Khalil Jaber v. Taco Works, Inc.

An act in furtherance of a person’s right of petition or free speech under the United States 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 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. (Code Civ. Proc., § 425.16, subd. (e).)

“A claim may be struck only if the speech or petitioning activity itself is the wrong complained of.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.)

Courts use a two-step process for determining whether an action or a claim is a SLAPP suit subject to a special motion to strike. It is Moving Parties’ burden to show the claims in the complaint arise from protected activity; if that burden is met it is Taco Work’s burden to show probability of success on the merits.

The Court first decides whether Jaber, JGIW and JGIS have made a threshold showing that the challenged cause of action is one arising from activity protected by section 425.16 “by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e). [Citation.] If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [internal citations omitted]; Park v. Bd. of Trustees of California State Univ. (2017) 2 Cal. 5th 1057, 1061; Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

Jaber, JGIW and JGIS must make a prima facie showing that the acts of which Taco Works complains were ones taken in furtherance of JGIW and JGIS’s constitutional rights of petition or free speech in connection with a public issue. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni) [“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.”])

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, supra, 11 Cal.5th at p. 1010.)

Only the particular allegations that arise from protected activity, and for which the plaintiff or cross-complainant does not demonstrate merit may be stricken. (Bonni, supra, 11 Cal.5th at p. 1012.)

Where the motion to strike is directed to the entire complaint, the trial court must deny the motion if there is any claim that does not arise from protected activity as the moving party has failed to meet its burden. (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1106 [“Because the Nazaris moved to strike only the entire complaint, and did not identify in their motion individual claims or allegations that should be stricken even if the entire complaint were not, the trial court was permitted to deny the anti-SLAPP motion once it concluded—correctly—that the complaint presented at least one claim that did not arise from anti-SLAPP protected conduct”].)

Specific allegations that the moving party contends arise from protected activity and which they seek to strike should be detailed in their notice of motion. (Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 100, fn. 15.)

II.

Discussion

As an initial matter, Moving Parties move to strike the entire cross-complaint, thus, the motion must be denied if the cross-complaint presents at least one claim that does not arise from anti- SLAPP protected conduct.

Here, the cross-complaint alleges claims that do not arise from protected activity. Taco Work’s breach of contract claims that JGIW and JGIS breached a distribution contract with Taco Works by failing to timely pay for all goods pay pursuant to the terms of the agreement. (X-Cmpl., ¶¶ 42-43.) The cross-complaint also alleges nonpayment for goods on an open book account. (X- Cmpl., ¶¶ 47-48.) A simple breach of contract does not arise from constitutionally protected activity. (See Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118; Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 190 [breach of contract and common counts for nonpayment of overdue invoices nonprotected activity].)

The motion can therefore be denied on that ground alone.

Additionally, Moving Parties contend that the protected activity here is Jaber’s petitioning of the Court through the complaint. However, the cross-defendants here are JGIW and JGIS, not Jaber.

Jaber’s declaration seeks to show that he is the sole owner and that JBI Snacks is a fictitious name that he began using shortly after forming the Jaber Group, Inc., and that he formally registered the name with the Tulare County Clerk-Recorder on October 4, 2020. (Jaber Decl., ¶¶ 5, 6.) Jaber provides no declaration or evidence that JBI Snacks is a dba for himself, rather than the separate corporate entity.

The anti-SLAPP statute applies to “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition...” (Code Civ. Proc., § 425.16, subd. (b)(1) [emphasis added].) JWIW and JBIS did not petition the Court—Jaber petitioned the Court. Moving Parties cite no authority showing that an anti-SLAPP can be used to strike a claim that did not arise from an act of that person.

Moving parties cite Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87 (Williams) as authority that a cross-complaint for indemnity arises out of protected activity. Moving Parties also cite Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673. Those cases both discuss cross-complaints for breach of contractual obligations to indemnify and defend and were filed against the plaintiffs in the underlying actions. For example, in Williams, the individual and her LLC were both plaintiffs in the underlying action, as well as cross-defendants in the indemnity action. Moving parties cite no cases discussing claims for equitable or contractual indemnity against third parties. 1

Moving Parties fail to show that the cross-complaint arises from protected activity on the part of cross-defendants JBIW or JBIS.

Because Moving Parties fail to meet their burden, the burden does not shift to Taco Works to show a probability of success on the merits.

Moving Party’s evidentiary objections were immaterial to the Court’s decision.

III.

Conclusion

Jaber, JBIW and JBIS’s special motion to strike Taco Work’s cross-complaint pursuant to Code of Civil Procedure section 425.16 is denied.

1 It is also not settled whether an action to enforce an indemnification obligation is subject to the anti-SLAPP statute. (See C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688 and Wong v. Wong (2019) 43 Cal.App.5th 358.)

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