This case was last updated from Los Angeles County Superior Courts on 11/29/2020 at 11:04:46 (UTC).

DENISE THOMAS ET AL VS ELIZABETH CASTANEDA

Case Summary

On 10/31/2017 DENISE THOMAS filed a Property - Other Property Fraud lawsuit against ELIZABETH CASTANEDA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0795

  • Filing Date:

    10/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiffs, Petitioners and Not Classified By Court

THOMAS DENISE

CALHOON ERNEST

DENISE THOMAS

LAIA THOMAS

Plaintiff and Petitioner

THOMAS DENISE

Defendants and Respondents

DOES 1 TO 100

CASTANEDA ELIZABETH

Minors and Not Classified By Court

THOMAS LAIA

LAIA THOMAS

Plaintiffs, Guardian Ad Litems and Not Classified By Court

CALHOON ERNEST

LAIA THOMAS

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorneys

CALHOON ERNEST LAW OFFICES OF

CALHOON ERNEST REY

CALHOON ERNEST

Defendant Attorney

MULBARGER MITCHELL F.

 

Court Documents

CLERK'S APPLICATION TO VACATE AND ORDER

12/15/2017: CLERK'S APPLICATION TO VACATE AND ORDER

COMPLAINT-CONTRACT -

10/31/2017: COMPLAINT-CONTRACT -

Notice - NOTICE OF RULING RE CMC HELD 11-05-20 AND OSC SCHEDULED

11/9/2020: Notice - NOTICE OF RULING RE CMC HELD 11-05-20 AND OSC SCHEDULED

Amended Complaint - AMENDED COMPLAINT (2ND)

10/30/2020: Amended Complaint - AMENDED COMPLAINT (2ND)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/2/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Reply - REPLY REPLY AND REPLY DECLARATION FOR THE 2/18/2020 SET HEARING (ADVANCED)

2/11/2020: Reply - REPLY REPLY AND REPLY DECLARATION FOR THE 2/18/2020 SET HEARING (ADVANCED)

Notice of Intent to Move for New Trial

12/27/2019: Notice of Intent to Move for New Trial

Request for Dismissal

11/22/2019: Request for Dismissal

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: WHY SANC...)

9/5/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: WHY SANC...)

Demurrer - without Motion to Strike

7/30/2019: Demurrer - without Motion to Strike

Application And Order For Appointment of Guardian Ad Litem - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR LAIA

7/26/2019: Application And Order For Appointment of Guardian Ad Litem - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR LAIA

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

5/20/2019: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

5/21/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: FAILURE T...)

Motion re: - Motion re: to Allow Plaintiff's Indigency Application to be Processed and to be Reinstated to her Pending Action

11/9/2018: Motion re: - Motion re: to Allow Plaintiff's Indigency Application to be Processed and to be Reinstated to her Pending Action

Minute Order -

4/25/2018: Minute Order -

CASE MANAGEMENT STATEMENT

4/18/2018: CASE MANAGEMENT STATEMENT

ORDER ON COURT FEE WAIVER -

12/3/2017: ORDER ON COURT FEE WAIVER -

75 More Documents Available

 

Docket Entries

  • 02/10/2021
  • Hearing02/10/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 01/04/2021
  • Hearing01/04/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 01/04/2021
  • Hearing01/04/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: sanctions for failure to appear 11/05/2020

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  • 11/09/2020
  • DocketNotice (of Ruling re CMC Held 11-05-20 and OSC Scheduled); Filed by Elizabeth Castaneda (Defendant)

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  • 11/05/2020
  • Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Held - Continued

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  • 11/05/2020
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 10/30/2020
  • DocketAmended Complaint ( (2nd)); Filed by LGT (Plaintiff)

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  • 10/19/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Reconsideration

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  • 10/19/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Order (To File Nunc Pro Tun to 5/22/2020 The Motion To Set Aside Voluntary Dismissal Which Was Uploaded To the Court That Day, Without A Hearing Date, During he Pandemic Closure And Rejected in Error By the Clerk)

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  • 10/16/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Order (Vacate and Set Aside Voluntary Dismissals Without Prejudice per CCP 473 and other Code and Constitutional Grounds)

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123 More Docket Entries
  • 12/15/2017
  • DocketMiscellaneous-Other; Filed by Clerk

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  • 12/03/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/22/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 11/22/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/17/2017
  • DocketRequest for Hearing About Court Fee Waiver Order (Superior Court); Filed by Denise Thomas (Plaintiff)

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  • 11/03/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 11/03/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/03/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 10/31/2017
  • DocketComplaint; Filed by Denise Thomas (Plaintiff)

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  • 10/31/2017
  • DocketCOMPLAINT-CONTRACT

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Tentative Rulings

Case Number: BC680795    Hearing Date: February 25, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Denise Thomas, LGT (a minor child by and through her sole custodian and GAL Denise

Thomas), and Ernest Calhoon,

Plaintiffs,

v.

Elizabeth Castaneda and Does 1-100,

Defendants.

Case No.: BC680795

Hearing Date: February 25, 2020

[TENTATIVE] order RE:

Plaintiffs’ motion for new trial as to the order entered on december 12, 2019

Background

This action arises out of a dissolution proceeding entitled: Denise Thomas v. Gary Thomas, Los Angeles Superior Court Case No. PD062850 filed on June 21, 2016 (the “Underlying Action”).

In the Underlying Action, Denise Thomas (“Denise”) [1] filed for dissolution of her marriage to Gary Thomas (“Gary”). Denise and Gary had a minor child LGT. Denise was represented by Ernest Calhoon (“Calhoon”). Defendant Elizabeth Castaneda (“Defendant”) was appointed as LGT’s counsel.

On October 31, 2017, Plaintiffs Denise, LGT (through her guardian ad litem Denise) and Calhoon (collectively “Plaintiffs”) filed their initial complaint against Defendant.

On July 3, 2019, Defendant filed and served a special motion to strike Plaintiffs’ FAC (the “anti-SLAPP motion”), which was originally noticed for hearing on May 1, 2020. On September 12, 2019, Defendant filed and served a Notice of Advancement of the hearing on Defendant’s Special Motion to Strike the First Amended Complaint, giving notice of the new hearing date of November 27, 2019.

On November 20, 2019, Plaintiffs filed a request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. However, the Court rejected this dismissal because of a missing designation.

On November 22, 2019, Plaintiffs filed another request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. This was request was granted, and the dismissals of Plaintiffs Denise and Calhoon were entered on November 26, 2019.

As reflected in the minute order of that date, the following occurred at the November 27, 2019 hearing:

NATURE OF PROCEEDINGS: Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

Counsel for Plaintiff, Ernest R. Calhoon, registered for CourtCall for the Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion). Upon checking into CourtCall, the above indicated Judicial Assistant informed Counsel that CourtCall appearance is not permitted for Motions in this department and the CourtCall Operator must have allowed the reservation due to Counsel's representation that his matter was on calendar for a Case Management Conference. Counsel Calhoon was informed that Counsel for Defendant had checked in for the Motion hearing and that if Calhoon wanted to be heard he would need to appear in Court.

The matter was called for hearing later during the morning. There being no response from any person on CourtCall, the Motion was heard with Counsel for Defendant who was present in court.

The Court rules on the Motion.

