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CONRAD K. WU, ESQ.
SBN 256706
885 BRYANT STREET, 2 FLOOR
San Francisco, CA 94103 ELECTRONICALLY
F I L E D
l)—
415) 581-0885
415) 581-0887 - fax Superior Court of California,
County of San Francisco
Attorney for Defendant Edward M. Higginbotham 08/10/2020
5
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
10
SALLY LIU, an individual CASE NO. CGC-19-577432
12 Plaintiff, DEFENDANT HIGGINBOTHAM'S
MEMORANDUM OF POINTS AND
13 vs. AUTHORITIES TO STRIKE THE
SECOND, THIRD, FOURTH AND FIFTH
t4 EDWARD M. HIGGINBOTHAM, an CAUSES OF ACTION FROM
individual, JOSE CERON, an individual, PLAINTIFF'S COMPLAINT UNDER CCP
ESPETACION MONQIUE MEDINA, an tt425.16
individual, BRIAN RANGEL, an individual
16
and JUDY JUDKINS, an individual and Does
17 1-20 inclusive Date: September 18, 2020
Dept. 302
Defendants. Time: 9:30 a.m.
19 Law & Motion
20 Honorable.Induc Ethan Schulman
21
I. INTRODUCTION
22
Defendant Edward Mathieu Higginbotham("Higginbotham" ) hereby moves this Court to
23
strike Plaintiff s complaint pursuant to California Code of Civil Procedure 436 lk 425.16.
24
Plaintiff's complaint should be stricken regarding Defendant Higginbotham because it amounts
25
to a strategic lawsuit against public participation ("SLAPP") as it is brought in retaliation for
26
Higginbotham's exercise ofhis First Amendment rights and his advocacy for his clients, who are
27
the tenants of Plaintiff Liu at the real property located at 4733 Mission Street in San
28
Francisco("Premises" ).
Points & Authorities in Support of Defendant's Motion to Strike Complaint-1-
Lia v. Higginbotltant etak/CGC-19-577432
Resolution of an anti-SLAPP motion "requires the court to engage in a two-step process."
First, the court decides whether the defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity. If the court determines that such a showing
has been made, the burden shifts to plaintiff to demonstrate a probability of prevailing on the
claim. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.416 53, 67 (Eqrrilon)
Here, the complaint is based on activity that is protected and Plaintiff has failed to
demonstrate a probability of prevailing on the merits of the claim and simply cannot demonstrate
any probability of prevailing on the merits due to the evidence before this court, including
several emails from Plaintiff evidencing that she personally picked up the satisfaction of
judgment she now complaints she has never received.
II. STATEMENT OF FACTS
13 Plaintiff is a well-known slum lord and a constant litigant with four full pages of cases in
her name in the online register of actions of the San Francisco Superior court. One of the
properties she owns is the Premises, a property she defrauded her own brother and sister to
1
become sole owner. Defendant was and continues to be one of the attorneys for the tenants at
the Premises. Defendant is a civil attorney in San Francisco whose practice focuses in the areas
of landlord-tenant and business law. Defendant was retained by tenants in 2014 to force Plaintiff
Liu to make repairs at the property and to compensate them for being forced to live in
dilapidated conditions. The tenants in that case had numerous defects in their units and among
the problems included not having a working front gate or secure mailboxes for close to a decade
and the City of San Francisco Building Department, ("DBI") issued notices of violation that
went ignored by Plaintiff Sally Liu for several years. The tenants represented by Defendant filed
suit against Liu and Plaintiff did not tender it over to her insurance, but instead decided to fight
the case on her own, eventually hiring an attorney for trial. Plaintiff Liu lost at trial and jury
26
27
1
28 See Defendant's Request for judicial notice Exhibits 1 & 2. Each exhibit are lawsuits by Plaintiffs brother and
sister against Plaintiff Sally Liu for stealing the rents from properties they co-owned and filing fraudulent documents
to steal the real property located at 4733 Mission Street in San Francisco.
Points & Authorities in Support of Defendant's Motion to Strike Complaint-2-
Liu v. Higginborfram er at JCGC-79-577432
verdict was entered against her. Two subsequent motions for attorney's fees were also granted.
Liu appealed and the appeal also was denied.
Liu per her modus operandi, refused to pay and considerable collections efforts were
4
required, including liening her real estate, levying her bank accounts, garnishing her wages and
setting multiple financial examinations. As a result, Defendant incurred considerable costs in
collection and additional attorney time. Liu's counsel at the time reached an agreement with
Defendant to pay the judgment if all the liens were released, Defendant obliged. Once all the
liens were removed from her various properties, Plaintiff Sally Liu reneged on the agreement,
and Defendant was forced to lien all her property for a second time to protect his
clients'nterests.
