Preview
1 CANDICE N. HAMANT, ESQ. (SB# 184016)
ELECTRONICALLY
Chamant@tysonmendes.com
2 TYSON & MENDES LLP FILED
Superior Court of California,
371 Bel Marin Keys Blvd., Suite 100 County of San Francisco
3 Novato, CA 94949 08/01/2023
Telephone: (628) 253-5070 Clerk of the Court
4
Facsimile: (628) 299-7764 BY: EDWARD SANTOS
Deputy Clerk
5
Attorneys for Defendant,
6 STACEY SOLOMAN (erroneously sued as “STACY SOLOMAN”)
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SAN FRANCISCO
9
10 SHARON ALLEN 1 to 500 JOHN & JANE DOES Case No.: CGC-23-605806
11 Plaintiffs, MEMORANDUM OF POINTS AND
AUTHORITY IN SUPPORT OF
12 v. STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT
13 RELATED MANAGEMENT CO., LA SALLE TO CODE OF CIVIL PROCEDURE
APT. BUILDING COMPLEX CO., STACY SECTION 425.16 (ANTI-SLAPP
14 SOLOMAN and Does 1-500 MOTION)
15 DATE: August 29, 2023
Defendants. TIME: 9:30 a.m.
16 DEPT: 302
17 Case Filed: April 13, 2023
Trial Date: Not Set
18
I. INTRODUCTION
19
Defendant STACEY SOLOMAN at all times relevant to this complaint was a California
20
licensed process server. Ms. Soloman served an unlawful detainer summons and complaint on
21
plaintiff on behalf of plaintiff’s landlord. Plaintiff filed this lawsuit claiming Ms. Soloman
22
improperly served her.
23
Lawsuits like this one, which attempt to chill the constitutional right of free speech and
24
infringe upon the privileged communications in judicial proceedings, are barred by California’s
25
Anti-SLAPP statute. Plaintiff cannot establish a probability of success on her claim to survive
26
this motion to strike.
27
///
28
1
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1
II. RELEVANT ALLEGED FACTS AND PROCEDURAL HISTORY
2
Plaintiff’s complaint arises from the unlawful detainer proceedings initiated by her
3
landlord. While the allegations are difficult to ascertain from the 143-page hand-written first
4
amended complaint, it appears plaintiff alleges the following against Ms. Soloman:
5
• Ms. Soloman is a California registered process server. Request for Judicial Notice
6
(“RJN”) No. 1, first amended complaint (“FAC”), pp. 1, 2 and 7.
7
• Ms. Soloman served a “false 10-day notice” “causing a wrongful eviction.” Id. at p. 2.
8
• Ms. Soloman lied and committed perjury and fraud by declaring in the proof of service
9
attached to the complaint as Exhibit 9 (“Page #81 of #133”) that she served plaintiff by
10
leaving the summons and complaint with a “white skin color female” while “the skin
11
color of the plaintiff Sharon Allen (+ her kids) are black!” FAC, p. 8.
12
• The proof of service and declaration of due diligence filed constituted “fraud [sp],
13
negligence, premises liability, breach of contract, implied warranty, obstruction of justice,
14
violation of the law pertaining to declaring under penalty of perjury under laws of the
15
State of California . . . wrongful eviction + also retaliatory eviction, violation of
16
constitutional law . . . all of which further compounded the hardship + intentional
17
infliction of very level of emotional distress.” Id.
18
• As a result of “the bold face very scandalous + pathological fraud lying + very defective
19
serving of first step of the eviction process . . . after the completion of the very defective
20
serving of 10 day notice . . . San Francisco’s sherriff’s [sp] department performed the
21
wrongful eviction on plaintiff . . . + her kids.” FAC pp. 21-22.
22
• “When the defendant Stacey Soloman proformed [sp] + did the first step of the overall
23
eviction procedure . . . defendant Stacey Soloman joined in on the housing harassment
24
discrimination, personal injury of very high set levels of intentional infliction of
25
emotional distress, breaches of contract, and premises liability, general negligence + very
26
professional pertaining to all the above & also following causes of action [sp]
27
complaints.” FAC p. 25. Ms. Soloman did all this “in order to further the overall eviction
28
2
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1
process.” Id.
2
III. THE COURT HAS AUTHORITY TO GRANT DEFENDANT STACEY
3 SOLOMAN’S SPECIAL MOTION TO STRIKE.
4 A. Anti-SLAPP statute provides procedure for quickly dismissing lawsuits
5 violating first amendment rights.
