court then considers whether Plaintiff’s causes of action arise from that protected activity.

As an initial matter, Plaintiff argues that prong one fails as “the gravamen of every cause of action in Plaintiff’s Complaint is the termination — not the communications.” (Mtn. at 5:1-2.) As discussed above, however, the proper analysis for the court is to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. (Bonni, supra, 11 Cal.5th 995 at p.1009 [citation omitted].)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’

Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062- 1063 [cleaned up; emphasis in original].) In other words, “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060 [emphasis in original].)

First cause of action for retaliation in violation of FEHA Cal. Gov. Code § 12940(h)

Government Code § 12940, subdivision (h) makes it unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under FEHA.

Plaintiff alleges he engaged in numerous protected activities under FEHA, including opposing disability discrimination, challenging discriminatory treatment, and documenting witness tampering. (Compl. ¶ 143.) Plaintiff alleges that as a result, Defendants subjected Plaintiff to numerous adverse employment actions, including, “[f]iling false police report with fabricated mental health allegations seeking criminal prosecution; . . . .” (Compl. ¶ 144.) Plaintiff further contends the “adverse action” of filing a false police report” followed Plaintiff’s participation in a protected activity thus establishing a prima facie case of retaliation. (Compl. ¶ 145.)

The Court finds Plaintiff relies on a protected activity, filing a police report, to establish an element of his FEHA retaliation claim, i.e., the adverse action.

As such, the Court finds Plaintiff’s first cause of action arises out of protected activity and satisfies the first prong.

Second cause of action for disability discrimination perceived disability - FEHA Cal. Gov. Code § 12940(a)

“The elements of a disparate treatment disability discrimination claim are that the plaintiff (1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived

disability.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31 [citations omitted].) Plaintiff alleges Defendants discriminated against him based on a perceived disability. Plaintiff alleges Defendants documented in a police report their perception that Plaintiff had a mental disability. (Compl. ¶ 151.) Plaintiff also alleges, “J. Thomas’s sworn testimony at the December 13, 2024 CUIAB hearing corroborates that her perception of Plaintiff as emotionally unstable was longstanding, not fabricated . . . .” (Compl. ¶ 154A.)

As discussed above, where a plaintiff’s claim is based upon an act or decision by the defendant, it is not enough that some protected activity is the means of communicating that action or decision, or that some protected activity constitutes evidence of that action or decision. (Mission Beverage Co., supra, 15 Cal.App.5th 686 at pp. 700-701.)

Here, while the police report and testimony were the means of communicating Defendants’ apparent perception of Plaintiff’s mental disability and constituted evidence of that perception, they are not themselves “the wrong complained of.” (Mission Beverage Co., supra, 15 Cal.App.5th at pp. 700-701.)

As such, the Court finds Plaintiff’s second cause of action does not arise out of protected activity and does not satisfy the first prong.

Third cause of action for whistleblower retaliation Cal. Lab. Code § 1102.5

“To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th 908, 921 [citation omitted].)

Plaintiff alleges he engaged in protected activity by disclosing to Visoso information Plaintiff reasonably believed evidenced fraud and unfair business practices. (Compl. ¶ 161.) Plaintiff alleges he was subject to adverse actions as a result of those disclosures including Defendants filing “a false police report with fabricated mental health allegations seeking Plaintiff’s criminal prosecution.” (Compl. ¶ 165.)

The Court finds Plaintiff relies on a protected activity, filing a police report, to establish an element of his whistleblower retaliation claim, i.e., the adverse action.

As such, the Court finds Plaintiff’s third cause of action arises out of protected activity and therefore satisfies the first prong.

Fourth cause of action for wrongful termination in violation of public policy

“The elements of a cause of action for wrongful discharge in violation of public policy are “(1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (McDoniel v. Kavry Management, LLC (2025) 114 Cal.App.5th 949, 962-963 [citation omitted].)

Plaintiff alleges Defendants terminated him in violation of various public policies, including against retaliation, discrimination, protecting whistleblowers, and against employers filing false police reports with fabricated allegations to retaliate against employees who engage in protected activities. (Compl. ¶ 173.)