Approximately 10-15 minutes after the hearing had concluded, Counsel Ernest R. Calhoon, called the court and spoke to the same Judicial Assistant and represented that his CourtCall was disconnected.[2] Upon the undersigned Judicial Assistant's subsequent conversation with the CourtCall Operator, Counsel Calhoon was informed by the CourtCall Operator that his CourtCall line would not be opened when the matter was called due to the information given to him upon his check in.

The Court, in an effort to allow both parties to be heard on this Motion, hereby vacates this day's proceedings. The Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) is continued to 12/06/2019 at 08:30 AM in Department 26 at Stanley Mosk Courthouse.

BOTH PARTIES MUST APPEAR IN COURT IN PERSON for the date indicated above as CourtCall is NOT an appearance option for Motions in this department.

Counsel for Defendant and Counsel for Plaintiff have been given telephonic notice of the continued Motion date.

Certificate of Mailing is attached.

(Minute Order 11/27/2019.)

Counsel for all parties appeared in person at the continued December 6, 2019 hearing. The Court provided all parties with a tentative ruling, and each counsel argued the merits of the anti-SLAPP motion. As reflected in the December 6, 2019 minute order, the Court ruled as follows:

Defendant’s anti-SLAPP motion is granted as to Plaintiff LGT’s first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety. Defendant’s anti-SLAPP motion is also granted as to the allegations involving specified protected activity supporting the second, sixth, and ninth causes of action, namely, the following allegations within paragraphs 6 and 9: “Defendant Castaneda engaged in improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes for her if she would do the case herself without an attorney” (FAC ¶ 6), “[t]herefore, Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas who very much wanted her baby clothes back which were wrongfully taken from her” (FAC ¶ 6), “Defendant Castaneda represented that would be done, but could only be done if Denise Thomas discharged her lawyer there in open court” (FAC ¶ 6), “lying about it under penalty of perjury to the court” (FAC ¶ 9), “[i]n retaliation for the Bar Complaint by Ernest Calhoon, Defendant Castaneda immediately began threatening Denise Thomas with home visits and more” (FAC ¶ 9), “Defendant Castaneda had improper ex-parte communications with a jurist and both on and off the record berated Ernest Calhoon who was not even present” (FAC ¶ 9). However, the second, sixth, and ninth causes of actions survive because they are also based on unprotected activity, and thus, the Court strikes only the allegations identified above and not the entire claims. As to Plaintiffs Denise and Calhoon, the Court grants Defendant’s anti-SLAPP motion with respect to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the allegations involving specified protected activity supporting the second, sixth, and ninth causes of actions only to the extent of finding that Defendant would have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant. However, the Court denies Defendant’s anti-SLAPP motion with respect to Plaintiffs Denise and Cahoon’s second, sixth, and ninth causes of action because these claims are also based on unprotected activity. This denial is only to the extent of finding that Defendant would not have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant.

(12/6/19 Minute Order.)

On December 12, 2019, the Court signed a written order setting forth in greater detail its reasoning for the ruling made on December 6, 2019.

On December 27, 2019, Plaintiffs filed a notice of motion for new trial. On January 6, 2020, Plaintiffs filed the motion itself for new trial. On January 16, 2020, Defendant filed an opposition. On February 4, 2020, the Court advanced Plaintiffs’ motion for new trial to be heard on February 18, 2020. On February 11, 2020, Plaintiffs filed a reply.

At the February 18, 2020 hearing on this motion, the Court accepted from Plaintiffs’ Counsel a filing entitled “AFFIDAVIT/DECLATION IN SUPPORT OF MOTION UNDER CCP 170.1 MOTION AND MOTION, REQUEST TO VACATE PROCEEDINGS OF 11/27/19 AND 12/6/19 AND ALL ‘FRUIT OF THE TREE’.” The Court continued the instant motion for new trial to February 25, 2020, to be heard after the Court ruled on Plaintiffs’ motion under 170.1.

At the outset of the hearing today, the Court denied Plaintiffs’ motion under 170.1. The Court hereby proceeds to rule as follows on Plaintiffs’ motion for new trial.

Legal Standard

A motion for new trial is governed by CCP section 657, which states in relevant part:

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (Romero v. Riggs (1994) 24 Cal.App.4th 117, 121-122.) However, “[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) “As the motion for a new trial finds both its source and its limitations in the statutes [Citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [Citations]. Applying this rule, it has uniformly been held that an order granting a new trial is in excess of jurisdiction and void if, for example, it is made in a proceeding in which the remedy of new trial is not available [Citations.] (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)

Discussion

Motion for New Trial

A new trial motion is available to challenge judgments disposing of the action without or law” has been decided. (Carney v. Simmonds Rutter, Cal. Prac. Guide Civ. Trials & Ev. Ch. 18-B.)

Here, Plaintiffs Denise and Calhoon voluntarily dismissed their claims on November 22, 2019, leaving LGT remaining as the sole Plaintiff. As the Court made clear in the December 6, 2019 and December 12, 2019 orders, the Court granted Defendant’s anti-SLAPP motion with respect to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the allegations involving specified protected activity supporting the second, sixth, and ninth causes of actions only to the extent of finding that Defendant would have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant. This finding is relevant only as to any request for attorney’s fees. A motion for new trial is patently an improper vehicle for Plaintiffs Denise and Calhoon to challenge their own voluntary dismissal of their claims, and the motion for new trial must be denied with respect to Plaintiffs Denise and Calhoon.

Even with respect to Plaintiff LGT, the Court’s December 6, 2019 and December 12, 2019 orders on Defendant’s special motion to strike did not completely dispose of the action as the Court did not dismiss the second, sixth, and ninth causes of action, and those causes of action remain pending. Indeed, the parties have even filed a stipulation allowing Plaintiff leave to file a second amended complaint. (Stipulation and Order Permitting Filing a 2nd Amended Complaint, filed 1/21/20.) As no judgment or verdict has been entered against Plaintiff LGT, the Court does not have jurisdiction to hear Plaintiff LGT’s motion for new trial, and her motion is denied on this basis.

Reconsideration

Rather than a true motion for a new trial, Plaintiffs’ motion appears to be an improper attempt at a motion for reconsideration. Pursuant to CCP § 1008(a):

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Here, most of the arguments in Plaintiff’s motion are directed to seeking reconsideration of the Court’s December 6, 2019 and December 12, 2019 orders, and Plaintiff’s motion is actually one for reconsideration. As such, Plaintiff’s motion is untimely as Plaintiff did not file the instant motion until January 6, 2020.[3] Accordingly, on that ground alone the Court could deny this improper attempt at a motion for reconsideration. Moreover, even if the Court were to consider the merits of Plaintiffs’ motion for reconsideration, the Court finds that Plaintiffs have failed to demonstrate any new facts or law that would warrant reconsideration. Therefore, to the extent that Plaintiffs’ motion should be construed as one for reconsideration, the Court denies Plaintiffs’ motion for reconsideration.

Plaintiffs’ Arguments

Even if the Court had proper jurisdiction to consider the merits of Plaintiffs’ arguments, the Court would find that Plaintiffs have failed to demonstrate any grounds for either a new trial or reconsideration.

Plaintiffs’ sole contention for a new trial is that there was a secret hearing on November 30, 2019 for Defendants’ special motion to strike, that there are no minutes for the November 30, 2019 hearing, that Plaintiffs were not permitted to participate in the November 30, 2019 hearing, and that Defendant refuses to state what happened at the November 30, 2019 hearing. (Motion pp. 6-7.)

