Raymond Lamerson vs MeyerPink Law, et al.

Plaintiff’s opposition fails to present admissible evidence that establish Defendant had any role in the recording of the subject conversation in violation of Penal Code section 632. Moreover, Plaintiff does not present any evidence to overcome the litigation privilege. As such, Plaintiff has not met his burden to show a likelihood of success.

Motion to Strike and Request for Attorney's Fees and Costs Pursuant to Code of Civil Procedure section 425.16

Defendant Lindsey Ann Thomas’ special motion to strike is GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART WITHOUT PREJUDICE.

An anti-SLAPP motion is analyzed in two stages, or prongs. First, the moving party must make a threshold showing that the challenged cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) Where the moving party meets this burden, the analysis proceeds to the second prong: the burden shifts to the plaintiff who must demonstrate a probability of prevailing on the claim. If the plaintiff fails to meet this burden, “the court must strike the cause of action.” (Ibid.)

Defendants make a threshold showing the challenged causes of action arise from protected litigation activity in the underlying custody action. (See, Code Civ. Proc. § 425.16, subd. (e).) “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, [italics in original].) Moreover, the privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)

This shifts the burden to Plaintiff to show a legally sufficient claim that is supported by evidence sufficient to allow the court to determine whether there is a probability Plaintiff will prevail on his claims. (See, DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568.) Although presented as a cause of action for violation of Penal Code section 632, Plaintiff’s complaint is essentially a motion to exclude evidence. This is apparent as Plaintiff’s opposition centers squarely on the admissibility of the recording at issue in both this matter and the underlying custody action in which the recording was sought to be used by Defendant. These evidentiary issues have been addressed by the court in the custody action.

Plaintiff’s opposition presents no evidence to establish Defendant had any role in recording the subject conversation in violation of Penal Code section 632, and does not allege vicarious liability under Civil Code section 1714.1. Nor does Plaintiff present authority that one parent may be liable to another parent of the same child for that child’s alleged wrongdoing. Moreover, Plaintiff does not present any evidence to overcome the litigation privilege. As such, Plaintiff has not met his burden to show a likelihood of success.

The request for attorney’s fees is DENIED WITHOUT PREJUDICE to a separate, properly noticed motion for attorney’s fees.