This case was last updated from Los Angeles County Superior Courts on 07/22/2022 at 04:24:31 (UTC).

JOSEPH BRANDSTETTER VS JOHN BRANDSTETTER, ET AL.

Case Summary

On 12/30/2021 JOSEPH BRANDSTETTER filed a Personal Injury - Assault/Battery/Defamation lawsuit against JOHN BRANDSTETTER,. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7531

  • Filing Date:

    12/30/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Assault/Battery/Defamation

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff

BRANDSTETTER JOSEPH

Defendants

BRANDSTETTER JANET

BRANDSTETTER JOHN

NELSON TIMOTHY

Attorney/Law Firm Details

Plaintiff Attorney

DEVEREUX MICHAEL S.

 

Court Documents

Complaint

12/30/2021: Complaint

Summons - SUMMONS ON COMPLAINT

12/30/2021: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

12/30/2021: Notice of Case Assignment - Unlimited Civil Case

Civil Case Cover Sheet

12/30/2021: Civil Case Cover Sheet

Civil Case Cover Sheet

12/30/2021: Civil Case Cover Sheet

Notice of Case Management Conference

1/5/2022: Notice of Case Management Conference

Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCING THE HEARING ON EX PARTE APPLICATION...)

4/21/2022: Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCING THE HEARING ON EX PARTE APPLICATION...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ADVANCING THE HEARING ON EX PARTE APPLICATION...) OF 04/21/2022

4/21/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ADVANCING THE HEARING ON EX PARTE APPLICATION...) OF 04/21/2022

Case Management Statement

4/20/2022: Case Management Statement

Ex Parte Application - EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVE AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE

4/19/2022: Ex Parte Application - EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVE AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER

4/19/2022: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER

Unknown - EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVE AND ORDER CONTINUING THE CASE MANAGEMENT CONFERENCE

7/19/2022: Unknown - EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVE AND ORDER CONTINUING THE CASE MANAGEMENT CONFERENCE

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON EX PARTE APPLICATION F...)

7/19/2022: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON EX PARTE APPLICATION F...)

1 More Documents Available

 

Docket Entries

  • 09/22/2022
  • Hearing09/22/2022 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 07/19/2022
  • Docketat 08:30 AM in Department 76; Hearing on Ex Parte Application (for Extension of Time to Serve Pleading and Order Continuing Case Management Conference) - Held - Motion Granted

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  • 07/19/2022
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Case Management Conference - Not Held - Continued - Party's Motion

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  • 07/19/2022
  • DocketMinute Order ( (Case Management Conference; Hearing on Ex Parte Application f...)); Filed by Clerk

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  • 07/19/2022
  • DocketEx Parte Application for Extension of Time to Serve Pleading and Order extending time to serve and Order continuing the Case Management Conference; Filed by Joseph Brandstetter (Plaintiff)

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  • 04/26/2022
  • Docketat 08:30 AM in Department 76; Hearing on Ex Parte Application (for extension of time to serve pleading and Order extending time to serve and Order continuing Case Management Conference) - Held - Advanced and Heard

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  • 04/26/2022
  • Docketat 08:30 AM in Department 76; Case Management Conference - Not Held - Advanced and Continued - by Court

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  • 04/21/2022
  • Docketat 4:00 PM in Department 76, Christopher K. Lui, Presiding; Court Order

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  • 04/21/2022
  • DocketCertificate of Mailing for ((Court Order Re: Advancing the Hearing on Ex Parte Application...) of 04/21/2022); Filed by Clerk

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  • 04/21/2022
  • DocketMinute Order ( (Court Order Re: Advancing the Hearing on Ex Parte Application...)); Filed by Clerk

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  • 04/20/2022
  • DocketCase Management Statement; Filed by Joseph Brandstetter (Plaintiff)

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  • 04/19/2022
  • DocketEx Parte Application (for extension of time to serve pleading and Order extending time to serve and Order continuing Case Management Conference); Filed by Joseph Brandstetter (Plaintiff)

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  • 01/05/2022
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/30/2021
  • DocketComplaint; Filed by Joseph Brandstetter (Plaintiff)

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  • 12/30/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 12/30/2021
  • DocketSummons (on Complaint); Filed by Joseph Brandstetter (Plaintiff)

    [+] Read More [-] Read Less
  • 12/30/2021
  • DocketCivil Case Cover Sheet; Filed by Joseph Brandstetter (Plaintiff)

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  • 12/30/2021
  • DocketCivil Case Cover Sheet; Filed by Joseph Brandstetter (Plaintiff)

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Tentative Rulings

Case Number: *******7531 Hearing Date: December 20, 2022 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendants filed several actions against him based on fraudulent misrepresentations to the courts.

