orderyourcars.com v. Cram

• Docket Number: B332559
• Decision Date: 26 July 2024
• Parties: ORDERYOURCARS.COM, INC., Cross-complainant and Respondent, v. HEATHER CRAM, Cross-defendant and Appellant.
• Court: California Court of Appeals

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ORDERYOURCARS.COM, INC., Cross-complainant and Respondent, v. HEATHER CRAM, Cross-defendant and Appellant.

B332559

California Court of Appeals, Second District, Second Division

July 26, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles CountyNo 22NWCV00849, Lee W. Tsao, Judge.

Lemon-Aid Legal, Raphael E. Davis; Law Office of Monica Hartsock and Monica Hartsock for Cross-defendant and Appellant.

Kolar &Associates, Elizabeth L. Kolar and Tami S. Crosby for Cross-complainant and Respondent.

LUI P. J.

Appellant and cross-defendantHeather Cram(Cram) appeals from an order denying her special motion to strike under Code of Civil Procedure section 425.16,^[1] a defamation cause of action asserted against her by respondent and cross-complainantOrderYourCars.Com, Inc., doing business as Best Buy Quality Cars (BBQC).Because the trial court found that the gravamen of BBQC's defamation claim was activity protected under section 425.16, the sole issue on appeal is whether BBQC met its burden of demonstrating a probability of prevailing on the claim.We conclude that BBQC sustained that burden and therefore affirm the trial court's ruling.

BACKGROUND

On May 27, 2021, Cram signed a sales contract with BBQC for the purchase of a used 2011 Chevrolet Silverado 1500 truck, with 71,066 miles on the odometer.Cram also signed documents stating she was purchasing the truck" 'AS IS'" and that BBQC was making no warranty concerning the truck.When Cram purchased the truck, she also purchased a Vehicle Service Contract covering the truck from GWC Warranty.

BBQC alleges that although Cram signed the sales contract on May 27, 2021, she did not take possession of the truck until May 30, 2021, when she signed a Used Vehicle Disclosure confirming she received actual possession on May 30, 2021.

On May 28, 2021, BBQC took the truck to a third-party vendor to have it weighed and obtained a Weighmaster Certificate stating the truck was weighed at 12:07 p.m. on May 28, 2021.On May 29 2021, BBQC took the truck to a third-party vendor to have it smog checked.The smog certification documents indicate the truck underwent a smog test at 11:00 a.m. on May 29, 2021 and passed the smog test.

Cram claims the truck's check engine light illuminated after she purchased and took possession of it while she was driving home from BBQC's premises.She took the truck to Selman Chevrolet for repairs, which were paid for in part by GWC under the terms of the Service Contract Cram purchased.

PROCEDURAL HISTORY

On September 19, 2022, Cram filed a complaint against BBQC and others,^[2] asserting causes of action for violations of the California Consumer Legal Remedies Act, Unfair Competition Law, and Vehicle Code section 11711; breach of express and implied warranties pursuant to the Magnusson-Moss Warranty Act; fraud; negligent misrepresentation; and negligence.

BBQC cross-complained against Cram, asserting claims for intentional and negligent misrepresentation, interference with current and prospective economic relations, and as relevant to this appeal, libel and slander.BBQC alleges in paragraph 15 of its cross-complaint as follows "[B]etween September 30, 2021 and December 30, 2021, Cram reported to the Better Business Bureau ('BBB'), Brian Vu at the Bureau of Automotive Repair ('BAR'), Garen Kasparin, Esq. with BBQ[C]'s bond carrier and Kenneth Holt with the DMV, through telephone communications, on-line complaint activity reports, emails and letters, that she obtained possession of the subject vehicle prior to September 30, 2021, that BBQ[C] obtained a fraudulent smog certificate for the subject vehicle, that BBQ[C] committed fraud in the sale of the vehicle to Cram, that the mechanical problems with the subject vehicle existed prior to her purchase of the subject vehicle, that BBQ[C] was aware of the mechanical issues with the subject vehicle prior to its sale to Cram, that the BBB and DMV had opened investigations and commenced administrative actions against BBQ[C] with regard to Cram's vehicle purchase transaction with BBQ[C], that the DMV Investigations Division has also agreed with her complaint of fraud and is brin[g]ing administrative action against BBQ[C] and that the DMV is turning the fraud case over to the District Attorney of Los Angeles."

