Madrid v. Lazar CA2/7

Filed 1/16/25 Madrid v. Lazar CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SUSANA MADRID et al., B333110

Plaintiffs and Respondents, (Los Angeles County

Super. Ct. No.

v. 22STCV02576)

SIMON LAZAR,

Defendant and Appellant.

APPEAL from an order of the Superior Court of

Los Angeles County, Michael E. Whitaker, Judge. Affirmed.

Collins + Collins, Edward J. Riffle, David C. Moore, and

James Lee for Defendant and Appellant.

Wilshire Law Firm and Daniel DeSantis for Plaintiffs and

Respondents.

INTRODUCTION

In holding that perfecting an appeal from an order denying

a special motion to strike under Code of Civil Procedure

section 425.161 stays trial court proceedings on the merits, the

Supreme Court recognized some such appeals “will undoubtedly

delay litigation even though the appeal is frivolous or

insubstantial.” (Varian Medical Systems, Inc. v. Delfino (2005)

35 Cal.4th 180, 186, 195; see Oakland Bulk & Oversized

Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 763

[a “‘major reason’” for the explosion of special motions to strike

under section 425.16 “‘is that the statute rewards the filer of an

unsuccessful . . . motion with what one court has called a “free

time-out” from further litigation in the trial court’”].) This is one

of those appeals. And the timeout is over.

Susana Madrid and Daniel Villa filed this wrongful death

action after their son, Joe Villa,2 died in a motorcycle accident.

Madrid and Villa alleged that Joe lost control of his motorcycle

after he hit a temporary metal plate on the road and that the

plate was installed in connection with a nearby construction

project. Madrid and Villa sued the project’s contractor and

related entities, asserting several negligence-based causes of

action. After Madrid and Villa discovered Simon Lazar managed,

owned, or controlled several of the defendants, they substituted

him as a Doe defendant.

Lazar filed a special motion to strike under section 425.16

and argued Madrid and Villa named him as a defendant only

1 Statutory references are to this code.

2 To avoid confusion, we refer to Joe Villa by his first name.

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because he successfully opposed their request to depose him (i.e.,

they retaliated against him for litigation-related activity). The

trial court denied the special motion to strike, ruling Madrid and

Villa’s claim against Lazar, which alleged he negligently hired,

retained, and supervised contractors on the project, did not arise

from activity protected under section 425.16. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Joe Dies in a Motorcycle Accident, and Madrid and

Villa File This Action

Joe drove his motorcycle on a street in Los Angeles and hit

a temporary metal plate on the roadway. The impact threw him

off his motorcycle, onto a parked car, and then into oncoming

traffic. A passing car struck and killed him.

The metal plate on the road was installed by a

subcontractor on a nearby construction project, “which required

temporary metal trench plates in the roadway.” Madrid and

Villa sued, among others, Helio Group, the project’s general

contractor. They asserted causes of action for negligence;

negligent hiring, retention, and supervision; and wrongful death.

Madrid and Villa alleged the defendants “negligently, carelessly,

recklessly, and/or unlawfully planned, designed, built,

constructed, maintained, operated, controlled, repaired, and/or

monitored the roadway at the collision site, and failed to make

the roadway safe for drivers . . . .” Madrid and Villa also alleged

that the defendants “hired each other and/or employees to plan,

design, build, construct, maintain, operate, control, repair, and/or

monitor the roadway, metal plates, and surrounding areas in a

reasonable and safe manner” and that the defendants “and/or

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their employees were unfit or incompetent to perform the work

for which they were hired, including but not limited to the

specific tasks to be performed during the course of their

employment, namely the general safe planning, designing,

building, constructing, maintaining, operating, controlling,

repairing, and/or monitoring of the roadway, metal plates, and

surrounding areas where the subject incident occurred.”

B. Madrid and Villa Notice Lazar’s Deposition, and

Helio Group Refuses To Produce Him

Madrid and Villa learned of Lazar in discovery. Madrid

and Villa served Helio Group with requests for admission and

interrogatories. Helio Group denied some of the requests for

admission and identified Lazar as a witness with knowledge of

facts supporting its denials. Lazar verified discovery responses

by Helio Group and two other defendants, Oakmont Capital and

Overland Asset Group. Lazar also signed project-related

contracts between Helio Group and Venue Residences (the project

owner) on behalf of both entities. And Lazar signed a contract

between Helio Group and O.L. Development, Inc., one of the

subcontractors on the project, on behalf of Helio Group.3

Madrid and Villa served Helio Group and Lazar with a

deposition notice for Lazar, who was not yet a party to the action.