As discussed above, where a plaintiff’s claim is based upon an act or decision by the defendant, it is not enough that some protected activity is the means of communicating that action or decision, or that some protected activity constitutes evidence of that action or decision. (Mission Beverage Co., supra, 15 Cal.App.5th 686 at pp. 700-701.)

Here, while the police report constituted evidence of Defendants’ motives for termination, the report is not itself “the wrong complained of.” (Mission Beverage Co., supra, 15 Cal.App.5th at pp. 700-701.)

As such, the Court finds Plaintiff’s fourth cause of action does not arise out of protected activity and does not satisfy the first prong.

Fifth cause of action for aiding and abetting FEHA Violations Cal. Gov. Code § 12940(i) (against Phillips)

Plaintiff alleges “Defendant Phillips, acting as external legal counsel to 4Gen, provided substantial assistance to Defendants’ perceived disability discrimination by engaging in conduct that went far beyond legal advice.” (Compl. ¶ 180.) This included having “Participated in providing law enforcement with false information that Plaintiff ‘took time off for mental health,’ ‘was taking medication,’ and ‘acted manic at work’—allegations Phillips knew or should have known were unsupported by any documentation in Plaintiff's 23-year employment history;” (Compl. ¶ 180.)

While Plaintiff alleges Phillips was “present during the June 5, 2024 police report filing” (Compl. ¶ 12), the statements made to law enforcement that Plaintiff “took time off for mental health,” “was taking medication,” and “acted manic at work” were made by J. Thomas. (Compl. ¶¶ 66A, 66B.) Plaintiff does not allege any statements were made by Phillips herself to law enforcement.

Thus, Defendants have not demonstrated Phillips’ conduct, i.e., being present while J. Thomas made statements to law enforcement, constitutes protected activity.

As such, the Court finds Plaintiff’s fifth cause of action does not arise out of protected activity and does not satisfy the first prong.

Sixth cause of action for intentional infliction of emotional distress (against J. Thomas and 4Gen)

The elements of a cause of action for intentional infliction of emotional distress are as follows: “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Barry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 [citation omitted].)

Plaintiff alleges “Filing false police reports with fabricated mental health allegations while explicitly stating ‘desire for prosecution’ seeking Plaintiff’s arrest and imprisonment—not for legitimate workplace safety but to eliminate him as witness to fraud— constitutes the type of extraordinary conduct California courts have recognized as actionable intentional infliction of emotional distress.” (Compl. ¶ 186.)

Plaintiff further alleges Defendant 4Gen Digital Inc. is vicariously liable for all conduct of Defendant J. Thomas, who acted as CEO and managing agent with full authority over personnel decisions and corporate strategy. (Compl. ¶ 187.)

Thus, the Court finds Plaintiff relies on a protected activity, filing a police report, to establish an element of his whistleblower retaliation claim, i.e., the allegedly extreme and outrageous conduct.

As such, the Court finds Plaintiff’s sixth cause of action arises out of protected activity and satisfies the first prong.

In summary, Defendants have met their burden of establishing the first, third, and sixth causes of action arise from protected activity, i.e., filing the police report.

Whether Plaintiff’s claims have “minimal merit”

If the defendant has met its burden under the first prong, “the plaintiff will then need to demonstrate some merit to his claim that those protected acts were taken for impermissible retaliatory reasons; if he cannot, those particular allegations will be stricken. Conversely, to the extent any acts are unprotected, the claims based on those acts will survive. (Bonni, supra, 11 Cal.5th at p. 1012.)

“To show a probability of prevailing, the opposing party must demonstrate the claim is legally sufficient and supported by a sufficient prima facie showing of evidence to sustain a favorable judgment if the evidence it has submitted is credited.” (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 217 [citation omitted].) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; 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. [The court] accept[s] as true the evidence favorable to the plaintiff. A plaintiff must establish only that the challenged claims have minimal merit to defeat an anti-SLAPP motion. (Id. at pp. 217–18 [cleaned up; emphasis in original].)

As set forth above, the Court has determined Defendants have met their burden with respect to the allegations regarding the police report in connection with the first, third, and sixth causes of action.

Defendants contend Plaintiff’s claims are barred as the police report falls within the litigation privilege.