BBQC further alleges that Cram's statements were false and exposed BBQC to hatred, contempt, ridicule, and obloquy and damaged BBQC's reputation and relationships.

After filing its cross-complaint, BBQC removed the case to federal court based on Cram's breach of warranty claims under the federal Magnusson-Moss Warranty Act(15 U.S.C. § 2301 et seq.).BBQC then filed a motion for summary judgment.The federal district court granted the motion in part, dismissing the Magnusson-Moss claims.The federal court declined to exercise supplemental jurisdiction over the remaining causes of action and remanded the matter back to the superior court.

Cram filed an anti-SLAPP motion, seeking to strike BBQC's cross-complaint in its entirety.In her motion, Cram argued that all of BBQC's cross-claims were premised on communications or activities that constitute protected speech or petitioning activity made in connection with an issue of public interest or anticipated litigation.Cram further argued that BBQC could not demonstrate a probability of prevailing because all of its claims were barred by the litigation privilege.In support of the anti-SLAPP motion, Cram submitted, among other documents, the declaration of her attorney, Raphael Davis; her own declaration made to Brian Vu of the California Bureau of Automotive Repair; and an unsigned Written Notice of Claim sent by Cram to BBQC's surety, ACIC.

BBQC opposed the motion and submitted, among other documents, the declaration of its owner and custodian of records, Edmond Ghoulian.

The parties filed evidentiary objections to their respective opposing declarations.The trial court sustained all of BBQC's objections to Davis's declaration and sustained in part Cram's objections to Ghoulian's declaration.The trial court then ruled that Cram had met her initial burden of establishing that BBQC's cross-claims were based on statements made in furtherance of the exercise of Cram's constitutional right of free speech in connection with an issue of public interest, thereby shifting to BBQC the burden of demonstrating a probability of prevailing on its claims.

The trial court concluded that BBQC had not met that burden as to its causes of action for intentional misrepresentation, negligent misrepresentation, and intentional interference with prospective economic advantage and granted the anti-SLAPP motion as to those claims.As to the defamation claim, the trial court determined that BBQC presented sufficient evidence that Cram's false statements could injure BBQC's business, thereby satisfying BBQC's burden of showing its defamation cause of action had at least" 'minimal merit'" and denied the motion to strike that cause of action.This appeal followed.

DISCUSSION

I.Applicable law and standard of review

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."

Determining whether the statute bars a given cause of action requires a two-step analysis.(Navellier v. Sletten(2002)29 Cal.4th 82, 88(Navellier).)First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action "aris[es] from any act . . . in furtherance of the [moving party's] right of petition or free speech."(§ 425.16, subd. (b)(1);accord, Navellier, atp. 88.)

If the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a "probability that the plaintiff will prevail on the claim."(§ 425.16, subd. (b)(1);accord, Navellier, supra,29 Cal.4th at p. 88.)

To demonstrate a probability of prevailing, a party opposing an anti-SLAPP motion need only demonstrate a legally sufficient claim and submit a prima facie showing of facts supporting the claim.A court reviews that showing under a standard similar to that employed in determining nonsuit, directed verdict, or summary judgment motions.(Navelliersupra,29 Cal.4th at pp. 88-89;Paiva v. Nichols(2008)168 Cal.App.4th 1007, 1016-1017.)However, "[a]motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment[citation].In resisting such a motion, the [opposing party] need not produce evidence that he or she can recover on every possible point urged.It is enough that the [opposing party] demonstrates that the suit is viable, so that the court should deny the special motion to strike and allowthe case to go forward."(Wilbanks v. Wolk(2004)121 Cal.App.4th 883, 905.)"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 claims as a matter of law."(Baral v. Schnitt(2016)1 Cal.5th 376, 384-385.)"[C]laims with the requisite minimal merit may proceed."(Navellier, supra,29 Cal.4th at p....