Lee v. ENK Apparel, Inc.

(Stanley Mosk Courthouse: Dept. 507) August 18, 2026 DEPARTMENT 507 LAW AND MOTION RULINGS

ENK Apparel, Inc.'s special motion to strike is GRANTED. Moving party to give notice, unless waived. DISCUSSION: Special Motion to Strike under Code of Civil Procedure section 425.16 Legal Standard "Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has "at least 'minimal merit.' [Citation.]" (Bonni v.

St. Joseph Health System (2021) 11 Cal.5th 995, 1009, citations omitted.) To separate communications which form the source of the dispute from those that merely provide evidence of it, courts ask whether "the same dispute would exist" if there were no pending threat of litigation. (Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 42.) In the second step of the inquiry, 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 District v.

Gilbane Building Co. (2019) 6 Cal.5th 931, 940, citations omitted.) A party opposing a special motion to strike has the burden to "state [] and substantiate [] a legally sufficient claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 & 93.) "'Put another way, the party "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the defendant is credited."' [Citations.]" (Id. at pgs. 88-89.)

To that end, the party must present competent evidence, "that would be admissible at trial." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) "[D]eclarations may not be based upon 'information and belief' [citation]" and documents submitted without the proper foundation will not be considered. (Id.) The complaint, even if verified, is insufficient to carry the plaintiff's shifted burden. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 614; Karnazes v.

Ares (2016) 244 Cal.App.4th 344, 354 ["pleadings do not constitute evidence"]; see also Burke, Anti-SLAPP Litigation (The Rutter Group, Civil Litigation Series 2018 Sec.5:13) ["To satisfy prong two, the plaintiff must submit admissible evidence that if credited is sufficient to sustain a favorable judgment against the legal theories asserted by the defendant."].)

Analysis

Defendant moves the Court to strike the twelfth cause of action for unfair business practices of Plaintiff's FAC on the grounds it arises from protected litigation-related activity, pursuant to Code of Civil Procedure section 425.16. (Mot., p. 1.) Defendant further argues Plaintiff cannot establish a probability of prevailing on her twelfth cause of action. (Mot., p. 1.)

1. First Prong - Protected Activity The Anti-SLAPP statute defines protected activity, in pertinent part, as "(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..." (Code Civ. Proc. Sec. 425.16, subd. (e).)

Under the first prong of an anti-SLAPP analysis, the "critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1219, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Where "protected activity arguably lurks in the background ... [but] the actual dispute concerns" something other than protected activity, the "action is not one 'arising from' protected activity within the meaning of" the

anti-SLAPP statute. (Episcopal Church Cases (2009) 45 Cal.4th 467, 473.) "A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The speech or petitioning activity itself must be "the wrong complained of." (Id. at p. 1060.) "Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." (Baral v.

Schnitt (2016) 1 Cal.5th 376, 394.) "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." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) Defendant asserts that claims regarding its alleged "practice of trying to enforce unlawful non-disclosure policies against Lee" and "practice of enforcing post-employment confidentiality," targets Defendant's litigation-related conduct, because litigation is how companies enforce their policies or contractual agreements with former employees. (Mot., p. 7; see also FAC P.P. 117-119.)

Defendant argues these allegations target Defendant's litigation against Plaintiff specifically, as that is the only action Defendant has ever taken to enforce its rights against a former employee. (Mot., p. 7.) Defendant further contends the cease-and-desist letter, cited in Plaintiff's response to a special interrogatory where she cites the letter as the only instance Defendant has engaged in a "practice of enforcing post-employment confidentiality," and is a classic example of pre-litigation activity. (Mot., p. 8.)