The San Francisco Recorder's office charged per property. Defendant who was on her
third attorney at that time, claimed Defendant over collected the amounts. Plaintiff was invited
by Defendant to show an accounting and offered to reimburse her for any over collection she
could prove, Plaintiff refused. In November of 2016, Plaintiff filed a motion to return funds that
were allegedly over collected, and said motion was denied by this Court as Plaintiff could not
prove the basis for her motion. Upon being served with the lawsuit, Defendant wrote to Plaintiff
Liu once again offered to pay any amount over collected if Plaintiff would provide an accounting
that evidenced an over collection. For a third time, Defendant refused. Additionally, Defendant
met & conferred with Plaintiff regarding the present lawsuit and how it would be subject to an
anti-SLAPP motion. Defendant refused to dismiss Defendant and Defendant was forced to hire
legal counsel and brings forth the present anti-SLAPP motion.
21 Defendant's attorney also met & conferred with Plaintiff and articulated why the first
amended complaint was subject to the present special motion to strike. Once again Plaintiff Liu,
refused to respond to defense counsel's good faith efforts to meet & confer and try and resolve
the litigation.
25
26 HI. LEGAL ARGUMENT
27 A. CODE OF CIVIL PROCEDURE SECTION 425.16(THE "ANTI-SLAPPo
28 STATUTE) MANDATES EARLY DISMISSAL OF RETALIATORY LAWSUITS
FOR THE EXERCISE OF FIRST AMENDMENT RIGHTS CONCERNING
PUBLIC ISSUES
Points & Authorities in Support of Defendant's Motion to Strike Complaint-3-
Lirr v. Higgirrtrottrarn et atJCGC-19-577432
In 1991, the California Legislature enacted California Code of Civil Procedure 425.16
now commonly known as the "anti-SLAPP statute." SLAPP suits are brought "brought primarily
to chillvalid exercise of constitutional rights of freedom of speech and petition for the redress of
grievances." CCP 425.16.; Soulaip
I'I v.Law Offices of Herbert Haft'f, 39 Cal. 4'" 260, 278
(2006)(citing Section 425.16(a)) SLAPP suits are brought "primarily to interfere with
7
defendant's ability to pursue his or her interests, " and the SLAPP suit "achieve[s] its objective if
it depletes defendant's resources and energy." Church of Scientology v. Wollersheim (1996) 42
9
Cal.App.4'28, 645
10
For the purposes of an anti-SLAPP motion to strike, however, Plaintiff s subjective
motives in filing suit are irrelevant to the statute' application; thus, moving defendant "need not
demonstrate... the action was intended to chill its free speech, nor need show the action had
13
such an effect." City of Cotati v. Cashman (2002) 29 Cal 4'" 69, 73-74; Navellier v. Sletten
(2002) 29 Cal. 4rs 82, 88; Equilon Enterprises v. Consumer Cause, Inc. 29 Cal 4'3, 68.
15
To protect the moving defendant, or SLAPPee, CCP Ii425.16 permits an early motion to
strike whenever the lawsuit involves "[a] cause of action against a person arising from any act of
tllat person in furtherance of the person's right of petition or free speech... in connection with a
a public issue."CCP ti425.16(b)(1)
19
1. Shiftinu Burdens in a Section 425.16 Motion to Strike
20 The SLAPPee-movant must initially demonstrate that the terms of Section 425.16 apply
21 to his case. See, e.g., Matson v. Dvorak (1995) 40 Cal. App. 4'39, 547); Wilcox v. Superior
22
Court (1994) 27 Cal.App 4'" 809. This burden is satisfied by making a prima facie showing that
3
the statement or conduct is a protected activity under Section 425. 1 6 Id. Once the SLAPPee-
movant has made such a showing, the court should grant the motion to strike unless the plaintiff
can show "probability" of prevailing on his claim. CCP 425.16(b)(l). The SLAPPer's opposition
must be legally sufficient and supported by "competent admissible evident within the personal
7
knowledge of the declarant." Levy v. City of Santa Monica (2004) 1 14 Cal.App. 4'" 1 252, 1 258
28 Ludwig v. Superior Court (1995) 37 Cal. App 4'" 8, 15. Conclusory statements, allegations based
on information and belief, hearsay, and speculation are insufficient. Church of Scientology, 42
Points & Authorities in Support of Defeudani's Motion to Strike Complaint-4-
Lia v. Higginbotham et atdCGC-19-577432
Cal. App. 4't 656-57; Levy, 114 Cal. App. 4't 1262. The court also is to consider any
defenses raised by the SLAPPee, such as the First Amendment or other applicable law, in
determining the plaintiff-SLAPPer's probability of success. Church of Scienroiogy, 42 Cal. App.
4'" at 658; see also CCP 425.16(b)(2). The plaintiff s burden in opposing a special motion to
strike is similar to the burden in opposing a summary judgment motion. Church of Scienrology,
42 Cal. App 4'" at 654; see also College Hospital, Inc. v.Superior Court (1994) 8 Cal. 4'16,
719-20.
