Jeremy Witt v. Patrick Ross, et al.

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JEREMY WITT, Case No. 5:25-cv-02776-BLF

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. SPECIAL MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED 10 PATRICK ROSS, et al., COMPLAINT 11 Defendants. [Re: ECF Nos. 48, 72]

12 13 This case arises from Defendant Patrick Ross and his attorney Defendant Margaret Trask 14 having cross-filed a motion for a temporary restraining order (“TRO”) against Plaintiff Jeremy 15 Witt in state court civil harassment proceedings initiated by Plaintiff against Defendants. 16 Plaintiff’s first amended complaint, ECF No. 11 (“FAC”), alleges that Defendants purposefully 17 filed that allegedly meritless cross-motion for a TRO for the sole purpose of harming Plaintiff and 18 states causes of action under California law for (1) malicious prosecution, (2) intentional infliction 19 of emotional distress (“IIED”), and (3) abuse of process. 20 Defendants have filed a special motion to strike the three claims under California Code of 21 Civil Procedure Section 425.16 (the “anti–SLAPP statute”),1 and alternatively, a motion to dismiss 22 the three claims under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 48, 49 (“Mot.”); see 23 also ECF No. 72. The Parties filed opposition, reply, and sur-reply briefs. See ECF No. 58 24 (“Opp.”); ECF No. 64 (“Reply”); ECF No. 73 (“Sur-Reply”). The Court finds that the motion is 25 suitable for resolution without oral argument and VACATES the hearing scheduled for 26

27 1 “Anti–SLAPP” stands for “Anti–Strategic Lawsuit Against Public Participation.” The purpose 1 November 6, 2025. See Civ. L.R. 7-1(b). 2 For the reasons below, the Court GRANTS the special motion to strike. 3 I. BACKGROUND 4 Defendants are Mr. Ross and his attorney Ms. Trask, 2 who in 2023 filed the cross-request 5 for a TRO that underlies Plaintiff’s claims after Plaintiff filed a civil harassment action in state 6 court against Mr. Ross, his family, and a family friend under California Code of Civil Procedure 7 section 527.6. FAC ¶ 8. The FAC generally alleges that Defendants filed the cross-request for a 8 TRO to retaliate against Plaintiff for having brought his civil harassment action and that said 9 cross-request knowingly and falsely accused Plaintiff of criminal activities that he did not commit. 10 The FAC alleges that Defendants signed and filed a “false and retaliatory” cross-request 11 for a TRO that “falsely alleged that [Plaintiff] harassed [Defendant] by checking Box 8 on his 12 TRO requesting protection.” Id. ¶¶ 8–9. The FAC further alleges that Defendants “did not assert 13 or prove” that any harassment existed, and that Defendants were unable to assert any instances of 14 violence of threats of violence to support Mr. Ross’s allegations. Id. ¶ 10. Finally, the FAC 15 alleges that Defendants were advised that filing the cross-request for a TRO would result in 16 Plaintiff losing his employment, that Defendants nonetheless “filed the false TRO in order to 17 leverage the TRO against” Plaintiff’s state court action and pressure him to dismiss his case, and 18 that he ultimately did in fact lose his employment. Id. ¶¶ 9–13. 19 In his first claim for malicious prosecution, Plaintiff alleges that Defendants acted without 20 probable cause in filing the cross-request for a TRO in that they did not “honestly and reasonably 21 believe” that there were grounds to obtain a TRO. Id. ¶ 19. Plaintiff urges that the cross-request 22 was filed “in bad faith to vex, annoy, and/or wrong Plaintiff” with the knowledge that “their 23 allegations were false” and that in doing so, Mr. Ross “willfully committed perjury when [he] 24 signed the Cross Request TRO.” Id. ¶¶ 20–22. In his second claim for IIED, Plaintiff alleges that 25 Defendants’ “intentional conduct . . . was malicious and despicable in that it was performed 26

