Mike Bubalo Construction Co., Inc vs. Yorba Linda Water District

based on defendant’s failure to comply with the order of February 27, 2025 that directed him to provide verified supplemental responses to the second and fourth sets of form interrogatories. The Court strikes defendant’s answer to the first amended complaint filed on March 25, 2024. (ROA 15.) 9 25-01461247 1) Motion to Seal 2) Motion to Strike - Anti SLAPP Mike Bubalo Construction CO,. Inc Motion to Seal vs. Yorba Linda Water District Defendants/cross-complainant Yorba Linda Water District and Defendants Reza Afshar and Rosanne Weston’s unopposed Motion to Seal Declaration of Reza Afshar and Accompanying Exhibits Pursuant to California Rules of Court, rule 2.550 is GRANTED in part.

Defendants/cross-complainant Yorba Linda Water District and Defendants Reza Afshar and Rosanne Weston (collectively, Defendants) move to seal the Declaration of Reza Afshar and its exhibits. The Afshar Declaration discusses and attaches a copy of the District’s Evaluation in support of Defendants’ anti-SLAPP motion.

“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551, subd. (b)(1).)

To grant a motion to seal, the court must expressly find that: a. an overriding interest exists that overcomes the right of public access to the record; b. the overriding interest supports sealing the records; c. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; d. the proposed sealing is narrowly tailored; and e. no less restrictive means exist to achieve the overriding interest. (Cal. Rules Ct., rule 2.550, subd. (d).)

The Court finds Defendants have made sufficient showing under California Rules of Court, rule 2.550, subdivision. (d), including an overriding interest to ensure the relief sought by Plaintiffs is not defeated by publicizing the Evaluation prior to the Court or jury’s ruling on Plaintiffs’ Second Amended Complaint and the request is narrowly tailored to those allegations and exhibits relating to the Evaluation.

Paragraphs 14 through 30 of the Declaration of Reza Afshar and its Exhibits C thorough J are ORDERED sealed.

Motion to Strike – Anti-SLAPP

Defendants/cross-complainant Yorba Linda Water District and Defendants Reza Afshar and Rosanne Weston’s Special (collectively, Defendants) Motion to Strike Pursuant to CCP § 425.16 is DENIED.

Defendants move to strike the second, fourth, and fifth causes of action from Plaintiffs/cross-defendants Mike Bubalo Construction Co., Inc. and Pascal & Ludwig Constructors, Inc.’s second amended complaint, or in the alternative, strike out allegations regarding Defendants’ performance evaluations pursuant to Code of Civil Procedure section 425.16.

Plaintiffs’ and Defendants’ evidentiary objections

The Court declines to rule on the parties’ evidentiary objections as unnecessary to the analysis.

Plaintiffs’ allegations

Plaintiffs/cross-defendants Mike Bubalo Construction Co., Inc. (Bubalo) and Pascal & Ludwig Constructors, Inc. (Pascal) are construction companies. (SAC ¶¶ 11, 16.) On or about 3/22/24, the Yorba Linda Water District (District) and Pascal entered into a contract for work to be done to be done on a construction project known as Construction of Well 22 Equipping Contract No. J-2009-22 #22 (Project). (SAC ¶¶ 3, 28.) On or about 3/8/22, Bubalo entered into a subcontract agreement with Pascal to perform the installation of the pipeline on the Project. (SAC ¶ 29.)

Plaintiffs allege they informed the District it encountered a differing site condition, including unsafe soil conditions, and the District supported Plaintiffs’ proposal to use shorter pipe to address the safety of trench caving. (SAC ¶¶ 31-37.) Plaintiffs allege the District was aware of the soil condition and its detrimental impact on Plaintiffs, the additional labor, services and materials Plaintiffs were providing to the Project to address the soil conditions, and that Plaintiffs were tracking the conditions they encountered during the performance of their work and would submit a request for additional payment. (SAC ¶ 38.)

Plaintiffs further allege the District was also aware multiple gas lines were located on the Project but did not properly mark one of them causing Plaintiffs to expend time and resources to address the unmarked gas line. (SAC ¶ 39.)