2. CCP 425.1 Provides for four cateeories of suit to which the anti-SLAPP
10 statute anulies
CCP Ii425.16(e)(1) provides for a SLAPP motion for a suit based on statements or
writings made before a legislative, executive or judicial or other official proceedings
13 CCP ti425.16(e)(2) provides for a SLAPP motion for a suit based on statements or
writings made in connection with an issue under consideration or review by a legislative,
le
executive, or judicial body, or any other legally authorized official proceedings.
15
CCP II425.16(e)(3) provides for a SLAPP motion for a suit based on statements or
16
writings made in a place open to the public or in a public forum, in connection with an issue of
17
public interest
CCP It425.16(e)(4) provides for a SLAPP motion for a suit based on any other conduct
furtherance of the exercise of the constitutional right of petition or the constitutional right of the
20 free speech in connection with an issue of public interest.
21
3. Defendant Collection's Activitv auainst Plaintiff Sallv Liu is a protected
22
activitv within the meaning of the Anti-SLAPP Statue
23
Each and every allegation against Defendant is based on writings and statements made
during litigation, meaning statements made before a judicial proceeding and therefore the
25
granting of an anti-SLAPP motion is appropriate under CCPti 425.16(e)(1), (3) & (4).
26
Additionally, each and every allegation against Higginbotham is based on statements or writings
27
made in a place open to the public or in a public forum during those proceedings and therefore a
SLAPP motion is appropriate under CCPi7 425.16(e)(3).
Points & Authorities in Support of Defendant's Motion to Strike Complaint-5-
Liu v. Higginborbam eral.lCGC-I9-577432
Plaintiff has alternative methods in dealing with any alleged over collection and has
2 attempted via noticed motion which was denied on December 22, 2016. (See Exhibit 5 of
3 Defendant's Request for Judicial Notice) Plaintiff has four current causes of action against
Defendant. Plaintiff dismissed Defendant from her first cause of action for conversion. The
second cause of action is for common count, the third for breach of contract, the fourth is for
fraud and the fifth is a failure to file a satisfaction of judgment pursuant to 7.24.010. All of the
6
allegations relate to the prior litigation per her complaint at paragraph 9:
7
"Plaintiff's interest sued upon herein relates to Defendants'fforts to collect on a
8 judgment in San Francisco case number CGC-14-541407, the "Prior Case""
There are not allegations in the complaint outside of the "Prior Case"
10
The fact that said motion was denied is clear indicator that Plaintiff does not have the
probability of prevailing on the merits.
13
4. There are NO exemntions to SLAPP Statute Annlicable as to Hiuuinbotham
15 CCP II425.16(e)(1) provides a specific list of exemptions that even though they qualify
as a SLAPP suit, they are not subject to dismissal under the anti-SLAPP statue.
16
They include the following:
17
(i) Public Enforcement Actions; CCP II 425.16(d); see People ex rel. Locttyer
18 v. Brar (2004) 115 CA 464 1315, 1318
(ii) Actions for public benefit, including solely in the public interest or on
19 behalf of the general public; CCP I3 425.16
(iii) Claims against a person or entity primarily engaged in the business of
20
selling or leasing goods or services based on statements or conduct where
21 the following conditions are met: (1) the statement or conduct consists of
representations of act about that person's or a competitor's business
22 operations, goods or services; (2) the statement or conduct occurred in
connection with a commercial transaction; and(3) the intended audience is
23
an actual or potential customer, or a person likely to influence an actual or
24 potential customer or the statement or conduct arose in connection with a
regulatory approval process, proceeding investigation.
25 News media, publishers and non-profits.
(iv)
26
There is no exemption that would apply to Defendant's SLAPP motion and therefore
27
based on the legal arguments above, Defendant has evidenced a showing of protected activity
under CCP t3425.16.
Points & Authorities in Support of Defendant's Motion to Strike Complaint-6-
Lia v. Higgbrbotham et at./CGC-19-577432
B. PLAINTIFF CANNOT EVIDENCE A PROBABILITY OF SUCCESS ON THE
MERITS
4 Once a showing of protected conduct has been made, the court must then determine
whether Plaintiff has demonstrated a "probability" of prevailing on the claim. Plaintiff must
demonstrate that the complaint is both legally sufficient, and supported by a sufficient prima
7
facie showing offacts to sustaiii a favorablejudgment if the evidence submitted by plaintiffis
credited. Wilson v.Parker, Covert d'c Chidster, (2002) 28 C4th 811, 821.
The probability of prevailing is tested by the same standards governing a motion for
summary judgment, it is plaintiff's burden to make a prima facie showing of facts that would
10
support a judgment in plaintiff s favor. Kyle v. Carmon, (1999) 71 CA4th 901.
12 1. Plaintiff cannot Prevail on the First Cause of Action
Plaintiff's first cause of action is for conversion. Said cause of action carries a two-year
statute of limitation which has expired and Plaintiff has already dismissed the first cause of
action and therefore cannot prevail on a cause of action for conversion.