The California legislature enacted Code of Civil Procedure section 425.16 to provide for
6
the early dismissal of meritless suits aimed at chilling the valid exercise of the constitutional
7
rights of freedom of speech and petition for the redress of grievances. See Code
8
Civ. Proc. § 425.16(a); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37
9
Cal.App.4th 855, 858-59. These meritless lawsuits are often referred to as “Strategic Lawsuits
10
Against Public Participation” or “SLAPP” suits. Id. The point of the anti-SLAPP statute is to
11
have the right not to be dragged through the courts because of an exercise of constitutional rights.
12
Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193. The legislature explicitly
13
directed that the anti-SLAPP statute “shall be construed broadly.” Code
14
Civ. Proc.§ 425.16(a). Pursuant to Code of Civil Procedure section 425.16(c)(1), “a prevailing
15
defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees or
16
costs.”
17
B. There is a two-step analysis for an anti-SLAPP motion to strike.
18
The court conducts a two-step analysis to determine whether a complaint should be
19
stricken pursuant to the anti-SLAPP statute. Navallier v. Sletten (2002) 29 Cal.4th 82, 88. First,
20
the court decides whether the “defendant has made a threshold showing that the challenged cause
21
of action is one arising from a protected activity. Id. Protected activities include “any act in
22
furtherance of a person’s right of petition or free speech under the United States or California
23
Constitution in connection with a public issue.” Code Civ. Proc. § 425.16(e).
24
Once a defendant makes a threshold showing that plaintiff’s complaint arises from a
25
statutorily protected activity, the burden then shifts to the plaintiff to establish a “probability” he
26
will prevail on whatever claims are asserted against the defendant. Code Civ. Proc. § 425.16(b).
27
28
3
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1
Plaintiff must show “the complaint is both legally sufficient and supported by a sufficient prima
2
facie showing of facts to sustain a favorable judgment.” Premier Med. Mgmt. Systems, Inc. v.
3
California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476. In making its determination, the
4
court “shall consider the pleadings, and supporting and opposing affidavits stating the facts upon
5
which the liability or defense is based.” Code Civ. Proc. § 425.16(b)(2).
6
As shown below, the gravamen of plaintiff’s complaint against Ms. Soloman is her
7
performance of her job as a California register process server to service process of the unlawful
8
detainer proceeding on plaintiff, and plaintiff cannot prevail on any of the causes of action pled
9
because Ms. Soloman’s actions are protected and not otherwise actionable.
10
C. Defendant’s actions arise from protected litigation-related activity.
11
The first inquiry is the “principal thrust or gravamen of plaintiff’s cause of action.”
12
Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188. Under the anti-
13
SLAPP statute, the phrase “cause of action…arising from” means simply the defendant’s act
14
underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right
15
of petition or free speech. Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511.
16
Statements, writings and pleadings in connection with civil litigation are covered by the
17
anti-SLAPP statute, and the statute does not require any showing that the litigated matter
18
concerns a matter of public interest. Briggs v. Eden Council for Hope & Opportunity (1999) 19
19
Cal.4th 1106, 1115; Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137
20
Cal.App.4th 1, 5. Section 425.16 is “construed broadly, to protect the right of litigants to the
21
utmost freedom of access to the courts without the fear of being harassed subsequently by
22
derivative tort actions.” Rubin v. Green (1993) 4 Cal.4th 1187, 1194; see Code Civ. Proc. §
23
425.16(a).
24
Here, plaintiff’s complaint against Ms. Soloman falls squarely within the anti-SLAPP
25
statute. The entirety of the complaint against Ms. Soloman rests on her undertaking to serve
26
documents on plaintiff for plaintiff’s landlord’s unlawful detainer proceedings. Each of the
27
causes of action alleged is underpinned by Ms. Soloman’s service of the unlawful detainer
28
4
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1
documents. Even the causes of action for wrongful and retaliatory eviction is alleged against Ms.
2
Soloman, stating that by fraudulently and defectively serving the 10-day notice Ms. Soloman join
3
in and furthered the housing harassment and discrimination. Ms. Soloman’s statement,
4
declaration and conduct are in connection with the unlawful detainer and thus covered by the
5
anti-SLAPP statute. Each of plaintiff’s causes of action arise out of this protected litigation
6
activity. As such, plaintiff cannot base her claim on those protect activities.
7
D. Plaintiff cannot establish a probability of prevailing on the merits of her
8 claims.