Plaintiffs allege that despite knowing about these various issues and that Plaintiffs were incurring expense to deal with them, the District denied Plaintiff’s Change Order request on 7/20/23. (SAC ¶ 42.) The District then recorded its Notice of Completion of the Project on 1/16/24, released the final retention payment to Pascal on 2/29/24, and paid Pascal all sums the District believed was due for its work on the Project. (SAC ¶ 42.)

On 5/28/24, the District issued a Contractor’s Performance Evaluation (Evaluation) which alleged shoring work on the Project was not done

appropriately and on 6/4/24 demanded a $82,000 refund from Pascal. (SAC ¶¶ 44, 45.) Plaintiffs allege the Evaluation was issued in bad faith and factually unsupported. (SAC ¶¶ 53-55.) Plaintiffs further allege the District failed to provide Plaintiffs with notice of their Evaluation prior to its issuance and to advise Plaintiffs of any administrative remedies or recourse available in light of the Evaluation. (SAC ¶ 55.)

Timeliness of the motion

Section 425.16, subdivision (f) provides in part, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”

“[S]ubject to the trial court’s discretion under section 425.16, subdivision (f), to permit late filing, a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 640.)

Plaintiffs contend Defendants’ motion is untimely as to the second cause of action for writ of mandate and as to all allegations regarding the Evaluation. Plaintiffs contend Defendants could have moved to strike that claim and those allegations in connection with Plaintiffs’ First Amended Complaint (FAC) but chose not to.

Plaintiffs filed and served the FAC on 4/30/25 (Romero Decl., ¶ 2; ROA 23.) On 6/18/25, counsel for the District sent an email to Plaintiffs’ counsel stating in part:

[W]e intend to file an anti-SLAPP motion under CCP §425.16 as to plaintiffs’ causes of actions for ‘interference with perspective economic advantage’ and writ of mandate. The anti-SLAPP motion will assert that those two causes of action arise from the District’s performance evaluation in furtherance of the District and Mr. Afshar’s right of free speech under the United States Constitution or the California Constitution in connection with a public issue. To avoid such law and motion, we encourage plaintiffs to dismiss those two causes of action. Please let us know if you intend to dismiss these causes of action by the close of business on June 23, 2025. Our anti- slapp motion, and our demurrer and motion to strike are due on June 30, 2025. (Romero Decl., ¶ 2, Ex. A.)

On 6/23/25, Plaintiffs’ counsel responded to state in part, “Plaintiffs agree to dismiss only the 4th Cause of Action for Intentional Interference with Economic Advantage. We will continue to prosecute all other causes of action.” (Romero Decl., ¶ 26; Ex. N [emphasis in original].)

The District’s counsel responded to state in part, “Thank you for your correspondence and agreement to dismiss the Fourth Cause of Action

for Interference with Prospective Economic Advantage. Please file a request for dismissal as to the Fourth Cause of Action tomorrow.” (Romero Decl., ¶ 27, Ex. N.)

The District then filed this anti-SLAPP motion on 3/30/26, after Plaintiffs had filed their SAC.

With respect to the second cause of action for writ of mandate, the FAC and SAC contain the identical allegation that Plaintiffs are seeking “a peremptory writ of mandate compelling the Defendants to exercise their discretion in a manner that comports with law, thereby requiring them to withdraw or modify their Performance Evaluation.” (FAC ¶ 5; SAC ¶ 5.)

Defendants also do not dispute Plaintiffs’ FAC included allegations regarding the Evaluation, many of which are repeated in the SAC verbatim. The FAC includes the same allegations, for example, that Defendants issued the Evaluation “which alleged that shoring work on the PROJECT was not done appropriately” (FAC ¶ 44; SAC ¶ 44) and that the Evaluation was issued in bad faith (FAC ¶ 52; SAC ¶ 53.)

