SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 2, Honorable Mark H. Pierce Presiding
Mai Jansson, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: 2-21-19 TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY
COUNSEL AND SUBMITTED PER 3.1312(C))

EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE

OFFICIAL COURT REPORTERS FOR LAW AND MOTION HEARINGS.
SEE COURT WEBSITE FOR POLICY AND FORMS.

TROUBLESHOOTING TENTATIVE RULINGS

If you do not see this week’s tentative rulings, either they have not yet been posted, or your
web browser cache (temporary internet files) is pulling up an older version. You may need to
“REFRESH”, or “QUIT” your browser and reopen it – or adjust your internet settings so you
only see the current version of the web page. Otherwise, your browser may continue to show
an older version of the web page even after the current tentative rulings have been posted.

LINE # CASE # CASE TITLE RULING

LINE 1 18cv334547 J. Del Arroz vs San Francisco Click on line 1 for tentative ruling
Conventions, Inc.
LINE 2 18cv334547 J. Del Arroz vs San Francisco See above
Conventions, Inc.
LINE 3 17cv319856 S. Tse vs T. Pereira Motion for Order Allowing Discovery of Defendant’s
financial condition is GRANTED,
LINE 4 17cv306867 American Express Bank, FSB vs E Motion to set aside default is GRANTED.
Haro
LINE 5 17cv313613 R. Cole vs New Century Commons, Off calendar
LLC
LINE 6 18cv321374 T. Ngo vs Ocwen Loan Servicing, Party/Counsel to appear. No telephonic or special
LLC appearance allowed.
LINE 7 18cv323946 Keypoint Credit Union vs The Party/Counsel to appear. No telephonic or special
Family-Centered Ear, nose, throat appearance allowed.
group, a medical Corporation
LINE 8 18cv325347 L. Hall vs P. Bullock Motion for attorney fees and costs by Defendant is
not opposed. Defendant’s motion is therefore
GRANTED and Defendant is awarded attorney fees
and casts as prayed for.
LINE 9 18cv338911 A. Mohammadi vs T. Arco Recusal by Judge Pierce. Reassigned to Dept 19.
Cont’d to 2-28-19 at 9am in Dept 19.
 SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Mark H. Pierce Presiding
Mai Jansson, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

LINE 10 10cv176972 Newport Capital Recovery Group II Claim of exemption
LLC vs R. Kirkman
Calendar lines 1-2

Case Name: Jonathan Del Arroz v. S.F. Science Fiction Conventions, Inc.
Case No.: 18CV334547

This is a dispute between Plaintiff Jonathan Del Arroz (“Plaintiff”), a published science
fiction author, and Defendant San Francisco Science Fiction Conventions, Inc. (“Defendant”),
the entity responsible for putting on the “WorldCon 76” convention in San Jose in August
2018. Plaintiff also asserts that some of Defendant’s officers, directors and/or agents are
individual defendants. The dispute arises from Defendant’s banning Plaintiff from attending
the convention. Defendant does not dispute that on January 4, 2018 it published a statement on
its website and social media accounts stating in pertinent part that it had decided to revoke
Plaintiff’s attending membership and prohibit his presence at the Convention. Defendant
stated that it had made this decision because Plaintiff purportedly had “made clear that he fully
intends to break our code of conduct” and that “racist and bullying behavior is not acceptable
at our WorldCon.” (See Complaint at ¶65.) 1 Plaintiff alleges that on January 2, 2018 he
received an email from Defendant’s “incident response team area head” Lori Buschbaum
informing him of the decision to bar his attendance and stating in part that “[i]f you are found
on the premises of the convention center or any of the official convention hotels you will be
removed.” (See Complaint at ¶12.)

This lawsuit, first filed in San Joaquin County and later transferred to Santa Clara
County, followed. Plaintiff’s original and still operative Complaint asserts five causes of
action: 1) Violation of Civ. Code §51 (Unruh Act, claiming discrimination based on “political
affiliation and political beliefs”); 2) Violation of Civ. Code §51.5; 3) Violation of Civ. Code
§51.7 (expressly based solely on the January 2, 2018 email, see ¶49) ; 4) Violation of Civ.
Code §52.1 (the Bane Act, also based solely on the January 2, 2018 email), and 5) Defamation
(expressly based solely on Defendant’s January 2, 2018 statement on its web site. See ¶65.)

