Judge Daniel M. Crowley, Case Number: 23STCV21423, Date: 2023-12-07 Tentative Ruling

Defendants Fox Normandie LP’s, Jeffrey Mitchell’s, and Belinda Hatcher’s unopposed special motion to strike the complaint of pro per Plaintiff Derrick Lamont Beverly is granted. Defendants may separately move for an award of attorneys’ fees and costs.

Defendants Fox Normandie LP (“Fox Normandie”), Jeffrey Mitchell (“Mitchell”), and Belinda Hatcher (“Hatcher”) (collectively, “Defendants”) move unopposed to strike portions of the complaint (“Complaint”) of pro per Plaintiff Derrick Lamont Beverly (“Beverly”) (“Plaintiff”) on the grounds that Plaintiff’s Complaint contains at least one allegation or more arising out of protected activity and Plaintiff cannot show a probability of prevailing on the merits. (Notice of Motion, pgs. 1-2; C.C.P. §425.16.) Defendants move to strike the following portions of the Complaint: (1) Complaint page 2, lines 27-28, where Plaintiff refers to the eviction as “self-appointed and/or in agreement to carrying out the pre-meditated gang stalking agenda” of having him removed from the property; and (2) the entire first cause for damages (or other unspecified tort), since once the SLAPP paragraphs are stricken from the factual allegations, any cause of action fails. (Notice of Motion, pg. 2.)

Defendants’ 10/18/23 request for judicial notice of (1) the unlawful detainer (eviction) file for Fox Normandie Apartments LP v. Beverly, LASC Case No. 22STUD06657 (D-RJN, Exh. A); (2) restraining order hearing file for Beverly v. Singfield, Case No. 23STRO00528 (D-RJN, Exh. B); (3) Sheriff’s Returned Writ on Attachment/Execution in LASC Case No. 22STUD06657, filed on February 24, 2023 (D-RJN, Exh. C); (4) Beverly v. Fox Normandie et al., LASC Case No. 23STCV07492, filed April 5, 2023, dismissed by the Court, Department 38, on August 23, 2023; (5) Beverly v. Fox Normandie et al., LASC Case No. 23STCV07609, filed April 6, 2023; (6) Beverly v. Mitchell, LASC Case No. 23STCV08227, filed April 13, 2023, anti-SLAPP motion to be heard January 22, 2024; and (7) Beverly v. Law Offices of Ada R. Cordero-Sacks, et al., LASC Case No. 23STCV08356, filed April 14, 2023, anti-SLAPP motion to be heard April 16, 2024, is granted.

This matter involves Plaintiff’s former tenancy at a property owned by Fox Normandie, located at 849 Normandie Avenue, Unit #101, Los Angeles, California 90005 (“Subject Property”), which resulted in Defendant Fox Normandie filing an unlawful detainer action against him. (D-RJN, Exh. A.) Plaintiff filed his operative Complaint against Defendants on April 7, 2023, alleging a single unspecified cause of action. (See Complaint.)

On October 18, 2023, Defendants filed the instant motion. As of the date of this hearing no opposition has been filed.

“Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ [Citation.]” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009, citations omitted.) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940, citations omitted.)

A defendant opposing a special motion to strike has the burden to “state [] and substantiate [] a legally sufficient claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 & 93.) “‘Put another way, the defendant “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 defendant is credited.”’ [Citations.]” (Id. at pgs. 88-89.) To that end, the defendant must present competent evidence, “that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) “[D]eclarations may not be based upon ‘information and belief’ [citation]” and documents submitted without the proper foundation will not be considered. (Id.) The complaint, even if verified, is insufficient to carry the plaintiff’s shifted burden. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 614; Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354 [“pleadings do not constitute evidence”]; see also Burke, Anti-SLAPP Litigation (The Rutter Group, Civil Litigation Series 2018 § 5:13) [“To satisfy prong two, the plaintiff must submit admissible evidence that if credited is sufficient to sustain a favorable judgment against the legal theories asserted by the defendant.”].)

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. [Citations.]” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.)

“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’ is defined by statute to include ‘(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.’ [Citation.] If the defendant shows that the cause of action arises from a statement described in clause (1) or (2) of section 425.16, subdivision (e), the defendant is not required to separately demonstrate that the statement was made in connection with a ‘public issue.’ [Citation.]” (Id.)

