Judge Ashfaq G. Chowdhury, Case Number: 24NNCV02960, Date: 2024-10-18 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV02960, Date: 2024-10-18 Tentative Ruling

Case Number: ¿24NNCV02960 Hearing Date: October 18, 2024 Dept: E

Hearing Date: 10/18/2024 – 8:30am¿
Case No.¿24NNCV02960
Trial Date: UNSET
Case Name: JOHNNY ROLDAN, individually, v. 168 REALTY INC.; TONY CHANG; VICTOR S K KUNG; DOES 1-10, jointly and severally

[TENTATIVE RULING ON¿DEFENDANTS’ SPECIAL MOTION TO STRIKE]¿

PROCEDURAL

Moving Party: Defendants, 168 Realty Inc., and Tony Chang

Responding Party: Plaintiff, Jhonny Roldan

Moving Papers: Notice/Motion; Request for Judicial Notice; Florencio Declaration; Tony Chang Declaration; David Kang Declaration; Proposed Order

Opposing Papers: Opposition; Alexis Galindo Declaration

Reply Papers: Reply; Evidentiary Objections; David Kang Declaration; Request for Judicial Notice

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

RELIEF REQUESTED¿

“Defendants 168 Realty Inc. (“168 Realty”) and Tony Chang’s (“Mr. Chang”) (collectively “Defendants”), jointly and severally, will and hereby do move this Court, pursuant to Code of Civil Procedure (“CCP”) § 425.16, for an order striking Plaintiff Jhonny Roldan’s Complaint for Damages (“Complaint”) in its entirety, or in the alternative, for an order striking the following allegations and causes of action from Plaintiff’s Complaint:

1. Portions of Paragraph 11: “The reporting party, Defendant TONY CHANG and DOE 1, made a call for service to the LASD during the late morning hours of April 27, 2024 [sic], claiming that Plaintiff ROLDAN had threatened DOE 1 with a firearm while at 4902 Persimmon. At the time of the events described herein, Defendant TONY CHANG, a real estate agent for Defendant 168 REALTY INC and DOE 1 were employees of Defendant 168 REALTY INC.” (See Request for Judicial Notice (“RFJN”), Exhibit E, p. 4:25-5:4.)

2. Portions of Paragraph 12: “When LASD Deputies arrived outside of 4902 Persimmon Avenue, they made contact with Defendant TONY CHANG and/or DOE 1 who claimed that while he was on the property earlier that morning to do work on the house, ROLDAN, who lives on the property and is a renter there, threatened CHANG/DOE 1 with a firearm.” (See RFJN, Exhibit E, p. 5:13-17.)

3. Paragraph 18: “Knowing that ROLDAN was in custody after being-violently attacked by LASD Deputies, Defendants CHANG, DOE 1 and 168 REALTY Inc., at the direction of Defendant KUNG, proceeded with an Unlawful Detainer action against ROLDAN, beginning with posting a Three-Day Notice at the property on or about May 5, 2022, and filing the Unlawful Detainer action on May 10, 2022.” (See RFJN, Exhibit E, p. 8:10-16.)

4. Paragraph 19: “On or about May 8, 2022, Defendant CHANG, while in the course and scope of his employment and under the direction of Defendant KUNG, entered the property and took possession of ROLDAN’s belongings, including his construction tools, never returning them to ROLDAN. After being released from custody, ROLDAN requested of CHANG, 168 REALTY, and KUNG, that they return his property and belongings, which were left at 4902 Persimmon, to him, and they have refused. To this day, ROLDAN has never been allowed to return to the property to collect his belongings, nor have Defendants CHANG, 168 REALTY INC., or KUNG returned ROLDAN' s belongings back to him after taking possession of them.” (See RFJN, Exhibit E, p. 8:17- 28.)

5. Plaintiff’s First Cause of Action (for Negligence – Personal Injuries)

6. Plaintiff’s Second Cause of Action (for Conversion)

The aforesaid Motion to Strike Claims under the California Anti-SLAPP Statute, CCP § 425.16 (“Motion”) is brought on the grounds that: (1) Defendants’ alleged statements to the police, and (2) Defendants’ filing of an unlawful detainer action, on which two facts Plaintiff’s Complaint herein is substantively based, arise out of or were made in preparation for, or in connection with “any written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body, or any other official proceeding authorized by law”, “any written or oral statement or writing made in a place open to the public … in connection with an issue of public interest”, or “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)(2)-(4).)

