Judge Ashfaq G. Chowdhury, Case Number: 24NNCV02064, Date: 2024-08-15 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV02064, Date: 2024-08-15 Tentative Ruling

Case Number: 24NNCV02064 Hearing Date: August 15, 2024 Dept: E

Hearing Date: 08/15/2024 – 8:30am
Case No.¿24NNCV02064
Trial Date: Unset
Case Name: ANDREH HAKOOPIAN, an individual; YEROS HAKOPIAN, an individual; and NVART ISSAIAN, an individual; v. ROSETTE V. HARATOONIAN, an individual; THE WESTERN PRELACY OF THE ARMENIAN APOSTOLIC CHURCH OF AMERICA;

[2 - TENTATIVE RULINGS ON¿DEFENDANTS’ SPECIAL MOTION TO STRIKE PLAINTIFFS’ SIXTH CAUSE OF ACTION]¿

MOTION 1

RELIEF REQUESTED

Defendant S.I.G. Property Management moves under CCP § 425.16, et seq. to strike the sixth cause of action for intentional infliction of emotional distress from Plaintiffs’ Complaint as a strategic lawsuit against public participation.

Defendant requests they recover from Plaintiffs their attorney’s fees and costs incurred in defending this action, pursuant to CCP § 425.16, which mandates that the prevailing party shall recover such fees.

PROCEDURAL ANALYSIS

Moving Party: Defendant, S.I.G. Property Management

Responding Party: Plaintiffs, Andreh Hakoopian, Yeros Hakopian, and Nvart Issaian

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

BACKGROUND
Plaintiffs, Andreh Hakoopian, Yeros Hakopian, and Nvart Issaian, allege they had been tenants at the subject property since February 1, 2007 until September 30, 2023. (Compl. ¶ 1.) Plaintiffs allege that Defendant Haratoonian was the owner, landlord, and manager of the subject property when Plaintiffs initially rented the unit. (Compl. ¶ 2.)

Plaintiffs allege that at some point during their tenancy, Defendant The Western Prelacy of the Armenian Apostolic Church of America (Western Prelacy) became owner and landlord of the apartment complex. (Compl. ¶ 3.)

Plaintiffs allege that Defendant S.I.G. Property Management, dba, operating under Michael Shaar Inc. (S.I.G. Management) became the management company responsible for leasing and maintaining the subject property on behalf of Western Prelacy. (Compl. ¶¶ 4-5.)

Plaintiffs allege they paid all rent to Defendant Haratoonian. (Compl. ¶ 20.) Plaintiffs allege they are unaware when Defendant Western Prelacy became owner and landlord of the apartment complex since Haratoonian continued to claim that she was the owner, landlord, and manager of the complex. (Compl. ¶ 21.) Plaintiffs allege that Defendant Haratoonian intentionally interfered with Plaintiffs receiving notices from Defendant S.I.G. Management and Defendant Western Prelacy. (Compl. ¶ 22.) Plaintiffs allege that Western Prelacy was aware or should have been aware that Haratoonian was continuing to collect rent because Plaintiffs observed occasions that Haratoonian would interfere with the duties S.I.G. Management was supposed to perform. (Compl. ¶ 23.) Plaintiffs allege that Western Prelacy and S.I.G. Management failed to take measures to make sure Defendant Haratoonian was not interfering in their managerial duties such as maintaining and collecting rent from tenants. (Compl. ¶ 25.)

SPECIAL MOTION TO STRIKE
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 prevail on the claim. (CCP §425.16(b)(1).)

Consideration of a § 425.16 motion to strike involves a two-step process.

“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the Unites States or California Constitution in connection with a public issue,’ as defined in the statutes. (§425.16 subd. (b)(1). If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Under CCP § 425.16(e), 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 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 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,

(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).)

ANALYSIS

Sixth Cause of Action – Intentional Infliction of Emotional Distress

S.I.G. Management argues that the sixth cause of action for intentional infliction of emotional distress should be stricken because it is directly solely at Defendant’s protected First Amendment right to file an unlawful detainer case and that the sixth cause of action does not allege any wrongful conduct beyond the filing of Defendant’s unlawful detainer complaint.

