McGovern vs. Kerr

Step One: Protected Speech

The Cross-Complaint asserts causes of action for 1) defamation – libel, 2) defamation – slander, 3) intentional infliction of emotional distress, and 4) negligent infliction of emotional distress.

Cross-Defendants Harry McGovern (“Harry”) and Megan McGovern (“Megan”) did not provide a declaration in connection with their motion, so the Court is left only to the allegations of the unverified First Amended Complaint and the unverified Cross-Complaint. (See, e.g., Civ. Proc. Code § 425.16, subd. (b)(2) [noting that the court, “in making its determination [whether the plaintiff's cause of action is

subject to an anti-SLAPP motion], shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.”]; Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 928–929 [“When the complaint itself alleges protected activity, a moving party may rely on the plaintiff's allegations along in arguing that the plaintiff's claims arise from an act ‘in furtherance of the person's right of petition or free speech.’”].)

According to the First Amended Complaint (“FAC”), Harry and Megan are parents of a minor child Jane Roe. On January 31, 2023, they hired Summer Kerr (“Summer”) as a babysitter. Summer assisted in watching the children in Harry and Megan’s home, but after gaining their trust, Summer was permitted to take Jane Roe to a nearby park and certain authorized locations. (FAC, ¶ 8.) However, Defendants Summer, Kathleen Constance, and Skyler Kerr took Jane Roe to the homes of male predators who then physically and sexually abused Jane Roe. (Id. at ¶¶ 8-9.)

The Cross-Complaint alleges that Summer received a threatening voicemail and text messages from Harry on August 31, 2024, in which he stated in part, “There will be no place that you could hide on this planet for the hell that I’m gonna bring over you and your family and everyone else involved.” (Cross-Complaint, ¶ 11.) Summer returned that call and Harry told Summer that she was going to spend the rest of her life in jail. (Id. at ¶ 12.) Between November 2024 and January 2025, Summer was informed that Megan and Harry had been telling neighbors and friends that Summer was a child molester and child trafficker. (Id. at ¶ 16.) Cross-Complainants allege these statements were false. (Id. at ¶¶ 18-19.)

The first cause of action does not name Harry and Megan as Cross- Defendants. Harry and Megan are only named in the second, third, and fourth causes of action.

The second cause of action for slander alleges Cross-Defendants made the statements alleged in the Cross-Complaint to third parties who understood those statements to be about Cross-Complainants and that Cross-Complainants had committed crimes against children. (Cross-Complaint, ¶¶ 31-33.)

As indicated previously, Code Civ. Proc. § 425.16 protects “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.” (Code Civ. Proc. § 425.16(e)(3).) The Cross-Complaint alleges that Megan and Harry “had been telling individual neighbors and friends that Summer was a child molester and child trafficker.” (Cross-

Complaint, ¶ 16.) The FAC alleges that Plaintiffs had reported Defendants’ conduct to the police and an investigation is ongoing. (FAC, ¶ 20.)

The Court finds that Harry and Megan’s statements constitute protected activity under Section 425.16, subdivisions (e) because they were statements “in furtherance of [their] constitutional rights of freedom of speech . . . in connection with a public issue” (Code of Civ. Proc. § 425.16, subd. (b)(1).)

“The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, citing Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is “made in connection with an official proceeding authorized by law.”].) In Comstock v. Aber, the defendant made allegations of sexual assault against the plaintiff to three groups of people: (1) the police, (2) a nurse, and (3) ‘friends.’ (Id. at 941.) Therein the Court held that all three statements fell within the anti-SLAPP protections of section 425.16. (Id. at pp. 941- 942.)

Child molestation or child abuse is an issue of public concern. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 483 [“[A]llegations of abuse by members of the clergy and the protection of children concern issues of public interest.”]; see also Cross v. Cooper (2011) 197 Cal.App.4th 357, 371–379 [discussing cases; holding that disclosure about a registered sex offender living in the neighborhood constituted protected speech in connection with an issue of public interest].) Harry and Megan’s alleged statements that Summer was a child molester or child trafficker touched on an issue of public concern.

The third cause of action for intentional infliction of emotional distress is based entirely on the same conduct as the second cause of action for defamation. (Cross-Complaint, ¶ 39 [“The conduct of Cross-Defendants as alleged herein was extreme and outrageous.”].) The same goes for the fourth cause of action for negligent infliction of emotional distress. (Cross-Complaint, ¶ 44 [“Cross-Defendants were negligent in making the statements alleged herein.”].)

