Judge: David A. Hoffer, Case: 30-2022-1263730, Date: 2022-10-31 Tentative Ruling
Before the court are six motions which are as follows:
1. Special Motion To Strike Portions of Plaintiff’s Complaint [SLAPP] filed by defendant Feldsott & Lee, A Law Corporation (“Feldsott”), with a Joinder by defendant Austin Nichter, as to the Complaint filed by plaintiff Anthony Aulisio, Jr.
2. Demurrer filed by defendant Rancho San Joaquin Homeowners Association (“HOA”) as to the Complaint filed by plaintiff Anthony Aulisio, Jr.
3. Motion to Strike filed by HOA as to Complaint filed by plaintiff Anthony Aulisio, Jr.
4. Demurrer filed by Feldsott as to Complaint filed by plaintiff Anthony Aulisio, Jr.
5. Demurrer filed by Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr.
6. Motion to Strike filed by defendant Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr.
Special Motion To Strike [SLAPP]
The Special Motion To Strike Portions of Plaintiff’s Complaint filed by Defendant Feldsott & Lee, A Law Corporation, is GRANTED as to the Second Cause of Action for Fraudulent Inducement
The Joinder by Austin B. Nichter in the Special Motion To Strike Portions of Plaintiff’s Complaint filed by Defendant Feldsott & Lee, A Law Corporation, is GRANTED.
Code Civ. Proc., § 425.16, subd. (b)(1) states: “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.”
“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.” (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1065 [quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061].) “Settlement negotiations and agreements are made “in connection with” litigation for purposes of § 425.16. [Seltzer v. Barnes (2010) 182 CA4th 953, 963; O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 CA5th 546, 566-567—claims arising from settlement negotiations and alleged “wrongful disbursement” of settlement funds are protected under CCP § 425.16(e)(2)].” (Rutter Civ. Proc. Before Trial at 7:552)
Feldsott is counsel for the HOA in Rancho San Joaquin Homeowners Association v. Anthony Aulisio, Jr., OCSC Case No. 2019-01075005 (“HOA Action”). Plaintiff alleges that during the course of the HOA Action, Austin Nichter, an attorney at Feldsott, committed fraud by making false representations to induce plaintiff to enter into an agreement to settle the HOA Action when the HOA had no intention to settle. Defendant has submitted evidence that the second cause of action arises out of alleged fraud in connection with settlement discussions. The allegations by plaintiff plainly arise from the alleged settlement negotiations and a protected activity. Accordingly, defendants have met their burden.
Generally, 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. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) 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 Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 940
Here, defendants assert that Civil Code §47 precludes liability. (Mtn at 16-17) A privileged publication includes one made in any judicial proceeding and any other official proceeding authorized by law. (Civ. Code, § 47(b).) “The litigation ‘privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058.) A defendant that advances an affirmative defense to the plaintiff's claims bears the burden of proof on the defense. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, at 676.) Defendants submit admissible evidence to establish the application of the litigation privilege. The litigation privilege of Civil Code §47 applies as a matter of law. Accordingly, plaintiff cannot demonstrate a probability of prevailing on the second cause of action against Feldsott or Nichter.
In addition to the litigation privilege, defendant asserts that the 2nd C/A is not sufficiently pled, lacks merit and is against public policy. These arguments have merit. Since defendant has met its burden of establishing that the C/A is subject to SLAPP, the plaintiff has the burden of establishing through admissible evidence that he has a probability of success. Defendant submits evidence that the parties were in the process of negotiating a settlement and that some aspects of the settlement had not been agreed to such as the terms of the stipulation. Plaintiff fails to allege the terms of the agreement with specificity and this justifies granting of the motion. Even if the court considers Plaintiff’s late-filed opposition (which claims to attach a declaration although none was filed), Plaintiff has not met his burden.
Moving party’s Request for Judicial Notice is GRANTED as to the existence of the documents.
Demurrer by HOA
The Demurrer by Defendant Rancho San Joaquin Homeowners Association to plaintiff’s complaint is SUSTAINED with 30- days leave to amend.
The complaint alleges the first cause of action for Breach of Settlement Agreement. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
A contract may be written or oral. (Code Civ. Proc., §§ 337 and 339.) “[T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–459 [citing Code Civ. Proc., § 430.10, subd. (g).) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) An allegation of an oral agreement must “set[] forth the substance of its relative terms.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.) Here, plaintiff fails to allege sufficient facts to plead the first cause of action. This includes the terms of the contract, formation, breach, whether contract was oral or written, and damages.
Plaintiff’s second cause of action Fraud in the Inducement is not sufficiently pled. “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73. This “strict requirement” of pleading “necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” Id. “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 157.) Here, plaintiff fails to allege the details of the promise or the agreement, as well as the failure to perform, with sufficient specificity.
The third cause of action for Breach of the Covenant of Good Faith and Fair Dealing asserts nothing beyond what is asserted in the first cause of action. “A “‘breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself’ [citation]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” (Id. at 1395.)
The following motions are moot as a result of the foregoing rulings: Motion to Strike Punitives, etc. by HOA, Demurrer by Feldsott & Lee, Demurrer by Nichter, Motion To Strike Punitives, etc., by Nichter
The HOA is ordered to give notice of these rulings.