Plaintiff Joseph Brandstetter brings a motion for sanctions pursuant to CCP 128.7, striking the anti-SLAPP special motion to strike and awarding Plaintiff costs and attorneys fees as sanctions.

TENTATIVE RULING

Defendant Janet Brandstetter and Timothy Nelson’s anti-SLAPP motion to strike was GRANTED. As such, Plaintiff Joseph Brandstetter’s motion for sanctions pursuant to CCP 128.7, striking the anti-SLAPP special motion to strike and awarding Plaintiff costs and attorney’s fees as sanctions is DENIED.



Case Number: *******7531 Hearing Date: November 16, 2022 Dept: 76

Plaintiff alleges that Defendants filed several actions against him based on fraudulent misrepresentations to the courts.

Defendants Janet Brandstetter and Timothy Nelson bring an anti-SLAPP special motion to strike and demurrer as to the Complaint.

TENTATIVE RULING

Defendants Janet Brandstetter and Timothy Nelson’s anti-SLAPP special motion to strike the first throughs seventh causes of action is GRANTED as to moving Defendants Janet Brandstetter and Timothy Nelson.

Plaintiff’s request for leave to amend is DENIED.

Plaintiff’s request to strike this anti-SLAPP special motion to strike pursuant to CCP 128.7 is DENIED.

Defendants may bring a separately-noticed motion to recover attorney’s fees incurred in connection with this anti-SLAPP motion.

Given the ruling on the anti-SLAPP motion, Defendants Janet Brandstetter and Timothy Nelson’s demurrer to the Complaint is MOOT.

ANALYSIS

Anti-SLAPP Special Motions To Strike

Discussion

Defendants Janet Brandstetter and Timothy Nelson bring an anti-SLAPP special motion to strike as to the Complaint.

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue. (Code Civ. Proc., 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

The Defendant’s act underlying the cause of action must itself have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16, subdivision (e) categories: (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., 425.16(e).)

If such a showing is made, the burden now shifts to Plaintiff to show a probability of prevailing on the claim. (Code Civ. Proc., 425.16(b)(1).) To establish a probability of prevailing on the merits, the 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.) In making this assessment it is the court’s responsibility to accept as true the evidence favorable to the plaintiff. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal. App. 4th 204, 212.) The Complaint needs only to establish that his or her claim has minimal merit (Navellier v. Sletten (2002) 29 Cal.4th 82, 89) to avoid being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738.)

“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ( 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.’ (Citation omitted.)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Plaintiff states in the Opposition that an anti-SLAPP special motion to strike is limited to the face of the pleadings. Not only is this incorrect, but, in the Opposition, Plaintiff sets forth a collection of facts he did not plead in the Complaint.

1. Re: Whether the Causes of Action Are Subject To Being Stricken Pursuant to CCP 425.16.

The Complaint alleges the following causes of action: (1) extrinsic fraud; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) libel; (5) privacy—intrusion; (6) abuse of process; (7) false light.

First Cause of Action (Extrinsic Fraud).

This cause of action is based upon Defendants John Brandstetter and Janet Brandstetter filing a domestic violence case on September 15, 2020 against Plaintiff in Los Angeles Superior Court, Pasadena courthouse, Case No. 20WHTO01336. (Complaint, 16.) Plaintiff refers to this as the “Fake DV Case.” (Id.) Plaintiff alleges that Defendants deliberately kept Plaintiff in ignorance as to the Fake DV Case, and Defendant Nelson fraudulently misrepresented to the Court that he had served Plaintiff with notice of the domestic violence hearing. (Id. at 18.) Plaintiff alleges that Defendants obtained a default judgment against Plaintiff. (Id. at 19.)

This cause of action is based upon conduct alleged against both moving defendants Janet Brandstetter and Timothy Nelson.