S.I.G. Management points the Court to the allegations in ¶¶ 63 and 64 of the Complaint which allege:

63. Defendant’s, WESTERN PRELACY’s, conduct was outrageous since Defendant, WESTERN PRELACY, knew or should have known that Defendant, HARATOONIAN, had been collecting the rent payments from PLAINTIFFS because when they brought the unlawful detainer action against PLAINTIFFS, they were informed of such and continued to pursue with the eviction proceedings.

64. Defendant’s, HARATOONIAN’s, conduct was outrageous since Defendant, HARATOONIAN, knew or should have known that if the rent paid by PLAINTIFF is not received by its rightful owner, that the owner, Defendant, WESTERN PRELACY, would proceed with evicting PLAINTIFFS.

(Compl. ¶¶ 63-64.)

S.I.G. Management then cites to Birkner v. Lam, which states in relevant part:

The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735, 3 Cal.Rptr.3d 636, 74 P.3d 737; Navellier, supra, 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703, Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087, 114 Cal.Rptr.2d 825.) “The constitutional right to petition ... includes the basic act of filing litigation or otherwise seeking administrative action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19, 43 Cal.Rptr.2d 350; California Motor Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642[“[t]he right of access to the courts is indeed but one aspect of the right to petition”].)

(Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).)

In Reply, Defendant continues to argue that the sixth cause of action “makes a direct allegation that the "outrageous conduct" by The Western Prelacy of the Armenian Apostolic Church of America "the Church" was the Church's protected First Amendment right to file the underlying Unlawful Detainer case.” (Reply p. 2.)

Preliminary Matter

As a preliminary matter, the Court concedes that if Plaintiffs’ sixth cause of action was directly solely at Defendant’s protected First Amendment right to file an unlawful detainer action, then under Birkner Defendant would have an availing argument.

However, the Court does not find Defendant’s argument availing for the reasons explained below.

Paragraphs 63-64

Defendant cited to ¶¶ 63-64 of the Complaint to argue that Plaintiffs’ sixth cause of action is directed at the filing of an unlawful detainer action.

Presumably, Defendant cites to ¶¶ 63-64 because those paragraphs reference eviction proceedings.

A problem with this is that ¶¶ 63-64 pertain to allegations concerning Defendants Western Prelacy and Haratoonian—not S.I.G. Management.

The moving Defendant here is S.I.G. Management, not Western Prelacy or Haratoonian.

To the extent that ¶¶ 63-64 mention the words “eviction proceedings,” those allegations are not—as far as the Court can tell—directed at moving Defendant, S.I.G. Management.

Therefore, for clarity, the Court will cite the entirety of the allegations in the sixth cause of action:

62. PLAINTIFFS reallege and incorporate by reference every allegation of paragraphs 1 to 61 as though fully set forth in this paragraph.

65. Defendant’s, S.I.G. PROPERTY MANAGEMENT’s, conduct was outrageous Defendant, S.I.G. PROPERTY MANAGEMENT, knew or should have known that the rent payments paid by PLAINTIFFS were going to the wrong person and/or they did not take any reasonable action to ensure PLAINTIFFS were aware that rent payments had to be sent to them because they knew or should have known that Defendant, HARATOONIAN, was interfering with them managing and maintaining the PROPERTY.

66. The Defendants acted with reckless disregard of the probability that PLAINTIFFS would suffer emotional distress, knowing that PLAINTIFFS their conduct would harm them.

67. The Defendant’s conducts were a substantial factor in causing PLAINTIFFS’ severe emotional distress.

(Compl. ¶¶ 62-67.)

Although Defendant cited to the allegations in ¶¶ 63-64 of the Complaint as being the allegations directed at moving Defendant, the allegations directed at moving Defendant, here S.I.G. Management, are located in ¶ 65, not ¶¶ 63-64.

The allegations in ¶ 65 of the Complaint make no reference to eviction proceedings, or any protected activity.

“The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

Here, Defendant, S.I.G. Management, has not identified any protected activity alleged against S.I.G. Management in the sixth cause of action. The Court also notes that page 2 of the Reply states that Plaintiff “makes a direct allegation that the ‘outrageous conduct’ by The Western Prelacy of the Armenian Apostolic Church of America ‘the Church’ was the Church's protected First Amendment right to file the underlying Unlawful Detainer case.” (Reply p. 2.)

