Metropolitan News-Enterprise


Wednesday, February 28, 2018


Page 1


Allegations in Complaint Govern in Anti-SLAPP Hearing—C.A.

Admission by Defendant That Conduct Giving Rise to Action Did Not Stem From Protected Activity Is to Be Disregarded Where Plaintiff’s Pleading Indicates to the Contrary—Presiding Justice Lui


By a MetNews Staff Writer


The Court of Appeal for this district has held that the first prong of the anti-SLAPP statute is met if the complaint alleges conduct implicating the right of free speech or petition even though the defendants’ own declarations deny that such protected activity actually occurred.

Div. Two’s opinion in the case was filed late Monday. It reverses Los Angeles Superior Court Judge Mel Red Recana’s order denying an anti-SLAPP motion on the ground that the first prong—protected activity—had not been established by the defendants, and had actually been rebutted by them.

While the complaint filed by plaintiff Bel Air Internet, LLC alleges that defendants Albert Morales and Flavio Delabra tried to mobilize fellow employees of Bel Air to quit and sue for Labor Code violations, which would constitute protected prelitigation activity, Recana relied on declarations of the defendants denying the allegation.

They declared under penalty of perjury that they “did not ‘seek to encourage other BEL AIR employees to quit and sue BEL AIR.’ ”

In explaining the reversal, Presiding Justice Elwood Lui said that appellants Morales and Delabra, in bringing their motion under the anti-SLAPP statute, Code of Civil Procedure §425.16, “could rely on Bel Air’s allegations that they urged other employees to quit and sue, even though Appellants denied engaging in this conduct.”

He reasoned:

“While section 425.16 requires a court to consider both the ‘pleadings’ and the ‘supporting and opposing affidavits stating the facts upon which the liability or defense is based’…, it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims. Otherwise, a defendant who disputes the plaintiff’s allegations (as appellants do here) might be precluded from bringing an anti-SLAPP motion. That would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address.”

Lui elaborated:

“As in this case, a defendant may deny acts alleged in the plaintiff’s complaint yet also recognize that those allegations describe protected conduct. If the defendant is required to support an anti-SLAPP motion with evidence about the nature of his or her conduct rather than relying on the complaint itself, the defendant might not be able to do so without contradicting his or her own understanding of the relevant events….[T]his would create an irrational procedure in which a defendant is precluded from mounting an anti-SLAPP challenge to factually baseless claims.”

Odd Procedural Posture

The case is a rare procedural posture inasmuch as the opinion affirms a secondary determination that is normally not made if the preliminary determination is, as in this case, against the moving party.

Ordinarily, if a judge finds that the first prong of the anti-SLAPP statute is not satisfied, the inquiry ends; whether the plaintiff can show a probability of prevailing on the merits—the second prong—is examined only if there is a finding that the conduct that is complained of does constitute protected activity.

But here, Recana said in his tentative ruling that the complaint filed by plaintiff Bel Air did reveal protected prelitigation activity. He found that “allegations that defendants advised, counseled, encouraged, and sought to persuade various Bel Air employees to pursue employment-related lawsuits against Bel Air, and that defendants encouraged other Bel Air employees to quit and sue fall under” the anti-SLAPP statute.

Those allegations were the bases of the first three causes of action.

Having, at that point, concluded that the first prong was satisfied, he considered whether Bel Air had shown a probability of succeeding on the merits, and found that it hadn’t because the “litigation privilege applies to the litigation-related activity.”

Supplemental Briefing

After the hearing, Recana ordered supplemental briefing as to whether, at the prelitigation stage, Morales and Delabra “were in good faith seriously considering suing the plaintiff.” After reviewing additional briefing and declarations, the judge determined that “the defendants were NOT in good faith seriously considering suing the plaintiff in their prelitigation activities.”

Recana held that the first prong was not satisfied, but affirmed his determination that the second prong was.

As a consequence, the reversal in connection with the first prong did not necessitate a remand for consideration of whether the second prong was met.

The opinion orders that the first cause of action, for intentional interference with contractual relations, be dismissed and declares that allegations in the second and third causes of action “that are based on the claim that Appellants encouraged other employees to quit and sue must be stricken.”

It decrees that Morales and Delabra are to receive attorney fees on appeal and directs “further proceedings on the remaining portions of Bel Air’s complaint and on Appellants’ cross-complaint.”

The case is Bel Air Internet, LLC v. Morales, 2018 S.O.S. 941.

Douglas N. Silverstein, Mia Munro and Geoffrey L. Bryan of Kesluk, Silverstein & Jacob represented Morales and Delabra. Paul B. Derby, John J. O’Kane IV and Mane Sardaryan of Skiermont Derby acted for Bel Air.


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