27 2 Mr. Witt also purports to bring this action against the “officers, agents, employees, associates, 1 willfully and with a conscious disregard of Plaintiff’s rights . . . and designed to deprive [him] of 2 property or legal rights.” Id. ¶ 30. Finally, in his third claim for abuse of process, Plaintiff alleges 3 that Defendants “intentionally used this legal procedure to leverage the Cross Request TRO 4 against Plaintiff’s personal injury case so that [he] would dismiss his personal injury case and pay 5 [Mr. Ross’s] attorney’s fees.” Id. ¶ 34. 6 II. LEGAL STANDARD 7 California’s anti–SLAPP statute provides that “[a] cause of action against a person arising 8 from any act of that person in furtherance of the person’s right of petition or free speech under the 9 United States Constitution or the California Constitution in connection with a public issue shall be 10 subject to a special motion to strike, unless the court determines that the plaintiff has established 11 that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 12 425.16(b). This provision “makes available a special motion to strike meritless claims early in 13 litigation—but only if the claims arise from acts in furtherance of a person’s ‘right of petition or 14 free speech under the United States Constitution or the California Constitution in connection with 15 a public issue.’” FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133, 139 (2019) (quoting Cal. 16 Code Civ. Proc. § 425.16(b)). “[M]alicious prosecution causes of action fall within the purview of 17 the anti–SLAPP statute.” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 735 (2003). 18 Courts evaluate an anti–SLAPP motion in two steps. Navellier v. Sletten, 29 Cal. 4th 82, 19 88 (2002). “Initially, the moving defendant bears the burden of establishing that the challenged 20 allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. If the 21 defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal 22 merit.’” Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 884 (2019) (quoting Park v. Bd. of 23 Trs. of Cal. State Univ., 2 Cal. 5th 1057, 1061 (2017)). Under the first step, the moving party 24 bears the initial burden of showing that the suit was brought for an improper purpose, and the 25 court must consider “the pleadings, and supporting and opposing affidavits stating the facts [on] 26 which the liability or defense is based.” Bull. Displays, LLC v. Regency Outdoor Advert., Inc., 27 448 F. Supp. 2d 1172, 1179 (C.D. Cal. 2006) (alteration in original) (internal quotation marks and 1 “the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a 2 favorable judgment if the evidence submitted by the plaintiff is credited.” Metabolife, 264 F.3d 3 at 840. 4 A motion under the anti–SLAPP statute may be brought in federal court against a 5 plaintiff’s state law claims. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 6 Inc., 190 F.3d 963, 970–73 (9th Cir. 1999). 7 III. DISCUSSION 8 Defendants argue that all three claims should be dismissed under California’s anti–SLAPP 9 statute “[t]hese claims each arise from [Defendants’] cross-request for a civil harassment 10 restraining order” and “[t]he filing of a civil harassment petition constitutes protected activity 11 under the statute, . . . making the claims subject to a special motion to strike.” Mot. at 1 (internal 12 citation omitted). They further argue that Plaintiff “presents an insufficient basis for his claims in 13 each of the causes of action” because the challenged conduct is “protected by California’s 14 litigation privilege.” Id. The Court applies the two-step test described in Navellier to Mr. Ross 15 and Ms. Trask’s anti–SLAPP claims. 31 Cal. 4th at 735. 16 A. The Challenged Activity is Protected 17 At step one, the defendant must demonstrate that the plaintiff’s cause of action arises from 18 protected activity. “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the 19 defendant’s act underlying the plaintiff’s cause of action must itself have been an act in 20 furtherance of the right of petition or free speech.” City of Cotati v. Cashman, 29 Cal. 4th 69, 78 21 (2002). “[T]he critical point is whether the plaintiff’s cause of action itself was based on an act in 22 furtherance of the defendant’s right of petition or free speech.” Id. To determine the basis of the 23 plaintiff’s cause of action, the Court considers the elements of the claim and the actions by the 24 defendant alleged to supply those elements. Park, 2 Cal. 5th at 1063. The defendant bears the 25 burden of demonstrating that the protected activity supplies the elements of the plaintiff’s cause of 26 action. Rand Resources, LLC v. City of Carson, 6 Cal. 5th 610, 621 (2019). 