Further, Plaintiff cannot establish a probability of prevailing on his claims because:

1. Defendants did not make a call for service to the police;

2. Defendants are absolutely immune from liability for reporting Plaintiff’s criminal conduct to the police (which they did not do) as alleged in Plaintiff’s facts common to all causes of action, and are immune from liability for filing an unlawful detainer action against Plaintiff, pursuant to the absolute privilege set forth in California Civil Code § 47(b);

3. Plaintiff cannot establish key elements of his causes of action; and

4. Plaintiff’s First Cause of Action (for Negligence – Personal Injuries) was not filed within the time set by law, and is precluded by the statute of limitations.

Accordingly, Defendants request that the Court award to them the attorneys' fees and costs incurred in bringing this Motion, in the total amount of $20,552.29. CCP § 425.16(c) mandates that a prevailing defendant "shall" recover its fees incurred in pursuing the motion.

This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities filed in support thereof, Defendants’ concurrently filed Request for Judicial Notice, the concurrently filed Declarations of Tony Chang, Justino Florencio, and David Kang, all other pleadings, papers, records and documentary materials on file or deemed to be on file in this action, and upon such further evidence or argument as may properly be presented to the Court before or during the hearing of this Motion.”

(Def. Mot. p. 1-3.)

BACKGROUND
Plaintiff, Jhonny Roldan, filed the instant action on 7/17/2024 against Defendants 168 Realty Inc., Tony Chang, Victor S K Kung, and Does 1-10.

The Complaint alleges two causes of action, the first for “negligence – personal injuries” and the second for conversion.

Generally speaking, Plaintiff alleges that he suffered injuries from LASD Sheriff Deputies firing rounds at him and from getting bit by an LASD K9.

Plaintiff alleges that these injuries happened because LASD Sheriff Deputies were responding to an alleged assault with a deadly weapon call for service. Plaintiff alleges that Defendants Tony Chang and Doe 1 made the call to LASD claiming that Plaintiff threated Doe 1 with a firearm.

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 section 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
As a preliminary, this Court notes that the Complaint, moving, opposing, and reply papers are confusingly written and at times nearly incomprehensible.

Both moving and opposing parties spend significant amounts of time addressing issues that are either entirely irrelevant for an anti-SLAPP motion, or not before this Court at the instant hearing.

First Cause of Action – Negligence (Personal Injuries)

“[A] special motion to strike under section 425.16 involves a two-step process. First, the moving defendant must make a prima facie showing ‘that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech . . . .’” [Citation.]” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.) If the defendant carries this burden, the plaintiff must then demonstrate its claims have at least “‘minimal merit.’” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.)

In Plaintiff’s negligence cause of action, Plaintiff alleges that Defendants had a duty to refrain from reporting false statements to law enforcement. Defendants argue that statements to the police are subject to a special motion to strike.

Here, the Court agrees with Defendants that Defendants’ alleged statements to the police fall within the anti-SLAPP protection for petitioning activities.

Courts have specifically held that the filing of a police report is protected activity under the anti-SLAPP statute. (See, e.g., Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942 [ “The law is that communications to the police are within SLAPP”].)

In Opposition, Plaintiff argues that filing a false police report is unlawful and is not protected speech.

Plaintiff’s argument is unavailing.

Relying on Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, Plaintiff argues a false police report is not in furtherance of a party’s constitutional right of petition.

Plaintiff’s argument is based on a misreading of Lefebvre. The defendant in Lefebvre had falsely accused her ex-husband of crimes to gain advantage in her divorce proceeding. The husband was charged and tried, found not guilty by a jury, and found factually innocent by the court. He then sued his ex-wife for malicious prosecution among other causes of action, and the ex-wife responded with an anti-SLAPP motion. (Id. at 700–701.) The trial court in Lefebvre found that the record “‘conclusively’” established that the ex-wife’s statements to the police were “illegal activity” under Penal Code section 148.5, and, as such, not “protected activity” within the meaning of the anti-SLAPP statute. (Id. at 701.) The Court of Appeal affirmed because the ex-wife did “not contest that she submitted an illegal, false criminal report . . . .” (Id. at 705.)

In reaching its decision, the court in Lefebvre relied on Flatley (Lefebvre, supra, 199 Cal.App.4th at 701, 704), which held that a defendant is precluded from using the anti-SLAPP statute to strike some or all of a plaintiff’s claims if “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) Thus, if “a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, at 316.)