The filing of a lawsuit is protected activity which is subject to being stricken pursuant to CCP 425.16, even if for an improper purpose:

It is well established that filing a lawsuit is an exercise of a party's constitutional right of petition. (Citations omitted.) " ' "[T]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action." ' " (Citations omitted.) Further, the filing of a judicial complaint satisfies the "in connection with a public issue" component of section 425.16, subdivision (b)(1) because it pertains to an official proceeding. (Citations omitted.) Under these accepted principles, a cause of action arising from a defendant's alleged improper filing of a lawsuit may appropriately be the subject of a section 425.16 motion to strike. (Citation omitted.) The essence of the [*1088] Chavezes' malicious prosecution claim is that the plaintiff in the underlying action (Mendoza) filed litigation that was improper because it was allegedly filed with a malicious motive and without probable cause. This claim "aris[es] from" the defendant's constitutionally protected petitioning activity, and therefore is subject to the anti-SLAPP statute. ( 425.16, subd. (b)(1).)

(Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-88 [bold emphasis added].)

This cause of action is subject to being stricken pursuant to CCP 425.16.

Second Cause of Action (Intentional Infliction of Emotional Distress).

This cause of action is based upon an alleged duty owed by Defendants not to disseminate false information leading to Plaintiff’s arrest. (Complaint, 22.)

This appears to be based upon Plaintiff’s allegation that on July 5, 2019, Defendant John filed a fraudulent, malicious, willful police report with the Los Angeles Sheriff’s Department that caused the filing of a criminal matter against Mr. Brandstetter, Case No.: 9EM03738, in the Superior Court of California, County of Los Angeles. (Id., 8.) Defendant John allegedly tried to exploit the situation by contacting Mr. Brandstetter’s employer in an attempt to have Mr. Brandstetter terminated from his employment. (Id., 9.) After significant expenditures and the cost of Mr. Brandstetter’s freedom, the prosecution dismissed the matter for lack of probable cause. (Id., 10.)

While this cause of action is apparently asserted against moving Defendants it does not appear to be based on any conduct alleged against either moving defendants Janet Brandstetter and Timothy Nelson. Nonetheless, the Court examines whether this cause of action is subject to being stricken pursuant to CCP 425.16.

In the Opposition, Plaintiff argues that making a false police report is not protected activity. However, the rule of law to this effect has been limited to instances where the report was concededly false and illegal by the one making the false report.

Plaintiff's reliance on Lefebvre, supra, 199 Cal.App.4th 696 is misplaced. In that case, the wife conceded that her report to the police was both false and illegal. Here, defendants deny that any report they made to the police was false or illegal. Thus, this case is controlled by the case law holding that when allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16. (See Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712 [151 Cal. Rptr. 3d 406] [“mere allegation that [the defendant] engaged in unlawful … activities is insufficient to render [the defendant's] alleged actions unlawful as a matter of law and outside the protection of … section 425.16”]; Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512 [65 Cal. Rptr. 3d 641] [the defendant's allegedly false report to police that the plaintiff inappropriately touched her was deemed protected activity because there was no uncontroverted evidence showing the report to be false]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569–1570 [31 Cal. Rptr. 3d 368] (Siam) [defendant's allegedly false report to school official was protected activity, notwithstanding plaintiff's allegation of falsity, because no uncontroverted evidence showed that it was false].) In addition, as noted, the police reports dealt with efforts at service of papers in an existing litigation and thus were “made in connection with an issue under consideration or review by a … judicial body.” ( 425.16, subd. (e)(2).)

(Kenne v. Stennis (2014) 230 Cal.App.4th 953, 967 [bold emphasis added].)

Because there is no admission by Defendants that the report to the Sheriff was false, this cause of action is subject to being stricken pursuant to CCP 425.16.

Third Cause of Action (Negligent Infliction of Emotional Distress).

This cause of action is based upon an alleged duty owed by Defendants not to disseminate inaccurate and misleading personal information or to cause him to be arrested, incarcerated and prosecuted. (Complaint, 30.)

For the reasons discussed above as to the first and second causes of action, this cause of action is subject to being stricken pursuant to CCP 425.16.

Fourth Cause of Action (Libel).

This cause of action is based upon the alleged fraud upon the court on July 4, 2019 in a Los Angeles Sheriff’s incident report URN 919-08249-0571-089, which Plaintiff alleges is libelous and slander on its face because it subjects Plaintiff to contempt and ridicule, along with false arrest, incarceration and prosecution. (Complaint, 35.)