When served with the FAC, Defendants initially stated they would file an anti-SLAPP motion as to the second cause of action (along with the fourth cause of action). Plaintiffs responded to state that while they would dismiss the fourth cause of action, they would “continue to prosecute all other causes of action.” Following this exchange, Defendants made the conscious decision not to file an anti-SLAPP motion regarding the cause of action for writ of mandate or as to any of the allegations regarding the Evaluation until this motion nine months later.

In their motion, Defendants rely on Lam v. Ngo (2001) 91 Cal.App.4th 832, 840, which concluded “the complaint” in section 425.16, subdivision (f) may include amended complaints. Defendants rely on Lam’s reasoning that “[i]t would make no sense to read ‘complaint’ to refer to an earlier complaint that contained no anti-free-speech claims, but not allow such a motion for a later complaint that had been amended to contain some.” (Id. at p. 841.)

As stated, in Lam, however, this interpretation allows a party to make a motion in connection with a later complaint that has been amended where the initial complaint “contained no anti-free-speech claims.”

Here, Defendants do not dispute the FAC contained the same alleged anti-free-speech claims (i.e., regarding the Evaluation) and the same second cause of action for writ of mandate. Rather, Defendants contend the cause of action for writ of mandate did not seek monetary damages so Defendants “used their judgment not to expend scarce judicial resources to challenge Plaintiffs’ FAC under the anti-SLAPP statute, particularly since Plaintiffs’ Writ of Mandate cause of action could have been, and was, challenged (successfully) by Defendants on demurrer.”

(Mtn. at 2:22-26.) This further demonstrates Defendants considered initially making the motion but ultimately decided not to proceed.

Given the above, the Court finds this motion as to the second cause of action and to all allegations related to Defendants’ Evaluation is untimely.

The Court therefore DENIES the motion as to the second cause of action and to all allegations related to Defendants’ Evaluation.

The Court discusses the motion as to the fourth and fifth causes of action below.

Legal standard “A cause of action against a person arising from any act of that person in furtherance of the person’s 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 plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“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.’ Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [cleaned up].)

Protected activity

Section 425.16, subdivision (e) defines protected activity to include: (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.”

“At this first step, courts are to ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’” (Bonni, supra, 11 Cal.5th at p. 1009 [citation omitted].) “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.” (Ibid. [citation omitted].)

Defendants contend the first prong is satisfied as Plaintiffs’ causes of action are based on Defendants’ preparation of the Evaluation, which Defendants contend is protected activity.

Section 425.16, subdivision (e)(4)

Defendants rely on section 425.16, subdivision (e)(4), which protects “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.”

Defendants contend issues in the Evaluation that are of public interest include whether (a) Plaintiffs had “on the job” safety violations, (b) Bubalo used appropriate shoring methods, and (c) the Project was delayed. Defendants contend issues of public interest relate to the cost and risk to the District ratepayers and ratepayers/taxpayers at other public agencies of whether to contract with Plaintiffs on future public projects. Defendants further contend the Evaluation relates to protecting ratepayers from awarding contracts to bidders who are not responsible bidders.

The “catchall provision” of section 425.16, subdivision (e)(4) “demands “some degree of closeness” between the challenged statements and the asserted public interest.” (Film On.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 150 [citation omitted].) “What it means to ‘contribute to the public debate’ will perhaps differ based on the state of public discourse at a given time, and the topic of contention.” (Id. at pp. 150-151 [citation omitted].) Ultimately, the court’s inquiry “does not turn on a normative evaluation of the substance of the speech. [The court is] not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, [it] examines whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest. (Id. at p. 151 [citations omitted].) “[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Wilbanks v.

Wolk (2004) 121 Cal.App.4th 883, 898 [citations omitted].)

Defendants fail to demonstrate how the Evaluation “contribute[s] to the public debate.”

Defendants state, “the audience of the District’s Performance Evaluation is the District’s ratepayers and the ratepayers or taxpayers at other public agencies who may contact the District for a reference check regarding Pascal and/or Bubalo.” (Mtn. at 5:21-23 [emphasis in original].) As such, Defendants do not demonstrate there is any public discourse regarding Plaintiffs’ performance or even the issue broader issue of contractor performance other than a hypothetical situation in which members of the public or other public agencies “may contact” the District at some point in the future for a reference check.