27 The defendant further bears the burden of demonstrating that its activity was protected by 1 Wilson, 7 Cal. 5th at 884. As relevant here, section 425.16 defines protected activity in 2 furtherance of a person’s right to petition or free speech to include “any written or oral statement 3 or writing made before a legislative, executive, or judicial proceeding, or any other official 4 proceeding authorized by law” or “any written or oral statement or writing made in connection 5 with an issue under consideration or review by a legislative, executive, or judicial body, or any 6 other official proceeding authorized by law.” Cal. Civ. Pro. Code § 425.16(e)(1), (2). “[T]he 7 constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking 8 administrative action.” Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1115 9 (1999) (second alteration in original) (internal quotation marks and citation omitted). 10 The Court agrees with Defendants that each of the FAC’s causes of action arises from the 11 filing of the cross-request for a TRO and that this filing constituted a protected activity under 12 California’s anti–SLAPP statute. 13 1. The Claims Arise from Defendants’ Cross-Request for a TRO 14 There is a one-to-one relationship between the elements of Plaintiff’s three claims and 15 Defendants’ cross-request for a TRO. A claim for malicious prosecution requires a showing that 16 the action “(1) was initiated by or at the direction of the defendant and legally terminated in the 17 plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice.” 18 Siebel v. Mittlesteadt, 41 Cal. 4th 735, 740 (2007). In his claim for malicious prosecution, 19 Plaintiff alleges that Defendants “instituted the Cross Request TRO against Plaintiff,” “acted 20 without probable cause and a tenable basis for filing the Cross Request TRO,” and “acted 21 maliciously in continuing to prosecute the false retaliatory Cross Request TRO against Plaintiff.” 22 FAC ¶¶ 19–22. 23 Defendants’ filing of a cross-request for a TRO similarly provides the basis of Plaintiff’s 24 claim for IIED. Under California law, a plaintiff must prove “(1) extreme and outrageous conduct 25 by the defendant with the intention of causing, or reckless disregard of the probability of causing, 26 emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the 27 plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” 1 toward the plaintiff, which must be “so extreme as to exceed all bounds of that usually tolerated in 2 a civilized society.” Id. Plaintiff’s claim for IIED identifies Defendants having “caused the Cross 3 Request TRO to be filed, prosecuted, and tried against Plaintiff” as being “so extreme, outrageous 4 and oppressive that it subjected Plaintiff to cruel and unjust hardships.” FAC ¶¶ 27–29. 5 Finally, Plaintiff’s claim for abuse of process is similarly based on the cross-filing of a 6 request for a TRO. To state a claim for abuse of process, “a litigant must establish that the 7 defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act 8 in the use of the process not proper in the regular conduct of the proceedings.” Rusheen v. Cohen, 9 37 Cal. 1048, 1057 (Cal. 2006). It is self-evident that the legal process referred to by Defendant in 10 his claim is the cross-filing of a request for a TRO, as he alleges that Defendants, “with full 11 knowledge and information regarding all of the facts, circumstances, and activities related to the 12 Cross Request TRO, intentionally used this legal procedure to leverage the Cross Request TRO 13 against Plaintiff[.]” FAC ¶ 34 (emphasis added). 14 2. The Cross-Request for a TRO was Protected 15 Defendants argue that the cross-request for a TRO upon which each of Plaintiff’s claims is 16 based was a protected activity within the meaning of section 425.16(e)(1) and 425.16(e)(2). The 17 Court agrees. As a preliminary matter, the cross-request for a TRO is indisputably a “writing 18 made in connection with an issue under consideration or review by a . . . judicial body,” Cal. Code 19 Civ. Pro. § 425.16(e)(2), the term “judicial body” having been expressly held to include civil 20 litigation. Briggs, 19 Cal. 4th at 1115. “There is no question that the filing of a civil harassment 21 petition constitutes protected activity.” Kenne v. Stennis, 230 Cal. App. 4th 953, 966 (2014). 22 Plaintiff nonetheless argues that the claims do not arise from protected activity. Opp. at 3. 