The cause of action is also based upon an alleged fraud upon the court on September 15, 2020 and continued throughout 2020 in Case No. 20WHTO1336, as libelous and slanderous. (Id. at 11, 36.) Plaintiff alleges that Defendant John filed this petition, which was full of inaccurate and misleading allegations. (Id. at 11.) s

The Complaint alleges at 12, 37 and 38 as follows:

37. John knowing that there was a complete dearth of evidence to defendants accusations that Plaintiff was conducting himself improperly and immoral conduct so that Defendants engaged Mr. Nelson to fraudulently misrepresent to the court that Mr. Nelson had served Mr. Brandstetter with notice of the domestic violence hearing. Based upon the Mr. Nelson’s fraudulent misrepresentation the court granted the restraining order in default.

38. The fraud upon the court was Defendant Janet Gleasons misrepresentation in case no.: 20STRO006511 which is libelous and slanderous on its fact because it subjects the plaintiff to contempt and ridicule.

13 alleges:

13. Janet knowing that John was having difficulty serving Mr. Brandstetter conspired with John by willfully, wantonly, oppressively, maliciously, fraudulently, and extremely offensive and unconscionable to any person of normal sensibilities filed a domestic violence case against Mr. Brandstetter, case no.: 20STRO06511, in the Superior Court of California, County of Los Angeles. Janet’s petition was dubious at best, laced with deception and inaccuracies.

For the reasons discussed above as to the first and second causes of action, this cause of action is subject to being stricken pursuant to CCP 425.16.

Fifth Cause of Action (Privacy—Intrusion).

This cause of action is based upon the following allegations at 40:

40. On or about July 18, 2020, defendants, without plaintiff’s consent,

invaded plaintiff’s right to privacy by providing inaccurate and fraudulent

information to the County of Los Angeles (the “County”), which in turn the

County having publishing [sic] a derogatory, offensive and objectionable posting of criminal action online which included the identity of the plaintiff, thereby

causing unwanted and unwarranted solicitations by bail bondsman, criminal

defense attorneys, contacting the plaintiff while at home and harassing,

annoying plaintiff in the solitude of his own home.

For the reasons discussed above as to the first and second causes of action, this cause of action is subject to being stricken pursuant to CCP 425.16.

Sixth Cause of Action (Abuse of Process).

This cause of action is based upon the following allegations at 42 and 43:

42. Defendants misused the court process by:

a. Falsely filing a police report that led to the arrest, incarceration and prosecution of a matter that was eventually dismissed.

b. Filing of two restraining order matters in Los Angeles Superior Court action after the dismissal of the criminal case;

c. Not serving the afore-referenced lawsuit on Defendant, but instead falsely claiming the Defendant was served despite the fact that the defendant was nowhere within the county.

d. Improperly inducing Defendant Nelson to change his testimony claiming that Plaintiff was served;

e. By keeping Plaintiff from appearing at a restraining order hearing so the Defendants could not be subject to direct examination by counsel for Plaintiffs;

f. Attempting through obstreperous and meritless restraining orders to hide and cover up Defendants’ improper conduct in the criminal matter;

g. By corresponding with and conspiring with one another to further the plan and conspiracy to wrongfully obtain control and ownership of Plaintiffs’ interest and assets;

h. By directly interfering and damaging the on-going business relationships of the Plaintiff in an attempt to cut off the cash flow of Plaintiffs herein, to coerce and compel them to relinquish their legal rights and assets to Defendants herein.

43. The Defendants in so misusing the process in the above-described manner intended to control the interests and rights of the Plaintiff by inducing the filing fraudulent police report, along with frivolous and meritless restraining orders all in an effort to further the conspiracy to improperly obtain the interests of Plaintiffs herein.

For the reasons discussed above as to the first and second causes of action, this cause of action is subject to being stricken pursuant to CCP 425.16.

Seventh Cause of Action (False Light).

This cause of action is based upon the alleged fraud upon the court on July 4, 2019 in a Los Angeles Sheriff’s incident report URN 919-08249-0571-089, which Plaintiff alleges is libelous and slander on its face because it subjects Plaintiff to contempt and ridicule, along with false arrest, incarceration and prosecution. (Complaint, 46.) The cause of action is also based upon an alleged fraud upon the court on September 15, 2020 and continued throughout 2020 in Case No. 20WHTO1336, as libelous and slanderous. (Id. at 347.)