Helio Group claimed Lazar was an apex corporate officer who

lacked independent knowledge about the case and refused to

produce him for deposition.4

3 Madrid and Villa amended their complaint to name

O.L. Development, Inc. as a defendant.

4 Under the “apex deposition doctrine” or “apex witness rule,”

a plaintiff seeking to depose a highly ranked (or apex) officer of a

4

C. Madrid and Villa Move To Compel Lazar’s

Deposition, and the Trial Court Denies the Motion

Madrid and Villa filed a motion to compel Lazar’s

deposition. Madrid and Villa argued Lazar was uniquely

qualified to answer questions about Helio Group’s decision to hire

O.L. Development and about the relationship between the

companies working at the project site. Madrid and Villa also

argued they were entitled to depose Lazar because he verified

discovery responses on behalf of several defendants.

In opposition to the motion Helio Group argued Lazar was

a corporate officer and director of Helio Group who was not

involved in selecting O.L. Development as a subcontractor or in

the day-to-day operations of the project. Helio Group argued that

Lazar had no unique or superior knowledge of any discoverable

information and that Helio Group identified its director of

construction, Bill Mayes, as the person most qualified to testify

about the project. Helio Group also argued Madrid and Villa had

not pursued less intrusive means of discovery, such as serving

written discovery or deposition notices for lower-level company

employees.

corporate defendant must show the officer has unique or superior

personal knowledge that is unobtainable through less intrusive

discovery means. (See Liberty Mutual Ins. Co. v. Superior Court

(1992) 10 Cal.App.4th 1282, 1287-1290 [party may not depose a

corporate executive absent evidence the executive had unique

knowledge of issues in the case]; see also Ross v. Superior Court

(2022) 77 Cal.App.5th 667, 672 [“‘agency heads and other top

governmental executives are not subject to deposition absent

compelling reasons’”]; Westly v. Superior Court (2004)

125 Cal.App.4th 907, 911 [same].)

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Madrid and Villa argued in reply that Helio Group

identified Lazar as a person with knowledge of facts supporting

its denial of their requests for admission. They argued the court

should not allow Helio Group to identify Lazar as a

knowledgeable corporate representative in its discovery

responses, but then allow Helio Group to shield Lazar from

deposition by asserting he lacked knowledge.

The trial court denied the motion to compel Lazar’s

deposition. The court ruled Madrid and Villa failed to show

Lazar had “unique or superior knowledge that could be not

obtained via any other source.”5 Madrid and Villa served Helio

Group with a deposition notice for the person most qualified to

testify about the project, and Helio Group identified Mayes as

that person. The court ruled that, because Madrid and Villa had

not yet taken Mayes’s deposition or received written discovery

responses showing only Lazar could answer their questions,

Madrid and Villa had not established a compelling reason to

depose Lazar at that time. The court also ruled Madrid and Villa

would be entitled to take Lazar’s deposition if further discovery

revealed questions only Lazar could answer.

D. Madrid Substitutes Lazar as a Doe Defendant, and

Lazar Files a Special Motion To Strike

Madrid and Villa amended their complaint to substitute

Lazar in as a Doe defendant. In response, Lazar filed a special

motion to strike under section 425.16. Lazar argued that

5 Of course, Lazar verified Helio Group’s discovery responses,

which generally means he is subject to deposition. That’s why

attorneys have someone other than corporate officers verify

discovery responses.

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section 425.16 applied to his litigation-related speech (i.e., his

successful opposition to the efforts by Madrid and Villa to take

his deposition) and that Madrid and Villa named Lazar as a Doe

defendant in retaliation for his litigation conduct. Lazar also

argued Madrid and Villa named him as a Doe defendant to

circumvent the court’s order denying their motion to compel

Lazar’s deposition. In addition, Lazar argued Madrid and Villa

could not demonstrate a probability of success on their cause of

action against him. In particular, Lazar asserted he was not

involved in installing the temporary metal plate that allegedly

caused the accident, nor did he hire or supervise the contractors

who installed the metal plate. Thus, Lazar argued, Madrid and

Villa could not prove he was negligent.