9 If the defendant establishes the cause of action arises out of a protected activity as
10 outlined in Code of Civil Procedure section 425.16(e), the burden shifts to the plaintiff to
11 establish a probability she will prevail on the merits. Chabak, supra, 54 Cal.App.4th at 1509.
12 Civil Code section 47(b)(2) provides in pertinent part that a publication made in a judicial
13 proceeding is absolutely privileged. The statutory privilege applies to any communication made
14 in a judicial proceeding, by litigants or other participants authorized by law, made to achieve the
15 purpose of the litigation, and having some connection or relation to the action. Silberg v.
16 Anderson (1990) 50 Cal.3d 205, 212. The resulting litigation privilege operates as a limitation
17 on liability, precluding use of the protected communications and statements as the basis for a tort
18 action other than for malicious prosecution. Thus, section 47(b) creates what in many other
19 contexts is termed an “immunity from suit.” Ramalingam v. Thompson (2007) 151 Cal.App.4th
20 491, 499.
21 Here, plaintiff will be unable to establish a probability of prevailing on the merits because
22 the basis of plaintiff’s claim against Ms. Soloman is her statement, declaration and conduct in in
23 connection with the unlawful detainer. Ms. Soloman’s declaration in the proof of service and
24 service of documents pertaining to the unlawful detainer are all protected by the litigation
25 privilege. The privilege is not limited to statements made during a trial or other proceedings, but
26 may extend to steps taken prior thereto, or afterwards. All the conduct that is the basis of
27 plaintiff’s complaint—service of the 10-day notice, declaration of due diligence and statement for
28
5
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1
the proof of service—were steps taken as part of the unlawful detainer action.
2
The complaint here against Ms. Soloman is based entirely upon the unlawful detainer.
3
These activities are not merely cited as evidence of wrongdoing or activities “triggering” the
4
filing of an action that arises out of some other independent activity. These are the challenged
5
activities and the bases for all causes of action against Ms. Soloman. Therefore, the probability of
6
plaintiff’s prevailing is zero since all of the allegations against Ms. Sololman are privileged.
7
IV. PRO PER LITIGANTS ARE NOT ENTITLED TO PREFERENTIAL
8 TREATMENT
9 The California Supreme Court makes it clear pro per litigants are not entitled to special
10 treatment. “Mere self-representation is not a ground for exceptionally lenient treatment.”
11 Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985. Rather, “the rules of civil procedure must
12 apply equally to parties represented by counsel and those who forego attorney representation.”
13 Id., citing to Lawrence v. Sup. Ct. (1988) 206 Cal.App.3d 611, 619. According to the California
14 Supreme Court, “a doctrine generally allowing or permitting exceptional treatment of parties who
15 represent themselves would lead to a quagmire in the trial courts and would be unfair to the other
16 parties to litigation.” Rappleyea, supra, at 985.
17 V. AN AWARD OF ATTORNEYS’ FEES IS MANDATORY TO A PREVAILING
18 DEFENDANT UNDER THE ANTI-SLAPP STATUTE
Code of Civil Procedure section 425.16(c) mandates that a defendant who prevails on an
19
anti-SLAPP motion shall be entitled to recover attorneys’ fees. The statute, as construed by case
20
law, allows fees to be awarded either simultaneously when granting the motion, or later, in a
21
motion for an award of fees as an element of costs under Code of Civil Procedure section 1033.5.
22
American Humane Ass’n. v. Los Angeles Times (2001) 92 Cal.App.4th 1095, 1103-1104.
23
Exceptions under Government Code sections 11130, 11130.3, 54960, 54960.1 and 7923.100 do
24
not apply here as the defendants are not agents of the government or a government entity.
25
Therefore, Ms. Soloman are entitled to an award of attorneys’ fees if they prevail on this motion.
26
///
27
28
6
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
1 VI. CONCLUSION
2 The face of the complaint shows it is a SLAPP, triggering the protection afforded to Ms.
3 Soloman under Code of Civil Procedure section 425.16. Furthermore, the complaint also shows
4 the litigation privilege defense applies, and plaintiff cannot show she is likely to prevail on any of
5 her causes of action against Ms. Soloman. As such, Ms. Soloman respectfully requests the court
6 strike the entire complaint and award Ms. Soloman attorneys’ fees.