The Complaint alleges at 48 – 55 as follows:

48. John knowing that there was a complete dearth of evidence to defendants [sic] accusations that Plaintiff was conducting himself improperly and immoral conduct [sic] so that Defendants engaged Mr. Nelson to fraudulently misrepresent to the court that Mr. Nelson had served Mr. Brandstetter with notice of the domestic violence hearing. Based upon the[sic] Mr. Nelson’s fraudulent misrepresentation the court granted the restraining order in default.

49. The fraud upon the court was Defendant Janet Gleasons [sic] misrepresentation in case no.: 20STRO006511 which is libelous and slanderous on its fact [sic] because it subjects the plaintiff to contempt and ridicule.

50. The disclosures by the defendants created publicity in the sense of a public disclosure to a large number of people in that Los Angeles Superior Court posted and published the Plaintiff’s name on the World Wide Web to millions of people.

51. The publicity created by the defendants placed plaintiff in a false light in the public eye in that the posting contained false statements and inaccuracies which incorrectly portrayed plaintiff as a person with criminal conduct along with harassment and stalking.

52. The publicity created by the defendants was offensive and objectionable to the plaintiff and to a reasonable person of ordinary sensibilities in that in made the plaintiff the object of ridicule.

53. The publicity created by the defendants were done with malice in that it was made either with knowledge of its falsity or in reckless disregard of its truth that the statements regarding the plaintiff’s conduct were falsehoods and designed to humiliate and degrade the plaintiff.

54. As a proximate result of the above disclosure, plaintiff was exposed to contempt and ridicule, suffered loss of reputation and standing in the community, all of which caused him humiliation, embarrassment, hurt feelings, mental anguish all to him general damage in an amount according to proof.

55. As a further proximate result of the above-mentioned disclosure, plaintiff has suffered loss of wages and medical costs, all to him special damages according to proof.

For the reasons discussed above as to the first and second causes of action, this cause of action is subject to being stricken pursuant to CCP 425.16.

Accordingly, all seven causes of action are subject to being stricken.

The burden shifts to Plaintiff to demonstrate a probability of prevailing on the claims against moving Defendants Janet Brandstetter and Timothy Nelson.

2. Re: Whether Plaintiff Has Established That There Is A Probability She Will Prevail On The Claims – CCP 425.16(b)(1).

Plaintiff has the burden on the second prong of a SLAPP analysis to establish that there is a probability Plaintiff will prevail on the claims. (Civ. Proc. Code, 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court's responsibility is to accept as true the evidence favorable to the plaintiff … .’ [Citation.] ‘[T]he defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].)

(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-09.)

The Court again emphasizes that, for purposes of this motion, Plaintiff bears the burden of establishing there is a probability of prevailing on each cause of action against moving Defendants Janet Brandstetter and Timothy Nelson. The Court does not address Defendant John Brandstetter’s liability because he is not a moving party in connection with this motion.

Defendants bring up the statute of limitations as a bar to Plaintiff’s causes of action. The Court emphasizes that even if the statute of limitations is not a bar, this does not mean that the motion is defeated. Plaintiff still must demonstrate the probability of prevailing against these moving Defendants. Indeed, Defendants need not have presented any further argument once they met their burden on the first prong of the anti-SLAPP analysis.

Nonetheless, the Court will address the statute of limitations argument. The Complaint was filed on December 30, 2021. Plaintiff alleges that Defendants’ conduct constituted a series of events from July 5, 2019 through January 2021. (Complaint, 6, 7.)

As for causes of action arising from the July 5, 2019 filing of the police report—this is alleged against non-moving Defendant John. (Complaint, 8.) As such, the Court does not address this allegation for purposes of this motion.

As to the September 15, 2020 filing of the domestic violence case, in which Defendants Janet and Nelson allegedly participated, (Complaint, 11, 12, 13, 16, 17, 18), Plaintiff was allegedly ignorant of that case because he was never served. It is unclear whether this cause of action would be barred by the statute of limitations because it is unclear when Plaintiff discovered the existence of the “FAKE DV Case.” It is unclear which statute of limitations would even apply to this cause of action, as Defendants did not specify the applicable limitations period.

Defendants cite the 2-year statute of limitations set forth in CCP 335.1 relative to the intentional infliction of emotional distress and negligent infliction of emotional distress causes of action. As noted, though, the alleged Fake DV Case was filed on September 15, 2020, which is within two years prior to the December 30, 2021 filing of the Complaint. These causes of action were timely asserted.