Plaintiffs’ claims are without merit. The Court notes that November 30, 2019 fell on a Saturday – the Saturday after Thanksgiving. There was no hearing on November 30, 2019. The hearing for Defendant’s special motion to strike occurred, as noticed, on November 27, 2019.

The Clerk of the Court has meticulously recorded the events that occurred at the hearing in the November 27, 2019 minute order. As noted in the minute order, Plaintiff’s Counsel disregarded the Court’s long-standing policy and Judicial Assistant’s instructions that CourtCall appearance is not permitted for motion hearings in this department, and if Plaintiff’s Counsel wished to be heard, he would need to appear in Court. Plaintiff’s Counsel did not come to court after being so advised. When the matter was called later during the morning, there was no response from any person on CourtCall. Counsel for Defendant was the only party to appear, and the Court ruled on the Motion. It was only ten to fifteen minutes after the hearing concluded that Plaintiff’s Counsel called the Court to inform the Judicial Assistant that his CourtCall had been disconnected. Plaintiff’s Counsel has never provided any explanation as to why he delayed at least ten to fifteen minutes after being disconnected to call the Court to advise that his CourtCall had been disconnected. In any event, in an effort to allow both parties to be heard on Defendant’s anti-SLAPP motion, the Court vacated the November 27, 2019 proceedings, vacated its ruling on Defendant’s anti-SLAPP motion, and continued the hearing on Defendant’s anti-SLAPP motion to December 6, 2019. (Minute Order 11/27/2019.) Counsel for all parties, including Plaintiffs’ Counsel, appeared at the December 6, 2019 hearing and argued at length before the Court issued a ruling on Defendant’s anti-SLAPP motion. (Minute Order 12/6/2019.)

Thus, the record belies Plaintiffs’ contention that they were not permitted to attend the hearing at which the Court ruled on Defendant’s anti-SLAPP motion. Despite Plaintiffs’ failure to appear at the properly noticed November 27, 2019 hearing, the Court vacated the November 27, 2019 proceedings when the Judicial Assistant received Plaintiff’s Counsel’s belated call advising that he had been disconnected from CourtCall. The Court also continued the hearing to enable Plaintiffs an opportunity to be heard. Plaintiff’s Counsel appeared in person on December 6, 2019 and argued extensively on the merits before the Court ruled on Defendant’s anti-SLAPP motion.

In sum, the Court finds that Plaintiffs Denise and Calhoon are improperly challenging their own voluntary dismissal of their claims, and this motion for new trial is denied with respect to Plaintiffs Denise and Calhoon. Plaintiff LGT’s motion is also procedurally improper for the reasons identified above, and Plaintiff LGT has also failed to identify any basis for either reconsideration of the Court’s November 27, 2019 or December 6, 2019 orders or for a new trial. Thus, the Court denies Plaintiff LGT’s motion for new trial and/or reconsideration.

CONCLUSION AND ORDER

Plaintiffs’ motion for new trial is DENIED.

The Court Clerk is ordered to serve notice of this order on all parties.

DATED: February 25, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Given that there are two parties with the surname Thomas, the Court refers to them by first names to avoid any confusion.

[2] The Court notes that this is not the first occasion that Plaintiff’s Counsel Ernest Rey Calhoon has encountered problems connecting through Court Call. The May 21, 2019 minute order reflects that on that date: “Counsel for Plaintiff was to appear via CourtCall. When the matter was called, counsel was not on the line. Both the CourtCall operator and the Judicial Assistant tried calling counsel and both were unable to reach him. At 10:02 am the Court disconnected from Court Call. Attorney Ernest R. Calhoon calls the Court Room at 10:22am and represents he was on CourtCall on another matter.” Thus, Plaintiff’s Counsel’s has demonstrated repeated difficulties with telephonic Court Call appearances in this action.

[3] There is no proof of service attached to Plaintiffs’ motion for new trial. Nonetheless, the Court presumes that Plaintiffs served Defendant with their motion as Defendant filed an opposition on January 16, 2020.

Case Number: BC680795    Hearing Date: February 18, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Denise Thomas, LGT (a minor child by and through her sole custodian and GAL Denise

Thomas), and Ernest Calhoon,

Plaintiffs,

v.

Elizabeth Castaneda and Does 1-100,

Defendants.

Case No.: BC680795

Hearing Date: February 18, 2020

[TENTATIVE] order RE:

Plaintiffs’ motion for new trial as to the order entered on december 12, 2019

Background

This action arises out of a dissolution proceeding entitled: Denise Thomas v. Gary Thomas, Los Angeles Superior Court Case No. PD062850 filed on June 21, 2016 (the “Underlying Action”).

In the Underlying Action, Denise Thomas (“Denise”) [1] filed for dissolution of her marriage to Gary Thomas (“Gary”). Denise and Gary had a minor child LGT. Denise was represented by Ernest Calhoon (“Calhoon”). Defendant Elizabeth Castaneda (“Defendant”) was appointed as LGT’s counsel.

On October 31, 2017, Plaintiffs Denise, LGT (through her guardian ad litem Denise) and Calhoon (collectively “Plaintiffs”) filed their initial complaint against Defendant.

On July 3, 2019, Defendant filed and served a special motion to strike Plaintiffs’ FAC (the “anti-SLAPP motion”), which was originally noticed for hearing on May 1, 2020. On September 12, 2019, Defendant filed and served a Notice of Advancement of the hearing on Defendant’s Special Motion to Strike the First Amended Complaint, giving notice of the new hearing date of November 27, 2019.

On November 20, 2019, Plaintiffs filed a request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. However, the Court rejected this dismissal because of a missing designation.

On November 22, 2019, Plaintiffs filed another request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. This was request was granted, and the dismissals of Plaintiffs Denise and Calhoon were entered on November 26, 2019.

As reflected in the minute order of that date, the following occurred at the November 27, 2019 hearing:

NATURE OF PROCEEDINGS: Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

Counsel for Plaintiff, Ernest R. Calhoon, registered for CourtCall for the Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion). Upon checking into CourtCall, the above indicated Judicial Assistant informed Counsel that CourtCall appearance is not permitted for Motions in this department and the CourtCall Operator must have allowed the reservation due to Counsel's representation that his matter was on calendar for a Case Management Conference. Counsel Calhoon was informed that Counsel for Defendant had checked in for the Motion hearing and that if Calhoon wanted to be heard he would need to appear in Court.

The matter was called for hearing later during the morning. There being no response from any person on CourtCall, the Motion was heard with Counsel for Defendant who was present in court.

The Court rules on the Motion.

Approximately 10-15 minutes after the hearing had concluded, Counsel Ernest R. Calhoon, called the court and spoke to the same Judicial Assistant and represented that his CourtCall was disconnected.[2] Upon the undersigned Judicial Assistant's subsequent conversation with the CourtCall Operator, Counsel Calhoon was informed by the CourtCall Operator that his CourtCall line would not be opened when the matter was called due to the information given to him upon his check in.

The Court, in an effort to allow both parties to be heard on this Motion, hereby vacates this day's proceedings. The Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) is continued to 12/06/2019 at 08:30 AM in Department 26 at Stanley Mosk Courthouse.

BOTH PARTIES MUST APPEAR IN COURT IN PERSON for the date indicated above as CourtCall is NOT an appearance option for Motions in this department.