7 Dated: August 1, 2023 TYSON & MENDES LLP
8
9 By ________________________________
CANDICE HAMANT
10 Attorneys for Defendant,
STACEY SOLOMAN (erroneously sued as
11 “STACY SOLOMAN”)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP
MOTION)
Preview
1 CANDICE N. HAMANT, ESQ. (SB# 184016) ELECTRONICALLY Chamant@tysonmendes.com 2 TYSON & MENDES LLP FILED Superior Court of California, 371 Bel Marin Keys Blvd., Suite 100 County of San Francisco 3 Novato, CA 94949 08/01/2023 Telephone: (628) 253-5070 Clerk of the Court 4 Facsimile: (628) 299-7764 BY: EDWARD SANTOS Deputy Clerk 5 Attorneys for Defendant, 6 STACEY SOLOMAN (erroneously sued as “STACY SOLOMAN”) 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN FRANCISCO 9 10 SHARON ALLEN 1 to 500 JOHN & JANE DOES Case No.: CGC-23-605806 11 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF 12 v. STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT 13 RELATED MANAGEMENT CO., LA SALLE TO CODE OF CIVIL PROCEDURE APT. BUILDING COMPLEX CO., STACY SECTION 425.16 (ANTI-SLAPP 14 SOLOMAN and Does 1-500 MOTION) 15 DATE: August 29, 2023 Defendants. TIME: 9:30 a.m. 16 DEPT: 302 17 Case Filed: April 13, 2023 Trial Date: Not Set 18 I. INTRODUCTION 19 Defendant STACEY SOLOMAN at all times relevant to this complaint was a California 20 licensed process server. Ms. Soloman served an unlawful detainer summons and complaint on 21 plaintiff on behalf of plaintiff’s landlord. Plaintiff filed this lawsuit claiming Ms. Soloman 22 improperly served her. 23 Lawsuits like this one, which attempt to chill the constitutional right of free speech and 24 infringe upon the privileged communications in judicial proceedings, are barred by California’s 25 Anti-SLAPP statute. Plaintiff cannot establish a probability of success on her claim to survive 26 this motion to strike. 27 /// 28 1 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 II. RELEVANT ALLEGED FACTS AND PROCEDURAL HISTORY 2 Plaintiff’s complaint arises from the unlawful detainer proceedings initiated by her 3 landlord. While the allegations are difficult to ascertain from the 143-page hand-written first 4 amended complaint, it appears plaintiff alleges the following against Ms. Soloman: 5 • Ms. Soloman is a California registered process server. Request for Judicial Notice 6 (“RJN”) No. 1, first amended complaint (“FAC”), pp. 1, 2 and 7. 7 • Ms. Soloman served a “false 10-day notice” “causing a wrongful eviction.” Id. at p. 2. 8 • Ms. Soloman lied and committed perjury and fraud by declaring in the proof of service 9 attached to the complaint as Exhibit 9 (“Page #81 of #133”) that she served plaintiff by 10 leaving the summons and complaint with a “white skin color female” while “the skin 11 color of the plaintiff Sharon Allen (+ her kids) are black!” FAC, p. 8. 12 • The proof of service and declaration of due diligence filed constituted “fraud [sp], 13 negligence, premises liability, breach of contract, implied warranty, obstruction of justice, 14 violation of the law pertaining to declaring under penalty of perjury under laws of the 15 State of California . . . wrongful eviction + also retaliatory eviction, violation of 16 constitutional law . . . all of which further compounded the hardship + intentional 17 infliction of very level of emotional distress.” Id. 18 • As a result of “the bold face very scandalous + pathological fraud lying + very defective 19 serving of first step of the eviction process . . . after the completion of the very defective 20 serving of 10 day notice . . . San Francisco’s sherriff’s [sp] department performed the 21 wrongful eviction on plaintiff . . . + her kids.” FAC pp. 21-22. 22 • “When the defendant Stacey Soloman proformed [sp] + did the first step of the overall 23 eviction procedure . . . defendant Stacey Soloman joined in on the housing harassment 24 discrimination, personal injury of very high set levels of intentional infliction of 25 emotional distress, breaches of contract, and premises liability, general negligence + very 26 professional pertaining to all the above & also following causes of action [sp] 27 complaints.” FAC p. 25. Ms. Soloman did all this “in order to further the overall eviction 28 2 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 process.” Id. 2 III. THE COURT HAS AUTHORITY TO GRANT DEFENDANT STACEY 3 SOLOMAN’S SPECIAL MOTION TO STRIKE. 4 A. Anti-SLAPP statute provides procedure for quickly dismissing lawsuits 5 violating first amendment rights. The California legislature enacted Code of Civil Procedure section 425.16 to provide for 6 the early dismissal of meritless suits aimed at chilling the valid exercise of the constitutional 7 rights of freedom of speech and petition for the redress of grievances. See Code 8 Civ. Proc. § 425.16(a); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 9 Cal.App.4th 855, 858-59. These meritless lawsuits are often referred to as “Strategic Lawsuits 10 Against Public Participation” or “SLAPP” suits. Id. The point of the anti-SLAPP statute is to 11 have the right not to be dragged through the courts because of an exercise of constitutional rights. 