In opposition to the special motion to strike Madrid and

Villa argued they had a valid basis for adding Lazar as a

defendant. Madrid and Villa stated that, after the trial court

denied their motion to compel Lazar’s deposition, they took

Mayes’s deposition. During the deposition counsel for Madrid

and Villa learned that Lazar owned Venue Residences and that

therefore Lazar, through Venue Residences, hired his company

(Helio Group) as the contractor for the project. According to

Madrid and Villa, that evidence supported a cause of action for

negligent hiring, retention, and supervision against Lazar

personally. Madrid and Villa also argued their allegations

against Lazar did not arise from protected activity. Specifically,

Madrid and Villa alleged Lazar negligently hired, retained, or

supervised the main contractor on the project, Helio Group,

conduct that was unrelated to Lazar’s purported protected

activity of objecting to the deposition notice and opposing the

motion by Madrid and Villa to compel his deposition. Madrid and

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Villa also argued their cause of action against Lazar had

sufficient minimal merit to survive a special motion to strike.

E. The Trial Court Denies Lazar’s Special Motion To

Strike, and Lazar Appeals

The trial court denied Lazar’s special motion to strike,

ruling Lazar did not establish Madrid and Villa’s claim arose

from activity protected under section 425.16. The court applied

the two-step analysis for evaluating a special motion to strike

and ruled Lazar had failed to satisfy the first step. The court

ruled “the allegations themselves stem from Lazar’s conduct in

hiring his own general contracting company to do the

construction work on the project he had an ownership interest

in,” which conduct did not arise from Lazar’s protected speech.

Lazar timely appealed from the order denying his special motion

to strike.6

DISCUSSION

A. Applicable Law and Standard of Review

Section 425.16, subdivision (b)(1), states that a “cause of

action against a person arising from any act of that person in

furtherance of the person’s right of petition or free speech under

the United States Constitution or the California Constitution in

connection with a public issue shall be subject to a special motion

to strike, unless the court determines that the plaintiff has

established that there is a probability that the plaintiff will

6 An order denying a special motion to strike under

section 425.16 is appealable. (§ 425.16, subd. (i); Newport Harbor

Ventures, LLC v. Morris Cerullo World Evangelism (2018)

4 Cal.5th 637, 645.)

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prevail on the claim.” Courts evaluate special motions to strike

under section 425.16 using a two-step process. “First, ‘the

moving defendant bears the burden of establishing that the

challenged allegations or claims “aris[e] from” protected activity

in which the defendant has engaged.’ [Citation.] Second, for

each claim that does arise from protected activity, the plaintiff

must show the claim has ‘at least “minimal merit.”’ [Citation.] If

the plaintiff cannot make this showing, the court will strike the

claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,

1009 (Bonni); see Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1061 (Park); Littlefield v.

Littlefield (2024) 106 Cal.App.5th 815, 826.) We review de novo

an order granting or denying a special motion to strike under

section 425.16. (Bonni, at p. 1009; Littlefield, at p. 825.)

B. The Trial Court Did Not Err in Denying Lazar’s

Special Motion To Strike

In analyzing a special motion to strike, at the first step

courts “‘consider the elements of the challenged claim and what

actions by the defendant supply those elements and consequently

form the basis for liability.’” (Bonni, supra, 11 Cal.5th at p. 1009;

see Park, supra, 2 Cal.5th at p. 1063.) “[T]he defendant must

make two related showings. Comparing its statements and

conduct against the statute, it must demonstrate activity

qualifying for protection. [Citation.] And comparing that

protected activity against the complaint, it must also

demonstrate that the activity supplies one or more elements of a

plaintiff’s claims.” (Wilson v. Cable News Network, Inc. (2019)

7 Cal.5th 871, 887; see Littlefield v. Littlefield, supra,

106 Cal.App.5th at pp. 826-827.)

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Madrid and Villa do not dispute Lazar engaged in protected

activity under section 425.16. Section 425.16, subdivision (e)(1),

provides protected activity includes “any written or oral

statement or writing made before a legislative, executive, or

judicial proceeding, or any other official proceeding authorized by

law” and section 425.16, subdivision (e)(2), provides protective

activity includes “any written or oral statement or writing 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.” The activity Lazar identifies—

asserting objections to Madrid and Villa’s notice of taking his

deposition and opposing their motion to compel his deposition—

were written statements made in a judicial proceeding and

therefore were protected activity.

