Laue v. Ortiz

• Decision Date: 11 March 2015
• Docket Number: H040705
• Court: California Court of Appeals Court of Appeals
• Parties: DALE LAUE, Plaintiff and Appellant, v. LILIANA A. ORTIZ, Defendant and Respondent.

DALE LAUE, Plaintiff and Appellant, v. LILIANA A. ORTIZ, Defendant and Respondent.

H040705

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

March 11, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CV250570)

Plantiff Dale Laue, in propria persona, appeals from the trial court's order granting defendant Liliana A. Ortiz's special motion to strike the first amended complaint (anti-SLAPP motion) brought pursuant to Code of Civil Procedure section 425.16,¹ the so called anti-SLAPP statute.² (§§ 904.1, subd. (a)(13), 425.16, subd. (i).) The trial court determined that defendant had shown all causes of action arose from protected activity and, consequently, the burden shifted to plaintiff to demonstrate a probability of success on his claims to avoid the granting of the motion. The court found that plaintiff did not present sufficient evidence to defeat the litigation privilege, Civil Code section 47, subdivision (b) (hereinafter Civil Code section 47(b)), and carry his burden.

On appeal, plaintiff raises multiple contentions. We find them meritless and affirm.

I

Procedural History and Background

Plaintiff Laue's first amended complaint (hereinafter complaint) alleges five causes of action: (1) libel; (2) slander; (3) intentional interference with economic advantage; (4) negligent interference with economic advantage; and (5) intentional infliction of emotional distress.

The complaint alleges the following facts. Plaintiff and defendant reside in adjoining properties in Gilroy, California. Plaintiff is a renter and his landlord is Cam Thy Nguyen. Defendant made a number of false accusations about him to police. Defendant defamed plaintiff's character by making false statements about him, both to police and in a letter she sent to plaintiff's landlord on or about May 17, 2013. On June 3, 2013, defendant filed a small claims law suit against plaintiff's landlord,³ which omitted important facts and thereby "falsely accuse[d]" him of damaging metal posts by hanging fences without permission. On June 26, 2013, plaintiff wrote a letter to his landlord requesting that his lease be renewed for another year and, in response, the landlord indicated that plaintiff would need to resolve his issues with defendant. On July 31, 2013, in the South County courthouse lobby, defendant falsely stated that plaintiff "had verbally abused her worker so severely that he died." Defendant's allegedly false statements were the basis of all causes of action.

On September 5, 2013, defendant filed her anti-SLAPP motion. It stated that plaintiff "cannot show a probability he will prevail on any cause of action because theconduct complained of is subject to the litigation privilege. (Civ. Code § 47(b).)" The motion was accompanied by defendant's declaration.

In her declaration, defendant stated that, as a result of plaintiff's conduct, she had reported him to the police on several occasions and filed a small claims action against plaintiff's landlord. Defendant stated that she "never made any false police reports or any false allegations either in writing or the Small Claims action . . . ." She also explained: "Each time I talked to the police I did so for the purpose of obtaining police assistance to investigate and prosecute possible criminal activity. I reported only what I had perceived and honestly believed to be the truth. I have never stated anything false to the police concerning [plaintiff's] behavior." Defendant related several incidents in which the police had been called, either by plaintiff or her.

Defendant stated in her declaration that, on or about May 17, 2013, she sent a letter to plaintiff's landlords concerning the activities of their tenant, plaintiff, with regard to a fence and fence posts. According to defendant, in the letter she demanded the immediate removal of "patchwork metal" that plaintiff had installed on her fence post without her approval and payment of $300. She explained that she wrote the letter because she "was advised and believed" that she was required to make a written demand on the landlords before filing a small claims action.

Defendant stated in her declaration that she subsequently filed a small claims action "based upon the same occurrences and damages which were the subject matter of [her] May 17, 2013 letter." She indicated that she attended a mediation in the small claims action that occurred in the lobby of the South County courthouse in Morgan Hill. The mediator, the landlords (Cathy and Tony Nguyen), plaintiff and his wife, and defendant attended the mediation. She asserts that everything that she said about plaintiff "at the courthouse that day was in the context of the mediation proceeding and in the presence of the mediator." "The case settled at mediation and was dismissed that day."

Plaintiff's declaration detailed incidents between defendant and himself or his wife between January 2012 and June 2013. He accused defendant of making false claims about him to police, in her May 17, 2013 letter, and in her small claims complaint. He asserted that the letter was "not sent in anticipation of litigation" but rather to "harass [him] and interfere with [his] relationship with [his] landlord." In response to plaintiff's written request to renew his lease (set to expire August 31, 2013) for another year, the landlord wrote on July 15, 2013 that the landlord wanted to renew the lease but would like plaintiff to resolve the issue with defendant.

The trial court determined the causes of action arose primarily from defendant's allegedly false representations to police and her letter to plaintiff's landlord. It concluded that defendant had satisfied the requirement of making a threshold prima facie showing that those activities were protected under the anti-SLAPP statute. Consequently, the burden shifted to plaintiff to establish a probability of prevailing on the merits. It found that plaintiff had not presented sufficient evidence to defeat the litigation privilege and show a probability of prevailing on his claims. The trial court granted the anti-SLAPP motion. It denied defendant's request for attorney fees and costs without prejudice to a subsequent noticed motion.⁴

Discussion

A. Court's Ruling under Section 425.16

1. Governing Law

"The Legislature enacted section 425.16 to prevent and deter 'lawsuits [referred to as SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'hisor her resources' [citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target" ' (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65 . . . ). Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) An anti-SLAPP motion pursuant to section 425.16 "is a procedural device for screening out meritless claims [citation]." (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737.)

Section 425.16, subdivision (b)(1), provides: "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." (Italics added.) "[S]ection 425.16 requires that a court engage in a two-step process when determining whether a defendant's anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one 'arising from' protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) "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 (Navellier).) Courts "review an order granting or denying a motion to strike under section 425.16 de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 . . . .)" (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.)

" 'A defendant meets [the initial] burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [Citation.]" (Navellier, supra, 29 Cal.4th at p. 88; see City of Cotati v. Cashman, supra, 29 Cal.4th at p.78.) Section 425.16, subdivision (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...