Counsel for Defendant and Counsel for Plaintiff have been given telephonic notice of the continued Motion date.

Certificate of Mailing is attached.

(Minute Order 11/27/2019.)

Counsel for all parties appeared in person at the continued December 6, 2019 hearing. The Court provided all parties with a tentative ruling, and each counsel argued the merits of the anti-SLAPP motion. As reflected in the December 6, 2019 minute order, the Court ruled as follows:

Defendant’s anti-SLAPP motion is granted as to Plaintiff LGT’s first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety. Defendant’s anti-SLAPP motion is also granted as to the allegations involving specified protected activity supporting the second, sixth, and ninth causes of action, namely, the following allegations within paragraphs 6 and 9: “Defendant Castaneda engaged in improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes for her if she would do the case herself without an attorney” (FAC ¶ 6), “[t]herefore, Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas who very much wanted her baby clothes back which were wrongfully taken from her” (FAC ¶ 6), “Defendant Castaneda represented that would be done, but could only be done if Denise Thomas discharged her lawyer there in open court” (FAC ¶ 6), “lying about it under penalty of perjury to the court” (FAC ¶ 9), “[i]n retaliation for the Bar Complaint by Ernest Calhoon, Defendant Castaneda immediately began threatening Denise Thomas with home visits and more” (FAC ¶ 9), “Defendant Castaneda had improper ex-parte communications with a jurist and both on and off the record berated Ernest Calhoon who was not even present” (FAC ¶ 9). However, the second, sixth, and ninth causes of actions survive because they are also based on unprotected activity, and thus, the Court strikes only the allegations identified above and not the entire claims. As to Plaintiffs Denise and Calhoon, the Court grants Defendant’s anti-SLAPP motion with respect to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the allegations involving specified protected activity supporting the second, sixth, and ninth causes of actions only to the extent of finding that Defendant would have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant. However, the Court denies Defendant’s anti-SLAPP motion with respect to Plaintiffs Denise and Cahoon’s second, sixth, and ninth causes of action because these claims are also based on unprotected activity. This denial is only to the extent of finding that Defendant would not have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant.

(12/6/19 Minute Order.)

On December 12, 2019, the Court signed a written order setting forth in greater detail its reasoning for the ruling made on December 6, 2019.

On December 27, 2019, Plaintiffs filed a notice of motion for new trial. On January 6, 2020, Plaintiffs filed the motion itself for new trial. On January 16, 2020, Defendant filed an opposition. On February 4, 2020, the Court advanced Plaintiffs’ motion for new trial to be heard on February 18, 2020. On February 11, 2020, Plaintiffs filed a reply.

Legal Standard

A motion for new trial is governed by CCP section 657, which states in relevant part:

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (Romero v. Riggs (1994) 24 Cal.App.4th 117, 121-122.) However, “[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) “As the motion for a new trial finds both its source and its limitations in the statutes [Citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [Citations]. Applying this rule, it has uniformly been held that an order granting a new trial is in excess of jurisdiction and void if, for example, it is made in a proceeding in which the remedy of new trial is not available [Citations.] (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)

Discussion

Motion for New Trial

A new trial motion is available to challenge judgments disposing of the action without or law” has been decided. (Carney v. Simmonds Rutter, Cal. Prac. Guide Civ. Trials & Ev. Ch. 18-B.)

Here, Plaintiffs Denise and Calhoon voluntarily dismissed their claims on November 22, 2019, leaving LGT remaining as the sole Plaintiff. As the Court made clear in the December 6, 2019 and December 12, 2019 orders, the Court granted Defendant’s anti-SLAPP motion with respect to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the allegations involving specified protected activity supporting the second, sixth, and ninth causes of actions only to the extent of finding that Defendant would have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant. This finding is relevant only as to any request for attorney’s fees. A motion for new trial is patently an improper vehicle for Plaintiffs Denise and Calhoon to challenge their own voluntary dismissal of their claims, and the motion for new trial must be denied with respect to Plaintiffs Denise and Calhoon.

Even with respect to Plaintiff LGT, the Court’s December 6, 2019 and December 12, 2019 orders on Defendant’s special motion to strike did not completely dispose of the action as the Court did not dismiss the second, sixth, and ninth causes of action, and those causes of action remain pending. Indeed, the parties have even filed a stipulation allowing Plaintiff leave to file a second amended complaint. (Stipulation and Order Permitting Filing a 2nd Amended Complaint, filed 1/21/20.) As no judgment or verdict has been entered against Plaintiff LGT, the Court does not have jurisdiction to hear Plaintiff LGT’s motion for new trial, and her motion is denied on this basis.

Reconsideration

Rather than a true motion for a new trial, Plaintiffs’ motion appears to be an improper attempt at a motion for reconsideration. Pursuant to CCP § 1008(a):

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Here, most of the arguments in Plaintiff’s motion are directed to seeking reconsideration of the Court’s December 6, 2019 and December 12, 2019 orders, and Plaintiff’s motion is actually one for reconsideration. As such, Plaintiff’s motion is untimely as Plaintiff did not file the instant motion until January 6, 2020.[3] Accordingly, on that ground alone the Court could deny this improper attempt at a motion for reconsideration. Moreover, even if the Court were to consider the merits of Plaintiffs’ motion for reconsideration, the Court finds that Plaintiffs have failed to demonstrate any new facts or law that would warrant reconsideration. Therefore, to the extent that Plaintiffs’ motion should be construed as one for reconsideration, the Court denies Plaintiffs’ motion for reconsideration.

Plaintiffs’ Arguments

Even if the Court had proper jurisdiction to consider the merits of Plaintiffs’ arguments, the Court would find that Plaintiffs have failed to demonstrate any grounds for either a new trial or reconsideration.

Plaintiffs’ sole contention for a new trial is that there was a secret hearing on November 30, 2019 for Defendants’ special motion to strike, that there are no minutes for the November 30, 2019 hearing, that Plaintiffs were not permitted to participate in the November 30, 2019 hearing, and that Defendant refuses to state what happened at the November 30, 2019 hearing. (Motion pp. 6-7.)

Plaintiffs’ claims are without merit. The Court notes that November 30, 2019 fell on a Saturday – the Saturday after Thanksgiving. There was no hearing on November 30, 2019. The hearing for Defendant’s special motion to strike occurred, as noticed, on November 27, 2019.

The Clerk of the Curt has meticulously recorded the events that occurred at the hearing in the November 27, 2019 minute order. As noted in the minute order, Plaintiff’s Counsel disregarded the Court’s long-standing policy and Judicial Assistant’s instructions that CourtCall appearance is not permitted for motion hearings in this department, and if Plaintiff’s Counsel wished to be heard, he would need to appear in Court. Plaintiff’s Counsel did not come to court after being so advised. When the matter was called later during the morning, there was no response from any person on CourtCall. Counsel for Defendant was the only party to appear, and the Court ruled on the Motion. It was only ten to fifteen minutes after the hearing concluded that Plaintiff’s Counsel called the court to inform the Judicial Assistant that his CourtCall had been disconnected. In an effort to allow both parties to be heard on this Motion, the Court vacated the November 27, 2019 proceedings, vacated its ruling on Defendant’s special motion to strike, and continued the hearing on Defendant’s anti-SLAPP motion to December 6, 2019. (Minute Order 11/27/2019.) Both parties, including Plaintiffs appeared at the December 6, 2019 hearing and argued at length before the Court issued a ruling on Defendant’s anti-SLAPP motion. (Minute Order 12/6/2019.)