This makes it appear as if the Reply is stating that Western Prelacy was the entity to file the unlawful detainer action, and not moving Defendant, S.I.G. Management.

TENTATIVE RULING MOTION 1
The Court will hear argument.

MOTION 2

RELIEF REQUESTED

Defendant, The Western Prelacy of the Armenian Apostolic Church of America (Western Prelacy), moves under CCP § 425.16, et seq. to strike the sixth cause of action for intentional infliction of emotional distress from Plaintiffs’ Complaint as a strategic lawsuit against public participation.

PROCEDURAL ANALYSIS

Moving Party: Defendant, Western Prelacy (Defendant or Western Prelacy)

Responding Party: Plaintiffs, Andreh Hakoopian, Yeros Hakopian, and Nvart Issaian

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

BACKGROUND & LEGAL STANDARD
See Motion 1.

ANALYSIS

Sixth Cause of Action – Intentional

Moving Defendant, Western Prelacy, argues that the sixth cause of action for intentional infliction of emotional distress should be stricken because it is directly solely at Defendant’s protected First Amendment right to file an unlawful detainer case and that the sixth cause of action does not allege any wrongful conduct beyond the filing of Defendant’s unlawful detainer complaint.

Western Prelacy points the Court to the allegations in ¶¶ 63 and 64 of the Complaint which allege:

(Compl. ¶¶ 63-64.)

Western Prelacy then cites to Birkner v. Lam which states in relevant part:

(Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).)

Preliminary Matter

As a preliminary matter, the Court concedes that if Plaintiff’s sixth cause of action was directly solely at Defendant’s protected First Amendment right to file an unlawful detainer action, then under Birkner Defendant would have an availing argument. However, the Court does not find Defendant’s argument availing for the reasons explained below.

Paragraph 63

The allegations directed at Defendant Western Prelacy are found at ¶ 63 in the Complaint:

Defendant’s, WESTERN PRELACY’s, conduct was outrageous since Defendant, WESTERN PRELACY, knew or should have known that Defendant, HARATOONIAN, had been collecting the rent payments from PLAINTIFFS because when they brought the unlawful detainer action against PLAINTIFFS, they were informed of such and continued to pursue with the eviction proceedings.

(Compl. ¶ 63.)

“To determine whether a claim arises from protected activity, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of “ ‘act[s]’ ” protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

The case of Yau v. Santa Margarita Ford, Inc. describes the elements of an IIED claim:

“ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ [Citation.] ‘ “Conduct, to be ‘ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832, 166 Cal.Rptr.3d 242 (Vasquez ).)

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-61.)

As indicated on page 2 of the Reply, Defendant argues that the outrageous conduct alleged against Western Prelacy is the filing of the underlying unlawful detainer case.

The Court does not find this argument availing because it does not appear as if the Complaint alleges that the outrageous conduct is the filing of the unlawful detainer case.

The allegations for the sixth cause of action start at ¶ 62 of the Complaint. Paragraph 62 incorporates the prior allegations of the Complaint into the sixth cause of action. When reading the exact words of ¶ 63, the “conduct” is not explicitly specified. In fact, the Complaint simply states, “Defendant’s, WESTERN PRELACY’s, conduct was outrageous since Defendant…” (Compl. ¶ 63.)

Although the “conduct” is not explicitly specified, Defendant Western Prelacy did not file a demurrer on grounds of uncertainty, nor a demurrer on failure to state facts sufficient to constitute a cause of action, so that Defendant could better understand what the alleged “conduct” was that Plaintiffs are alleging to be the basis for the IIED claim.

Simply based on ¶ 63 not explicitly mentioning what the “conduct” even is, Defendant did not meet its burden in demonstrating that the act or acts of which Plaintiffs complain arise from protected activity.

Further, although the Complaint does not explicitly state what the alleged “conduct” is that forms the basis of Plaintiff’s IIED claim, upon the Court’s reading of the Complaint as a whole, in context with ¶ 63, it appears as if Plaintiffs are alleging that the “conduct” of the sixth cause of action arises from Western Prelacy knowing that the former owner Haratoonian was still collecting rent despite Haratoonian not being the owner. [See Compl. ¶¶ 23 &25.]

