Opinion
G063085
03-28-2024
CORNELIUS DOUGLAS CLEMMONS, JR., Plaintiff and Respondent, v. BNSF RAILWAY COMPANY et al., Defendants and Appellants.
Lewis Brisbois Bisgaard & Smith, Anthony E. Sonnett, Steven A. Dabrowski and Caroline E. Chan for Defendants and Appellants. Skapik Law Group, Matthew T. Falkenstein and Mark J. Skapik for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of San Bernardino County No. CIVDS1714540, Khymberli S.Y. Apaloo, Judge. Affirmed. Requests for judicial notice. One granted and one denied.
Lewis Brisbois Bisgaard & Smith, Anthony E. Sonnett, Steven A. Dabrowski and Caroline E. Chan for Defendants and Appellants.
Skapik Law Group, Matthew T. Falkenstein and Mark J. Skapik for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
BNSF Railway Company and its employees, James F. Strona and Ucherbelau Archie Allen (collectively defendants), appeal from the trial court's order denying their special motion to strike based on the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Plaintiff Cornelius Douglas Clemmons, Jr., sued them for their roles in his arrest and eventually dismissed prosecution.
All further undesignated statutory references are to the Code of Civil Procedure.
After Clemmons filed the underlying lawsuit, defendants removed the matter to federal court. After a 2021 partial summary judgment, the case was remanded to state court, where Clemmons filed an amended complaint and defendants filed the 2022 anti-SLAPP motion underlying this appeal.
The trial court denied the motion, finding it untimely for previously alleged claims and, as to other claims, that defendants had not shown they were based on protected activity. We conclude all of defendants' challenges to Clemmons's claims were untimely. We affirm the order.
Our factual summary is a compilation of allegations of the operative complaint, declarations, and other evidence submitted in support of the anti-SLAPP motion. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 249.)
I. Investigation and Prosecution of Clemmons
The criminal investigation underlying this action was triggered in June 2014, when two individuals presented two fraudulent BNSF Railway Company (BNSF) checks at third-party check-cashing locations. In one of those incidents, a suspect touched a credit application. Both checks had been written as payable to Clemmons.
Lead investigator Allen was "a special agent with the BNSF Railway Police," who at all relevant times worked with Strona, a captain of the same agency. Strona obtained the original checks and credit application in July 2014, three weeks after the crimes. Two weeks later, Strona, Allen, and another individual, went to Clemmons's place of business where Allen interviewed Clemmons.
Allen showed Clemmons pictures of the suspects captured by video recordings of the crimes. Clemmons stated he did not know the suspects and had never attempted to cash a BNSF check. Clemmons also stated his wallet had been stolen, and although he had not reported the theft to the police, he had contacted his phone company about fraudulent charges he incurred.
Although Strona took a picture of Clemmons at the interview, Allen subsequently used a copy of Clemmons's driver's license picture to show to two employees of the check-cashing locations. The picture was not presented with pictures of other individuals (to serve as alternative choices for identification) and neither Strona nor Allen conducted a fingerprint analysis of the checks or credit application.
In July 2014, Allen signed a "Declaration in Support of Arrest Warrant," representing that Clemmons had attempted to cash a fraudulent check. Allen also created a nine-page incident report documenting his investigation, which he "submitted to the Riverside [County] District Attorney." We will refer to the documents collectively as the Allen documents.
The following month, Clemmons was stopped for an unrelated traffic violation and arrested on a warrant issued because of the Allen documents. Almost a year later, in July 2015, the checks and credit application Strona had obtained (13 months earlier) were delivered to the prosecutor assigned to Clemmons's criminal case. At an August 2015 preliminary hearing, a magistrate ruled there was probable cause to hold Clemmons to answer the charges against him. (Pen. Code, § 872 [decision on preliminary examination].)
The charges were violations of Penal Code sections 459 and 475, subdivision (c).
II. Criminal Case Dismissal and Underlying Civil Action
Six months later, in February 2016, the prosecutor was notified that the fingerprint analysis for the checks and credit application had come back negative for Clemmons and that a different person was identified by fingerprints on the application. Three months later, the prosecutor moved to dismiss the criminal case against Clemmons, who then filed the underlying 2017 lawsuit against defendants. Some causes of action were based on federal law, like 42 United States Code Section 1983 [deprivation of civil right], and some were based on state law, like malicious prosecution, and assault and battery. Clemmons asserted he spent "approximately 10 months in jail because of this matter." Defendants disputed, among other things, that they were the sole reason for Clemmons's incarceration.
