Matthew William Vickers vs. Ariana Kathleen Couch

“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 claim will prevail. Code Civ. Proc., § 425.16, subd. (b)(1). “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.

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. [Citation.] 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. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.] 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. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ ” Baral [v. Schnitt (2026) 1 Cal. 5th 376,] 384-385, 205 Cal.Rptr.3d 475, 376 P.3d 604, fn. omitted.) ...

As to the second step, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 95, 218 Cal.Rptr.3d 160; see Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480, 183 Cal.Rptr.3d 867; City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376, 154 Cal.Rptr.3d 698; Paiva v.

Nichols (2008) 168 Cal.App.4th 1007, 1017, 85 Cal.Rptr.3d 838.

Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (parentheses omitted).

In addition, and of importance:

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.

Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.

Analysis

Step One: Arising From Protected Activity

Code Civ. Proc. § 425.16.

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] 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.’ [Citations.] ‘[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.’ [Citations.] 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.’ [Citation.] ‘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)....’ [Citation.]

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.

In addition, under Civil Code section 47(b), a publication or broadcast made, “[i]n 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...” is privileged. Civ. Code § 47(b).

The litigation privilege, codified in Civil Code section 47, applies to any publication required or permitted by law in the course of a proceeding authorized by law to achieve the objects of the proceeding, even though the publication is made outside the Courtroom and no function of the Court, or its officers is involved. Albertson v. Raboff (1956) 46 Cal.2d 375, 381. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasijudicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214.

There are exceptions to Section 47(b); specifically, there is no privilege when a “person makes a false report that another person has committed ... a criminal act ... knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” Civ. Code § 47(b).

The principal purpose of the litigation privilege is to afford litigants and witnesses the utmost freedom of access to the Courts without fear of being harassed subsequently by derivative tort actions. Silberg, 50 Cal.3d at 213. To achieve this purpose, courts have given the litigation privilege a broad interpretation. Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. Other purposes underlying the litigation privilege include assurance of “the utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” Silberg, 50 Cal.3d at 213-214. The privilege is a matter of substantive law and, when applicable, is absolute, because it applies regardless of the communicator’s motives, morals, ethics, or intent. Id. at 216, 220.

The litigation privilege has been held applicable to all torts except malicious prosecution. Silberg, supra, 50 Cal.3d at 215-216, citing Albertson, 46 Cal.2d at 382.

At bar, Defendant argues, among other things, that “the alleged offending conduct all occurred in connection with reporting alleged criminal conduct to mandatory reporters”, including “reporting a sexual assault to a co-worker who is a mandated reporter” and “fil[ing] a lawful police report with the Nevada County Sheriff’s Officer.” Mot. 5:6-11. The Court agrees in part.

Plaintiff alleges three, separate acts as a basis for all his relief, specifically the acts alleged in paragraphs 11 (statements on or about November 7, 2024), 14 (statements on or about December 15, 2025) and 15 (statements on or about November 11, 2025). Moreover, the Court must determine, individually, whether each act is protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion. See Bonni, 11 Cal.5th at 1010.

On the record presented, defendant has made a prima facie showing that she made an oral statement to law enforcement (the executive branch) in connection with a proceeding authorized by law. Defendant has made a sufficient prima facie showing that the challenged allegation in Complaint paragraph 11 arises from activity protected by Code of Civil Procedure section 425.16(e)(1). She has not, however, made a sufficient showing with respect to the allegations in Paragraphs 14 and 15 that any of these acts arise from activity protected by Code of Civil Procedure section 425.16. Thus, Defendant has met her step-one burden solely as to the activity set forth in paragraph 11.

Step Two: Probability of Success

If the Court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The Court, without resolving evidentiary conflicts, must determine whether the Plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the Plaintiff has shown a probability of prevailing. Baral v. Schnitt, 1 Cal.5th at 396.

“ ‘To demonstrate a probability of prevailing on the merits, the Plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the Plaintiff’s favor. [Citations.] The Plaintiff’s showing of facts must consist of evidence that would be admissible at trial. . . . [Citations.]” JSJ Limited Partnership, supra, 205 Cal.App.4th at 1521.

At this second stage, “a Plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ ” Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940. “If the pleadings are not adequate to support a cause of action, the plaintiff has

failed to carry his burden in resisting the motion.” Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.

The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense which a complainant must overcome to demonstrate a probability of prevailing. JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522. A complainant cannot establish a probability of prevailing if the litigation privilege precludes liability on the claim. Flatley v. Mauro (2006) 39 Cal.4th 299, 323.