“PLAINTIFFS are informed and believe that Defendant, WESTERN PRELACY, was aware or should have been aware that Defendant, HARATOONIAN, was continuing to collect rent because PLAINTIFFS observed occasions that Defendant, HARATOONIAN, would interfere with the duties Defendant, S.I.G. PROPERTY MANAGEMENT, was supposed to perform.” (Compl. ¶ 23.)

“Defendant, WESTERN PRELACY, and Defendant, S.I.G. PROPERTY MANAGEMENT, failed to take any measures to make sure Defendant, HARATOONIAN, was not interfering in their managerial duties, such as maintaining and collecting rent from tenants.” (Compl. ¶ 25.)

Defendant appears to believe that ¶ 63’s reference to “eviction proceedings” means that Plaintiffs’ IIED claim arises from Western Prelacy’s filing of an unlawful detainer action.

As stated in ¶ 63 of the Complaint:

(Compl. ¶ 63.)

While it is true that ¶ 63 mentions the unlawful detainer action and eviction proceedings, it does not appear that ¶ 63 is alleging the outrageous conduct to be the filing of the unlawful detainer action or continuing eviction proceedings.

Although the defendant bears the initial burden, a cause of action does not “arise from” protected activity simply because it is filed after protected activity took place. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily entail that it arises from such activity. (Id. at 78.) The trial court must instead focus on the substance of plaintiff’s lawsuit in analyzing the first prong of a special motion to strike. (Scott v. Metabolife Internat, Inc. (2004) 115 Cal.App.4th 404, 413-414.) “The defendant’s act underlying the plaintiff’s cause of action must itself have been an act 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.) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies (citation), and when the allegations referring to an arguably protected activity are only incidental to a cause of action based essentially on non-protective activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat, Inc., (2003) 113 Cal.App.4th 181, 188.)

“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.” (§425.16 (b); City of Cotati, supra at 79.)

TENTATIVE RULING FOR MOTION 2

Western Prelacy points the Court to the allegations ¶¶ 63 of the Complaint which allege:

(Compl. ¶¶ 63.)

Western Prelacy then cites to Birkner v. Lam which states in relevant part:

(Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).)

The Opposition argues that the outrageous conduct engaged in by Defendant was the collection of rent by former owner Haratoonian and her co-Defendants knowingly allowing her to collect such rent.

Here, the Court finds moving Defendant’s argument availing.

As a preliminary matter, it is not entirely clear what “conduct” Plaintiffs are basing their IIED claim off of.

Paragraph 63 appears to allege conduct by Haratoonian, for collecting rent payments, which is not relevant here because moving Defendant is not Haratoonian.

However, the other “conduct” specified in ¶ 63 that Plaintiffs are alleging to be outrageous is Western Prelacy pursuing eviction proceedings despite knowing that Haratoonian had been collecting rent payments. Or to phrase it differently, Plaintiffs are attacking the Defendant’s prosecution of an unlawful detainer action. “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.)

Although the Opposition argues that the outrageous conduct complained of is: (1) Haratoonian fraudulently collecting rent from the Plaintiffs even though she no longer owned the building, and (2) Western Prelacy and S.I.G. Management knowingly allowing and facilitating Haratoonian’s fraudulent conduct, the Complaint goes farther than what Plaintiffs argue in their Opposition. The Complaint at ¶ 63 attacks Defendant for continuing with eviction proceedings despite knowing that Haratoonian was collecting rent.

Therefore, Defendant met its initial burden in demonstrating that the first cause of action arises from protected activity.

In Opposition, Plaintiffs do not even attempt to show a probability that they will prevail on the merits.

Defendant’s motion to strike the sixth cause of action as directed against Western Prelacy is GRANTED.

Defendant argues that leave to amend should not be granted. Defendant cites to Simmons v. Allstate Ins. Co. which held that that allowing a SLAPP plaintiff leave to amend the complaint once the trial court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from § 425.16's quick dismissal remedy. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1068.)

The Opposition does not argue for leave to amend.

Leave to amend is not granted.

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (CCP § 425.16(c)(1.)

Defendant argues that if the Court grants this motion, it expressly reserves the right to submit a motion for attorney’s fees as a separately noticed motion which it may or may not choose to pursue.

Here, the Court will not comment on the issue of attorney’s fees and costs because it is not before this Court since Defendant has admitted it may or may not choose to pursue attorney’s fees and costs.