Here, in contrast to Lefebvre, a factual dispute exists about the legality of Defendants’ conduct. Defendants do not concede the police report was false. In fact, moving Defendants argue that they didn’t even make the call to the police at all.

Because Defendants cleared the prima facie bar for establishing that Plaintiff’s first cause of action arose from protected activity, the burden is now on the Plaintiff to show a probability that he or she will prevail on the merits.

“To establish a probability of prevailing, 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.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

This standard is akin to the summary judgment standard. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 963 (“The standard for determining the merits of a defendant's special motion to strike a complaint is similar to that for determining the merits of a defendant's motion for summary judgment. “Both seek to determine whether a prima facie case has been presented by [the] plaintiff in opposing the motions.” (Bergman v. Drum (2005) 129 Cal.App.4th 11, 18, 28 Cal.Rptr.3d 112; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)–57 (rev. # 1, 2014) [“The ‘probability of prevailing’ is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict”].) If a plaintiff sets forth a prima facie case in opposition to such motions, the motions must be denied.”)

“In making this assessment it is “the court’s responsibility … to accept as true the evidence favorable to the plaintiff…” [citation omitted]. The plaintiff need only establish that his or her claim has “minimal merit” [citation omitted to avoid being stricken as a SLAPP …” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) While Ca. Code of Civil Proc., §425.16(b)(2) allows a Court to consider the pleadings, they are not generally considered facts. (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109 (““ ‘As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. [Citation.] The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.”)

In Opposition, Plaintiff argues that Defendants’ claim to the police that Plaintiff had a gun was false because Plaintiff did not in fact possess a firearm.

The evidence, or lack thereof, that Plaintiff comes forward with to argue that Plaintiff did not in fact possess a firearm is notable.

Plaintiff does not come forward with the declaration of Plaintiff simply stating that he did not possess a firearm.

Instead, to support the argument that Defendants’ claim to the police that Plaintiff had a firearm was false, Plaintiff submits the declaration of Plaintiff’s attorney, and Plaintiff’s attorney submits Exhibit E, which is an alleged copy of the Los Angeles Sheriff’s Department Incident History report.

Plaintiff allegedly translates this incident report, and Plaintiff concludes that the report doesn’t show possession of a firearm and that if Plaintiff had a gun it would’ve been recovered by LASD.

In Reply, Defendants object to Exhibit E (Galindo Decl. ¶ 9) on several grounds. The Court here sustains Defendants’ objections to Plaintiff’s Exhibit E.

“Authentication of a writing is required before it may be received in evidence. [A] document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.” (The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 34.) ““A writing may be authenticated by evidence that: (a) the party against whom it is offered has at any time admitted its authenticity; or (b) the writing has been acted upon as authentic by the party against whom it is offered.” (Evid. Code §1414.)

Plaintiff did not authenticate Exhibit E.

Since Plaintiff did not show a probability of prevailing on its first cause of action for negligence, Defendants’ motion to strike the first cause of action for negligence is GRANTED.

Second Cause of Action – Conversion
In ¶ 31 of the Complaint, Plaintiff alleges that Defendants wrongfully misappropriated, took, and converted Roldan’s personal property and tools.

Plaintiff argues that the second cause of action falls under protected activity with the anti-SLAPP statute because the second cause of action is based on Defendants filing an unlawful detainer action.

Plaintiff appears to be arguing that the cause of action for conversion arises from protected activity because in the preliminary allegations (which were incorporated into the second cause of action) in the Complaint the Plaintiff alleged:

18. Knowing that RQLDAN was in custody after being violently attacked by LASD Deputies, Defendants CHANG, DOE 1 and 168 REALTY Inc., at the direction of Defendant KUNG, proceeded with an Unlawful Detainer action against ROLDAN, beginning with posting a Three-Day Notice at the property on or about May 5, 2022, and filing the Unlawful Detainer action on May 10, 2022.

19. On or about May 8, 2022, Defendant CHANG, while in the course and scope of his employment and under the direction of Defendant KUNG, entered the property and took possession of ROLDAN's belongings, including his construction tools, never returning them to ROLDAN. After being released from custody, ROLDAN requested of CHANG, 168 REALTY, and KUNG, that they return his property and belongings, which were left at 4902 Persimmon, to him, and they have refused. To this day, ROLDAN has never been allowed to return to the property to collect his belongings, nor have Defendants CHANG, 168 REALTY INC., or KUNG returned ROLDAN's belongings back to him after taking possession of them.