Harry and Megan have met their threshold burden of showing that the Cross-Complaint’s causes of action against them arise from an act in furtherance of Harry and Megan’s protected conduct.

The analysis is similar as to Cross-Defendant Erika Shawver (“Shawver”). The Cross-Complaint alleges only one fact specifically directed at Shawver: “Winslow published false and defamatory

statements about Summer to third parties through a Facebook group called San Clemente Moms, which is moderated and administered by Erika Shawver.” (Cross-Complaint, ¶ 15.) In other words, the only specific allegation made against Shawver in the Cross-Complaint is that she moderates and administers a Facebook group called San Clemente Moms, in which group Cross-Defendant Fallon Winslow posted something that included a picture of Cross-Complainant Summer, but the post was removed approximately one day after a request to remove it was submitted. (Id. at ¶¶ 13-14.) The Cross- Complaint does not allege the content of the post other than the fact that it included a picture of Summer. (Ibid.)

“It cannot be disputed that Facebook's website and the Facebook pages at issue are ‘public forums,’ as they are accessible to anyone who consents to Facebook's Terms.” (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.) Further, the Facebook post at issue contained content in some way related to the allegations of misconduct regarding Cross-Complainants and Jane Doe. (Cross- Complaint, ¶ 25 [“These third parties reasonably understood that the statements were about Cross-Complainants.”].) As discussed previously, the analysis is the same with respect to the third cause of action for intentional infliction of emotional distress and the fourth cause of action for negligent infliction of emotional distress.

Thus, Shawver has met her threshold burden of showing that the Cross-Complaint’s causes of action against her arise from an act in furtherance of Shawver’s protected conduct.

Cross-Complainants now must establish a probability of prevailing on their claims.

Step Two: Probability of Prevailing

Once the Cross-Defendants have met their burden, the burden shifts to the Cross-Complainants to establish that there is a probability it will prevail on their claims. (Code Civ. Proc. § 425.16(b)(1); Taus v Loftus (2007) 40 C4th 683, 713; Equilon Enters. v Consumer Cause, Inc. (2002) 29 C4th 53, 67.) “Probability” means “reasonable probability.” (Schoendorf v U.D. Registry, Inc. (2002) 97 CA4th 227, 238.)

To meet this burden, the Cross-Complainants must show that the complaint is legally sufficient and supported by a prima facie showing, by admissible and competent evidence, of facts that would be sufficient to sustain a favorable judgment on the Cross- Complainants’ claims under the applicable evidentiary standard.

Cross-Complainants did not oppose the motions and thus failed to meet their burden to establish there is a probability they will prevail on their claims. Thus, the motions are granted.

Attorney’s Fees

With exceptions that do not appear to apply here, a prevailing moving party on an anti-SLAPP motion is entitled to recover attorney’s fees and costs. (Civ. Pro. Code, § 425.16(c)(1).)

Harry and Megan seek an award of attorney’s fees and costs in the amount of $11,560, which is composed of 14.6 hours at an hourly rate of $500 for attorney Raquel Flyer Dachner, 6 hours at an hourly rate of $700 for attorney David Flyer, and a $60 filing fee.

Cross-Complainants are ORDERED to pay attorney’s fees and costs in the amount of $9,560 to Harry and Megan. The amount requested by Harry and Megan was reduced for a variety of reasons, including that the motion was not opposed, and that the time spent was not entirely justified. The amount awarded consists of 12 hours at an hourly rate of $500 and 5 hours at an hourly rate of $700, plus the $60 filing fee.

Shawver seeks an award of attorney’s fees and costs in the amount of $3,680, which is composed of 7 hours at an hourly rate of $455 (including two hours to reply and argue the motion), a $60 filing fee, and a first appearance fee of $435. The recommendation is to reduce the time spent from 7 to 6 hours because the motion is unopposed but otherwise grant this request.

Thus, Cross-Complainants are ORDERED to pay attorney’s fees and costs in the amount of $3,225 to Shawver.

Moving Parties shall each give notice of this ruling.

12 Cardona vs. TENTATIVE RULING: Volkswagen Group of America, Inc. For the reasons set forth below, Defendant Volkswagen Group of America, Inc.’s (“Volkswagen”) Motion for Summary Adjudication as to the first cause of action for Breach of Express Warranty – Pursuant to California Commercial Code is DENIED.

Volkswagen’s Motion for Summary Adjudication as to the Prayer for Relief “for Civil Penalties in the amount of $246,054.06” is GRANTED.