Defendants removed this matter to a federal district court based on federal question jurisdiction. (28 U.S.C. § 1331.) That court partially granted a motion to dismiss Clemmons's cause of action for assault and battery alleged in his March 2019 third amended complaint. Over two years later, the district court granted partial summary judgment against all of Clemmons's remaining causes of action, except for a negligence cause of action, over which the court declined to exercise federal jurisdiction.
It alleged the following five causes of action: "1. False arrest and malicious prosecution[;] [¶] 2. Failure to intervene to prevent violation of civil rights[;] [¶] 3. Monell[v. New York City Dept. of Social Services (1978) 436 U.S. 658] claim[;] [¶] . . . [¶] 4. Intentional infliction of emotional distress[;] [¶] 5. Assault and battery[; and] [¶] 6. Negligence."
Defendants ask us to take judicial notice of Clemmons's third amended complaint, the federal district court's partial summary judgment grant, and an order by that court. Clemmons argues the request should be denied because the records are not "indisputably true" (boldface and italics omitted) and are irrelevant to this appeal. We grant the request for judicial notice because we agree with defendants that the documents are relevant to our review and otherwise appropriate for judicial notice. (Evid. Code, § 452; California Rules of Court, rule 8.252.)
After the district court remanded this matter to the state trial court, Clemmons was granted leave to file his fourth amended complaint, the operative complaint of this appeal. Through it, Clemmons asserts the following seven causes of action: (1) a first count of negligence (against defendants and "Doe" defendants); (2) a second count of negligence (against Allen, BNSF, and "supervisory Doe" defendants [most capitalizations omitted]); (3) violation of the Tom Bane Civil Rights Act (Civ. Code, § 52.1, subd. (b); Bane Act); (4) violation of the Ralph Civil Rights Act of 1976 (Civ. Code, § 51.7; Ralph Act); (5) liability for civil conspiracy; (6) malicious prosecution; and (7) violation of the Unruh Civil Rights Act (Civ. Code, §§ 51, 52; Unruh Act).
III. Anti-SLAPP Motion
Defendants' anti-SLAPP motion was accompanied by declarations and a request for judicial notice of documents filed in federal court. Clemmons filed an opposition supported by his counsel's declaration; both sides objected to their counterparts' declarations.
The trial court denied the motion (without ruling on the request for judicial notice or evidentiary objections). On defendants' challenges to Clemmons's first, second, and sixth causes of action, the court deemed the motion untimely. On the third, fourth, fifth, and seventh causes of action, the court concluded defendants "fail[ed] to establish [that] the causes of action stem from communications within" the Allen documents, as opposed to "actions taken during the investigation." Defendants timely appealed.
DISCUSSION
I. Standard of Review and Anti-SLAPP Principles
The legislation authorizing anti-SLAPP motions is "'intended to end meritless SLAPP suits early without great cost to the target' [citation], not to abort potentially meritorious claims due to a lack of discovery." (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949, first italics added.) A "motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." (§ 425.16, subd. (f).) The deadline provision "permit[s] an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but . . . prohibits] belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion)." (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 (Newport Harbor Ventures)) This amended complaint rule promotes the legislative goal of early anti-SLAPP challenges. We review the trial court's decision on untimeliness of the motion de novo. (Compare Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 208 [de novo review of decision motion was untimely] with Hoang v. Tran (2021) 60 Cal.App.5th 513, 526 [allowance of late motion reviewed for abuse of discretion].)
II. First, Second, and Sixth Causes of Action
We conclude defendants have not shown the trial court erred in concluding defendants' motion was time-barred as to Clemmons's first, second, and sixth causes of action (asserting liability for two counts of negligence and malicious prosecution, respectively). Defendants were free to file an anti-SLAPP motion during the entire pendency of the litigation preceding the federal district court's remand to state court. (See Dean v. Kaiser Foundation Health Plan, Inc. (C.D.Cal. 2022) 562 F.Supp.3d 928, 934 ["California's anti-SLAPP statute may be used to challenge state law claims [even] in federal question cases"].) Within this context, defendants argue that the part of their anti-SLAPP motion aimed at Clemmons's negligence causes of action should not have been deemed untimely because the underlying claims are different than the previous claims Clemmons had alleged (in his third amended complaint in federal court).