(Compl. ¶¶ 18-19.)

Defendants argue that since the filing and enforcement of an unlawful detainer action is protected activity, Plaintiff’s second cause of action is subject to a special motion to strike.

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479.)

While the Court does not disagree with Defendants that the prosecution of an unlawful detainer action is protected activity, the Court has its doubts as to Defendants arguing that Plaintiff bases his second cause of action on the filing and enforcement of an unlawful detainer action.

As stated in Baral v. Schnitt:

At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.

(Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

Here, the cause of action for conversion does not seek relief based on allegations of the protected activity of enforcing an unlawful detainer action. The relief is sought, as Plaintiff alleges, for Plaintiff’s personal property and tools being taken and wrongfully converted.

Plaintiff does not appear to seek relief based on the background allegations in Paragraph 18 that an unlawful detainer action was filed. Defendants seem to assume and imply that because the allegations in paragraph 19, regarding Defendants allegedly taking Plaintiff’s personal property, follow the mentioning of the unlawful detainer action in Paragraph 18, that Plaintiff’s must be basing their conversion action on the filing of the unlawful detainer action.

However, Defendants’ assumption could very easily be incorrect.

Paragraph 18 states that the Three-Day Notice was posted at the property on May 5, 2022, and that the unlawful detainer action was filed on May 10, 2022.

Plaintiff alleges in Paragraph 19 that on May 8, 2022, Defendant Kung entered the property and took possession of Plaintiff’s belongings.

It could very well be the case that Plaintiff is alleging the conversion occurred on May 8, 2022, between May 5, 2022 and May 10, 2022, independent of the unlawful detainer proceedings.

For the Court to find that Plaintiff bases his second cause of action on the unlawful detainer action, when the conversion action doesn’t appear to be seeking relief based on the unlawful detainer action, the Court would have to read Defendants’ assumption into the Complaint.

“Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)

Therefore, the Court does not find that Defendants’ satisfied the first prong of the anti-SLAPP statute because Defendants did not make a prima facie showing that the Plaintiff’s cause of action arises from an act the Defendants performed in furtherance of the Defendants’ right of petition or free speech.

TENTATIVE RULING
Defendants’ motion to strike the first cause of action is GRANTED.

Defendants’ motion to strike the second cause of action is DENIED.

Defendants’ request to strike Paragraph 11 is granted in part. The Court strikes ¶ 11, on page 4, lines 25-28 because those allegations pertain to the protected activity. The Court does not strike the remainder of Paragraph 11 because those allegations don’t pertain to the protected activity.

Defendants’ request to strike portions of Paragraph 12 is DENIED. Those allegations don’t pertain to the protected activity.

Defendants’ request to strike Paragraph 18 is DENIED.

Defendants’ request to strike Paragraph 19 is DENIED.

Defendants’ requests for judicial notice with the moving and reply papers are granted. The Court does not admit the truth of the matters therein

“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).)

“[A] party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 339.)

Defendants seek attorney’s fees and costs in the amount of $20,552.29 in bringing this motion.

Defendants’ counsel bases this request on the following:

I spent 1.80 hours reviewing the file, including evidentiary documents and Plaintiff’s pleadings and court documents; 3.30 hours in investigative efforts; 9.20 hours reviewing legal authorities and statutes; and 19.90 hours outlining, drafting, preparing, reviewing, and revising this notice of motion and motion, supporting declarations, request for judicial notice, and proposed order; for a total of 34.20 hours. I expect to spend at least 4.00 hours reviewing Plaintiff’s opposition papers and at least 6.00 hours preparing Defendant’s reply. Additionally, I expect to spend at least 1.00 hours to attend the hearing to argue this motion. My time in this case and in similar matters is billed at $445 per hour for a total of $20,114.00. My office also incurred a $60 filing fee for this motion, and $378.29 court certified translation fee, for a grand total of $20,552.29 in attorneys’ fees and costs.

(Kang Decl. ¶ 5.)

The Court will hear argument. The Court notes that Defendants’ only prevailed on one cause of action. The Court also notes that a significant amount of Defendants’ arguments and allegations asserted in the moving papers were entirely irrelevant and unhelpful to the Court.