There is some dispute in the case law as to which party bears the burden of proof on an affirmative defense in the context of an anti-SLAPP motion. Some cases state that “although section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense. ” E.g., Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676. Others suggest that the litigation privilege presents “ ‘a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing. ’ ” Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1485.

Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 683 (citations omitted).

“Given the evidence in this case, [this Court] need not resolve the dispute here. What is important is that, regardless of the burden of proof, the court must determine whether plaintiff can establish a prima facie case of prevailing, or whether defendant has defeated plaintiff's evidence as a matter of law.” Ibid.

The Court focuses on the defamation claim first. The elements of a claim for defamation depend on whether plaintiff is a public figure or a private figure and whether it concerns a public or private matter. For a private figure, the elements for a defamation cause of action in general are “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” See John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312. “If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence [citation], that the libelous statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (quotations omitted); California Civil Jury Instructions (CACI) 1700. Similarly, if the defamation involves an issue of public concern, proof of actual malice is necessary to recover presumed or punitive damages even if the plaintiff is not a public figure. Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747; CACI 1702. If the defamation relates to a private figure, in connection with a private matter, a plaintiff must prove negligence to recover any damages.

Brown, 48 Cal.3d at 747; Carney, 221 Cal.App.3d at 1016, CACI 1704.

“Determining what constitutes a matter of public concern is a difficult task.” Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1020. “To a significant extent, the mere act of publishing material in the mass media creates public interest in its contents. The more sensational and hence injurious a statement is, the more ‘public interest’ it generates. ” Ibid. (citations and quotations omitted). “Whether ... speech addresses a matter of public 9

concern must be determined by [the expression's] content, form, and context ... as revealed by the whole record.” Ibid. (citations and quotations omitted). “[S]exual harassment and violence against women is [recognized to be] of pressing public concern.” Id. at 1021.

The Court assumes, arguendo, that the alleged defamation in Complaint paragraph 11 involves an issue of public concern. Accordingly, the court also assumes that proof of actual malice is necessary to recover presumed or punitive damages.

At bar, Plaintiff can establish a prima facie case of prevailing. Vickers Decl. ¶¶ 2,4. According to Plaintiff, “[o]n November 5, 2024, Defendant and [he] engaged in sexual relations. The encounter was planned and consensual. No rape occurred. Defendant’s allegations that a rape occurred are false. Over the next few days, the Defendant sent multiple messages inferring the encounter was consensual.” Complaint ¶ 2. Defendant further declared that, “on the morning of November 6, 2024, Defendant reported rape and abuse allegations to law enforcement.

She declined to press charges the next day, November 7, 2024 and no further contact or investigation occurred thereafter. Defendant nevertheless continued to repeat the accusation to third parties after declining to pursue criminal charges.” Id. ¶ 4. Lastly, Plaintiff declares: “A[s] a result of the Defendant’s accusations ..., and subsequent public dissemination, I have experienced humiliation, anxiety, emotional distress, and damage to my personal and professional reputation.” Id. ¶ 27. In short, Plaintiff has presented evidence that Defendant made per se defamatory statements to third parties about Plaintiff allegedly raping his ex-wife, Ms.

Couch, a crime, that the statements were false, that Defendant impliedly had knowledge of its falsity, and that the statement had a natural tendency to injure. Moreover, Defendant has not defeated all of Plaintiff’s evidence regarding defamation as a matter of law.2

The same can be said for the remaining claims. “The elements of a cause of action for IIED 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.” Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273, CACA 1600. “The elements of a cause of action for negligence are duty, breach, causation, and damages.” Woolard v. Regent Real Estate Services, Inc. (2024) 107 Cal.App.5th 783, 791 quoting Melton v. Boustred (2010) 183 Cal.App.4th 521, 529; CACI 400. The same evidence noted above is sufficient to establish a prima facie case that has not been defeated as a matter of law.

In summary, Defendant’s motion is denied.

5. CU0002568 Gabrielle Christakes vs. City of Nevada City

Defendant The City of Nevada City’s demurrer to Plaintiff Gabrielle Christakes’ First Amended Complaint is sustained as to the second cause of action. Plaintiff is granted leave to amend within ten (10) days of this Court’s order.

2 Assuming, arguendo, that Plaintiff’s case solely relates to a private figure and matter, Plaintiff has also presented sufficient evidence to establish a prima facie case that has not been defeated as a matter of law. 10