Although ultimately immaterial to our analysis, the record is clear that defendants' motion was filed one day late, on Thursday, April 21, 2022, on the 63rd day after Clemmons's fourth amended complaint was electronically served, on February 17, 2022. (See § 1010.6, subd. (a)(3)(B) [additional two court days to act if triggering document validly served electronically].) Defendants served their motion on Clemmons the day before, on April 20, 2022, by e-mail and ask us to take judicial notice of a "public notice" (capitalization omitted) of a power outage at the trial court the day before their motion was filed. We deny the request because the precise day of filing is irrelevant to our analysis for this appeal. (California Rules of Court, rule 8.252.)
The argument rests on the above-quoted amended complaint rule set forth in Newport Harbor Ventures, supra, 4 Cal.5th at page 645. There, the California Supreme Court affirmed our holding that "'[a]n amended complaint reopens the time to file an anti-SLAPP motion without court permission only if the amended complaint pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion.' [Citation.]" (Id. at p. 641, quoting Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1219.) In doing so, the high court disapproved of a broader rule where "'any amendment [of a complaint] permits defendants to forgo an early [anti-SLAPP] motion.' [Citation.]" (Newport Harbor Ventures, supra, 4 Cal.5th at pp. 644, 646.)
On Clemmons's first, second, and sixth causes of action, defendants' primary argument is that the two currently asserted negligence causes of action are different from his third amended complaint's negligence cause of action. The argument rests on superficial analysis and is therefore unpersuasive.
Defendants note the current causes of action "are not only titled differently, but add a considerable amount [of] material." They point out that, "[i]nstead of the [six] short sentences" of his prior negligence allegations, Clemmons's current "'Negligence - Count I' claim amounts to 21 paragraphs over four and a half pages, and the 'Negligence - Count II' claim amounts to 13 paragraphs over three pages." In his respondent's brief, Clemmons counters that his current "'Negligence I' and 'Negligence II' [counts] are based upon the same facts and theories of liability that the original singular cause of action for negligence was based on when this case was first brought."
Rather than discuss the respective factual allegations at issue, defendants simply reiterate, in their reply brief, that: "Although [Clemmons] had previously pled a negligence cause of action in earlier iterations of [his] complaint, [the cause] amounted to only [six] short sentences that took up half a page of federal pleading paper. [Clemmons]'s new causes of action for 'Negligence - Count I' and 'Negligence -Count [II]' are titled differently and, together, add 34 paragraphs over [seven] pages." Therefore, argue defendants, "[n]either of these causes of action appeared in any earlier pleading" for anti-SLAPP analysis purposes.
Defendants have not carried their burden to demonstrate the trial court erred when it found defendants could have earlier attacked the current negligence causes of action through an anti-SLAPP motion. Standing alone, the addition of details in an amended complaint does not necessarily demonstrate asserted claims are new for the purposes of reopening a party's opportunity to file an anti-SLAPP motion. This is particularly true where a pleading incorporates preceding paragraphs of allegations, as both Clemmons's operative complaint and his earlier version did in this matter.
To illustrate, the record shows Clemmons's previous negligence cause of action was specified on its 34th page but "incorporate[d] by reference all allegations contained in the preceding [124] paragraphs" of that version. By contrast, the current negligence causes of action are specified beginning at the current complaint's 21st page and incorporate only 76 preceding paragraphs.
Our point is that merely comparing the volume of words alleged in two iterations of a complaint does not necessarily demonstrate whether new claims are asserted. Accordingly, defendants have not shown the trial court erred when it found defendants could have filed earlier their anti-SLAPP challenge to Clemmons's first, second, and sixth causes of action. (Newport Harbor Ventures, supra, 4 Cal.5th at p. 645.)
Defendants present the same type of argument on Clemmons's current malicious prosecution cause of action. They argue "it is new for purposes of [defendants'] anti-SLAPP motion because this [current] malicious prosecution cause of action, with additional allegations, had not been pled previously." Clemmons responds, "The same reasoning [criticizing defendants' argument] applies to [defendants' discussion about the] malicious prosecution cause of action." We agree with Clemmons. We note that defendants argue Clemmons's malicious prosecution cause of action is an improper attempt to "resurrect" a cause that was disposed of by the federal district court. The argument is immaterial to whether the trial court correctly decided an anti-SLAPP motion was timely and we express no opinion on it. Defendants have not shown error on the court's untimeliness decision.
