Judge: David B. Gelfound, Case: 24CHCV00906, Date: 2024-09-18 Tentative Ruling

Case Number: 24CHCV00906    Hearing Date: September 18, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

SPECIAL MOTION TO STRIKE (C.C.P. Section 425.16)

Motion filed: 5/21/24

MOVING PARTY: Defendants Voss, Cook & Thel LLP and James Damon

RESPONDING PARTY: Plaintiff Kenneth M. Stern

NOTICE: OK.¿¿¿ 

RELIEF REQUESTED: An order from this Court to strike Plaintiff’s Complaint, pursuant to Code of Civil Procedure section 425.16.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from an alleged landlord-tenant dispute.

On March 19, 2024, Plaintiff Kenneth M. Stern (“Plaintiff” or “Stern”) filed the Complaint against Defendants Voss, Cook & Thel LLP (“VC&T”), James Damon (“Damon”) (collectively, the “Moving Defendants”), and Does 1 through 50, alleging the following causes of action: (1) Federal Wire Fraud by Business and Professions Code § 17200, (2) California State Wire Fraud, and (3) Declaratory Relief on Breach of Contract. Subsequently, Moving Defendants filed their motion to strike on April 22, 2024.

On May 21, 2024, Moving Defendants filed the instant Special Motion to Strike under Code of Civil Procedure section 425.16 (the “Motion”). In response, Plaintiff filed her Opposition on September 4, 2024, to which Moving Defendants replied on September 11, 2024.

On July 10, 2024, Plaintiff substituted Defendant Tiffany Taylor for Defendant Doe 1.

ANALYSIS

Special motions to strike pursuant to the California Anti-SLAPP Statute are considered using a two-pronged approach.  The first prong places the burden on the moving defendant(s) to prove that the allegations arise from conduct protected by the constitutional freedoms of speech or petition. If the first prong is satisfied, then the second prong shifts the burden on the opposing plaintiff to demonstrate a probability of success on the merits using credited evidence. (Code Civ. Proc., § 425.16, subd. (b).)

A.    First Prong –Defendants’ Burden to Prove All Allegations Arise from Conduct Protected by the Constitutional Freedoms of Speech or Petition

"At the first step of the [anti-SLAPP] analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson).)

Protected activity includes service of Notices to Quit. In Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 (Feldman), the court found that the service of the notice to quit was protected communicative activity within the meaning of Code of Civil Procedure section 425.16, reasoning that “[s]ervice of a three-day notice to quit was a legally required prerequisite to the filing of the unlawful detainer action…. As such, [the defendant’s] service of the three-day notice to quit was a communication preparatory to the bringing of the unlawful detainer action” (Feldman, supra, at p. 1480, see also, Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35 [“communications preparatory or in anticipation of brining an action or other official proceeding are protected under section 425.16”])

 Conversely, California courts have held that a cause of action against the landlord for disability discrimination in removing its residential units from the rental market does not warrant the protection under section 425.16, even if it involves such protected activities as filing and serving preparatory notices to the tenants. (See DFEH v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal. App.4th 1273.) In DFEH, the court denied the landlord’s Anti-SLAPP Special Motion to Strike, finding that the communications and the actual eviction itself were not the acts attacked in the complaint; instead, the gravamen of the complaint was for landlord’s alleged act of failing to accommodate the tenant’s disability” (DFEH, supra, at pp. 1284-1285.)

The Court notes that in the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89(Navellier I).)

1)      First Cause of Action – Federal Wire Fraud

i)                   The Conduct Underlying the Allegations

The Complaint alleges that the vehicle for bringing this Cause of Action, and the basis for such, is Business and Professions Code section 17200, which states, “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Compl. ¶ 24b.)

The Complaint alleges Moving Defendant’s unlawful, unfair or fraudulent business act as the violation of the Federal Wire Fraud, which is codified at 18 United States Code Chapter § 1343, providing that “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining ... property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, ...communication in interstate ... commerce, any writings, ... sounds for the purpose of executing such scheme or artifice” is guilty of the offense.” (Compl. ¶ 24a.)

