Judge: David A. Hoffer, Case: 30-21-01221039Duncanvs.Cardone, Date: 2022-07-25 Tentative Ruling

A)  Anti-SLAPP

Defendants Frank Cardone, Monique Conley, and Marneicia Leashae Nesha Betts Draper’s Special Motion to Strike Under Anti-SLAPP (“MTS”) (joined by Defendant Fullerton Family Housing Partners, L.P.) is DENIED.

Anti-SLAPP motions are brought pursuant to Civ. Proc. Code § 425.16 in order to prohibit a chilling of a defendant’s protected rights of free speech and/or petition.  There is a two-pronged approach required for analyzing the MTS, which requires the court to determine if Plaintiff’s claim 1) arises out of Defendants’ protected speech or petitioning; and 2) lacks even minimal merit.  (Navellier v. Sletten (2002) 29 C4th 82, 88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.)   “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is subject to being stricken under the statute.”  (Navellier, supra, 29 Cal. 4th at 89.)

Defendants bring their MTS against causes of action (“COA”) Nos. 1) Fraud; 2) Breach of Contract Fraud (Breach of Rent, Tenant Leasing Contracts); 7) Unlawful Practices; 8) Pattern of Behavior; 9) Intentional Infliction of Emotional Distress; and 10) Constructive Knowledge.

The court finds the crux of the Complaint does not arise out of any activity of Defendants that is protected.  This action is not based on any statements Defendants may have made to HUD, the Public Housing Authority, or Orange County Housing Authority, but rather based upon what Plaintiff alleges are 1) illegal increases to her rent; 2) breaches of Plaintiff’s rental application and contract, and 3) improper actions related to Plaintiff’s apartment (staff improperly entering the apartment, stealing items, not providing receipts for rent, etc.).  (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th 97; Santa Monica Rent Control Bd. v. Pearl St. (2003) 109 Cal. App. 4th 1308.)  As the COA are not based upon any protected actions of Defendants, the court does not need to make a determination on the second prong.  (Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563, 1569.)

The MTS is denied.

B)   Demurrer

Defendants’ Demurrer to the Complaint is SUSTAINED with 20-days leave to amend.

Defendants demur to all 10 COA on the bases that they 1) fail to state facts sufficient to constitute a cause of action (Civ. Proc. Code § 430.10(e)); 2) made allegations and alleged causes of action that are uncertain (Civ. Proc. Code § 430.10(f)); 3) sued improper parties and caused a defect or misjoinder of parties (Civ. Proc. Code § 430.10(d); and, 4) failed to attach or properly plead the relevant contracts that were allegedly breached (Civ. Proc. Code § 430.10(g)).

Generally, the Complaint is incredibly difficult to follow and uncertain as to multiple statements and COA.  (Civ. Proc. Code § 430.10(f).)  To the extent the court was able to understand the Complaint, Plaintiff has failed to plead sufficient facts to support any of the COA against Defendants.  (Civ. Proc. Code § 430.10(e).)  Plaintiff has failed to allege any specific actions taken or not taken by any of the specific Defendants that might have caused her injury.  (Civ. Proc. Code § 430.10(d) and (f).)  Plaintiff has also alleged two breach of contract COA that are not supported by facts indicating the types of the contract(s) (oral or written), terms of the contract(s), legal effect of the contract(s), or the actual contract(s) themselves.  (Civ. Proc. Code § 430.10(g).)

The Demurrer is sustained in its entirety.  Plaintiff is given leave to filed a First Amended Complaint within 20-days of the date of this ruling. 

Defendants to give notice of all of the court’s rulings.