Judge Cherol J. Nellon, Case Number: 23STCV17972, Date: 2024-12-11 Tentative Ruling

Judge: Cherol J. Nellon, Case: 23STCV17972, Date: 2024-12-11 Tentative Ruling

Case Number: 23STCV17972 Hearing Date: December 11, 2024 Dept: 14

ADD on #1

Case Background

Plaintiff alleges that there was an issue with a tenant at her apartment improperly exposing himself in the swimming pool area, which was later litigated in a small claims action (22SMSC00638).

On July 31, 2023, Plaintiff Shahnaz Amirtalesh her Complaint against Defendants Beverly Hills Properties, LLC, Douglas Walton, Fred S. Peters, Stacey Friedman, Pyka Lenhardt Schnaider Dawkins, and the Law Office of Robert Shiri, APC.

On September 20, 2023, Plaintiff filed the operative First Amended Complaint (FAC) against Defendants Beverly Hills Properties, LLC, The Sterlin Family Trust, Rochelle H. Sterling, Douglas Walton, Gregory Garbacz, David Lenhardt, Fred S. Peters, Stacey Friedman, Klinedinst PC, Pyka Lenhardt Schnaider Dawkins, Law Office of Robert Shiri, APC, Humberto Gonzalez, and Arianne Newman.

On May 1, 2024, the Court granted the Anti-SLAPP special motion to strike filed by Defendants Beverly Hills Properties LLC; Rochelle H. Sterling, Arianne Newman, Douglas Walton, Stacey Friedman, and Law Offices of Robert Shiri, APC. The Court dismissed the First Amended Complaint as to those Defendants.

On June 13, 2024, the Court sustained a demurrer filed by Defendants Stacey Friedman and the Law Offices of Robert R. Shiri, APC.

On September 5, 2024, the Court sustained Defendant Gonzalez’s first demurrer.

On September 20, 2024, Plaintiff filed a Second Amended Complaint (SAC).

On October 14, 2024, Defendants Beverly Hills Properties LLC; Rochelle H. Sterling, Arianne Newman, Douglas Walton, Stacey Friedman, and Law Offices of Robert Shiri, APC filed their objection to the Second Amended Complaint.

On October 22, 2024, Gonzalez filed a second demurrer.

On November 21, 2024, Plaintiff filed a late opposition.

Instant Pleading

Defendant Gonzalez demurs to the SAC.

Decision

Defendant Gonzalez’s demurrer is SUSTAINED without leave to amend.

The SAC is stricken as to Defendants Beverly Hills Properties LLC; Rochelle H. Sterling, Arianne Newman, Douglas Walton, Stacey Friedman, and Law Offices of Robert Shiri, APC.

Discussion

Gonzalez demurs to the SAC on the grounds that it does not allege any new or different facts against him. Rather, the SAC removes Gonzalez’s name from some causes of action. All remaining allegations remain the same.

On September 5, 2024, the Court sustained Gonzalez’s first demurrer to the first, third, fourth, fifth, sixth, eighth, and tenth causes of action because these causes of action were barred by litigation privilege. The seventh and eleventh causes of action were barred under the doctrine of res judicata. Additionally, the demurrer was sustained as to the first cause of action for fraud because the FAC failed to allege that Plaintiff relied on any misrepresentations by Gonzalez. The demurrer was sustained as to the third cause of action for violation of Business and Professions Code, section 17200 because the FAC failed to allege that Gonzalez engaged in an unfair business practice.

Here, the SAC adds new allegations against the Defendants who were already dismissed from this action after the Court granted their anti-SLAPP special motion to strike in May 2024. When the Court granted leave to amend after it sustained Gonzalez’s first demurrer, it did not grant Plaintiff leave to add these new allegations against the dismissed Defendants. Because Plaintiff exceeded the scope of the Court’s order granting leave to amend, the allegations against the dismissed Defendants are stricken.

The SAC now only names Gonzalez as to the fifth cause of action for defamation, the sixth cause of action for harassment, the seventh cause of action for negligent infliction of emotional distress, the tenth cause of action for retaliation, and the eleventh cause of action for intrusion of solitude. As before, the SAC alleges that the same injury as the underlying small claims case, 22SMSC00638. Specifically, the SAC alleges Gonzalez sunbathed nude in the pool area in front of Plaintiff’s unit, that he made loud noises, that he played loud music, and that Plaintiff was disturbed by his activities. (SAC ¶¶ 45, 89.) As before, the SAC alleges Defendants made false statements in the underlying small claims action. (SAC ¶100.) The Court notes that the sixth cause of action for defamation does not concern any conduct by Gonzalez. Rather, the cause of action only concerns conduct by the attorney Defendants.

The crux of the allegations against Gonzalez remains the same as the allegations in the FAC. Thus, the claims are barred by litigation privilege or res judicata. Therefore, Gonzalez’s demurrer is SUSTAINED.

The Court notes that Plaintiff filed a late opposition on November 21, 2024. Plaintiff’s deadline to file her opposition was due on November 19, 2024, 9 court days before the hearing on this matter. The Court has, in its discretion, considered the late opposition and finds that Plaintiff fails to address the defects identified above. Although Plaintiff argues in a conclusory manner that the SAC alleges facts sufficient to support her demands for damages, Plaintiff fails to address litigation privilege or res judicata. Because this is the second time the Court has considered these issues and Plaintiff failed to amend the Complaint to cure these defects, Plaintiff’s request for leave to amend is denied.

Conclusion

Defendant Gonzalez’s demurrer is SUSTAINED without leave to amend.

The SAC is stricken as to Defendants Beverly Hills Properties LLC; Rochelle H. Sterling, Arianne Newman, Douglas Walton, Stacey Friedman, and Law Offices of Robert Shiri, APC.