16
2. Plaintiff cannot Prevail on a Common Count Cause of Action
17
Plaintiff has already filed a motion on this same issue and said motion was denied.
18
Nothing has changed in the three years since Plaintiff s motion was denied by this Court by
19
Judge Ullmer on December 22, 2016.
20
Further, Defendant did tender the satisfaction of judgment to Plaintiff s counsel, as was
noted in Judge Ullmer's decision. As further noted in the December 22, 2016 Order, Defendant
Higginbotham was not required to file the acknowledgment of satisfaction of judgment because
the judgment had been satisfied by writ and therefore CCP tjtj 724.010(b) and 724.030 do not
24 apply.
25 As stated in Judge Ullmer's order starting on page 1, Line 27, middle of the sentence
26
"Defendant Liu has already been given a written acknowledgement of satisfaction
of judgment. Plaintiff were not required to file document, as CCP 724.010(b)
27 applies and CCP 724.030 does not, because the judgment was satisfied by writ."
28
Plaintiff failed to present any evidence to the Court in support of her allegations
Points & Authorities in Support of Defendant's Motion to Strike Complaint-7-
Lia v. Higginbotham et at./CGC-19-577432
3. Plaintiff Cannot Prevail on her Third Cause of Action For Breach of Contract
3
Plaintiff in her third cause of action alleges that Defendant breached a contract with a
third party who is not a party to the litigation. As discussed above, Plaintiff has already had a
motion seeking the same relief denied several years ago. Plaintiff writes in her paragraph 26 of
her complaint that Defendant and Title 365 Escrow entered into a written agreement to satisfy
7 the judgment in the Prior case. Defendant never entered into any contract with said escrow
8 company(See% 10 of the Declaration of Edward M. Higginbotham)and there is no evidence of
any such contract, only the unverified allegation in the complaint. Accordingly, Plaintiff cannot
10
prevail on her cause of action for breach of contract.
4. Plaintifps Fails to Meet Fraud Requirements
12
13
Plaintiff's fourth cause of action alleges fraud and attempts lay out her prima facie case
beginning on page 5, continuing to page 6 and finishing at the top of page 7. There are no
allegations that Defendant ever promised anything to Plaintiff in exchange for any promise.
16 Plaintiff s allegation in page 32 reads that Defendant made false representations to Title 365
Escrow Company. Based on the fact that there are no allegations of any relationship, between
Plaintiff and Defendant, including any exchange of consideration, any promises made or even
discussed and any intention by Defendant to deceive Plaintiff, said cause of action fails on its
19
face and clearly Plaintiff cannot prevail on a cause of action for fraud against Defendant. (See
20
Request for Judicial Exhibit 3). Further, Defendant was not required to record a satisfaction of
21
judgment but only to provide one. (See Request for Jttdi cial Exhibit 4). Defendant provided an
22
acknowledgment of satisfaction of judgment on several occasions as evidenced by Plaintiff s
23
emails. (See 1I 's 6- 9 of the Declaration of Edward M. Higginbotham and exhibits A-F)
24
25 5. PlaintifPs Fifth Cause of Action is Defeated by December 22,2016 Order
26
As stated in Judge Ullmer's order starting on page l, Line 27, middle of the sentence
27 "Defendant Liu has already been given a written acknowledgement of satisfaction
28 of judgment. Plaintiff were not required to file document, as CCP 724.010(b)
applies and CCP 724.030 does not, because the judgment was satisfied by writ."
Points & Authorities in Support of Defendant's Motion to Strike Complaint-8-
Lin v. Higginbotham et at./CGC-19-577432
Nothing more need be said, Plaintiff s cannot prevail on her fifth cause of action.
6. The "Prior" Case Continues to be Litigated
The FAC in this matter infers that the "Prior" case has completed resolved, but it
4 continues to be litigated. As it stands, Plaintiff owes nearly $ 30,000 in attorney's fees, interest
and post-judgment costs. Defendant is still actively in the collections process against Liu and
recently completed a financial examination of the judgment debtor, Plaintiff Liu on March 12'" in
7
department 5 1 4. Assuming arguendo, Plaintiff cannot prevail on her claim for roughly $ 9000 for
over collection when there is a current debt of nearly $ 30,000. Said motion should be granted on
8
this factor on its own.
9
10
III. CONCLUSION
For the reasons set forth above, Plaintiff s complaint should be stricken in its entirety
12
under the anti-SLAPP statute because it interferes with defendant Higginbotham's exercise of his
13
First Amendment rights within a public, judicial forum and should be sustained without leave to
14
amend. Leave to amend may not be granted should a court sustain a SLAPP motion. Simmons v.
15
Allstate Ins. Co. (2001) 92CA4th 1068. Accordingly, Defendant is entitled to the motion be
16
granted, and judgment being entered in his favor including attorney's fees via noticed motion.