12 Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193. The legislature explicitly 13 directed that the anti-SLAPP statute “shall be construed broadly.” Code 14 Civ. Proc.§ 425.16(a). Pursuant to Code of Civil Procedure section 425.16(c)(1), “a prevailing 15 defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees or 16 costs.” 17 B. There is a two-step analysis for an anti-SLAPP motion to strike. 18 The court conducts a two-step analysis to determine whether a complaint should be 19 stricken pursuant to the anti-SLAPP statute. Navallier v. Sletten (2002) 29 Cal.4th 82, 88. First, 20 the court decides whether the “defendant has made a threshold showing that the challenged cause 21 of action is one arising from a protected activity. Id. Protected activities include “any act in 22 furtherance of a person’s right of petition or free speech under the United States or California 23 Constitution in connection with a public issue.” Code Civ. Proc. § 425.16(e). 24 Once a defendant makes a threshold showing that plaintiff’s complaint arises from a 25 statutorily protected activity, the burden then shifts to the plaintiff to establish a “probability” he 26 will prevail on whatever claims are asserted against the defendant. Code Civ. Proc. § 425.16(b). 27 28 3 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 Plaintiff must show “the complaint is both legally sufficient and supported by a sufficient prima 2 facie showing of facts to sustain a favorable judgment.” Premier Med. Mgmt. Systems, Inc. v. 3 California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476. In making its determination, the 4 court “shall consider the pleadings, and supporting and opposing affidavits stating the facts upon 5 which the liability or defense is based.” Code Civ. Proc. § 425.16(b)(2). 6 As shown below, the gravamen of plaintiff’s complaint against Ms. Soloman is her 7 performance of her job as a California register process server to service process of the unlawful 8 detainer proceeding on plaintiff, and plaintiff cannot prevail on any of the causes of action pled 9 because Ms. Soloman’s actions are protected and not otherwise actionable. 10 C. Defendant’s actions arise from protected litigation-related activity. 11 The first inquiry is the “principal thrust or gravamen of plaintiff’s cause of action.” 12 Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188. Under the anti- 13 SLAPP statute, the phrase “cause of action…arising from” means simply the defendant’s act 14 underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right 15 of petition or free speech. Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511. 16 Statements, writings and pleadings in connection with civil litigation are covered by the 17 anti-SLAPP statute, and the statute does not require any showing that the litigated matter 18 concerns a matter of public interest. Briggs v. Eden Council for Hope & Opportunity (1999) 19 19 Cal.4th 1106, 1115; Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 20 Cal.App.4th 1, 5. Section 425.16 is “construed broadly, to protect the right of litigants to the 21 utmost freedom of access to the courts without the fear of being harassed subsequently by 22 derivative tort actions.” Rubin v. Green (1993) 4 Cal.4th 1187, 1194; see Code Civ. Proc. § 23 425.16(a). 24 Here, plaintiff’s complaint against Ms. Soloman falls squarely within the anti-SLAPP 25 statute. The entirety of the complaint against Ms. Soloman rests on her undertaking to serve 26 documents on plaintiff for plaintiff’s landlord’s unlawful detainer proceedings. Each of the 27 causes of action alleged is underpinned by Ms. Soloman’s service of the unlawful detainer 28 4 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 documents. Even the causes of action for wrongful and retaliatory eviction is alleged against Ms. 2 Soloman, stating that by fraudulently and defectively serving the 10-day notice Ms. Soloman join 3 in and furthered the housing harassment and discrimination. Ms. Soloman’s statement, 4 declaration and conduct are in connection with the unlawful detainer and thus covered by the 5 anti-SLAPP statute. Each of plaintiff’s causes of action arise out of this protected litigation 6 activity. As such, plaintiff cannot base her claim on those protect activities. 7 D. Plaintiff cannot establish a probability of prevailing on the merits of her 8 claims. 