Defendants cite the one-year statute of limitations set forth in CCP 340(c), applicable to libel. Plaintiff admits the first libel occurred on July 4, 2019—which would be beyond the one-year statute of limitations period relative to the December 30, 2021 filing of the Complaint. Here, because the alleged defamatory publication was made in a Sheriff’s incident report (Complaint, 35), there is no indication that it was available for Plaintiff to discover, and there is no showing when he discovered the existence of this incident report. As such, the statute of limitations does not present a clear bar. The delayed discovery rule applies to defamatory publications when were made in a manner which the plaintiff could not reasonable have been to discover at an earlier date. (Hebrew Acad. of S.F. v. Goldman (2007) 42 Cal.4th 883, 893-95.)

Plaintiff also allege libel in a “fraud upon the court stated on September 15, 2020 and throughout 2020” in the domestic violence case. (Complaint, 36.) Because this was allegedly made in a public proceeding, the delayed discovery rule does not apply (Hebrew Acad. of S.F., supra, 42 Cal.4th at 894-95). Thus, any statements made before December 30, 2020 in the domestic violence case would be time-barred. However, there are other reasons discussed below why the entire libel cause of action fails,

Defendants do not cite the applicable statute of limitations for invasion of privacy, which is two years per CCP 335.1. The alleged invasion of privacy occurred on July 18, 2020 (Complaint, 40), so the statute of limitations would expire on July 18, 2022, after this action was filed.

Defendants argue that the statute of limitations for abuse of process is one year, citing Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 886-87. However, Cantu was decided before CCP 335.1 was amended to extend the statute of limitations for personal injury to two years. As such, the conduct which occurred after December 30, 2019 would not be time-barred. The Court incorporates by reference its discussion above in this regard.

As for the false light claim, Defendants argue that the one-year statute of limitation set forth in CCP 340(c) applies. It is true that a false light claim is viewed as a defamation claim. In this regard, the Court incorporates by reference its discussion above related to libel.

The more pressing issue for Plaintiff is that the Complaint discloses on its face the litigation privilege set forth in Civil Code, 47(b)[1]. To defeat a SLAPP motion, plaintiff must overcome substantive defenses. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 472.)

As noted above, the Complaint alleges the following causes of action: (1) extrinsic fraud; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) libel; (5) privacy—intrusion; (6) abuse of process; (7) false light.

As an initial matter, the fact that the activity is protected speech under the anti-SLAPP statute does not necessarily mean that it qualifies for the litigation privilege. “[T]he litigation privilege and the anti-SLAPP statute are substantively different statutes that serve quite different purposes … .” (Citation omitted.)” (Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 10.)

However, the litigation privilege, where applicable, applies to all common law torts, except malicious prosecution, which is not asserted in the Complaint:

The litigation privilege “precludes liability arising from a publication or broadcast made in a judicial proceeding or other official proceeding.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1172 [131 Cal. Rptr. 3d 478].) Under the usual formulation of the privilege, it 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 [266 Cal. Rptr. 638, 786 P.2d 365] (Silberg).) Silberg emphasizes that, to be protected by the litigation privilege, a communication must be “in furtherance of the objects of the litigation.” (Id. at p. 219.) This is “part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.” (Id. at pp. 219–220.)

(Kettler v. Gould (2018) 22 Cal.App.5th 593, 607 [bold emphasis added].)

“The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] Put another way, application of the privilege does not depend on the publisher's ‘motives, morals, ethics or intent.’ [Citation.] Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution. [Citations.] Moreover, ‘[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.] [*1343] [ ] … [ ] ‘[The] absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on “[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.” [Citation.]’ [Citation.]

(American Products Co., Inc. v. Law Offices of Geller, Stewart & Foley, LLP (2005) 134 Cal.App.4th 1332, 1342-43.)

The general principles governing the application of the litigation privilege are familiar. The privilege applies to any publication or other communication required or permitted by law in the course of a judicial or quasi-judicial proceeding to achieve the objects of the litigation, whether or not the publication is made in the courtroom or in court pleadings, and whether or not any function of the court or its officers is involved. (Citations omitted.) . . .