23 Specifically, he responds that “[a]lthough filing a TRO petition may be protected activity in some 24 contexts, it is not protected when the litigation is a sham.” Id. Plaintiff’s argument fails as a 25 matter of law: Defendants’ filing and litigating of the cross-request for a TRO is a paradigmatic 26 exercise of Mr. Ross’s First Amendment right to petition. Here, “the civil harassment petition[] 27 [was] based on . . . plaintiff’s . . . direct action against defendant[], and constitute[s] [a] petition[] 1 To the extent that Plaintiff argues that the California Supreme Court’s decision in Flatley 2 v. Mauro, 39 Cal. 4th 299 (2006), created a sham exception for illegal conduct, see Opp. at 3, 3 Plaintiff is mistaken as to the applicability of that exception here. As a threshold matter, the 4 California Supreme Court in Flatley reaffirmed that the litigation privilege and anti–SLAPP 5 statute “are not substantively the same.” Id. at 232. The defendant in that case was an attorney 6 who represented a woman alleging to have been sexually assaulted by the plaintiff—the plaintiff 7 brought a state law claim for civil extortion, alleging that the defendant made several phone calls 8 in which he demanded a seven-figure payment to settle the woman’s claims. Id. at 305. In 9 affirming the trial court’s denial of the defendant’s anti–SLAPP motion, the California Supreme 10 Court explained that the defendant’s conduct was not constitutionally protected because it was 11 criminal extortion as a matter of law. Id. at 332–33. The court thus held that where “the 12 assertedly protected speech or petition activity was illegal as a matter of law, the defendant is 13 precluded from using the anti–SLAPP statute to strike the plaintiff’s action.” Id. at 320. 14 The rule in Flatley applies only in the narrow circumstances where a defendant’s conduct 15 has been shown to be illegal as a matter of law “either through defendant’s concession or by 16 uncontroverted conclusive evidence.” Id. at 320; see also D.C. v. R.R., 182 Cal. App. 4th 1190, 17 1226 (Cal. App. Ct. 2010) (holding that threats of physical violence were not protected activity 18 within the meaning of the anti–SLAPP statute). That is not the case here—there is simply no 19 evidence in the record at all that even suggests criminal conduct on the part of Defendants. In his 20 cross-request for a TRO, Mr. Ross alleged a variety of behaviors that concerned him regarding the 21 privacy and protection of his family. See ECF No. 11, Ex. A. Because Defendants deny that their 22 request was false or illegal and there is no uncontroverted evidence to contrary, Plaintiff’s 23 conclusory allegations are “insufficient to render [Defendants’] alleged actions unlawful as a 24 matter of law and outside the protection of . . . section 425.16.” Dwight R. v. Christy B., 212 Cal. 25 App. 4th 697, 712 (2013); accord Siam v. Kizilbash, 130 Cal. App. 4th 1563, 1569–70 (2005). 26 Based on the foregoing, the Court finds that Defendants have met their burden to show protected 27 activity. 1 The Court next considers whether Plaintiff has demonstrated a probability of prevailing on 2 any of his claims. See Woloszynska v. Netflix, Inc., No. 23-cv-636-BLF, 2023 WL 7166828, at *4 3 (N.D. Cal. Oct. 30, 2023). To prevail at the second step in adjudicating an anti–SLAPP motion, a 4 plaintiff must “demonstrate that the complaint is both legally sufficient and supported by a 5 sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted 6 by the plaintiff is credited.” Browne v. McCain, 611 F. Supp. 2d 1062, 1069 (C.D. Cal. 2009). 7 “In assessing the probability of prevailing, a court looks to the evidence that would be presented at 8 trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its 9 pleadings, even if verified, but must adduce competent, admissible evidence.” Roberts v. Los 10 Angeles Cnty. Bar Assn., 105 Cal. App. 4th 604, 613–14 (2003). 