Currently before the Court is 1) Defendant’s special motion to strike the Complaint’s
fifth cause of action for Defamation, and; 2) Defendant’s demurrer to the other four causes of
action. The Court will address the special motion to strike first.

I. Special Motion to Strike

When a special motion to strike is filed, the initial burden rests with the moving party to
demonstrate that the challenged pleading arises from protected activity. (Code of Civ. Proc.
“CCP” §425.16(e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “A defendant meets his or
her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying
the plaintiff’s cause of action fall within one of the four categories spelled out in [CCP] section
425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) That section
provides that an “‘act in furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue’ includes: (1) any
1
A copy of the “Code of Conduct” has been submitted by Defendant as exhibit A to the declaration of Kevin
Roche. The “Code” does not contain any language suggesting it has any force and effect before the Convention
begins or that it empowers Defendant to pre-emptively discipline expected attendees for anticipated actions. It is
also notably vague, defining “harassment” as including “any behavior that annoys other persons.” It further states
that “Offenders may lose their badges and be asked to leave to the convention,” and that “Violation of the above
rules could subject you to the immediate loss of your badge and convention privileges . . .”
written or oral statement or writing made before a legislative, executive, or judicial proceeding,
or any other official proceeding authorized by law, (2) any written or oral statement made in
connection with an issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any written or oral statement or
writing made in a place open to the public or a public forum in connection with an issue of
public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a public issue or an
issue of public interest.” (CCP §425.16(e).) “These categories define the scope of the anti-
SLAPP statute by listing acts which constitute an ‘act in furtherance of a person’s right of
petition or free speech under the United States or California Constitution in connection with a
public issue.’” (Collier, supra, at 51, citing CCP §425.16(e).)

As the California Supreme Court has stressed, “the critical point is whether the
plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of
petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In other
words, the defendant’s act underlying the plaintiff’s cause of action must itself have been in
furtherance of the right of petition or free speech.” (Peregrine Funding, Inc. v. Sheppard
Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding).
Emphasis added.) “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.’” (Peregrine Funding, supra, 133 Cal.App.4th at p. 670.)
“[H]owever, it is not enough to establish that the action was filed in response to or in
retaliation for a party's exercise of the right to petition. [Citations.] Rather, the claim must be
based on the protected petitioning activity.” (Bergstein v. Stroock & Stroock & Lavan LLP
(2015) 236 Cal.App.4th 793, 804, (Bergstein), citing Navellier v. Sletten (2003) 29 Cal.4th 82,
89.) “[I]f the defendant does not demonstrate this initial prong, the court should deny the anti-
SLAPP motion and need not address the second step.” (Baharian-Mehr v. Smith (2010) 189
Cal.App.4th 265, 271 (Baharian-Mehr).)

Defendant’s special motion to strike the fifth cause of action for defamation is DENIED
for failure to meet the initial burden to establish that Plaintiff’s defamation claim is based on its
protected activity. Defendant’s publicly accessible web site and social media sites do
constitute “public forums” for purposes of the anti-SLAPP statute. (See Kronmeyer v. Internet
Movie Database Inc. (2007) 150 Cal.App.4th 941, 950, citing Barrett v. Rosenthal (2006) 40
Cal.4th 33, 41, fn. 4 among others.) However Defendant has failed to establish that its
statement that Plaintiff had been barred from the convention because of “racist” and “bullying”
behavior (and this is the only reasonable interpretation of Defendant’s statement) concerned a
matter of public interest.