17
18
19
20
DATED: February 16, 2020
21
Respectfully Submitted,
22
23
25 Conracf K. Wu, ESQ
26
27
28
Points & Authorities in Support of Defendant's Motion to Strike Complaint-9-
Lin v. Higginbotham et al./CGC-19-577432
Preview
CONRAD K. WU, ESQ. SBN 256706 885 BRYANT STREET, 2 FLOOR San Francisco, CA 94103 ELECTRONICALLY F I L E D l)— 415) 581-0885 415) 581-0887 - fax Superior Court of California, County of San Francisco Attorney for Defendant Edward M. Higginbotham 08/10/2020 5 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 10 SALLY LIU, an individual CASE NO. CGC-19-577432 12 Plaintiff, DEFENDANT HIGGINBOTHAM'S MEMORANDUM OF POINTS AND 13 vs. AUTHORITIES TO STRIKE THE SECOND, THIRD, FOURTH AND FIFTH t4 EDWARD M. HIGGINBOTHAM, an CAUSES OF ACTION FROM individual, JOSE CERON, an individual, PLAINTIFF'S COMPLAINT UNDER CCP ESPETACION MONQIUE MEDINA, an tt425.16 individual, BRIAN RANGEL, an individual 16 and JUDY JUDKINS, an individual and Does 17 1-20 inclusive Date: September 18, 2020 Dept. 302 Defendants. Time: 9:30 a.m. 19 Law & Motion 20 Honorable.Induc Ethan Schulman 21 I. INTRODUCTION 22 Defendant Edward Mathieu Higginbotham("Higginbotham" ) hereby moves this Court to 23 strike Plaintiff s complaint pursuant to California Code of Civil Procedure 436 lk 425.16. 24 Plaintiff's complaint should be stricken regarding Defendant Higginbotham because it amounts 25 to a strategic lawsuit against public participation ("SLAPP") as it is brought in retaliation for 26 Higginbotham's exercise ofhis First Amendment rights and his advocacy for his clients, who are 27 the tenants of Plaintiff Liu at the real property located at 4733 Mission Street in San 28 Francisco("Premises" ). Points & Authorities in Support of Defendant's Motion to Strike Complaint-1- Lia v. Higginbotltant etak/CGC-19-577432 Resolution of an anti-SLAPP motion "requires the court to engage in a two-step process." First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If the court determines that such a showing has been made, the burden shifts to plaintiff to demonstrate a probability of prevailing on the claim. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.416 53, 67 (Eqrrilon) Here, the complaint is based on activity that is protected and Plaintiff has failed to demonstrate a probability of prevailing on the merits of the claim and simply cannot demonstrate any probability of prevailing on the merits due to the evidence before this court, including several emails from Plaintiff evidencing that she personally picked up the satisfaction of judgment she now complaints she has never received. II. STATEMENT OF FACTS 13 Plaintiff is a well-known slum lord and a constant litigant with four full pages of cases in her name in the online register of actions of the San Francisco Superior court. One of the properties she owns is the Premises, a property she defrauded her own brother and sister to 1 become sole owner. Defendant was and continues to be one of the attorneys for the tenants at the Premises. Defendant is a civil attorney in San Francisco whose practice focuses in the areas of landlord-tenant and business law. Defendant was retained by tenants in 2014 to force Plaintiff Liu to make repairs at the property and to compensate them for being forced to live in dilapidated conditions. The tenants in that case had numerous defects in their units and among the problems included not having a working front gate or secure mailboxes for close to a decade and the City of San Francisco Building Department, ("DBI") issued notices of violation that went ignored by Plaintiff Sally Liu for several years. The tenants represented by Defendant filed suit against Liu and Plaintiff did not tender it over to her insurance, but instead decided to fight the case on her own, eventually hiring an attorney for trial. Plaintiff Liu lost at trial and jury 26 27 1 28 See Defendant's Request for judicial notice Exhibits 1 & 2. Each exhibit are lawsuits by Plaintiffs brother and sister against Plaintiff Sally Liu for stealing the rents from properties they co-owned and filing fraudulent documents to steal the real property located at 4733 Mission Street in San Francisco. Points & Authorities in Support of Defendant's Motion to Strike Complaint-2- Liu v. Higginborfram er at JCGC-79-577432 verdict was entered against her. Two subsequent motions for attorney's fees were also granted. Liu appealed and the appeal also was denied. Liu per her modus operandi, refused to pay and considerable collections efforts were 4 required, including liening her real estate, levying her bank accounts, garnishing her wages and setting multiple financial examinations. As a result, Defendant incurred considerable costs in collection and additional attorney time. Liu's counsel at the time reached an agreement with Defendant to pay the judgment if all the liens were released, Defendant obliged. Once all the liens were removed from her various properties, Plaintiff Sally Liu reneged on the agreement, and Defendant was forced to lien all her property for a second time to protect his clients'nterests. The San Francisco Recorder's