9 If the defendant establishes the cause of action arises out of a protected activity as 10 outlined in Code of Civil Procedure section 425.16(e), the burden shifts to the plaintiff to 11 establish a probability she will prevail on the merits. Chabak, supra, 54 Cal.App.4th at 1509. 12 Civil Code section 47(b)(2) provides in pertinent part that a publication made in a judicial 13 proceeding is absolutely privileged. The statutory privilege applies to any communication made 14 in a judicial proceeding, by litigants or other participants authorized by law, made to achieve the 15 purpose of the litigation, and having some connection or relation to the action. Silberg v. 16 Anderson (1990) 50 Cal.3d 205, 212. The resulting litigation privilege operates as a limitation 17 on liability, precluding use of the protected communications and statements as the basis for a tort 18 action other than for malicious prosecution. Thus, section 47(b) creates what in many other 19 contexts is termed an “immunity from suit.” Ramalingam v. Thompson (2007) 151 Cal.App.4th 20 491, 499. 21 Here, plaintiff will be unable to establish a probability of prevailing on the merits because 22 the basis of plaintiff’s claim against Ms. Soloman is her statement, declaration and conduct in in 23 connection with the unlawful detainer. Ms. Soloman’s declaration in the proof of service and 24 service of documents pertaining to the unlawful detainer are all protected by the litigation 25 privilege. The privilege is not limited to statements made during a trial or other proceedings, but 26 may extend to steps taken prior thereto, or afterwards. All the conduct that is the basis of 27 plaintiff’s complaint—service of the 10-day notice, declaration of due diligence and statement for 28 5 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 the proof of service—were steps taken as part of the unlawful detainer action. 2 The complaint here against Ms. Soloman is based entirely upon the unlawful detainer. 3 These activities are not merely cited as evidence of wrongdoing or activities “triggering” the 4 filing of an action that arises out of some other independent activity. These are the challenged 5 activities and the bases for all causes of action against Ms. Soloman. Therefore, the probability of 6 plaintiff’s prevailing is zero since all of the allegations against Ms. Sololman are privileged. 7 IV. PRO PER LITIGANTS ARE NOT ENTITLED TO PREFERENTIAL 8 TREATMENT 9 The California Supreme Court makes it clear pro per litigants are not entitled to special 10 treatment. “Mere self-representation is not a ground for exceptionally lenient treatment.” 11 Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985. Rather, “the rules of civil procedure must 12 apply equally to parties represented by counsel and those who forego attorney representation.” 13 Id., citing to Lawrence v. Sup. Ct. (1988) 206 Cal.App.3d 611, 619. According to the California 14 Supreme Court, “a doctrine generally allowing or permitting exceptional treatment of parties who 15 represent themselves would lead to a quagmire in the trial courts and would be unfair to the other 16 parties to litigation.” Rappleyea, supra, at 985. 17 V. AN AWARD OF ATTORNEYS’ FEES IS MANDATORY TO A PREVAILING 18 DEFENDANT UNDER THE ANTI-SLAPP STATUTE Code of Civil Procedure section 425.16(c) mandates that a defendant who prevails on an 19 anti-SLAPP motion shall be entitled to recover attorneys’ fees. The statute, as construed by case 20 law, allows fees to be awarded either simultaneously when granting the motion, or later, in a 21 motion for an award of fees as an element of costs under Code of Civil Procedure section 1033.5. 22 American Humane Ass’n. v. Los Angeles Times (2001) 92 Cal.App.4th 1095, 1103-1104. 23 Exceptions under Government Code sections 11130, 11130.3, 54960, 54960.1 and 7923.100 do 24 not apply here as the defendants are not agents of the government or a government entity. 25 Therefore, Ms. Soloman are entitled to an award of attorneys’ fees if they prevail on this motion. 26 /// 27 28 6 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION) 1 VI. CONCLUSION 2 The face of the complaint shows it is a SLAPP, triggering the protection afforded to Ms. 3 Soloman under Code of Civil Procedure section 425.16. Furthermore, the complaint also shows 4 the litigation privilege defense applies, and plaintiff cannot show she is likely to prevail on any of 5 her causes of action against Ms. Soloman. As such, Ms. Soloman respectfully requests the court 6 strike the entire complaint and award Ms. Soloman attorneys’ fees. 7 Dated: August 1, 2023 TYSON & MENDES LLP 8 9 By ________________________________ CANDICE HAMANT 10 Attorneys for Defendant, STACEY SOLOMAN (erroneously sued as 11 “STACY SOLOMAN”) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF STACEY SOLOMAN’S SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (ANTI-SLAPP MOTION)