While Defendants further contend the Evaluation may “preserve the District’s institutional memory of Plaintiffs’ performance” on the project at issue for the District’s consideration when considering future bids by Plaintiffs” (Mtn. at 5:28-6:3), this again involves the District’s internal consideration regarding any hypothetical future bids by Plaintiffs rather than public consideration or debate.

In “addressing the specific nature of defendants’ speech and its relationship to the matters of public interest [the court] cannot answer this second question simply by looking at the content of the challenged statements.” (Film On.com Inc., supra, 7 Cal.5th at p. 152.) Rather, the court may answer that question “only by looking at the broader context in which [the defendant] issued its reports, discerning through that context whether the company’s conduct qualifies for statutory protection by furthering the public conversation on an issue of public interest.” (Id. at p. 153 [citation omitted].) Though no single element is dispositive, the court may consider whether the information “never entered the public sphere, and the parties never intended it to.” (See ibid.)

Defendants do not demonstrate the evaluation was disclosed beyond its issuance to Plaintiffs. Rather, Defendants contend “if the District were to determine that Pascal and/or Bubalo are not responsible bidders on a future District project, then a responsibility hearing is required. The District’s Performance Evaluation on Well 22 Project was prepared preliminary to and in connection with such a responsibility hearing for Pascal and Bubalo if the District deems Plaintiffs to be nonresponsible bidders on future District public projects.” (Mtn. at 8:19-23.)

Thus, based on Defendants’ sequence of events, for the Evaluation to come into consideration Plaintiff would have to first bid on a project, then be rejected on the specific ground that they are determined by the District to be a “non-responsible bidder,” which would then require notice to Plaintiffs and an opportunity for Plaintiffs to be heard during a responsibility hearing at which time the Evaluation could be used in connection with that hearing. (See Mtn. at 8?5-18). Defendants do not contend they currently deem Plaintiffs to be nonresponsible bidders but that they may do so in the future should Plaintiffs bid on any future projects for the District.

Accordingly, Defendants’ contentions regarding the Evaluation’s potential disclosure and use in the public forum do not demonstrate a sufficient “degree of closeness” between the Evaluation and the asserted public interest to merit anti-SLAPP protection.

Section 425.16, subdivision (e)(2)

Section 425.16, subdivision (e)(2) defines as protected activity “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.”

Alternatively, Defendants contend the Evaluation is in connection with issues under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. In doing so, Defendants make the same arguments addressed above, that is, that the Evaluation is prepared in connection with a potential responsibility hearing regarding Plaintiffs should they be denied a bid in the future based on the District deeming them to be nonresponsible bidders.

As such, Defendants have not demonstrated there is any issue “under consideration or review” in any proceeding, official or otherwise, other than a potential responsibility hearing that may occur if the specific sequence of events set forth above happens to take place.

While Defendants rely on Hansen v. Dept. of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, the statements at issue were made during an internal investigation, which the court found itself to be an official proceeding. Additionally, Ojjeh v. Brown (2019) 43 Cal.App.5th 1027 did not involve a discussion of section 425.16, subdivision (e)(2).

As the Court does not find Defendants have met their burden of establishing the Evaluation is protected activity, the Court does not address the second prong. 10 23-01302857 Motion to Accept Late Filing

Providence Capital Defendants’ Motion for Court to Accept Late Filing of Defendants’ Funding, Inc. vs. Team Opposition to Plaintiff’s Motion for Summary Judgment is GRANTED. MMJ Trucking LLC Defendants Team MMJ Trucking, LLC, Mike Springer and Tonya Springer move the Court to accept the late filing of their opposition to Plaintiff’s motion for summary judgment or, alternatively, summary adjudication.

Defendants seek mandatory relief under Code of Civil Procedure section 473, subdivision (b). A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect” and a copy of the proposed pleading to be filed. (Code Civ. Proc., § 473, subd. (b).)

The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Therefore, relief must be granted, even if the attorney’s error was inexcusable, “unless the trial court finds the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.)