Thus, the record belies Plaintiffs’ contention that they were not permitted to attend the hearing at which the Court ruled on Defendant’s anti-SLAPP motion. Despite Plaintiffs’ failure to appear at the properly noticed November 27, 2019 hearing, the Court vacated the November 27, 2019 when the Judicial Assistant received Plaintiff’s Counsel’s belated call advising that he had been disconnected from CourtCall. The Court also continued the hearing to enable Plaintiffs an opportunity to be heard. Plaintiff’s Counsel appeared in person on December 6, 2019 and argued extensively on the merits before the Court ruled on Defendant’s anti-SLAPP motion.

In sum, the Court finds that Plaintiffs Denise and Calhoon are improperly challenging their own voluntary dismissal of their claims, and this motion for new trial is denied with respect to Plaintiffs Denise and Calhoon. Plaintiff LGT’s motion is also procedurally improper for the reasons identified above, and Plaintiff LGT has also failed to identify any basis for either reconsideration of the Court’s November 27, 2019 or December 6, 2019 orders or for a new trial. Thus, the Court denies Plaintiff LGT’s motion for new trial and/or reconsideration.

CONCLUSION AND ORDER

Plaintiffs’ motion for new trial is DENIED.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: February 18, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Given that there are two parties with the surname Thomas, the Court refers to them by first names to avoid any confusion.

[2] The Court notes that this is not the first occasion that Plaintiff’s Counsel Ernest Rey Calhoon has encountered problems connecting through Court Call. The May 21, 2019 minute order reflects that on that date: “Counsel for Plaintiff was to appear via CourtCall. When the matter was called, counsel was not on the line. Both the CourtCall operator and the Judicial Assistant tried calling counsel and both were unable to reach him. At 10:02 am the Court disconnected from Court Call. Attorney Ernest R. Calhoon calls the Court Room at 10:22am and represents he was on CourtCall on another matter.” Thus, Plaintiff’s Counsel’s has demonstrated repeated difficulties with telephonic Court Call appearances in this action.

[3] There is no proof of service attached to Plaintiffs’ motion for new trial. Nonetheless, the Court presumes that Plaintiffs served Defendant with their motion as Defendant filed an opposition on January 16, 2020.

Case Number: BC680795    Hearing Date: December 06, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Denise Thomas, LGT (a minor child by and through her sole custodian and GAL Denise

Thomas), and Ernest Calhoon,

Plaintiffs,

v.

Elizabeth Castaneda and Does 1-100,

Defendants.

Case No.: BC680795

Hearing Date: December 6, 2019

[TENTATIVE] order RE:

DEFENDANT Elizabeth Castaneda’s SPECIAL MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT

BACKGROUND

This action arises out of a dissolution proceeding entitled: Denise Thomas v. Gary Thomas, Los Angeles Superior Court Case No. PD062850 filed on June 21, 2016 (the “Underlying Action”).

In the Underlying Action, Denise Thomas (“Denise”) [1] filed for dissolution of her marriage to Gary Thomas (“Gary”). Denise and Gary had a minor child LGT. Denise was represented by Ernest Calhoon (“Calhoon”). Defendant Elizabeth Castaneda (“Defendant”) was appointed as LGT’s counsel.

On October 31, 2017, Plaintiffs Denise, LGT (through her guardian ad litem Denise) and Calhoon (collectively “Plaintiffs”) filed their initial complaint against Defendant.

On May 20, 2019, Plaintiffs filed their first amended complaint (“FAC”) against Defendant and Does 1-100, asserting 10 causes of action: (1) fraud – intentional misrepresentation; (2) fraud – concealment; (3) negligent misrepresentation; (4) breach of fiduciary duty; (5) intentional infliction of emotional distress; (6) professional negligence, gross negligence, fraud; (7); intentional infliction of emotional distress by violation of ethical rules including Rule 4.2 (formerly Rule 2-100); (8) intentional interference with business relations; (9) discrimination – including Unruh Act; and (10)[2] causing intentional and negligent infliction of emotional distress.

Plaintiffs’ FAC is rather unclear.

First, it is unclear whether all Plaintiffs assert all causes of action, or whether only certain Plaintiffs assert some causes of action. (See generally FAC ¶¶ 10-32 [interchangeably using “Plaintiff” and “Plaintiffs”].) Some causes of action are likely only asserted by certain individuals, though the FAC contains unlikely or confusing allegations. (See FAC ¶¶ 24-25 [intentional interference with business relations] [“By circumventing Plaintiff’s attorney / client relationship with her attorney Defendants, and each of them, interfered with Plaintiff’s business relations causing her vast harm.”].)

More importantly, the allegations themselves are unclear. Nevertheless, the following can reasonably be construed from the FAC: On October 18, 2016, Defendant was appointed to represent LGT. (Id. ¶ 6.) Defendant engaged in improper and prohibited (pursuant to ethical obligations) direct communications with Denise, bribing her with promises of securing baby clothes for her if she would proceed in the Underlying Action without an attorney. (Ibid.) Specifically, Plaintiffs allege that Defendant did so in order to make more money in unexplained ways. (Ibid.) Denise fired her attorney, Calhoon, based on Defendant’s representations. (Ibid.) Because of Defendant’s actions, Denise agreed to an unfavorable custody arrangement that led to LGT suffering, until Denise was awarded sole legal and physical custody of LGT after trial. (Id. ¶ 7.) Defendant did not protect LGT during her time representing LGT, including some issues involving drugs that are unexplained.[3] (Id. ¶ 8.) Calhoon complained to the State Bar of California about Defendant’s misconduct, which led to Defendant’s retaliation by threatening Denise with home visits. (Id. ¶ 9.) Defendant had ex parte communications with a judge about Calhoon, berating him. (Ibid.)

On July 3, 2019,[4] Defendant filed her instant special motion to strike Plaintiffs’ FAC (the “anti-SLAPP motion”). Defendant argues that her actions arise from protected activity, namely communications that occurred during her representation of LGT during the Underlying Action. Additionally, Defendant argues that the litigation privilege bars Plaintiffs’ claims.

On July 26, 2019, the Court (Hon. Wendy Chang) granted Denise’s application to be appointed guardian ad litem for LGT.

Defendant’s anti-SLAPP motion was originally scheduled for a hearing on May 1, 2020. However, on September 12, 2019, Plaintiff advanced the hearing to November 27, 2019.

On November 20, 2019, Plaintiffs filed a request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. However, the Court rejected this dismissal because of a missing designation.

On November 20, 2019 and November 22, 2019, Denise filed applications for Calhoon to be appointed and to replace Denise as guardian ad litem for LGT, which were rejected by the Court.

On November 22, 2019, Plaintiffs filed another request for dismissal, specifically dismissing only Plaintiffs Denise and Calhoon from the action with LGT remaining as the sole Plaintiff. This was request was granted, and the dismissals of Plaintiffs Denise and Calhoon were entered on November 26, 2019.

The Court initially heard this motion on November 27, 2019. However, after the Court heard the motion, Calhoon contacted the Court and advised that the reason he had not appeared telephonically at the hearing was that he had been disconnected from Court Call. To enable all parties to be heard prior to the Court’s final ruling on this motion, the Court vacated its ruling from November 27, 2019 and continued the hearing to December 6, 2019.