11 As a threshold matter, the Court agrees with Defendants that each of Plaintiff’s claims is 12 barred as a matter of law. As to his first claim for malicious prosecution, California law provides 13 that “the unsuccessful filing of a petition for an injunction under section 527.6 may not form the 14 basis for a malicious prosecution action.” Siam, 130 Cal. App. 4th at 1574. The Court further 15 agrees that Plaintiff’s second claim for IIED and third claim for abuse of process are barred by the 16 litigation privilege, which is applicable against “all torts except malicious prosecution” and 17 protects “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or 18 other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have 19 some connection or logical relation to the action.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 20 (2006). The privilege plainly applies to Defendants’ filing of a cross-request for a TRO in the 21 underlying state court proceedings. Plaintiff’s response that the FAC sufficiently alleges “non- 22 communicative wrongful conduct—using legal process for extortion and retaliation,” Opp. at 5, 23 plainly misses the mark. California law “contemplate[s] no communication that is more clearly 24 protected by the litigation privilege than the filing of a legal action.” Action Apartment Ass’n, Inc. 25 v. City of Santa Monica, 41 Cal. 4th 1232, 1249 (2007). And, as described above, there are no 26 facts even suggestive of criminal extortion in the record before the Court. 27 Plaintiff does not point to any evidence in the record from which the Court could glean any 1 only that he “has pleaded all elements of” malicious prosecution, IIED, and abuse of process. 2 Opp. at 4. This is plainly insufficient at step two of this inquiry, where “the plaintiff cannot rely 3 on the allegations of the complaint[] but must produce evidence that would be admissible at trial.” 4 Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 866–67 (2009). Nor is Plaintiff’s position saved by 5 his offer that, “[s]hould the Court require evidentiary support, Plaintiff is prepared to submit a 6 declaration under penalty of perjury detailing” his loss of employment, “fabrications” made by 7 Defendants in their cross-request for a TRO, Ms. Trask’s “[i]mproper settlement demand,” 8 procedural prejudice in the present action, and other filings in the present action. Opp. at 6–7. 9 Any such declaration would at this stage be untimely and, in any case, would not have any bearing 10 on the merits of Plaintiff’s claims. 11 C. Leave to Amend 12 Having determined that Mr. Witt’s FAC must de dismissed pursuant to the anti–SLAPP 13 Statute, the issue remains whether the Court should grant leave to amend. The Court is mindful 14 that, as a matter of California law, leave to amend is often considered “improper” because “the 15 statutory intent is to provide a quick, inexpensive method of dismissing SLAPP suits.” Browne 16 v. McCain, 611 F. Supp. 2d 1062, 1068 (C.D. Cal. 2009). The Ninth Circuit has cautioned, 17 however, that “[p]rocedural state laws are not used in federal court if to do so would result in a 18 direct collision with a Federal Rule of Civil Procedure.” Verizon Delaware, Inc. v. Covad 19 Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) (quoting Metabolife Int’l, Inc. v. Wornick, 20 264 F.3d 832, 845–46 (9th Cir. 2001)). 21 The Ninth Circuit has accordingly explained that “granting a defendant’s anti–SLAPP 22 motion . . . without granting the plaintiff leave to amend would directly collide with Fed. R. Civ. 23 P. 15(a)’s policy favoring liberal amendment.” Id.; see also Lema v. Bd. Of Trs. Of Cal. State 24 Univ. Sys., No. 3:21-cv-2131-JAH-KSC, 2023 WL 3572882, at *9 (S.D. Cal. May 17, 2023). The 25 Court concludes that leave to amend is appropriate. 26 For additional guidance, Plaintiff may refer to the Court’s Pro Se Handbook, available on 27 the Court’s website at http://cand.uscourts.gov/representing-yourself/pro-se-handbook, or contact 1 litigants in civil cases. The Legal Help Center requires an appointment, which can be made by 2 || calling (415) 782-9000 x8657. 3 || IV. ORDER 4 For the foregoing reasons, IT IS HEREBY ORDERED that: 5 (1) Defendants’ special order to strike is GRANTED. 6 (2) The FAC is DISMISSED WITH LEAVE TO AMEND. 7 (3) Plaintiff MAY file a second amended complaint within fourteen days of the date of this 8 order. Amendment SHALL be limited to curing the defects identified in this order, and 9 no new claims or parties may be added without leave of the Court. 10 11 Dated: October 20, 2025 a (12 fone ETH LABSON FREEMAN 13 United States District Judge

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