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Scott v. Kelkris Associates

October 28, 2010

LOREN SCOTT, PLAINTIFF,
v.
KELKRIS ASSOCIATES, INC. DBA CREDIT BUREAU ASSOCIATES, DEFENDANT.



MEMORANDUM AND ORDER RE: SPECIAL MOTION TO STRIKE

Plaintiff Loren Scott brought this action against defendant Kelkris Associates, Inc., dba Credit Bureau Associates arising out of defendant's allegedly improper service of plaintiff in a debt collection action. Presently before the court is defendant's special motion to strike plaintiff's state law claims pursuant to California's anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, California Civil Procedure Code § 425.16.

I. Factual and Procedural Background

Defendant filed a debt collection suit against plaintiff in the Superior Court of California for Sacramento County on January 23, 2009. (Compl. ¶ 6.) Defendant attempted to serve plaintiff by serving plaintiff's estranged father at a residence where plaintiff did not live. (Id. ¶ 7, Ex. E.) Default judgment was entered against plaintiff on May 15, 2009. (Id. ¶ 8.) Plaintiff only learned about the suit on December 10, 2009, when he received a letter from the County of Sacramento Department of Finance informing him of an Earnings Withholding Order obtained against him. (Id. ¶ 5.) Plaintiff then contested the default judgment, which the Superior Court vacated on the basis that plaintiff was never served. (Id. ¶ 9, Ex. E.) That case is currently active. (Pl.'s Resp. to Def.'s Mot. to Strike at 3.)

Plaintiff then brought this suit, alleging: 1) violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p; 2) violations of the Rosenthal Fair Debt Collection Practices Act (RFDCPA), Cal. Civ. Code §§ 1788-1788.33; and 3) invasion of privacy. Pursuant to California's anti-SLAPP statute, defendant now moves to strike plaintiff's RFDCPA and invasion of privacy claims.

II. Discussion

The California legislature enacted its anti-SLAPP statute, California Civil Procedure Code § 425.16, to "allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). "California's anti-SLAPP statute allows a defendant to move to strike a plaintiff's complaint if it 'aris[es] from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1123 (1999) (defendant "need not separately demonstrate that the statement concerned an issue of public significance"). The special motion to strike under the anti-SLAPP statute is available to litigants proceeding in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir. 2005).

"A court considering a motion to strike under the anti-SLAPP statute must engage in a two-part inquiry." Vess, 317 F.3d at 1110. First, "the defendant is required to make a prima facie showing that the plaintiff's suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant's right to free speech under the United States or California Constitution." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). Second, "[t]he burden then shifts to the plaintiff to establish a reasonable probability that the plaintiff will prevail on his or her [] claim." Id.

A. Prima Facie Case

An "act in furtherance of a person's right of petition or free speech" includes "any written or oral statement or writing made in connection with an issue under consideration or review by a... judicial body...." Cal. Civ. Proc. Code § 425.16(e). "[C]ommunications in connection with anticipated litigation are considered to be under consideration or review by a... judicial body." Neville v. Chudacoff, 160 Cal. App. 4th 1255, 1263 (2d Dist. 2008) (internal quotation marks and citations omitted). Plaintiff's state law claims are based solely on defendant's allegedly improper service of process on plaintiff in its debt collection action. Such service, made after a complaint was filed in state court, is clearly a "writing made in connection with an issue under consideration or review by a... judicial body...." Cal. Civ. Proc. Code § 425.16(e).

The extent of the litigation privilege buttresses this conclusion. Although the anti-SLAPP statute and the litigation privilege are not coextensive, courts may "look to the litigation privilege as an aid in construing the scope of [the anti-SLAPP statute] with respect to the first step of the two-step anti-SLAPP inquiry." Flatley v. Mauro, 39 Cal. 4th 299, 323 (2006). Service of process in litigation is protected by the litigation privilege. See Rusheen v. Cohen, 37 Cal. 4th 1048, 1058 (2006) ("The '[p]leadings and process in a case are generally viewed as privileged communications.'" (quoting Navellier v. Sletten, 106 Cal. App. 4th 763, 770 (1st Dist. 2003))).

To "arise from" defendant's right of petition or free speech, "the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." City of Cotati v. Cashman, 29 Cal. 4th 69, 78 (2002). "In deciding whether the 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" Id. at 79 (quoting Cal. Civ. Proc. Code § 425.16(b)). To meets its burden, the "defendant need not show that plaintiff's suit was brought with the intention to chill defendant's speech; the plaintiff's intentions are ultimately beside the point." Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005) (internal quotation marks and citations omitted). Since plaintiff's complaint is based solely on his allegation that service was improper in the underlying debt collection suit, his complaint "arises from" protected speech.

B. Reasonable Probability of Prevailing

Because defendant has satisfied its initial burden of showing that plaintiff's suit arises from defendant's act in connection with its free speech rights, the burden shifts to the plaintiff, and the court "must then determine whether the plaintiff has demonstrated a probability of prevailing on [his] claim." Navellier, 29 Cal. 4th at 88. To establish the requisite probability of prevailing, the plaintiff need only have "stated and substantiated a legally sufficient claim." Briggs, 19 Cal. 4th at 1123. "Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to obtain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 821 (2002) (quoting Matson v. Dvorak, 40 Cal. App. 4th 539, 548 (3d Dist. 1995)). "Only a cause of ...


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