In determining whether a statement in a public forum was made “in connection with an
issue of public interest,” courts have stressed that there must truly be an issue of interest to the
definable, measurable portion of the general public. (See DuCharme v. Intl. Brotherhood of
Elec. Workers (2003) 110 Cal.App.4th 107, 119 [“[W]here the issue is not of interest to the
public at large, but rather to a limited, but definable portion of the public (a private group,
organization, or community), the constitutionally protected activity must, at a minimum, occur
in the context of an ongoing controversy, dispute or discussion, such that it warrants protection
by a statute that embodies the public policy of encouraging participation in matters of public
significance.”], emphasis in original; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-
1133 [explaining that: (1) a matter in the “public interest” means more than a just a matter that
sparks the public’s curiosity, (2) such a matter must be of concern to a substantial number of
people, (3) there must be some degree of closeness between the challenged statements and the
asserted public interest, and (4) a defendant cannot turn an issue into one in the public interest
simply by broadcasting information about that issue to a large number of people].)

Defendant’s evidence (in particular the declarations of Kevin Roche and Charles
Serface) fails to establish that its statement regarding Plaintiff was made in the context of an
“ongoing controversy, dispute or discussion,” of interest to a definable, measurable portion of
the public. At best Defendant’s evidence shows that Plaintiff engaged in online arguments
with a handful of identified persons in which he used disparaging insults (but notably not any
clearly racist ones). This evidence does not support Defendant’s “public controversy”
argument with any actual evidence that any sizable portion of Defendant’s claimed
membership of 7,812 persons (let alone the “science fiction community as a whole,” which
Defendant fails to even define much less explain how its awareness and engagement could be
or were measured) was even aware of Plaintiff’s identity, much less his disagreements with a
handful of identified persons or with Defendant as an organization and was engaged in a
discussion about the subject before Defendant’s January 4, 2018 announcement that Plaintiff
had been banned from attending the convention because “racist and bullying behavior is not
acceptable,” clearly referring to some (unidentified) behavior of Plaintiff.

Because the Court finds that Defendant has not met its burden on the first step of the
analysis, it is not necessary for the Court to address the second step. (See Baharian-Mehr,
supra.) It is also not necessary for the Court to consider Defendant’s objections to Plaintiff’s
evidence, submitted with Defendant’s Reply.

II. Demurrer to Complaint

As an initial matter the Court notes that CCP §430.41 requires the parties to meet and
confer “in person or by telephone” before the filing of a demurrer. The mere exchange of
faxed letters and emails, as described in the declarations of Defense Counsel Ann Nguyen and
Plaintiff’s Counsel Peter Bradley, does not comply with the plain language of the statute.
Counsel for both sides are directed to fully comply with all statutory meet and confer
requirements going forward.

The Court also notes that Defendant submitted a request for judicial notice of a New
York state trial court decision in support of its reply on the demurrer. The request is DENIED.
A precondition to judicial notice in either its permissive or mandatory form is that the matter to
be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation
and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v.
Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) The New York court’s conclusion that
“creed does not extend to political affiliations under New York State Law,” is irrelevant to this
Court’s analysis of whether claims have been sufficiently stated under California law.

The Court in ruling on a demurrer treats it “as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal.
Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It
admits the truth of all material factual allegations in the complaint; the question of plaintiff’s
ability to prove these allegations, or the possible difficulty in making such proof does not
concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods
Corp. (1983) 35 Cal.3d 197, 213-214.)

Defendant has demurred to the first four causes of action in the Complaint, asserting
violations of Civil Code §§ 51, 51.5, 51.7 and 52.1 respectively. The general rule is that
statutory causes of action must be pleaded with particularity. (See Lopez v. Southern
California Rapid Transit District (1985) 40 Cal.3d 780, 795; Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 790.)