Plaintiffs have not filed any opposition to Defendant’s anti-SLAPP motion.[5]

LEGAL STANDARD

Code of Civil Procedure section 425.16 permits the court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

In assessing a defendant’s Code of Civil Procedure section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in Code of Civil Procedure section 425.16, subdivision (e).

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[T]he plaintiff 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 plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal quotations omitted.) At this “second stage of an anti-SLAPP hearing, the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.)

The trial court properly considers the evidentiary submissions of both the plaintiff and the defendant, but it may not weigh the credibility or comparative strength of the evidence and must instead simply determine whether the plaintiff’s evidence would, if believed by the trier of fact, be sufficient to result in a judgment for plaintiff. (McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 108-109.) The court “accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 (Flatley).) Further, whether or not the evidence is in conflict in the context of a motion to strike under the anti-SLAPP statute, if the plaintiff has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the plaintiff is entitled to proceed. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 193.) Only a minimal showing of merit is required. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.)

REQUEST FOR JUDICIAL NOTICE

Defendant requests the Court to take judicial notice of eight[6] documents:

A. October 18, 2016 Order appointing Defendant as counsel for LGT in the Underlying Action

C. October 28, 2016 substitutions of attorney - civil form filed in both the Underlying Action and related Case No. PQ018431

D. October 28, 2016 stipulation and order on order to show cause (handwritten) filed in the Underlying Action

E. November 7, 2016 Order after October 28, 2016 hearing filed in the Underlying Action

F. December 29, 2016 response declaration to request for order of recusal filed in the Underlying Action

G. January 13, 2017 Order denying request for recusal of minor’s counsel from the Underlying Action

I. April 20, 2017 Order relieving Defendant as counsel for LGT in the Underlying Action.

J. May 20, 2019 first amended complaint filed in this action

Plaintiffs do not oppose Defendant’s Request for Judicial Notice.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Evidence Code section 452, subdivision (h), authorizes the court to take judicial notice of facts “that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Regarding the documents for which the Court grants judicial notice, the Court is not mandated to accept the truth of its their contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

The Court grants the unopposed request for judicial notice. The documents in question are all court records. (Evid. Code, § 452, subd. (d).)

Discussion

Before discussing the merits, the Court addresses two preliminary matters.

First, the Court notes that after Defendant filed the instant anti-SLAPP motion, Plaintiffs Denise and Calhoon dismissed their claims. (See Request for Dismissal filed on November 22, 2019 and entered on November 26, 2019.) However, the Court retains limited jurisdiction to rule on Defendant’s request for attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c) even though Plaintiffs Denise and Calhoon have dismissed their claims. (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876.) Therefore, as to Plaintiffs Denise and Calhoon, the Court has limited jurisdiction to rule on the merits of Defendant’s anti-SLAPP motion in order to decide if it should award attorney fees and costs to Defendant. Plaintiffs Denise and Calhoon cannot avoid paying attorney fees and costs by voluntarily dismissing their claims after Defendant filed her anti-SLAPP motion if the motion would have been granted. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1452.) As to Plaintiff LGT, the Court’s jurisdiction is not limited.

Second, the Court notes that Defendant seems to mix some of her arguments in both prongs. Specifically, Defendant argues that her actions arise from protected activity (first prong) because the litigation privilege (second prong) bars the claims against her. (See Motion 8:7-8.) However, the Court notes that the analysis is not interchangeable and there are different, shifting burdens. (See Flatley, supra, 39 Cal.4th at pp. 323-326 [courts look to the Civ. Code, § 47, subd. (b) litigation privilege “as an aid” in determining whether a given communication falls within the ambit of Code of Civ. Proc., § 425.16, subds. (e)(1) and (2), but they are not identical].) Additionally, the Court notes that this is a two-step process. First, Defendant as the moving defendant has the initial burden of showing that the challenged cause of action arises from protected free speech or petitioning activity, and if the Defendant does not, the Court should deny Defendant’s motion without addressing the second step. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162; see also Public Employees’ Retirement System v. Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th 643, 658 [“Failure to meet this initial prong renders the anti-SLAPP statute inapplicable . . . .”].) Notwithstanding all of the above, the Court addresses the relevant issues in the appropriate sections.

First Prong: Protected Activity

“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing 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.) “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 Supreme Court has noted:

Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.] “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” [Citations.] Instead, the focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.] “The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....” [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.

(Id. at p. 1063.)

Defendant argues that all of the statements that give rise to Plaintiffs’ asserted claims were made in connection with litigation and thus are protected activity. With three exceptions, the Court agrees.

Code of Civil Procedure section 425.16, subdivision (e)(2) defines protected acts to include “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.” Cases construing this subdivision hold that “a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962, quoting Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 (Neville).) Courts “have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)

“It is well established that the protection of the anti-SLAPP statute extends to lawyers and law firms engaged in litigation-related activity.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113.)

The Supreme Court has noted:

“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.” [Citation.] “Any act” includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citation.]

(Rusheen v. Cohen

The Court of Appeal has noted the use of the litigation privilege as an “aid” in the first step of the anti-SLAPP inquiry:

We have also observed that although section 425.16 and Civil Code section 47, subdivision (b) are not coextensive and are substantively different, “the two statutes serve similar policy interests, and courts ‘look[ ] to the litigation privilege [Civ. Code, § 47] as an aid in construing the scope of section 425.16, subdivision [ (e)(2) ] with respect to the first step of the two-step anti-SLAPP inquiry....’ [Citations.] ... [Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “ ‘the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.’ “

(Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965.)

The litigation privilege, codified in Civil Code section 47, subdivision (b), “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege extends even to communications otherwise within the scope of Civil Code section 47, subdivision (b) that are perjurious or confidential. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 959.)

Plaintiffs’ First, Third Through Fifth, Seventh, Eighth, And Tenth Causes Of Action

Here, Plaintiffs assert 10 causes of action. With the exception of the second cause of action for “Fraud-Concealment,” the sixth cause of action for “Professional Negligence, Gross Negligence, Fraud,” and the ninth cause of action for “Discrimination – including Unruh Act,” the gravamen of Plaintiffs’ causes of action is premised on statements by Defendant in connection with her litigation activity in the Underlying Action, specifically her representation of LGT. The alleged statements that give rise to the first, third through fifth, seventh, eighth, and tenth causes of action all involved statements by Defendant to Denise without her attorney present telling Denise to proceed without an attorney in exchange for baby clothes, threats to Denise of home visits, and ex parte communications to berate Calhoon.

Although the Court has already noted that Plaintiffs’ allegations are rather unclear, the Court finds that the first, third through fifth, seventh, eighth, and tenth causes of action are all premised on communications Defendant made in connection with Defendant’s representation of LGT. The negligent and intentional misrepresentation claims (first and third causes of action) are based on Defendant’s: “false representations that harmed [Plaintiffs] by representing to Plaintiff that she would get baby clothes and represent her interests back and just needed Denise Thomas to go into pro per so that she could get her those baby clothes” (FAC ¶ 11 [emphasis added]; see also id. ¶ 6 [“improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes”]), “illegal, unethical and improper communications designed again to attempt to deprive the abused Plaintiff Denise Thomas of counsel and communicate directly to Plaintiff Denise Thomas rather than to or through counsel” (id. ¶ 11 [emphasis added]; see also id. ¶ 6), and (false) “represent[ation] to Plaintiff that she was representing her and her interests and those of her minor children and breast feeding baby (id. ¶ 15 [emphasis added]).

