Judge: Armen Tamzarian, Case: 23STCV26460, Date: 2024-01-29 Tentative Ruling
Case Number: 23STCV26460 Hearing Date: January 29, 2024 Dept: 52
Plaintiff/Cross-Defendant
Gayane Musayelyan’s Special Motion to Strike Pursuant to CCP § 425.16
Under Code of Civil Procedure section
425.16, plaintiff/cross-defendant Gayane Musayelyan specially moves to
strike the second cause of action alleged in defendant/cross-complainant Mariam
Gabashvili’s cross-complaint. In the
alternative, Musayelyan moves to strike three specified portions of the cross-complaint.
Evidentiary Objections
Musayelyan
makes 33 objections to the declaration of Mariam Gabashvili and four objections
to the declaration of Dmitry Bykov. All
objections are overruled.
Legal Standard
Courts
use a two-step process for resolving anti-SLAPP motions under section 425.16:
“First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected
activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) The defendant
must show “the cause of action is based on the defendant’s protected free
speech or petitioning activity.” (Id. at p. 89.)
Second, once the defendant establishes the
first element, courts “must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim.” (Navellier,
29 Cal.4th at p. 88.) “[T]he plaintiff
need only have stated and substantiated a legally sufficient claim.” (Ibid.,
internal quotes and citations omitted.)
“[C]laims with the requisite minimal merit may proceed.” (Id. at p. 94.) “Put another way, the plaintiff ‘must
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.’ ” (Wilson v. Parker, Covert & Chidester (2002)
28 Cal.4th 811, 821.)
Protected Activity
The cross-complaint’s entire second cause
of action for intentional infliction of emotional distress arises from
protected activity. 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.” (CCP § 425.16(e)(1).)
The second cause of action arises from
statements made in this very judicial proceeding. The cross-complaint’s second cause of action
alleges, “Musayelyan included intentionally put false and misleading
information regarding the husband of Cross Complainant Gabashvili, describing
him in her Complaint as ‘a general contractor with a long history of felony
convictions’ and falsely concocting a story stating that Gabashvili’s husband
had ‘tampered’ with the plumbing at the premises of In Hype Sanctuary, West
Hollywood, to provide an excuse to close the business.” (¶ 22.)
The second cause of action further
alleges, “[I]n the Sixth Cause of Action of Musayelyan’s unverified Complaint,
she infers that the Cross Complainants are in ‘violation’ of Penal Code Section
496 for receiving stolen property and prays for tremble damages against the
Cross Complainants, even though no criminal charges have ever been filed
against the Cross Complainants. The
Cross Complainant is informed and believes, and based upon such information and
belief, alleges, that the Sixth Cause of Action was included in Musayelyan’s unverified
Complaint by her and her attorneys to put the Cross Complainants in a negative
and false light, inferring that they have been convicted of a crime.” (¶ 23.)
Musayelyan’s allegedly tortious acts are statements
made before this judicial proceeding via her complaint in this action. That is protected activity under Code of
Civil Procedure section 425.16(e)(1).
The opposition does not contest that the entire
second cause of action arises from protected conduct. It makes no argument regarding the first
prong of the anti-SLAPP statute.
Probability of Prevailing on the Merits
Cross-complainant Mariam Gabashvili has
not shown a probability of prevailing on her second cause of action. The litigation privilege protects Musayelyan’s
allegedly tortious communications. “For
well over a century, communications with ‘some relation’ to judicial
proceedings have been absolutely immune from tort liability by the privilege
codified as [Civil Code] section 47(b).”
(Rubin v. Green (1993) 4 Cal.4th 1187, 1193.) The litigation privilege “bars all tort cases
of action except a claim of malicious prosecution.” (Geragos v. Abelyan (2023) 88
Cal.App.5th 1005, 1031.)
As discussed above, Gabashvili’s second
cause of action seeks to hold Musayelyan liable specifically for statements in
her complaint in this lawsuit. Those
statements have more than “some relation” to judicial proceedings. They were made directly in this judicial
proceeding.
The opposition argues these allegedly
tortious statements are not related to the litigation because they do not belong
in the complaint. For example,
Gabashvili argues, “The allegations regarding Dmitry Bykov are unrelated to the
pleadings [and] are not protected under the litigation privilege.” (Opp., p. 5.)
The opposition further asserts, “[T]he issue of the purported flooding
is absolutely irrelevant to the causes of action set forth in the Plaintiff’s
unverified Complaint.” (Id., p.
6.) That may be grounds for moving to
strike portions of the complaint as immaterial.
But it is not a valid argument that these statements are unrelated to
the pleadings. They are in the
pleadings. The litigation privilege
therefore provides these statements absolute protection—even if they are false
or irrelevant to Musayelyan’s causes of action against the defendants.
The opposition also argues the complaint’s
sixth cause of action for violation of Penal Code section 496 is invalid. That argument is both irrelevant and wrong. It is irrelevant because whether a cause of
action alleged in the complaint is valid may be grounds for a demurrer to the
complaint—not for opposing this anti-SLAPP motion or an exception to the
litigation privilege. And it is wrong because
it relies on the holding in Siry Investment, L.P. v. Farkhondehpour
(2020) 45 Cal.App.5th 1098, which the California Supreme Court reversed in Siry
Investment, L.P. v. Farkhondehpour (2022) 13 Cal. 5th 333, 339.
Attorney Fees and Costs
Musayelyan moves for $8,372.50 in attorney
fees and costs. “[A] prevailing defendant”
or cross-defendant “on a special motion to strike shall be entitled to recover”
his or her “attorney’s fees and costs.”
(CCP § 425.16(c)(1).) “The party
filing” an anti-SLAPP “motion may seek attorney fees in its moving papers.” (Carpenter v. Jack in the Box Corp.
(2007) 151 Cal.App.4th 454, 468.)
Musayelyan prevailed on this special
motion to strike. She is entitled to
recover the fees she claims. Gabashvili’s
opposition does not address the motion’s request for attorney fees.
Disposition
Plaintiff/cross-defendant
Gayane Musayelyan’s special motion to strike is granted. The court hereby strikes
cross-complainant Mariam Gabashvili’s second cause of action without leave to
amend.
Plaintiff/cross-defendant Gayane Musayelyan
shall recover $8,372.50 in attorney fees and costs from
defendant/cross-complainant Mariam Gabashvili.