Madrid and Villa’s claim against Lazar, however, did not

arise from Lazar’s protected activity. Madrid and Villa alleged

Lazar negligently hired, retained, or supervised contractors to

work on the project.7 As Madrid and Villa explained in their

opposition to Lazar’s special motion to strike, they did not sue

“Lazar for speech incorporated in his declaration in support of

Helio’s opposition to the motion to compel. Here, the thrust of

[their] cause of action against Lazar is that he, as an owner of the

construction project, negligently hired, retained or supervised his

contracting business, Defendant Helio Group. . . . Plaintiffs seek

to prove that this is why, amongst other reasons, Defendant

7 “California law . . . provides that a person ‘who negligently

fails to employ a competent and careful contractor may be liable

for injuries caused by the contractor’s failure to exercise due

care.’” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 566,

fn. 16.)

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Venue negligently hired, retained, and/or supervised Defendant

Helio Group—Mr. Lazar was financially motivated to take safety

shortcuts and hire his own company, on his own timeline, as

compared to hiring an independent contracting business that he

does not have ownership interest in.” Madrid and Villa’s claim

against Lazar was not based on Lazar’s conduct during this

litigation.

Lazar acknowledges that, under section 425.16, the

plaintiff’s claim must “arise from” a defendant’s protected activity

and that Madrid and Villa’s claim does not arise from such

activity (or at least, in Lazar’s words, does not “ostensibly” arise

from protected activity). As Lazar seems to recognize, claims

that follow “directly,” are “triggered by,” or are filed “immediately

after” protected activity does not mean the claims arose from that

activity. Which is the law: “That a cause of action arguably may

have been ‘triggered’ by protected activity does not entail that it

is one arising from such. . . . [T]he critical consideration is

whether the cause of action is based on the defendant’s protected

free speech or petitioning activity.” (Navellier v. Sletten (2002)

29 Cal.4th 82, 89; see City of Cotati v. Cashman (2002) 29 Cal.4th

69, 76-77 [“the mere fact an action was filed after protected

activity took place does not mean it arose from that activity”];

Iloh v. Regents of University of California (2023) 94 Cal.App.5th

947, 958 [“for a moving party to meet the ‘arising from’ burden, ‘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’”].)

Recognizing the law is contrary to his position, Lazar

makes only a prescriptive argument based, not on what the law

is, but on what he believes it ought to be. (See Hume, A Treatise

of Human Nature, Book 3, Part 1, Section 1 (1739) pp. 469-470

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[discussing the is-ought problem].) Lazar argues that, because

Madrid and Villa named him as a Doe defendant so soon after the

court denied their motion to compel his deposition (what Lazar

calls the “unique circumstances” of this case), he should “be

protected by section 425.16 to the extent that he would be if

Plaintiffs’ claims were directly based on his petitioning conduct”

and that the claim against him “should be deemed to arise from

his engagement in a protected activity.” But nothing in the

circumstances of this case justifies changing the law under

section 425.16 (or creating new law for a defendant like Lazar).

Madrid and Villa’s claims against Lazar do not arise from

protected activity; whether the Legislature should amend

section 425.16 to create an exception for a defendant who is

named as a Doe defendant after an unsuccessful attempt to take

the defendant’s deposition is not for us to decide. (See City of

Montebello v. Vasquez (2016) 1 Cal.5th 409, 418 [“[T]he plain

language of section 425.16 is to be respected and . . . exceptions to

the statute’s broad reach must not be lightly implied: ‘The

Legislature clearly knows how to create an exemption from

[section 425.16] when it wishes to do so.’”]; Urick v. Urick (2017)

15 Cal.App.5th 1182, 1195 [“it is for the Legislature to create an

exception” to section 425.16, even where “[t]here may be valid

reasons” for such an exception].)

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DISPOSITION

The order denying Lazar’s special motion to strike under

section 425.16 is affirmed. Madrid and Villa are to recover their

costs on appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J.

STONE, J.

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