III. Remaining Causes of Action
We next consider defendants' challenges to Clemmons's third, fourth, fifth, and seventh causes of action, respectively alleging violations of the Bane Act, the Ralph Act, civil conspiracy liability, and violation of the Unruh Act. Our de novo review differs from the trial court's analysis on these causes because we conclude defendants' motion was also untimely as to the claims targeted within those causes of action, despite the new allegations.
Our conclusion rests on the fact that, despite defendants' lack of clarity as to what their motion targets (see Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 100, fn. 15 [discussing detailing in anti-SLAPP motion which portions of complaint are at issue]), the entirety of defendants' anti-SLAPP motion rests on an argument that the protected activity underlying the motion is Clemmons's allegations about "Allen's submission to the Riverside [County District Attorney] of his Incident Report, which details his investigation into the fraudulent check-cashing incident" that Clemmons was accused of perpetrating.
Prior to defendants filing their underlying motion in the trial court, our high court clarified that, although the anti-SLAPP statute uses the term "cause of action," the central component of anti-SLAPP analysis is a "claim" and not necessarily a cause of action. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni).) For example, "[t]he [moving] defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. [Citation.]" (Id. at p. 1009; ibid. ["It does not matter that other unprotected acts may also have been alleged within what has been labeled a single cause of action; these are 'disregarded at this stage'"].)
While it is clear Clemmons's operative complaint now specifies four legal authorities not previously asserted-the Bane Act, the Ralph Act, civil conspiracy liability, and the Unruh Act-it is also clear from defendants' briefing that the underlying "set of acts" (Bonni, supra, 11 Cal.5th at p. 1010) defendants aim at are still rooted in the Allen documents. In other words, their anti-SLAPP motion challenges operative complaint claims that were already asserted in earlier iterations of Clemmons's complaint.
The point is illustrated by defendants' argument on the first-step analysis of their challenge to Clemmons's fifth cause of action for conspiracy liability. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619-620 [movant must show claim arises from protected conduct].) Defendants argue that Clemmons's "claim for civil conspiracy arises from Allen's submission of the Incident Report to the Riverside [County District Attorney]." This framing of the claim is not disputed by Clemmons, who argues it should not be stricken because "the filing of a police report known to be false is illegal" and, separately, that the motion challenges unprotected activity because the report "is merely 'evidence of liability or a step leading to some different act for which liability is asserted.'"
Defendants identify the same claim for their arguments on Clemmons's third, fourth, and seventh causes of action, arguing that "Allen's submission of the Incident Report is the only activity that supplies the essential causal link between [defendants] and [Clemmons]'s claimed injury, and it forms the core of all of [Clemmons]'s claims against [defendants]."
Although defendants, in their reply brief in this court, try to expand their motion's target to include Clemmons's allegations of acts amounting to "negligent investigation," the attempted expansion is in any case of no moment because the record is clear that even those "set of acts" (Bonni, supra, 11 Cal.5th at p. 1010) were also alleged in Clemmons's previous complaints. For example, in his third amended complaint, Clemmons alleged that "[d]efendants failed and refused to conduct an evidence-based investigation into the real perpetrator and instead focused their efforts on pinning the crime on [Clemmons]."
Regardless of whether we look only to defendants' opening brief or include their reply brief framing of the targeted claims, the conclusion remains that challenges to the claims at issue could have been brought three years earlier than April 2022, when their motion was filed. Accordingly, applying Newport Harbor Ventures's amended complaint rule, defendants' challenges to Clemmons's third, fourth, fifth, and seventh causes of action are just as untimely as their challenges to Clemmons's first, second, and sixth causes of action. In sum, defendants' entire anti-SLAPP motion was untimely because it was filed, without a justifiable excuse, more than 60 statutory days after Clemmons's 2019 third amended complaint was filed in the federal district court. (White v. Davis (2023) 87 Cal.App.5th 270, 287 ["'"If the trial court's decision is correct on any theory . . ., we affirm the order regardless of the correctness of the grounds on which the lower court reached its conclusion"'"]). We offer no opinion on the remaining arguments asserted by the parties, including their dispute over whether issue preclusion ultimately applies to any part of Clemmons's operative complaint.
DISPOSITION
The order denying defendants' anti-SLAPP motion is affirmed. Clemmons shall recover his costs on appeal.
WE CONCUR: SANCHEZ, J. MOTOIKE, J.