office charged per property. Defendant who was on her third attorney at that time, claimed Defendant over collected the amounts. Plaintiff was invited by Defendant to show an accounting and offered to reimburse her for any over collection she could prove, Plaintiff refused. In November of 2016, Plaintiff filed a motion to return funds that were allegedly over collected, and said motion was denied by this Court as Plaintiff could not prove the basis for her motion. Upon being served with the lawsuit, Defendant wrote to Plaintiff Liu once again offered to pay any amount over collected if Plaintiff would provide an accounting that evidenced an over collection. For a third time, Defendant refused. Additionally, Defendant met & conferred with Plaintiff regarding the present lawsuit and how it would be subject to an anti-SLAPP motion. Defendant refused to dismiss Defendant and Defendant was forced to hire legal counsel and brings forth the present anti-SLAPP motion. 21 Defendant's attorney also met & conferred with Plaintiff and articulated why the first amended complaint was subject to the present special motion to strike. Once again Plaintiff Liu, refused to respond to defense counsel's good faith efforts to meet & confer and try and resolve the litigation. 25 26 HI. LEGAL ARGUMENT 27 A. CODE OF CIVIL PROCEDURE SECTION 425.16(THE "ANTI-SLAPPo 28 STATUTE) MANDATES EARLY DISMISSAL OF RETALIATORY LAWSUITS FOR THE EXERCISE OF FIRST AMENDMENT RIGHTS CONCERNING PUBLIC ISSUES Points & Authorities in Support of Defendant's Motion to Strike Complaint-3- Lirr v. Higgirrtrottrarn et atJCGC-19-577432 In 1991, the California Legislature enacted California Code of Civil Procedure 425.16 now commonly known as the "anti-SLAPP statute." SLAPP suits are brought "brought primarily to chillvalid exercise of constitutional rights of freedom of speech and petition for the redress of grievances." CCP 425.16.; Soulaip I'I v.Law Offices of Herbert Haft'f, 39 Cal. 4'" 260, 278 (2006)(citing Section 425.16(a)) SLAPP suits are brought "primarily to interfere with 7 defendant's ability to pursue his or her interests, " and the SLAPP suit "achieve[s] its objective if it depletes defendant's resources and energy." Church of Scientology v. Wollersheim (1996) 42 9 Cal.App.4'28, 645 10 For the purposes of an anti-SLAPP motion to strike, however, Plaintiff s subjective motives in filing suit are irrelevant to the statute' application; thus, moving defendant "need not demonstrate... the action was intended to chill its free speech, nor need show the action had 13 such an effect." City of Cotati v. Cashman (2002) 29 Cal 4'" 69, 73-74; Navellier v. Sletten (2002) 29 Cal. 4rs 82, 88; Equilon Enterprises v. Consumer Cause, Inc. 29 Cal 4'3, 68. 15 To protect the moving defendant, or SLAPPee, CCP Ii425.16 permits an early motion to strike whenever the lawsuit involves "[a] cause of action against a person arising from any act of tllat person in furtherance of the person's right of petition or free speech... in connection with a a public issue."CCP ti425.16(b)(1) 19 1. Shiftinu Burdens in a Section 425.16 Motion to Strike 20 The SLAPPee-movant must initially demonstrate that the terms of Section 425.16 apply 21 to his case. See, e.g., Matson v. Dvorak (1995) 40 Cal. App. 4'39, 547); Wilcox v. Superior 22 Court (1994) 27 Cal.App 4'" 809. This burden is satisfied by making a prima facie showing that 3 the statement or conduct is a protected activity under Section 425. 1 6 Id. Once the SLAPPee- movant has made such a showing, the court should grant the motion to strike unless the plaintiff can show "probability" of prevailing on his claim. CCP 425.16(b)(l). The SLAPPer's opposition must be legally sufficient and supported by "competent admissible evident within the personal 7 knowledge of the declarant." Levy v. City of Santa Monica (2004) 1 14 Cal.App. 4'" 1 252, 1 258 28 Ludwig v. Superior Court (1995) 37 Cal. App 4'" 8, 15. Conclusory statements, allegations based on information and belief, hearsay, and speculation are insufficient. Church of Scientology, 42 Points & Authorities in Support of Defeudani's Motion to Strike Complaint-4- Lia v. Higginbotham et atdCGC-19-577432 Cal. App. 4't 656-57; Levy, 114 Cal. App. 4't 1262. The court also is to consider any defenses raised by the SLAPPee, such as the First Amendment or other applicable law, in determining the plaintiff-SLAPPer's probability of success. Church of Scienroiogy, 42 Cal. App. 4'" at 658; see also CCP 425.16(b)(2). The plaintiff s burden in opposing a special motion to strike is similar to the burden in opposing a summary judgment motion. Church of Scienrology, 42 Cal. App 4'" at 654; see also College Hospital, Inc. v.Superior Court (1994) 8 Cal. 4'16, 719-20. 2. CCP 425.1 Provides for four cateeories of suit to which the anti-SLAPP 10 statute anulies CCP Ii425.16(e)(1) provides for a SLAPP motion for a suit based on statements or writings made before a legislative, executive or judicial or other official proceedings 13 CCP ti425.16(e)(2) provides for a SLAPP motion for a suit based on statements or writings made in connection with an issue under consideration or review by a legislative, le executive, or judicial body, or any other legally authorized official proceedings. 