The breach of fiduciary claim (fourth cause of action) is premised on violation of “ethical rules by Defendant’s conduct illegally communicating with Plaintiff. (FAC ¶ 17 [emphasis added]; see also id. ¶ 6 [“Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas”]; see also id. ¶ 6 [“Denise Thomas, who she was telling these misrepresentations to including in violation of ethical rules.”] [emphasis added]; see also id. ¶ 9 [“Defendant Castaneda was complained to the Bar for the first time ever complaint by Ernest Calhoon for violation of this rule and lying about it under penalty of perjury to the court claiming she had permission when she did not . . . .”] [emphasis added].)

The emotional distress claims (fifth, seventh, and tenth causes of action) are premised on Defendant: providing legal counsel to Denise “while Plaintiff was legally represented by other counsel [Calhoon] who prohibited the communications(FAC ¶ 19 [emphasis added]), violating “SEVERAL CAL. ETHICAL RULES ESPECIALLY RULE 4.2 AND LYING TO THE COURT ABOUT THE CONDUCT UNDER PENALTY OF PERJURY” (Id. Caption for Seventh Cause of Action; see also id. ¶ 6 [“Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas . . . .”]), and engaging in “unethical communications to the represented Plaintiff,” “fraud . . . threatening conduct . . . [and] improper ex-party [sic] communications with jurists” (id. ¶¶ 30[7], 32 [emphasis added]; see also id. ¶ 9 [“Defendant Castaneda had improper ex-parte communications with a jurist and both on and off the record berated Ernest Calhoon who was not even present”] [emphasis added]).

The intentional interference with business relations claims (eighth cause of action) is premised on Defendant “circumventing Plaintiff’s attorney / client relationship with her attorney” and “engag[ing] in improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes for her if she would do the case herself without an attorney.” (FAC ¶ 25 [emphasis added]; see also id. ¶ 6 [“Defendant Castaneda represented that would be done, but could only be done if Denise Thomas discharged her lawyer there in open court.”].)

Based on the above, the Court finds that the first, third through fifth, seventh, eighth, and tenth causes of action all arise out of Defendant’s communications that have a connection to the Underlying Action. All of the statements that underlie these causes of action were directly related to Defendant’s role as an advocate of LGT. Additionally, the statements are connected to the Underlying Action because they involve and affect the parties and substantive subject matter and issues of the Underlying Action. Moreover, this activity was not incidental to the ligation and all arose from communications that occurred during Defendant’s representation of LGT. Therefore, all of the statements that the underlie first, third through fifth, seventh, eighth, and tenth causes of action constitute protected activity.

Additionally, the Court recognizes similar cases applying the litigation privilege that are useful as an “aid” to show that the statements here arise from protected activity.

In Obos v. Scripps (1997) 59 Cal.App.4th 103, the litigation privilege barred defamation and invasion of privacy claims arising out of communications made in the course of a court-ordered child custody and placement investigation. Specifically, a court-appointed psychiatrist told the children’s attorney and therapist an investigator’s allegations that the mother’s boyfriend had been dishonorably discharged from the military and fired from his job for dishonesty. The communications were relevant to the object of the proceeding (determining what custodial arrangement was in the child’s best interests), and thus, the litigation privilege barred the boyfriend’s defamation action against the psychiatrist. Similarly, the claims here involve Defendant, a court-appointed attorney, and her communications made concerning the best custodial arrangement for LGT, which was the reason why she was appointed.

In Howard v. Drapkin (1990) 222 Cal.App.3d 843, the Court of Appeal held that a psychologist hired by parents to evaluate a child’s sexual abuse allegations for the purposes of a child custody dispute was immune from a negligence and fraud action. Specifically, the psychologist’s acts and communications were done “to aid the court in its decision on an important matter in the dissolution.” (Id. at p. 864.) Here, Defendant’s communications were done to further the court’s decision in the Underlying Action concerning LGT’s custodial arrangement. Defendant’s motives or intent at that time is not an appropriate issue or consideration. (Ibid.)

Defendant has met her burden of showing that Plaintiffs’ intentional and negligent misrepresentation, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and interference with business relations claims, based on Defendant’s false promises of securing baby clothes for Denise, communications with Denise while Denise was represented, lying under penalty of perjury, improper ex parte communications with a jurist, and berating Calhoon, arise from protected activity, pursuant to Code of Civil Procedure section 425.16, subdivisions (e)(1)-(2). To the extent that the intentional and negligent misrepresentation, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and interference with business relations causes of action may be based on other conduct which does not implicate protected activity, these claims would not be subject to the instant anti-SLAPP motion. However, Plaintiffs’ FAC is devoid of any factual allegations of misrepresentation, breach of fiduciary duty, infliction of emotional distress, or interference with business relations based on unprotected activity. Instead, the factual allegations of Plaintiffs’ FAC as to the first, third through fifth, seventh, eighth, and tenth causes of action all relate to Defendant’s false promises of securing baby clothes for Denise if she would discharge her lawyer, extensive communications with Denise while Denise was represented, lying under penalty of perjury about having permission to communicate with Denise, threatening Denise with home visits, improper ex parte communications with a jurist, and berating Calhoon, all of which directly related to Defendant’s litigation of the Underlying Action.

Based on the foregoing, the burden shifts to Plaintiffs to demonstrate that their intentional and negligent misrepresentation, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and interference with business relations claims, based on Defendant’s false promises of securing baby clothes for Denise, communications with Denise while Denise was represented, lying under penalty of perjury, improper ex parte communications with a jurist, and berating Calhoon, have minimal merit.

Plaintiffs’ Second, Sixth, and Ninth Causes of Action

In contrast to the causes of action above, Plaintiffs’ second, sixth, and ninth causes of action are based on “mixed” allegations of protected and unprotected activity.

“A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 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, supra, 1 Cal.5th 376, 394.)

Plaintiffs’ fraud – concealment claim (second cause of action) is premised at least in part on unprotected activity, namely, Defendant’s failure to disclose Defendant’s “massive conflict of interest” and dual loyalty to Plaintiff’s abusive husband. (FAC ¶ 13.) The negligence claim (sixth cause of action) is also based on unprotected activity – Defendant’s representation of LGT in a manner falling below the standard of care. (Id. ¶ 21.) Finally, the discrimination claim (ninth cause of action) is also based on unprotected conduct – Defendant providing a lesser degree of care to LGT because LGT is from an African-American family. (Id.¶ 27.)