“A cause of action is one ‘arising from’ protected activity within the meaning of section 425.16, subdivision (b)(1) only if the defendant’s act on which the cause of action is based was an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. [Citation.] In deciding whether the ‘arising from’ requirement is satisfied, ‘the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [(C.C.P. §425.16(b)(2).)] Whether the ‘arising from’ requirement is satisfied depends on the ‘gravamen or principal thrust’ of the claim. [Citations.] A cause of action does not arise from protected activity for purposes of the anti-SLAPP statute if the protected activity is merely incidental to the cause of action. [Citations.]” (Digerati Holdings, LLC, 194 Cal.App.4th at pgs. 883-884, citations omitted.) To show that a claim arises from protected activity under §425.16(b)(1), it is not sufficient to show that the claim “was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.) “Rather, the protected activity must ‘supply elements of the challenged claim.’ [Citation.]” (Id., citations omitted.)

“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. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the plaintiff, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, emphasis added.)

The burden is on the plaintiff to produce evidence that would be admissible at trial—i.e., to proffer a prima facie showing of facts supporting a judgment in plaintiff’s favor. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

Defendants argue Plaintiff’s allegation in on page 2:27-28 of the Complaint, referring to his eviction from the Subject Property as “self-appointed and/or in agreement to carrying out the pre-meditated gang stalking agenda” of having Plaintiff removed from the Subject Property, refers to Plaintiff’s eviction which is protected activity under the anti-SLAPP statute. (Motion, pg. 7; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)

Statements or Writing Made in Connection with an Issue Under Consideration or Review by a Judicial Body (C.C.P. §425.16(e)(2))

Defendants met their burden to show the single cause of action against them in Plaintiff’s Complaint arises from 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.” (C.C.P. §§425.16(b), (e).) Plaintiff’s single unspecified cause of action against Defendants is based on the following allegation: Complaint page 2, lines 27-28, where Plaintiff refers to the eviction as “self appointed and/or in agreement to carry out the pre-meditated gangstalking [sic] agenda participatory by in/the allid [sic] ‘Illuminated’ . . . ? (Illuminati),” for having Plaintiff removed from the Subject Property. (Complaint, pg. 2:27-28.)

“The constitutional right to petition, as we have seen, includes the basic act of filing litigation or otherwise seeking administrative action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19.) The right of petition includes access to the courts. (Briggs, 19 Cal.4th at pg. 1115 [“[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) . . . such statements are equally entitled to the benefits of section 425.16.”].) Defendants argue the filing of an unlawful detainer and the notices leading up to Plaintiff’s eviction from the Subject Property are protected activity under the anti-SLAPP statute as well as protected under the litigation privilege. (Motion, pgs. 7-8; Briggs, 19 Cal.4th at pg. 1115.) However, the issue of litigation privilege is not relevant to the first prong of an anti-SLAPP, but rather the second prong. Defendant’s alleged wrongful act filing and prosecuting an unlawful detainer is indisputably protected activity under the anti-SLAPP statute. Therefore, Defendants met their burden of demonstrating Plaintiff’s Complaint for damages against them arises from protected activity.

The burden shifts to Plaintiff to demonstrate a probability of prevailing on the cause of action against Defendants. Plaintiff has not met his burden.

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, internal citations omitted.)

Plaintiff failed to establish a probability of prevailing on his unspecified claim against Defendants by failing to submit sufficient evidence to support a prima facie cause of action for what appears in substance to be a cause of action for malicious prosecution.

Assuming, arguendo, Plaintiff met his burden on prong 2, his allegation pertaining to Defendants’ prosecution of their unlawful detainer claim falls within the litigation privilege, which is absolute and applies regardless of malice. (See Civ. Code §47(b) [defining “privileged publication” as a communication made “in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law”]; Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 814 [“the litigation privilege is absolute and applies regardless of malice and has been given broad application”], internal quotations and citations omitted.)

Accordingly, Plaintiff failed to establish a probability of prevailing on his cause of action against Defendants.

Based on the foregoing, Defendants’ unopposed special motion to strike Plaintiff’s cause of action against them is granted. Defendants may separately move for an award of attorneys’ fees and costs.

Hon. Daniel M. Crowley

Judge of the Superior Court