Litigation privilege

Civil Code section 47 provides, in part: “A privileged publication or broadcast is one made: . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: . . . .” (Civ. Code, § 47, subd. (b).) “[T]he weight of authority in California . . . holds that reports made by citizens to police regarding potential criminal activity fall within the section 47 absolute privilege.” (Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th1498, 1502-1503 [citations omitted].)

Plaintiff contends the litigation privilege does not apply based on Civil Code section 47, subdivision (b)(5), which provides “[t]his subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” Plaintiff further contends the filing of a knowingly false police report is a criminal act under Penal Code section 148.5, which forfeits anti-SLAPP protection.

Plaintiff contends Defendants’ reckless disregard for the truth when filing the police report is evidenced by the following:

- Defense counsel removed the winking emoji from their quotation of the operative text message. - J. Thomas told police Plaintiff had taken time off for mental health treatment, was taking psychiatric medication, and acted manic at work while 23 years of employment records do not contain any documentation of any of these allegations. - J. Thomas did not raise mental health treatment, medication, or manic behavior during her testimony on 12/13/24 (though conceding she was not asked).

- J. Thomas stated she “desired prosecution” of Plaintiff, which demonstrates it was not a good-faith safety report.

“[S]ection 425.16 does not apply to activity that is not in furtherance of the constitutional rights of free speech or petition and this would necessarily include illegal activity that falls outside protected speech and petition rights.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 324 [citation omitted].) Thus, the court in Flatley found the communications at issue were not protected activity where they “constitute[d] criminal extortion as a matter of law.” (39 Cal.4th at p. 330.) The court concluded “that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti- SLAPP statute to strike the plaintiff's action.” (Id. at p. 320.)

Similarly, in Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 705-706, the court found the filing of a criminal complaint was not protected activity for purposes of anti-SLAPP where the wife did not contest she submitted an illegal, false criminal report.

Here, Plaintiff’s evidence does not conclusively establish the police report was illegal as a matter of law. Nor do Defendants concede the report was false or illegal. Defendants note, for example, the report included facts favorable to Plaintiff and that J. Thomas’ testimony at the administrative hearing is consistent with the report.

“[W]hen allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 967 [citation omitted].)

Given the application of the litigation privilege, the Court finds Plaintiff has not met his burden to establish that the challenged claims in the first, third, and sixth causes of action with respect to the police report have at least “minimal merit.”

As such, those particular allegations are stricken, while the causes of action based on unprotected acts survive. (Bonni, supra, 11 Cal.5th at p. 1012.)

Attorney’s fees and costs

Code of Civil Procedure section 425.16, subdivision (c)(1) provides, “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.”

Defendants request the Court set a briefing schedule and hearing for their fee motion. To the extent Defendants seek to recover fees through a

subsequent motion, Defendants may do so by way of a properly noticed motion.

Plaintiff also requests costs and reasonable attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c)(1) and section 128.5.

Section 425.16, subdivision (c)(1) provides, “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

Given the Court’s ruling on the motion, it does not find the motion to be frivolous or solely intended to cause unnecessary delay. Nor does the Court find Plaintiff, acting in pro per, has incurred “attorney’s fees.”

The Court DENIES Plaintiff’s request for attorney’s fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1).

In summary, the Court GRANTS, in part, Defendants 4Gen Digital, Inc., Craig M. Thomas, Jacqueline Thomas, and Alexandria C. Phillips’s Special Motion to Strike the Complaint (Anti-SLAPP) as to the allegations in the first, third, and sixth causes of action with respect to the police report filed by Defendants on 6/5/24 and DENIES the Motion as to the remaining allegations. 22 24-01382884 Motion to Compel Production

Ortega vs. FCA US, LLC Plaintiff Sandra Ortega’s motion to compel defendant FCA US LLC to provide responses, without objections, to Plaintiff’s Request for Production of Documents, Set One, is MOOT.

On May 14, 2024, Plaintiff served Requests for Production of Documents, Set One (“RFPs”) on FCA. (Rucker Decl., ¶ 4, Ex. 1.) Defendant served verified responses to Plaintiff’s Request for Production of Documents on February 25, 2026 and document production on March 3, 2026. (Hugret Decl., ¶ 6.) The Motion is therefore MOOT.

Plaintiff’s request for sanctions is DENIED.

Moving party to give notice.