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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Jane Doe v. Peter Searle Clark

Case No: 19CV05332
Hearing Date: Mon Jan 06, 2020 9:30

Nature of Proceedings: Motion Strike 2nd/5th Causes of Action

 

CASE:    Jane Doe v. Peter Searle Clark, Case No. 19CV05332 (Judge Sterne)

 

 

 

HEARING DATE:                January 6, 2020

 

 

 

MATTER:                             

Special Motion to Strike Second and Fifth Causes of Action in the Complaint

 

 

 

ATTORNEYS:                      

Joshua E. Lynn for Plaintiff Jane Doe

 

Daniella T. Felix for Defendant Peter Searle Clark

 

 

 

TENTATIVE RULING:        The court finds that defendant would have prevailed on his special motion to strike plaintiff’s second and fifth causes of action for violation of Civil Code Section 1708.85 and civil extortion had plaintiff not voluntarily dismissed the two claims while the special motion to strike was pending and awards defendant his reasonable attorney’s fees and costs related to the motion. Such fees and costs shall be determined by a separately noticed motion or as part of defendant’s cost memorandum at the conclusion of the case.

 

 

 

BACKGROUND:

 

 

 

On October 4, 2019, plaintiff Jane Doe (fictitious name) filed her complaint against defendant Peter Searle Clark for (1) unlawful recording of confidential communications, (2) violation of Civil Code Section 1708.85, (3) invasion of privacy, (4) intentional infliction of emotional distress, and (5) civil extortion. On November 8, 2019, defendant filed his answer to the complaint and on December 6, 2019, he filed his special motion to strike, pursuant to Code of Civil Procedure Section 425.16. Defendant seeks an order striking the second cause of action for violation of Civil Code Section 1708.85 and the fifth cause of action for civil extortion on the grounds that the subject communications were made by him in furtherance of his right of petition and plaintiff cannot establish a probability of prevailing on the claims because the communications were privileged as a matter of law under Civil Code Section 47.

 

 

 

Three weeks after defendant filed his special motion to strike, plaintiff voluntarily dismissed her second and fifth causes of action without prejudice. Though the two claims have been dismissed, defendant seeks attorney’s fees related to his motion to strike. There is no filed opposition to the motion.

 

 

 

ANALYSIS:

 

 

 

Code of Civil Procedure Section 425.16, California’s anti-SLAPP statute, requires a trial court to strike a lawsuit or cause of action if it has been filed against a person based on that person’s conduct in furtherance of his or her constitutional right to petition or free speech, unless the plaintiff can prove a probability of prevailing on the merits of the claim. Section 425.16 provides:

 

 

 

“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).

 

 

 

Section 425.16 further provides:

 

 

 

“[I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”

 

 

 

Code Civ. Proc. §425.16, subd. (c)(1).

 

 

 

Thus, the award of attorney’s fees to a successful defendant on a special motion to strike under Code of Civil Procedure Section 425.16 is “mandatory.” Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney’s fees). As the Ketchum court explained, the purpose of the mandatory fee-shifting provision is to both discourage meritless lawsuits and to provide financial relief to the victim of a SLAPP lawsuit “by imposing the litigation costs on the party seeking to ‘chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.’” Ibid. A defendant who prevails on a special motion to strike under Section 425.16 may seek an attorney’s fee award as part of the motion, by a subsequent noticed motion, or as part of its cost memorandum at the conclusion of the litigation. Carpenter v. Jack in the Box Corporation (2007) 151 Cal.App.4th 454, 461.

 

 

 

The cases are in agreement that when a plaintiff voluntarily dismisses its claims while a special motion to strike is pending, the trial court retains jurisdiction to award attorney’s fees pursuant to subdivision (c)(1) of Section 425.16 if the court determines that the defendant would have prevailed on the merits of the motion. See, Kyle v. Carmon (1999) 71 Cal.App.4th 901, 919; Liu v. Moore (1999) 69 Cal.App.4th 745, 752; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 217; Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 879; and Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457-1458. In Pfeiffer, supra, at p. 215, the court specifically held that “the trial court has jurisdiction to award attorney fees to a prevailing defendant whose SLAPP motion was not heard solely because the matter was dismissed before defendants obtained a ruling on the SLAPP motion.”

 

 

 

The case of Liu v. Moore, supra, 69 Cal.App.4th 745 closely parallels the present case. In Liu, the defendants in a malpractice action filed a cross-complaint and the cross-defendant moved to dismiss the action as a SLAPP suit. Before the cross-defendant’s motion was heard, the cross-complainants voluntarily dismissed their claims without prejudice. The trial court ruled that because the cross-complainants had dismissed their claims prior to the hearing on the special motion to strike, the cross-defendant could not be said to be the prevailing party on the motion to strike and, thus, was not entitled to fees under the SLAPP statute. The court of appeal reversed the order denying attorney’s fees and remanded the matter for further proceedings. The court held that a claim that is voluntarily dismissed, with or without prejudice, after the filing of a Section 425.16 motion to strike must still be analyzed under the statute in order to determine the moving party’s right to attorney’s fees. Id., at 751. The court stated:

 

 

 

“[T]he trial court’s ruling constitutes a nullification of an important part of California’s anti-SLAPP legislation. If indeed respondents’ cross-complaint against appellant is a SLAPP suit, then the court’s decision to not hear the merits of appellant’s motion to strike deprives appellant of the monetary relief which the Legislature intended to give her, while at the same time it relieves respondents of the punishment which section 425.16 imposes on persons who use the courts to chill others’ exercise of their constitutional rights.”