Defendant’s demurrer to the First cause of action, violation of Civil Code §51 (the
Unruh Civil Rights Act) on the ground that it fails to state sufficient facts is SUSTAINED.
The first cause of action alleges that Defendants violated the Unruh Act by discriminating
against Plaintiff based on “his political affiliation and political beliefs.” (Complaint at ¶ 30.)
This does not state a violation of the Act. The Act states in pertinent part that “[a]ll persons
within the jurisdiction of this state are free and equal, and no matter what their sex, race, color,
religion, ancestry, national origin, disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or immigration status are entitled to
the full and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code § 51, subd. (b).) Subdivision (e) of the
statute contains further definitions of these terms. Additional judicially-recognized protected
classifications include unconventional dress or physical appearance, children with families and
persons under the age of 18. (See Hessians Motorcycle Club v. J.C. Flanagans (2001) 86
Cal.App.4th 833.) Plaintiff has failed to identify any published California decision expressly
stating that “political affiliation” is a protected classification for purposes of the Unruh Act and
the Court is unaware of any.

Defendant’s reliance on the decision in Marina Point, Ltd. v. Wofson (1982) 30 Cal.3d
721 as supposedly supporting a claim for violation of the Unruh Act based on alleged
discrimination on the basis of political affiliation is unpersuasive as the Supreme Court there
made no such ruling. It instead ruled that families with minor children were protected under
the Unruh Act from being excluded from an apartment complex, finding that the Act did not
permit a business enterprise to exclude an entire class of individuals (such as families with
children) on the basis of a generalized prediction that the class “as a whole” is more likely to
commit misconduct than some other class of the public. (Id. at p. 739.) In reaching this
decision the Court also stated that “[w]hether the exclusionary policy rests on the alleged
undesirable propensities of those of a particular race, nationality, occupation, political
affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary
discrimination.” This passing reference cannot be reasonably construed as a holding that
“political affiliation” was a protected characteristic under the Act. This is underscored by the
Supreme Court’s interpretation of the Act in the decades since Marina Point. (See Gayer v.
Polk Gulch, Inc. (1991) 231 Cal.App.3d 515, 522-523 [citing Harris v. Capitol Growth
Investors XIV (1991) 52 Cal.3d 1142, and noting that by 1991 the Supreme Court in Harris had
already “concluded that the repeated enumeration of specific classes contained within the
statute, when viewed in light of settled principles of statutory construction, ‘strongly suggests’
a legislative intent that the protection of the Act is limited. The court warned against further
expansion of coverage under the Act: ‘[W]ere we writing on a clean slate, the repeated
emphasis in the language of sections 51 and 52 on the specified classifications of race, sex,
religion, etc. would represent a highly persuasive, if not dispositive, factor in our construction
of the Act.’” Internal citations omitted.])
 Leave to amend is DENIED as the defect cannot be cured by amendment without
contradicting the present factual allegation that Plaintiff was discriminated against based upon
his political affiliation and political beliefs. “Political affiliation” is simply not a personal
characteristic protected under the Unruh Act.

Defendant’s demurrer to the Second cause of action, violation of Civil Code § 51.5, on
the ground that it fails to state sufficient facts is SUSTAINED. Civil Code §51.5 states in
subdivision (a) that “[n]o business establishment of any kind whatsoever shall discriminate
against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any
person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of
Section 51, or of the person's partners, members, stockholders, directors, officers, managers,
superintendents, agents, employees, business associates, suppliers, or customers, because the
person is perceived to have one or more of those characteristics, or because the person is
associated with a person who has, or is perceived to have, any of those characteristics.”
(Court’s emphasis.) As with the first cause of action, this cause of action alleges that
Defendant violated §51.5 by refusing to sell Plaintiff “an attending membership because of his
political affiliation and political beliefs.” (Complaint at ¶40.) The claim fails as a matter of
law because, as explained above, “political affiliation” is not a “characteristic listed or defined
in subdivision (b) or (e) of Section 51.” Leave to amend is DENIED as the defect cannot be
cured though amendment without contradicting the present factual allegation that the sole basis
for the alleged violation is discrimination on the basis of political affiliation.