[*1141]

. . . The Supreme Court has characterized the third prong of the foregoing test, the requirement that a communication be in furtherance of the objects of the litigation, as being "simply part of" the fourth, the requirement that the communication be connected with, or have some logical relation to, the action. (Silberg v. Anderson, supra, 50 Cal. 3d at pp. 219-220.) The high court has specifically disapproved any interpretation of the "furtherance" requirement as a test of the motives, morals, ethics or intent of the person claiming the privilege. ( Id. at p. 220.) . . .

(Rothman v. Jackson (1996) 49 Cal. App. 4th 1134, 1140-41.)

The tort of abuse of process is barred by the litigation privilege, which protects a “publication or broadcast … . [ ] … [ ] (b) In any … (2) judicial [*1430] proceeding … .” (Civ. Code, 47, subd. (b)(2), italics added.) Section 47, subdivision (b)(2) is a defense to an abuse of process action. . . . Doubts about the privilege’s applicability are resolved in favor of its use. (Ibid.)

This court held the Civil Code section 47, subdivision (b)(2) privilege applied to bar a claim for abuse of process for the filing of an allegedly false document valuing a husband’s medical practice in a dissolution action. In Carden v. Getzoff, supra, 190 Cal. App. 3d at page 913, we stated, “While courts have argued about the scope of the privilege [citation], it is clear that ‘the privilege has been applied to publications which were private communications between parties and which communications were related not only to actual but potential court actions.’ [Citation.]” Thus, we held that publications made in preparing documents for submission to the court in a dissolution proceeding, as well as the defendant’s testimony at the trial, were covered by the absolute privilege of former section 47, subdivision (b)(2), because they were part of a judicial proceeding, where the dissolution action was pending, and the defendant had been hired as an expert witness for the appellant’s wife. “This situation is clearly part of a judicial proceeding … .” (Carden, at p. 913.)

(Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1429-30.)

Moreover, the litigation privilege applies to reports to law enforcement personnel of suspected criminal activity:

Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 [7 Cal. Rptr. 3d 803, 81 P.3d 244], [is] a case in which our Supreme Court held the litigation privilege of Civil Code section 47, subdivision (b), applies to communications made to law enforcement personnel reporting suspected criminal activity. (32 Cal.4th at p. 355.) The court explained that the litigation privilege “serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘ “assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” ’ [Citation.] We have explained that both the effective administration of justice and the citizen's right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings.” (Id. at pp. 360–361, italics omitted.) Consistent with this purpose, the litigation privilege “ ‘protect[s] communications to or from governmental officials which may precede the initiation of formal proceedings.’ [Citation.]” (Id. at p. 362.)

(Burrill v. Nair (2013) 217 Cal.App.4th 357, 397, overruled in part on other grounds in Baral v. Schnitt (2016) 1 Cal.4th 376, 391.)

In the Opposition, not only does Plaintiff fail to address the litigation privilege, Plaintiff does not even address the elements of each cause of action and why he will prevail on each, especially against moving Defendants Janet Brandstetter and Timothy Nelson. Indeed, Plaintiff did not submit any evidence in support of the opposition.

In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. (Citation omitted.) Thus, declarations may not be based upon “information and belief” (citation omitted) and documents submitted without the proper foundation are not to be considered. (Citation omitted.)

The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff (citation omitted) and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Citations omitted.) The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward. (Citation omitted.)

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [bold emphasis added].)

Plaintiff has not met its burden of demonstrating a probability of success on any cause of action.

As such, Defendants’ anti-SLAPP special motion to strike the first throughs seventh causes of action is GRANTED as to moving Defendants Janet Brandstetter and Timothy Nelson.

Plaintiff’s request for leave to amend is DENIED. “When a cause of action is dismissed pursuant to section 425.16, the plaintiff has no right to amend the claim.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1293.)

Needless to say, because the anti-SLAPP special motion to strike was granted, Plaintiff’s request to strike this anti-SLAPP special motion to strike pursuant to CCP 128.7 is DENIED.

Defendants may bring a separately-noticed motion to recover attorney’s fees incurred in connection with this anti-SLAPP motion.

Demurrer

Given the ruling on the motion discussed above, Defendants Janet Brandstetter and Timothy Nelson’s demurrer to the Complaint is MOOT.


[1] Defendants cite the litigation privilege set forth in Civil Code, 47b at Page 19:19, as against the libel cause of action. However, the privilege would apply to all causes of action,.



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