However, Plaintiffs’ second, sixth, and ninth causes of actions are based in part on protected activity. The Court has already identified some of the protected activity, which is namely: Defendant’s alleged improper communications with Plaintiff Denise concerning bribing her with baby clothes (FAC ¶ 6 [“Defendant Castaneda engaged in improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes for her if she would do the case herself without an attorney”]), violation of ethical rules by communicating directly with Plaintiff Denise (FAC ¶ 6 [“Therefore, Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas who very much wanted her baby clothes back which were wrongfully taken from her”]), representations that Plaintiff Denise would get the baby cloths back if Plaintiff Denise fired Plaintiff Calhoon (FAC ¶ 6 [“Defendant Castaneda represented that would be done, but could only be done if Denise Thomas discharged her lawyer there in open court”]), lies about Defendant’s conduct to the court (id. ¶ 9 [“lying about it under penalty of perjury to the court”]), threatening Plaintiff Denise with home visits (FAC ¶ 9 [“In retaliation for the Bar Complaint by Ernest Calhoon, Defendant Castaneda immediately began threatening Denise Thomas with home visits and more”]), improper ex parte communications with the judge about Plaintiff Calhoon (FAC ¶ 9 [“Defendant Castaneda had improper ex-parte communications with a jurist and both on and off the record berated Ernest Calhoon who was not even present”]).

Therefore, the Court finds that Defendant has satisfied her burden with respect to the above allegations of protected activity to the extent that the second, sixth, and ninth causes of action are based on these allegations. Based on the foregoing, the burden shifts to Plaintiffs to demonstrate that the fraud – concealment, negligence, and discrimination claims based on the specified protected activity have minimal merit.

However, the Court notes that it does not shift the burden involving allegations of unprotected activity that support these claims. Plaintiffs are still able to maintain these claims based on other allegations of unprotected activity. Therefore, these claims survive in some fashion even if the Court finds Plaintiffs do not satisfy the second prong on the allegations concerning protected activity.

Second Prong: Probability of Prevailing

As Defendant has met her burden as to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the certain allegations of protectivity activity that support the second, sixth and ninth causes of action, the burden shifts to Plaintiffs to establish a probability of succeeding on the merits on these claims. (See Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

Plaintiffs do not oppose and therefore do not meet their burden.

However, even if Plaintiffs opposed, the Court would still likely have found that Plaintiffs cannot meet their burden as each of these causes of action is barred by litigation privilege as explained further above in connection with the first-step of the analysis. (See also Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529 [“Any doubt as to whether the privilege applies is resolved in favor of applying it.”].)

Given that the privilege is absolute, Plaintiffs cannot meet their burden of showing a probability of success on the merits as to their first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the severed allegations of protectivity activity that support the second, sixth and ninth causes of action.

Additionally, although not raised by Defendant, the Court recognizes that there are alternative reasons to support a finding to show that Plaintiffs have failed to meet their burden of showing a probability of success as to certain causes of action. For example, for the emotional distress claims, Plaintiffs do not even allege[8] that Plaintiffs suffered severe emotional distress as a result of Defendant’s conduct, but instead makes a generic allegation of “emotional distress.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

UPCOMING DEMURRER

The Court notes that Defendant simultaneously demurred to Plaintiffs’ FAC and that demurrer is scheduled for a hearing on December 11, 2019. Plaintiffs have not filed an opposition, which was due on November 26, 2019. In light of the Court’s ruling on the anti-SLAPP motion, some of the relief sought in the demurrer is now moot, and the demurrer could benefit from a more specific discussion of the remaining causes of action’s allegations based on the surviving unprotected activity. Therefore, the Court will discuss with the parties at the hearing whether Defendant should have an opportunity to amend her demurrer and reschedule the hearing. The Court finds such actions are a just use of its authority to ensure this case proceeds forthwith.

CONCLUSION AND ORDER

Defendant’s anti-SLAPP motion is granted as to Plaintiff LGT’s first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety.

Defendant’s anti-SLAPP motion is also granted as to the allegations involving specified protected activity supporting the second, sixth, and ninth causes of action, namely, the following allegations within paragraphs 6 and 9: “Defendant Castaneda engaged in improper and prohibited direct communications with Denise Thomas, a represented party, bribing Denise Thomas with promises of securing baby clothes for her if she would do the case herself without an attorney” (FAC ¶ 6), “[t]herefore, Defendant Castaneda violated ethical rules by communicating extensively directly with Denise Thomas who very much wanted her baby clothes back which were wrongfully taken from her” (FAC ¶ 6), “Defendant Castaneda represented that would be done, but could only be done if Denise Thomas discharged her lawyer there in open court” (FAC ¶ 6), “lying about it under penalty of perjury to the court” (FAC ¶ 9), “[i]n retaliation for the Bar Complaint by Ernest Calhoon, Defendant Castaneda immediately began threatening Denise Thomas with home visits and more” (FAC ¶ 9), “Defendant Castaneda had improper ex-parte communications with a jurist and both on and off the record berated Ernest Calhoon who was not even present” (FAC ¶ 9).

However, the second, sixth, and ninth causes of actions survive because they are also based on unprotected activity, and thus, the Court strikes only the allegations identified above and not the entire claims.

As to Plaintiffs Denise and Calhoon, the Court grants Defendant’s anti-SLAPP motion with respect to the first, third, fourth, fifth, seventh, eighth, and tenth causes of action in their entirety and the allegations involving specified protected activity supporting the second, sixth, and ninth causes of actions only to the extent of finding that Defendant would have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant. However, the Court denies Defendant’s anti-SLAPP motion with respect to Plaintiffs Denise and Cahoon’s second, sixth, and ninth causes of action because these claims are also based on unprotected activity. This denial is only to the extent of finding that Defendant would not have prevailed in her motion to strike these claims if Plaintiffs Denise and Calhoon had not dismissed their claims against Defendant

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: December 6, 2019 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Given that there are two parties with the surname Thomas, the Court refers to them by first names to avoid any confusion.

[2] The tenth cause of action is labeled as the ninth cause of action, which means that there are two ninth causes of action. The Court refers to the second of the two causes of action labeled “ninth cause of action” – Causing Intentional and Negligent Infliction of Emotional Distress -- as the tenth cause of action.

[3] Presumably, the home environment for LGT provided by Gary was dangerous because of the presence of drugs. (See FAC ¶ 9 [LGT “tested dirty for drugs”], 7 [Denise awarded sole custody presumably for this reason].)

[4] Plaintiffs did not serve Defendant with Plaintiffs’ initial complaint. Instead, Plaintiffs served Defendant with Plaintiffs’ FAC on May 18, 2019. (Proof of Service filed on May 20, 2019.) Therefore, Defendant’s motion is timely. (Code Civ. Proc., § 425.16, subd. (f) [60 days within service of complaint].)

[5] The Court notes that Defendant served her anti-SLAPP motion Plaintiffs’ counsel on July 3, 2019 via mail at his service address listed on the FAC and his address listed on the State Bar of California’s website. Defendant served her advancement of the hearing on September 12, 2019 via mail at both mailing addresses and via electronic service. A timely opposition was originally due on November 14, 2019 and due on November 21, 2019 based on the rescheduled hearing date, though this date had passed by the time of the original hearing of November 27, 2019. (Code Civ. Proc., § 1005, subd. (b) [nine court days before hearing].) Plaintiffs have not filed any opposition to this motion.

[6] The documents are not labeled sequentially by letter, i.e., they skip letters B and H.

[7] The Court assumes that Plaintiffs’ reference to “Defendant Croksrey” is meant to refer to Defendant. (FAC 11:23.)

[8] The Court notes that Plaintiffs must do more than allege emotional distress in an anti-SLAPP motion to meet their burden. Plaintiffs must provide sufficient evidence to meet their burden. Nevertheless, the Court notes that Plaintiffs’ allegations lead the Court to believe that Plaintiffs would likely not meet their burden on certain claims even if they opposed Defendant’s anti-SLAPP motion.