 

 

 

Id., at 748.

 

 

 

Here, plaintiff voluntarily dismissed her second and fifth causes of action for violation of Civil Code Section 1708.85 and civil extortion while defendant’s special motion to strike was pending. Thus, if defendant would have prevailed on his motion to strike these claims, he is entitled to recover his fees and costs.

 

 

 

The present matter stems from a sexual relationship between plaintiff and defendant that began in April 2014 and continued through March 2015. (Comp., ¶6.) Plaintiff alleges that defendant intentionally and surreptitiously video and tape recorded their sexual encounters, as well as their confidential communications. (Ibid.) Defendant alleges that plaintiff exercised undue influence over him during their relationship and caused him to create and revise certain estate planning documents to her benefit. (Clark Dec., ¶2.) On May 21, 2018, defendant filed a lawsuit against plaintiff in the Santa Barbara Superior Court, alleging various causes of action for fraud and undue influence and seeking to revoke the contested documents. (Clark Dec., ¶3, Ex. A.) On April 8, 2019, plaintiff served defendant with a Request for Production of Documents, Set One, in that action, seeking among other things:

 

 

 

“ALL DOCUMENTS that SUPPORT [DEFENDANT’S] claims against [PLAINTIFF] in this PROCEEDING.”

 

 

 

“ALL DOCUMENTS that SUPPORT [DEFENDANT’S] cause of action for undue influence in this PROCEEDING.”

 

 

 

(Clark Dec., ¶4, Ex. B.)

 

 

 

On May 13, 2019, defendant served his written responses to plaintiff’s request for production that included a video recording taken by defendant of one of their sexual encounters during the 2014-2015 affair. (Clark Dec., ¶5.) Defendant contends that the recording supports his claims of undue influence and, therefore, was subject to plaintiff’s demand for production. (Ibid.) Defendant states that the video was only provided by him to his attorneys in the fraud litigation and has never been viewed by anyone else, nor has it been published online or in any other public forum. (Ibid.)

 

 

 

On June 12, 2019, defendant’s attorney in the fraud case sent an email to plaintiff’s attorneys requesting that the parties refocus their energies towards settlement to avoid a potentially expensive lawsuit that could prove damaging to both litigants. Specifically, defendant’s attorney wrote:

 

 

 

“I have just sent my most recent invoice to Mr. Clark and I anticipate your client has paid as much or more than mine in this litigation to date. . . . As I prepare for the upcoming depositions, additional discovery review and requests, tracing community assets, and your impending Motion for Summary Adjudication that I expect, I feel it is incumbent upon us attorneys to recommend to our clients that we make an effort to resolve matters via mediation or alternative dispute resolution. Consequently, I have been able to get Mr. Clark to agree that he would participate in good faith in settlement negotiations if your client is likewise willing.

 

 

 

“As I have previously indicated, we continue to look for evidence responsive to your discovery requests and it seems there are a number of other videos featuring our clients in sexual relations that I will procure and produce. I do not know what the status is with respect to your client’s marriage, or if her husband and children are aware of this affair, which I’m sure she has rationalized as my client’s fault, but it is likely that the inevitable argument about whether your client unduly influenced mine during this sexual dalliance that was contemporaneous to alleged settlement negotiations will be one that resolves with serious personal damage to the parties.

 

 

 

“Please discuss with your client whether she would like to explore the possibility of a resolution prior to many more fees being incurred by both sides. . . .”    

 

 

 

(Clark Dec., ¶6, Ex. C.)

 

 

 

In response to defendant’s production of the video recording and the email communication from his attorney, plaintiff filed the instant complaint on October 4, 2019, alleging among other claims, violation of Civil Code Section 1708.85 and civil extortion. Section 1708.85 creates a private right of action against any person who intentionally distributes by means of a photograph, film, videotape, or other recording device any material that exposes the private body parts or sexual acts of another without that person’s permission. Extortion is “the threat to accuse [another] of a crime or expose or impute to him . . . any deformity, disgrace or crime accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made.” Flatley v. Mauro (2006) 39 Cal.4th 299, 332, fn. 16. Defendant contends that both claims must be stricken because they arise from his petitioning activity and plaintiff cannot demonstrate a probability of prevailing on the claims. The court agrees.