15 CCP II425.16(e)(3) provides for a SLAPP motion for a suit based on statements or 16 writings made in a place open to the public or in a public forum, in connection with an issue of 17 public interest CCP It425.16(e)(4) provides for a SLAPP motion for a suit based on any other conduct furtherance of the exercise of the constitutional right of petition or the constitutional right of the 20 free speech in connection with an issue of public interest. 21 3. Defendant Collection's Activitv auainst Plaintiff Sallv Liu is a protected 22 activitv within the meaning of the Anti-SLAPP Statue 23 Each and every allegation against Defendant is based on writings and statements made during litigation, meaning statements made before a judicial proceeding and therefore the 25 granting of an anti-SLAPP motion is appropriate under CCPti 425.16(e)(1), (3) & (4). 26 Additionally, each and every allegation against Higginbotham is based on statements or writings 27 made in a place open to the public or in a public forum during those proceedings and therefore a SLAPP motion is appropriate under CCPi7 425.16(e)(3). Points & Authorities in Support of Defendant's Motion to Strike Complaint-5- Liu v. Higginborbam eral.lCGC-I9-577432 Plaintiff has alternative methods in dealing with any alleged over collection and has 2 attempted via noticed motion which was denied on December 22, 2016. (See Exhibit 5 of 3 Defendant's Request for Judicial Notice) Plaintiff has four current causes of action against Defendant. Plaintiff dismissed Defendant from her first cause of action for conversion. The second cause of action is for common count, the third for breach of contract, the fourth is for fraud and the fifth is a failure to file a satisfaction of judgment pursuant to 7.24.010. All of the 6 allegations relate to the prior litigation per her complaint at paragraph 9: 7 "Plaintiff's interest sued upon herein relates to Defendants'fforts to collect on a 8 judgment in San Francisco case number CGC-14-541407, the "Prior Case"" There are not allegations in the complaint outside of the "Prior Case" 10 The fact that said motion was denied is clear indicator that Plaintiff does not have the probability of prevailing on the merits. 13 4. There are NO exemntions to SLAPP Statute Annlicable as to Hiuuinbotham 15 CCP II425.16(e)(1) provides a specific list of exemptions that even though they qualify as a SLAPP suit, they are not subject to dismissal under the anti-SLAPP statue. 16 They include the following: 17 (i) Public Enforcement Actions; CCP II 425.16(d); see People ex rel. Locttyer 18 v. Brar (2004) 115 CA 464 1315, 1318 (ii) Actions for public benefit, including solely in the public interest or on 19 behalf of the general public; CCP I3 425.16 (iii) Claims against a person or entity primarily engaged in the business of 20 selling or leasing goods or services based on statements or conduct where 21 the following conditions are met: (1) the statement or conduct consists of representations of act about that person's or a competitor's business 22 operations, goods or services; (2) the statement or conduct occurred in connection with a commercial transaction; and(3) the intended audience is 23 an actual or potential customer, or a person likely to influence an actual or 24 potential customer or the statement or conduct arose in connection with a regulatory approval process, proceeding investigation. 25 News media, publishers and non-profits. (iv) 26 There is no exemption that would apply to Defendant's SLAPP motion and therefore 27 based on the legal arguments above, Defendant has evidenced a showing of protected activity under CCP t3425.16. Points & Authorities in Support of Defendant's Motion to Strike Complaint-6- Lia v. Higgbrbotham et at./CGC-19-577432 B. PLAINTIFF CANNOT EVIDENCE A PROBABILITY OF SUCCESS ON THE MERITS 4 Once a showing of protected conduct has been made, the court must then determine whether Plaintiff has demonstrated a "probability" of prevailing on the claim. Plaintiff must demonstrate that the complaint is both legally sufficient, and supported by a sufficient prima 7 facie showing offacts to sustaiii a favorablejudgment if the evidence submitted by plaintiffis credited. Wilson v.Parker, Covert d'c Chidster, (2002) 28 C4th 811, 821. The probability of prevailing is tested by the same standards governing a motion for summary judgment, it is plaintiff's burden to make a prima facie showing of facts that would 10 support a judgment in plaintiff s favor. Kyle v. Carmon, (1999) 71 CA4th 901. 12 1. Plaintiff cannot Prevail on the First Cause of Action Plaintiff's first cause of action is for conversion. Said cause of action carries a two-year statute of limitation which has expired and Plaintiff has already dismissed the first cause of action and therefore cannot prevail on a cause of action for conversion. 16 2. Plaintiff cannot Prevail on a Common Count Cause of Action 17 Plaintiff has already filed a motion on this same issue and said motion was denied. 