Defendant’s demurrer to the Third cause of action, violation of Civ. Code §51.7 (the
Bane Civil Rights Act), on the ground that it fails to state sufficient facts is SUSTAINED.
Civil Code § 51.7 broadly provides that “all persons have the right to be free from violence and
intimidation by threat of violence based on, among other things, race, religion, ancestry,
national origin, political affiliation, sex, or position in a labor dispute.” (Stamps v. Sup. Ct.
(2006) 136 Cal.App.4th 1441, 1445.) Plaintiff’s third cause of action is expressly based on a
single “threat,” the January 2, 2018 email from Lori Buschbaum (allegedly acting as
Defendant’s “Incipient Response Team area head”), and in particular that portion of the email
stating that “If you are found on the premises of the convention center or any of the official
convention hotels you will be removed.” (See Complaint at ¶ 49.) This fails to state sufficient
facts. (See Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486 [there can be no “threat of
violence” without some expression of intent to injure or damage plaintiffs or their property.])
An objective standard is applied. “The test is: ‘would a reasonable person, standing in the
shoes of the plaintiff, have been intimidated by the actions of defendant and have perceived a
threat of violence?’” (Winarto v. Toshiba America Electronics Components, Inc. (9th Cir.
2001) 247 F.3d 1276, 1289-1290 [applying California law].) The Court concludes that a
reasonable person would not have perceived the Jan. 2, 2018 email from Lori Buschbaum as a
threat of violence. Leave to amend is DENIED as the defect cannot be cured without
contradicting the existing factual allegations that the sole basis for the claim is the January 2,
2018 email from Lori Buschbaum.

Defendant’s demurrer to the Fourth cause of action, violation of Civ. Code §52.1 (the
Ralph Civil Rights Act), on the ground that it fails to state sufficient facts is SUSTAINED.
(See Civ. Code §52.1(k) [“Speech alone is not sufficient to support an action brought pursuant
to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against
a specific person or group of persons; and the person or group of persons against whom the
threat is directed reasonably fears that, because of the speech, violence will be committed
against them or their property and that the person threatening violence had the apparent ability
to carry out the threat.”]; See also Shoyoye v. County of Los Angeles (2013) 203 Cal App 4th
947, 959 [“[W]e conclude that the multiple references to violence or threats of violence in the
statute serve to establish the unmistakable tenor of the conduct that section 52.1 is meant to
address. . . . ‘Civil Code §52.1 focuses specifically on the additional element present
especially in hate violence, viz., putting persons in fear of their safety. It is the element of
threat, intimidation, or coercion that is being emphasized in Civil Code §52.1.’”]

As with the third cause of action as pled this claim is expressly based on a single
communication—the January 2, 2018 email, and specifically that portion of the email stating
that “[i]f you are found on the premises of the convention center or any of the official
convention hotels you will be removed.” (See Complaint at ¶58.) Under no circumstances
could this be objectively construed as a threat of violence against a specific person (Plaintiff)
made by a person (Lori Buschbaum) with the apparent ability to carry out such a threat. Leave
to amend is DENIED as the defect cannot be cured without contradicting the present factual
allegations (that the sole basis for the claim is the Jan. 2, 2018 email from Buschbaum.)

- oo0oo -
Calendar line 2

See line 1.

- oo0oo -
Calendar line 3

- oo0oo -
Calendar line 4

- oo0oo -
Calendar line 5

- oo0oo -
Calendar line 6

- oo0oo -
Calendar line 7

- oo0oo -
Calendar line 8

- oo0oo -
Calendar line 9

- oo0oo -
Calendar line 10

- oo0oo -
Calendar line 11

- oo0oo -
Calendar line 12

- oo0oo -
Calendar line 13

- oo0oo -
Calendar line 14

- oo0oo -
Calendar line 15

- oo0oo -
Calendar line 16

- oo0oo --
Calendar line 17

- oo0oo -
Calendar line 18

- oo0oo -
Calendar line 19

- oo0oo -
Calendar line 20

- oo0oo -
Calendar line 21

- oo0oo -
Calendar line 22

- oo0oo -
Calendar line 23

- oo0oo -
Calendar line 24

- oo0oo -
Calendar line 25

- oo0oo -
Calendar line 26

- oo0oo –
Calendar line 27

- oo0oo -
Calendar line 28

- oo0oo -
Calendar line 29

- oo0oo -
Calendar line 30

- oo0oo –