Judge: Alison Mackenzie, Case: 23STCV20363, Date: 2024-02-05 Tentative Ruling
Case Number: 23STCV20363 Hearing Date: February 5, 2024 Dept: 55
NATURE OF PROCEEDINGS: Plaintiffs’ Special Motion to Strike the
Cross-Complaint of Cross-Complainants Mendy Ezagui and Mayta Malamud Pursuant to
California Anti-Slapp Statute [C.C.P. §425.16].
The motion is denied.
BACKGROUND
JANET COHEN and JOSEPH COHEN (“Cross-Defendants”))
filed this case against MENDY EZAGUI and MAYTA MALAMUD (“Cross-Complainants”), alleging
that Cross-Complainants breached their lease agreement for the residential property
at 1115 S. Sherboume, Los Angeles, CA 90035 (“Property”), by failing to rent
for the years 2020, 2021, and 2022.
Cross-Complainants filed a Cross-Complaint seeking
damages against Cross-Defendants for allegedly untenantable and substandard
conditions at the Property. Cross-Complainants also allege that Cross-Defendants
are involved in improper debt collection activities. Cross-Complainants’ causes
of action are: 1) Breach of Contract; 2) Breach of Implied Warranty of
Habitability / Tenantability; 3) Breach of Implied Warranty of Quiet Enjoyment;
4) Negligence; 5) Nuisance; 6) Intentional Infliction of Emotional Distress; and
7) Violation of the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”).
Cross-Defendants now move to strike the Seventh Cause
of Action in the Cross-Complaint pursuant to CCP § 425.16, which extends
protections to strategic lawsuits against public participation (“SLAPP”
actions). Cross Complainants oppose the motion.
COURT STRIKES UNAUTHORIZED ADDITIONAL
FILINGS
The Court strikes the following documents filed after
the parties completed briefing on the motion on 01/29/2024: (1) Amended Reply
in Support of Special Motion to Strike (Anti-SLAPP), filed 2/1/2024; (2)
Request for Judicial Notice in Support of Amended Reply, filed 2/1/2024; and
(3) Response to Late Filed Reply, filed 2/1/2024. These documents were filed four
days before the hearing, and after Cross-Defendants timely filed their reply on
1/29/2024.
The Court does not consider these unauthorized
documents for purposes of this motion. Bozzi v. Nordstrom, Inc. (2010)
186 Cal. App. 4th 755, 765 (affirming court’s discretion to refuse to consider
unauthorized “surrebuttal” briefs).
LEGAL STANDARD
A cross-defendant opposing a “strategic lawsuit
against public participation” (“SLAPP”) claim may bring an “anti-SLAPP” special
motion to strike any cause of action “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…” CCP § 425.16(b)(1).
Courts use a two-step process for considering
anti-SLAPP motions. First, the cross-defendant must show that the acts of which
the cross-complainant complains were protected activity, namely, that they were
taken “in furtherance of the [cross-defendant’s] right of petition or free
speech under the Unites States or California Constitution in connection with a
public issue.” CCP § 425.16(b)(1).
“In determining whether the first step has been
established, i.e. the ‘arising from’ element of the anti-SLAPP statute, a court
must consider the pleadings and any supporting and opposing affidavits stating
the facts upon which alleged liability is based.” Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 443-44. Moving parties have the initial burden to
demonstrate that a cause of action is subject to a special motion to strike. Martinez v. Metabolife Inter. Ins.
(2003) 113 Cal.App.4th 181, 186. Specifically, courts decide whether
moving parties have made a prima facie showing that the attacked claims arise
from a protected activity, including defendants’ right of petition, or free
speech, under a constitution, in connection with issues of public
interest. CCP §425.16(e); Healy v.
Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1,
5.
If moving parties successfully have shifted the
burden, then opposing parties must demonstrate a probability of prevailing on
the merits of the complaint. Equilon Ent., LLC v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67. The prima facie showing of merit
must be made with evidence that is admissible at trial.” Salma v. Capon (2008) 161 Cal.App.4th
1275, 1289.
ANALYSIS
Cross-Defendants
assert that Cross-Complainants’ claim for violation of the RFDCPA is premised
on Cross-Defendants’ filing of the Complaint, which is protected conduct.
A
cross-complaint ordinarily would not be a SLAPP suit unless the cross-complaint
alleges a cause of action arising from the plaintiff's act of filing the
complaint, as opposed to one arising from the underlying dispute alleged in the
complaint. Third Laguna Hills Mutual
v. Joslin (2020) 49 Cal.App.5th 366, 371-72. This is because, by definition, a SLAPP suit
is not related to the transaction or occurrence of the complaint, but instead
is one that arises out of the litigation process itself. Kajima Engineering & Construction,
Inc. v. City of L.A. (2002) 95 Cal. App. 4th 921, 934 (“If a
cross-defendant believes that a cross-complaint has been filed ‘for an improper
purpose, ... or that the claims ... are frivolous ..., then it may move for
sanctions.... The anti-SLAPP statute, however, is not the appropriate remedy.”).
The
Cross-Complaint allegations do not mention the Complaint as the basis for the
claims, including for the seventh cause of action. Cross-Complainants allege
that they endured substandard conditions at the Property, including water leads
and damage, mold, and harassment by Cross Defendants. (Cross-Compl., ¶¶ 14-15.)
Cross-Defendants allege that Cross-Defendants also withheld their security
deposit and sent communications to them regarding debts allegedly owed for
rent, repairs, incidentals, and other unspecified items. (Id., ¶ 88.)
Cross-Complainants allege that Cross-Defendants falsely claimed that these
amounts were due, and such conduct violates the RFDCPA. (Id., ¶¶ 89,
93.)
