Judge Carolyn M. Caietti, Case Number: 37-2023-00043492-CU-OR-CTL, Date: 2024-05-17 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2023-00043492-CU-OR-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

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Civil - Unlimited Other Real Property SLAPP / SLAPPback Motion Hearing 37-2023-00043492-CU-OR-CTL SCHNEIDER VS DOMEYER [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendants Cathy Robinson's Special Motion to Strike Pursuant to C.C.P. Section 425.16 and Request for Attorney Fees and Costs is GRANTED IN PART AND DENIED IN PART.

Defendants Freedom Mortgage Corporation, Stanley Middleman, Stan Moskowitz and Cathy Robinson's Demurrer to Plaintiff's Complaint is SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to Freedom Mortgage Corporation, Stanley Middleman and Stan Moskowitz) and MOOT IN PART (as to Cathy Robinson.) Background Plaintiff's Verified Complaint asserts one cause of action for quiet title regarding property in Spring Valley.

Defendant Cathy Robinson's Special Motion to Strike Robinson's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

A special motion to strike involves a two-step process. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1161.) First, the defendant must establish that the challenged claim arises from activity protected by C.C.P. section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Second, if the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Ibid.) As an initial matter, the Complaint does not contain any factual allegations pertaining to Robinson.

Plaintiff's one cause of action is for quiet title.

First Step A claim is subject to an anti-SLAPP motion if the claim arises from the defendant's act in furtherance of the defendant's federal or state constitutional right of petition or free speech in connection with a public issue and the plaintiff has not established a probability of prevailing on the claim. (C.C.P. § 425.16(b)(1).) Defendants duly served this motion at the address listed on Plaintiff's Complaint. Plaintiff did not file an Calendar No.: Event ID: TENTATIVE RULINGS

3058444 45 CASE NUMBER: CASE TITLE: SCHNEIDER VS DOMEYER [E-FILE] 37-2023-00043492-CU-OR-CTL opposition to this motion. By failing to oppose the motion, Plaintiff impliedly concedes the causes of action asserted in the Complaint against Robinson arise from its exercise of acts in furtherance of its right of petition or free speech, which 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. (C.C.P., § 425.16(e)(2); San Diego Local Rule 2.1.19(B).) Plaintiff does not contest that the Complaint is devoid of any allegations against Robinson and her only involvement is as counsel for some of the other defendants in a federal action. Any action taken by Robinson in defending those defendants is protected by C.C.P. section 425.16. Thus, Robinson established the first step of the analysis.

Second Step The second step is a 'summary-judgment-like procedure.' (Baral, supra, 1 Cal.5th at p. 384.) The burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (Ibid.) The court does not weigh evidence or resolve conflicting factual claims. (Ibid.) Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. (Id. at p. 384-85.) The court accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Id. at p. 385.) Claims with the requisite 'minimal merit' may proceed. (Ibid.) Here, Plaintiff failed to establish a probability he will prevail on the claim asserted against Robinson. No evidence or argument is provided.

In addition, Plaintiff did not address Robinson's argument the claims against her are premised on the assertion she conspired with her clients and Plaintiff failed to comply with Civil Code section 1714.10, requiring a court order when alleging a 'cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client.' (Id., at subd. (a).) 'Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof.' (Id., at subd. (b).) Thus, Plaintiff did not meet his burden on the second step, requiring the motion be granted.

Attorney Fees and Costs C.C.P. section 425.16(c) provides that a prevailing defendant in an anti-SLAPP motion is entitled to recover attorney fees. (See, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, attorney fees are not recoverable by a prevailing defendant who represents themselves. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493 ['a party, whether or not he is an attorney, who is not represented by counsel and who litigates an anti-SLAPP motion on his own behalf may not recover attorney fees under the statute'].) For these reasons, the motion is GRANTED IN PART as to striking the Complaint against Robinson and DENIED IN PART as to the request for attorney fees.

Defendants' Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, Calendar No.: Event ID: TENTATIVE RULINGS

3058444 45 CASE NUMBER: CASE TITLE: SCHNEIDER VS DOMEYER [E-FILE] 37-2023-00043492-CU-OR-CTL 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Defendants Freedom Mortgage Corporation, Stanley Middleman, Stan Moskowitz and Cathy Robinson duly served Plaintiff with this demurrer at the address listed on the caption of Plaintiff's Complaint.

Plaintiff did not file an opposition. By failing to oppose the demurrer, Plaintiff impliedly concedes the merits. (San Diego Local Rule 2.1.19(B).) In addition, the first and only cause of action fails to state sufficient facts to constitute quiet title and is uncertain. (C.C.P., § 430.10(e), (f).) The Court agrees with Defendants that it is difficult to follow and ascertain what Plaintiff is alleging.

The Complaint also fails to allege the basis for his title and how Defendants have adverse claims to the title. (C.C.P., ¶ 761.020; see also, Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 32 (explaining a complaint to quiet title is sufficient if it alleges an interest of plaintiff in the property and that defendant asserts a claim concerning the property adverse to plaintiff's interest).) Moreover, '[i]t is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured' and Plaintiff has not alleged he has done that. (Shimpones v. Stickney (1934) 219 Cal. 637, 648.) However, the demurrer by Defendant Cathy Robinson is MOOT in light of the ruling on her special motion to strike (supra).

Plaintiff did not request leave to amend, nor identify any facts to cure the defects raised in the demurrer.

(Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect.) Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Defendants Freedom Mortgage Corporation, Stanley Middleman and Stan Moskowitz; and MOOT as to Defendant Cathy Robinson.

Concluding Orders Special Motion to Strike The Court strikes Plaintiff's Complaint against Defendant Cathy Robinson.

Demurrer Defendants Freedom Mortgage Corporation, Stanley Middleman and Stan Moskowitz' Demurrer to Plaintiff's Complaint is sustained without leave to amend.

Other The Case Management Conference remains on calendar as other defendant(s) remain in the case.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to: (i) prepare and submit a proposed judgment in accordance with any applicable laws and rules of court; and (ii) serve written notice of this ruling by May 21, 2024 Calendar No.: Event ID: TENTATIVE RULINGS

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