In opposition, Plaintiff argues her claims do not rise from protected litigation-related activity, but rather the post-employment confidentiality, nondisclosure provisions in Defendant's employee handbook. (Opp., pp. 6-7); that the cease-and-desist letter is irrelevant to determining whether her cause of action arises from protected activity. (Opp., p. 7.), and enforcing practices and procedures is a commercial activity, and is not protected under the anti-SLAPP statute. (Opp., p. 8.) In reply, Defendant argues that the only way Defendant could enforce or has enforced a legal right against a former employee is through a threatened or actual lawsuit. (Rep., p. 1.) and Plaintiff has not identified any activity other than the cease-and-desist letter that she contends are part of Defendant's "practice of enforcing postemployment confidentiality." (Rep., pp. 1-2.)

As a preliminary matter, the Court finds Plaintiff's arguments concerning enforcing practices and procedures is a commercial activity unavailing. Plaintiff relies on Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805 and L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. Of Los Angeles (2015) 239 Cal.App.4th 918 in making this assertion. (Opp., p. 8.) However, both cases concern the section 425.16, subdivision (e)(4) public-interest catchall, not the subdivisions (e)(1) and (e)(2) litigation categories invoked by Defendant.

The Court disagrees with Plaintiff's assertion that her twelfth cause of action arises from the post-employment confidentiality, nondisclosure provisions of Defendant's employee handbook. Upon review of the FAC, it is clear the claim is rooted in Defendant's actions and not provisions of the employee handbook. Plaintiff claims that Defendant's practice of enforcing post-employment confidentiality and Defendant's practice of trying to enforce unlawful non-disclosure policies are in violation of Business and Professions Code section 17200. (See FAC, P.P. 117-119.)

The basis of the claim is Defendant's practice of enforcing these alleged unlawful policies, not the existence of the policies themselves. Moreover, Plaintiff stated in her verified responses to Defendant's discovery requests that Defendant engaged in the practice of enforcing post-employment confidentiality, "as evidenced by ENK's December 19, 2025 cease and desist letter." (May Decl., P. 7, Ex. H.) A cease-and-desist letter falls under protected litigation-related activity, as it relates to litigation. "The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.

Indeed, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.'" (Alfaro v. Waterhouse Management Corp. (2022) 82 Cal.App.5th 26, 33; see Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293 ["Ordinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity that is protected under section 425.16."].) Based on the foregoing, the Court finds Defendant has met its moving burden that the practice of enforcing policie, is protected petitioning activities.

2. Second Prong - Probability of Prevailing

After a defendant meets the initial burden on the first prong, the burden shifts to plaintiff to demonstrate a probability of prevailing on the merits. (Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The second prong is framed by the complaint, but plaintiff cannot rely on the complaint to support her contention. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 630.) The plaintiff must produce evidence showing at least part of the cause of action at issue has merit. (Id.; A.F.

Brown Electrical Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1124.) Plaintiff submits that her twelfth cause of action is legally sufficient and supported by admissible evidence. (Opp., p. 10.) To set forth a claim for a violation of¿Business and¿Professions Code section 17200 Plaintiff must¿establish¿Defendant was engaged in an "unlawful, unfair or¿fraudulent¿business act or practice and unfair, deceptive, untrue or misleading advertising" and certain specific acts. (Bus. & Prof.

Code, Sec. 17200.) Plaintiff contends the "unlawful" prong is satisfied because the FAC alleges Defendant's restrictive post-employment confidentiality practices violate California's statutory prohibition against restraints on lawful trade professions. (Opp., p. 11.) Specifically, Plaintiff argues the FAC alleges Defendant used practices to bar former employees from using non-trade secret information. (Opp., p. 11.) Plaintiff does not offer evidence in support of her argument and therefore has not met her burden under the second prong that there is minimal merit to her twelfth cause of action.

Plaintiff cites the FAC, but does not rely upon any additional evidence to support her claim. As discussed above, a plaintiff cannot rely on the complaint alone to meet their burden. (Martin, supra, 198 Cal.App.4th at p. 630.) Accordingly, Defendant ENK Apparel, Inc.'s special motion to strike is GRANTED. The Court grants Defendants leave to file a motion for attorney's fees and costs incurred, pursuant to Code of Civil Procedure section 425.16, subdivision (c). Moving party to give notice, unless waived.

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