The
declaration of Cross-Complainant Mendy Ezagui states that he and his family
moved out in September 2022 after enduring the alleged substandard conditions
and harassment. (Ezagui Dec., ¶¶ 5-6.) He states that after notifying
Cross-Defendants that they were moving out, Cross-Defendants sent emails to
Cross-Complainants attempting to collect monies allegedly owed for rent and
repairs. (Id., ¶ 16, Ex. C.)
The
gravamen of the seventh cause of action, therefore, centers on Cross-Complainants’
allegation that Cross-Defendants’ engaged in improper debt collection practices
after subjecting Cross-Complainants to harassment and substandard living
conditions, which ultimately led to Cross-Complainants moving out of the
Property. Contrary to Cross-Defendants’ assertion, this claim is not based on the
filing of the Complaint. Rather, it is a compulsory cross-complaint related to
Cross-Defendants’ alleged improper conduct with respect to the Property.
Cross-Defendants
assert that the Court should, at a minimum, strike certain unidentified portions
of the seventh cause of action. “[W]hile courts may strike less than the
entirety of a complaint or pleaded cause of action, the trial court is not
required to take on the burden of identifying the allegations susceptible to a
special motion to strike.” Park v.
Nazari (2023) 93 Cal.App.5th 1099, 1109. In any event, nothing in the
Complaint, including the seventh cause of action, references protected conduct.
Therefore, the motion fails to demonstrate
applicability of the SLAPP statute as to the Cross-Complaint.
Step
2 – Probability of Prevailing
Cross-Defendants assert that Cross-Complainants cannot
show a probability of prevailing on their seventh cause of action because Cross-Defendants
are not “debt collectors” under the definition of the relevant statute (Civil
Code § 1788.2(c)) and because the Complaint is not an attempt to collect a consumer
debt under Civil Code § 1788.2(f).
A court need not reach the second prong of the SLAPP
analysis if the first prong (arising from protected conduct) was not
satisfied. Wang v. Wal-Mart Real
Estate Business Trust (2007) 153 Cal.App.4th 790, 801. Here, Cross-Defendants
failed to meet their burden on the first prong of the SLAPP analysis and so
Cross-Complainants do not have a burden to show a probability of prevailing. But
even if Cross-Complainants did have the burden, they have established a probability
of prevailing.
The burden on the non-moving party in an anti-SLAPP
motion is like that of a party opposing a motion for summary judgment. DaimlerChrysler
Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344,
352. Whether complainants have satisfied their burden is a question of
law. Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811, 821.
The elements of a claim for violating the RFDCPA are:
O'Neil-Rosales v. Citibank (S. Dakota)
N.A.
(2017) 11 Cal. App. 5th Supp. 1, 7
(citing Civ. C. §§ 1788.10-1788.12, 1788.14-1788.16). See also Davidson v. Seterus, Inc. (2018) 21
Cal. App. 5th 283, 295-96 (RFDCPA
prohibits debt collectors’ unfair or deceptive acts in collecting consumer
debts, and “a debt collector is a person who regularly engages in the act or
practice of collecting money, property or their equivalent that is due or owing
by a natural person as a result of a transaction between that person and
another person, in which the natural person acquired property, services, or
money on credit, primarily for personal, family, or household purposes.”).
In a SLAPP motion, to establish a probability, a
plaintiff must demonstrate that the complaint is both legally sufficient and
supported by a prima facie showing of facts, which, if credited by the trier of
fact, is sufficient to sustain a favorable judgment. Morrow v. Los Angeles
Unified School Dist. (2007) 149 Cal.App.4th 1424, 1435; Navellier v. Sletten (2002) 29 Cal.4th
82, 88. “The plaintiff need only establish that his or her claim has ‘minimal
merit’…to avoid being stricken as a SLAPP.”
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
291.
The allegations in the Cross-Complaint sufficiently
allege that Cross-Complainants are debtors and that Cross-Defendants sought to
coerce Cross-Complainants to pay monies that they claimed Cross-Complainants owed
them. (Cross-Compl., ¶¶ 79, 80, 84-86, 88, 90.) Cross-Defendants are a “debt
collector” because they allegedly engaged in conduct to collect such debts from
Cross-Complainants. (Id., ¶ 81.) And the Cross-Complaint adequately
alleges that Cross-Defendants engaged in conduct that violates the RFDCPA. (Id.,
¶¶ 87-93.)
The Ortiz opinion cited by Cross-Defendants is
not on point or helpful, as to whether rent collection is a debt collector’s
collection of consumer debts, because it distinguishably addresses credit
report information, a lease agreement, and a different statute, and not rent
collection activities or the RFDCPA. See Ortiz v. Lyon Management
Group, Inc. (2007) 157 Cal.App.4th 604, 618, 619, overruled on other
grounds by First Student Cases (2018) 5 Cal. 5th 1026, 1038.
Cross-Defendants also endeavor to show that there is
no probability of prevailing because the litigation privilege applies to filing
the Complaint. Generally, courts “decline to apply the litigation privilege to
most debt collection legal actions involving violations of the Rosenthal Act.” Moten
v. Transworld Sys. Inc. (2023) _ Cal.App.5th _, _, 2023 WL
9103620, at *9 (citing Minser v.
Collect Access, LLC (2023) 92 Cal.App.5th 781, 791-92). See also Cabral v. Martins (2009) 177
Cal.App.4th 471, 487 (litigation privilege is inapposite to claims under the Rosenthal Act re debt collection); Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 339 (debt
collection outside of court is privileged, if done in connection with a
judicial proceeding to achieve the object of the litigation or contemplated
litigation under serious consideration). The seventh cause of action for
violation of RFDCPA simply does not fall within the scope of the litigation
privilege, as several decisions have opined in well settled law.
Conclusion
The SLAPP motion is denied.