18 Nothing has changed in the three years since Plaintiff s motion was denied by this Court by 19 Judge Ullmer on December 22, 2016. 20 Further, Defendant did tender the satisfaction of judgment to Plaintiff s counsel, as was noted in Judge Ullmer's decision. As further noted in the December 22, 2016 Order, Defendant Higginbotham was not required to file the acknowledgment of satisfaction of judgment because the judgment had been satisfied by writ and therefore CCP tjtj 724.010(b) and 724.030 do not 24 apply. 25 As stated in Judge Ullmer's order starting on page 1, Line 27, middle of the sentence 26 "Defendant Liu has already been given a written acknowledgement of satisfaction of judgment. Plaintiff were not required to file document, as CCP 724.010(b) 27 applies and CCP 724.030 does not, because the judgment was satisfied by writ." 28 Plaintiff failed to present any evidence to the Court in support of her allegations Points & Authorities in Support of Defendant's Motion to Strike Complaint-7- Lia v. Higginbotham et at./CGC-19-577432 3. Plaintiff Cannot Prevail on her Third Cause of Action For Breach of Contract 3 Plaintiff in her third cause of action alleges that Defendant breached a contract with a third party who is not a party to the litigation. As discussed above, Plaintiff has already had a motion seeking the same relief denied several years ago. Plaintiff writes in her paragraph 26 of her complaint that Defendant and Title 365 Escrow entered into a written agreement to satisfy 7 the judgment in the Prior case. Defendant never entered into any contract with said escrow 8 company(See% 10 of the Declaration of Edward M. Higginbotham)and there is no evidence of any such contract, only the unverified allegation in the complaint. Accordingly, Plaintiff cannot 10 prevail on her cause of action for breach of contract. 4. Plaintifps Fails to Meet Fraud Requirements 12 13 Plaintiff's fourth cause of action alleges fraud and attempts lay out her prima facie case beginning on page 5, continuing to page 6 and finishing at the top of page 7. There are no allegations that Defendant ever promised anything to Plaintiff in exchange for any promise. 16 Plaintiff s allegation in page 32 reads that Defendant made false representations to Title 365 Escrow Company. Based on the fact that there are no allegations of any relationship, between Plaintiff and Defendant, including any exchange of consideration, any promises made or even discussed and any intention by Defendant to deceive Plaintiff, said cause of action fails on its 19 face and clearly Plaintiff cannot prevail on a cause of action for fraud against Defendant. (See 20 Request for Judicial Exhibit 3). Further, Defendant was not required to record a satisfaction of 21 judgment but only to provide one. (See Request for Jttdi cial Exhibit 4). Defendant provided an 22 acknowledgment of satisfaction of judgment on several occasions as evidenced by Plaintiff s 23 emails. (See 1I 's 6- 9 of the Declaration of Edward M. Higginbotham and exhibits A-F) 24 25 5. PlaintifPs Fifth Cause of Action is Defeated by December 22,2016 Order 26 As stated in Judge Ullmer's order starting on page l, Line 27, middle of the sentence 27 "Defendant Liu has already been given a written acknowledgement of satisfaction 28 of judgment. Plaintiff were not required to file document, as CCP 724.010(b) applies and CCP 724.030 does not, because the judgment was satisfied by writ." Points & Authorities in Support of Defendant's Motion to Strike Complaint-8- Lin v. Higginbotham et at./CGC-19-577432 Nothing more need be said, Plaintiff s cannot prevail on her fifth cause of action. 6. The "Prior" Case Continues to be Litigated The FAC in this matter infers that the "Prior" case has completed resolved, but it 4 continues to be litigated. As it stands, Plaintiff owes nearly $ 30,000 in attorney's fees, interest and post-judgment costs. Defendant is still actively in the collections process against Liu and recently completed a financial examination of the judgment debtor, Plaintiff Liu on March 12'" in 7 department 5 1 4. Assuming arguendo, Plaintiff cannot prevail on her claim for roughly $ 9000 for over collection when there is a current debt of nearly $ 30,000. Said motion should be granted on 8 this factor on its own. 9 10 III. CONCLUSION For the reasons set forth above, Plaintiff s complaint should be stricken in its entirety 12 under the anti-SLAPP statute because it interferes with defendant Higginbotham's exercise of his 13 First Amendment rights within a public, judicial forum and should be sustained without leave to 14 amend. Leave to amend may not be granted should a court sustain a SLAPP motion. Simmons v. 15 Allstate Ins. Co. (2001) 92CA4th 1068. Accordingly, Defendant is entitled to the motion be 16 granted, and judgment being entered in his favor including attorney's fees via noticed motion. 17 18 19 20 DATED: February 16, 2020 21 Respectfully Submitted, 22 23 25 Conracf K. Wu, ESQ 26 27 28 Points & Authorities in Support of Defendant's Motion to Strike Complaint-9- Lin v. Higginbotham et al./CGC-19-577432