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Parties Should Be Required to ‘Meet, Confer’ Before Anti-SLAPP Motion Is Heard—Judge
By a MetNews Staff Writer
A Los Angeles Superior Court judge, in a tentative ruling on an anti-SLAPP motion filed by the county, put forth the proposition that the Legislature ought to require that parties “meet and confer” prior to a hearing on such a matter.
“[T]his Court, for whatever it is worth, must express its frustration over the fact that there is no mandatory ‘meet and confer’ on a special motion to strike,” Judge Randolph Hammock said in a tentative ruling on Tuesday. “There certainly is such a mandatory requirement for an ordinary motion to strike, or on a demurrer.”
The judge cited two portions of the Code of Civil Procedure, §430.41(a), applicable to demurrers, and §435.5(a) which applies to motions to strike.
In light of those requirements, he asked: “Why not have one for a special motion to strike?”
The tentative ruling was in favor of the county. However, the tentative did not become the order of the court; Hammock put the matter over to June 20 to permit further briefing.
While the ruling might change, the judge’s view on the need for meeting and conferring is not apt to be altered.
Deterrent Effect
If a plaintiff or cross-complainant were “given fair warning” that the pleading “was subject to being ‘slapped out,’ either in whole or in part, and there was also a serious probability of a mandatory attorney’s fees award against that party,” Hammock said in the tentative, “this Court has little doubt that you will see either immediate and voluntary dismissals of such complaints, or causes of actions, or other ‘slappable’ language from the complaints as a result of such a mandatory meet and confer process.” He added:
“This Court would urge the California legislators to review and consider this situation and consider requiring a mandatory meet and confer for special motions to strike. Be that as it may, this Court is duty bound to follow the law as it currently stands—not as how it wished it would stand.”
The County of Los Angeles brought its special motion to strike in response to a complaint filed by Ben & Reef Gardens, Inc. That party owns several acres of land in Santa Clarita which is a venue for parties, weddings, and other events.
The complaint (22STCV05516) was filed on Feb. 15, 2022, alleging that the county has taken actions that “contradict both the letter and spirit” of a preliminary injunction issued against Ben & Reef on Jan. 6, 2021, by Judge John Doyle in a separate case (20STCV40645).
Nuisance Action
The county and its health officer, Dr. Muntu Davis, had sued Ben and Reef on Oct. 23, 2020, contending it was in repeated violation of COVID-19 restrictions. Among the relief sought was an injunction barring the defendant and persons connected with it from “conducting, hosting, contracting for, participating in. or attending any large gathering or event at the Subject Property in violation of the Health Orders.”
Hammock’s tentative ruling was that Ben & Reef’s complaint is based on the county’s efforts to enforce the preliminary injunction, constituting protected litigation-related conduct, satisfying the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, and that “Plaintiff has not demonstrated a probability of prevailing on the claims,” as required by the second prong.
Ben & Reef did not file opposition to the anti-SLAPP motion and, instead, filed an amended complaint. Hammock remarked in the tentative:
“To the extent this is an attempted ‘run-around’ of the anti-SLAPP motion, it is unsuccessful.”
He quoted the Third District Court of Appeal as saying in its 2013 opinion in Jkc3h8 v. Colton:
“A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.”
However, Ben & Reef’s attorney, Wilfred Joseph Killian, explained at the hearing that he did not file opposition because he thought a first amended complaint would moot the anti-SLAPP motion. Hammock, sua sponte, ordered the new pleading stricken and gave permission for Kilian to file opposition by June 13, limited to addressing the second prong.
Copyright 2022, Metropolitan News Company