 

 

 

The purpose of the anti-SLAPP statute is to prevent and deter lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. In determining whether a lawsuit arises from a protected activity, the court looks not only to the pleadings, but to the underlying “gravamen or principal thrust” of the action. In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477. If the injury-producing conduct upon which the plaintiff’s complaint is based rests upon a protected activity, the anti-SLAPP statute applies. Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 189.

 

 

 

The anti-SLAPP statute requires the court to engage in a two-step analysis to determine whether the motion to strike should be granted. First, the court must decide whether the defendant has made an initial prima facie showing that the lawsuit arises from an “act in furtherance” of the defendant’s constitutional right to free speech or petition. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. Such acts include any written or oral statement made before “a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Code Civ. Proc. §425.16, subd. (e). Second, 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 merits of the claim. Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 67. To establish a “probability” of prevailing, the plaintiff must demonstrate that the claim is both legally sufficient and supported by a sufficient factual showing to sustain a favorable judgment, assuming the evidence submitted by the plaintiff is believed. Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.

 

    

 

The court finds that plaintiff’s second cause of action for violation of Civil Code Section 1708.85 arises from a protected activity under the anti-SLAPP statute because the alleged distribution consists of defendant’s disclosure of the video recording to his attorneys and then to plaintiff’s attorneys in response to her demand for production in the fraud case. The recording was never viewed or distributed to anyone other than defendant, his attorneys, and plaintiff. (Clark Dec., ¶5.) Where the defendant’s actions were compelled by court process and done in connection with an ongoing legal action, “the pleaded cause of action ‘aris[es] from’ protected activity, at least in part, and is subject to the special motion to strike authorized by section 425.16(b)(1).” Baral v. Schnitt (2016) 1 Cal.4th 376, 382. Defendant has therefore satisfied the first prong of the anti-SLAPP analysis with respect to plaintiff’s Section 1708.85 cause of action.

 

 

 

The second prong of the analysis is also satisfied because plaintiff cannot show a probability of prevailing on her Section 1708.85 claim. The litigation privilege is an absolute privilege that precludes liability for any publication made in a “judicial proceeding.” Civ. Code §47, subd. (b); Mancini & Associates v. Schwertz (2019) 39 Cal.App.5th 656, 661 (the privilege applies when statements are made in judicial proceedings by litigants to achieve the objects of the litigation); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 (where plaintiff’s claim was barred by Civil Code Section 47, subdivision (b), plaintiff cannot demonstrate a probability of prevailing under the anti-SLAPP statute). Here, plaintiff’s second cause of action is predicated on defendant’s disclosure of the video recording to his attorneys and the production of the recording in response to plaintiff’s discovery demand in the fraud litigation. Because the claim is based on privileged communications made in connection with a “judicial proceeding,” the litigation privilege of Section 47, subdivision (b), applies and the claim must be stricken under Section 425.16.

 

 

 

Plaintiff’s fifth cause of action for civil extortion concern’s defendant’s settlement letter, sent on June 12, 2019. (Comp., ¶34.) In that letter, defendant’s counsel stressed the importance of the parties settling the dispute to avoid a potentially expensive lawsuit and the disclosure of matters that would leave both parties damaged. The part of the letter to which plaintiff takes exception states:

 

 

 

“As I have previously indicated, we continue to look for evidence responsive to your discovery requests and it seems there are a number of other videos featuring our clients in sexual relations that I will procure and produce. I do not know what the status is with respect to your client’s marriage, or if her husband and children are aware of this affair, which I’m sure she has rationalized as my client’s fault, but it is likely that the inevitable argument about whether your client unduly influenced mine during this sexual dalliance that was contemporaneous to alleged settlement negotiations will be one that resolves with serious personal damage to the parties.”

 

 

 

(Clark Dec., ¶6, Ex. C.)

 

 

 

The letter, however, makes no express or implied threat to expose the sexual affair to plaintiff’s husband and children, or to the public, but simply reiterates that the video recordings, which defendant claims support his undue influence cause of action, could be harmful to both litigants if disclosed in the proceedings. The letter does not demand any sum of money or even demand that plaintiff settle the case. It merely suggests to plaintiff’s counsel that the parties explore settlement before incurring more legal fees and before more damaging information is revealed. (Ibid.) Such statements are both a protected activity under Code of Civil Procedure Section 425.16 and a privileged communication under Civil Code Section 47, subdivision (b), because the letter was made in a “judicial proceeding” in “furtherance of [defendant’s] right of petition.” Thus, plaintiff cannot show a probability of prevailing on her fifth cause of action and the claim must be stricken.

 

 

 

As discussed above, a defendant who successfully brings a special motion to strike is entitled to attorney’s fees and costs. Code Civ. Proc. §425.16, subd. (c)(1). Even where only some of the plaintiff’s causes of action are stricken by the motion, an award of fees and costs to the defendant is mandatory. Marlin v. Singer (2013) 217 Cal.App.4th 1283, 1305. Here, defendant is entitled to recover all fees and costs related to his motion to strike. Defendant may recover such expenses either by way of a noticed motion or as part of his cost memorandum at the end of the case.

 

 
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