Stroud v. Hurd-Russell

236.) In doing so, the court did not grant Plaintiff leave to add fraud.

The motion is GRANTED without leave to amend.

Defendant to give notice. 6 Au v. Dlliot Cont. 7 Stroud v. Before the Court is a special motion to strike pursuant to Code of Hurd-Russell Civil Procedure section 425.16 filed by defendants Kendal Hurd- Russell and Kyle Hurd (Defendants) as to the complaint filed by plaintiff Brian Stroud (Plaintiff). For the reasons set forth below, the motion is GRANTED as to paragraphs 12, 13, 21, 22, 24, 26-28, 33, 34, 36, 37, 41-43, 45, 50, 52 of the Complaint, the 1st cause of action and the 2nd causes of action; the motion is DENIED as to paragraphs 23, 35, 49, 51, 53, the 3rd cause of action and 4th cause of action.

Plaintiff’s evidentiary objection is OVERRULED as to no.

16. The Court declines to rule on all other evidentiary objections because the evidence was not material to the Court’s analysis. The Court also declines to rule on Defendant’s evidentiary objections for the same reason.

In ruling on a special motion to strike under Section 425.16, the court must follow a two-step process. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) First, the court determines if the party moving to strike a cause of action has shown that the cause of action arises from an act in furtherance of the moving party’s right of petition or free speech. (Ibid.) If the moving party makes the showing required in the first step, the court then determines whether the non-moving party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

“[T]he moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. 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, supra, 1 Cal.5th 376 at p. 396.)

1. Protected Activity Defendants met their burden the allegations regarding the complaint to the Commission on Peace Officer Standards and Training (POST),

the Public Records Act request, POST complaint follow-up to city officials and chief of police, and the police report submitted to the Orange County Sheriff’s Department (Compl. ¶¶ 12, 13, 21, 22, 24, 26-28, 33, 34, 36, 37, 41-43, 45, 50, 52) are protected activity under the anti-SLAPP statute. (Code of Civ. Proc. § 425.16, subd. (e)(1),(2); see also Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439; Chabak v. Monry (2007) 154 Cal.App.4th 1502, 1512; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566.) Plaintiffs’ claim for abuse of administrative process and defamation rely exclusively on these allegations. (Compl. ¶¶ 55, 61.) These allegations also support, in part, Plaintiffs’ claims for civil harassment and aiding and abetting. (Compl. ¶¶ 68, 77.)

The burden therefore shifts to Plaintiff to show probability of success on the merits of these claims, including producing admissible evidence sufficient to overcome any privilege or defense. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Defendants are correct the litigation privilege under Civil Code section 47, subdivision (b)(2) bars all of Plaintiff’s claims arising out of the protected activity. (McNair v. City and County of San Francisco (2016) 5 Cal.App.5th 1154, 1164 [“An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing”]; Bonni v.

St. Joseph Health System (2022) 83 Cal.App.5th 288, 300-301 [litigation privilege applies regardless of whether the communications at issue were made with malice or intent to harm].) Plaintiff failed to overcome the privilege. The Court therefore strikes paragraphs 12, 13, 21, 22, 24, 26-28, 33, 34, 36, 37, 41-43, 45, 50, 52, the 1st and 2nd causes of action.

2. Activity Not Protected by Anti-SLAPP statute Defendants failed to show the remaining allegations, including the middle finger incident, the threat to defame Plaintiff in the media, and miscellaneous allegations (Comp. ¶¶ 23, 35, 49, 51, 53) arise out of any protected activity. These allegations continue to support the 3rd and 4th causes of action. Defendants’ having failed to meet their moving burden, the burden never shifts to Plaintiff to show probability of success on the merits. The motion is therefore DENIED as to paragraphs 23, 35, 49, 51, 53, the 3rd cause of action and 4th cause of action.

Counsel for Defendants shall give notice of this ruling. 8 Catanzarite v. Cont. City of Newport Beach 9 McRae v. The Demurrer by defendants Integon National Insurance Company National (Integon) and Jackie Nash to the 3rd – 5th causes of action in the General first amended complaint (FAC) filed by Plaintiff Willie Rae McRae, Jr. Insurance, et. is SUSTAINED, without leave to amend. al.