Plaintiff’s pleading further states, “On, or about, March 9, 2024, Barrister emailed, to plaintiff, the fake, false and fraudulent Notice to Quit, dated March 9, 2024. The email, to which said Notice to Cure or Quit was sent, was sent by means of interstate wires; in that, the servers, which receive plaintiff’s email, are outside the State of California, then the emails are routed back to plaintiff’s email address, plaintiff being in the State of California.” (Compl. ¶ 25.) (Underlines added.)

“As such defendants, named in this cause of action, conspired with, aided and abetted, Barrister to engage in the criminally wrongful acts, as stated herein. That is, (1) defendants … wrongfully evict plaintiff, including as part of that plan, using the fake Notices to Quit, referenced herein, by use of sending the Fourth Fake Notice to Quit, by way of interstate wires; and, (2) that defendants, agreed with their coconspirator, and in aiding and abetting with, Barrister, intending that the wrongful acts of trying to evict plaintiff, through interstate wires, as set forth herein above, be committed.” (Compl. ¶ 26.) (Underlines added.)

Here, the gravamen of the First Cause of Action is for Moving Defendants, acting as the attorney for the non-party landlord, allegedly wrongfully evicted Plaintiff by using the fake Notice to Quit. Distinguishable from the DFEH case, where the gravamen was the landlord’s disability discrimination and not directly related to the landlord’s notices of removal of the rental units from the market, Plaintiff’s First Cause of Action is directly based on Moving Defendant’s conducts of providing Plaintiff multiple allegedly fake Notices to Quit.

The First Cause of Action hinges on the allegation that the fake Notice to Quit was sent to Plaintiff’s email, the server for which is located outside the State of California, constituting the alleged interstate wires. (Compl. ¶¶ 25-26.)

More like the cause of action in Feldman, the sole basis for liability in the First Cause of Action is the using and serving of the Notice to Quit. Consequently, any doubt that the filing of the preparatory notice would not be included in the wide ambit of the anti-SLAPP statute is set to rest by Feldman line of cases.

ii)                 Exception to Anti-SLAPP Statute Protection – Conclusively Illegal Conduct

In the Opposition, Plaintiff argues that the Notices to Quit were never served on Plaintiff, therefore they could not be a good faith anticipation or prelitigation communication. (Opp’n. at p. 4.) Additionally, Plaintiff contends that criminal conduct does not all within the anti-SLAPP statutes. (Id. at pp. 3-4.)

The Court notes that the established law is clear the moving party on an anti-SLAPP motion need not affirmatively show that its acts were lawful, since that would improperly shift the opposing party’s burden of proof onto the moving party and potentially import a merits inquiry that should be examined in later proceedings. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 429 (RGC Gaslamp), see also Felman, supra, 160 Cal. App.4th at p. 1484 [“The claim that the eviction was ‘illegal’ ... does not transform these protected activities into something different or independent.”])

Furthermore, Plaintiff asserts that criminal conduct does not fall within the anti-SLAPP statute, citing Flatley v. Morro (2006) 39 Cal.4th 299, 328 (Flatley). In Flatley, the court held that when a defendant’s communications constituted criminal extortion as a matter law, they are unprotected by constitutional guarantee of free speech or petition. (Id. at p. 305.)

However, the present case is distinguishable from Flatley. The allegation against Moving Defendants – that they used and serving a purportedly fake Notice to Quit via interested wires – are not conclusively established as illegal or criminal conduct as a matter of law. Unlike in Flatley, where the defendant’s actions were conclusively criminal and extortionate, here the legality of Moving Defendants’ conduct remains to be determined.

Therefore, the exception outlined in Flatley does not apply. Instead, the general legal principal holds that the moving party on an anti-SLAPP motion need not affirmatively demonstrate the lawfulness of their actions at this stage. As outlined in RGC Gaslamp, supra, the burden rests on the plaintiff to prove the illegality of the defendant’s conduct at the second prong of the analysis.

            Accordingly, Moving Defendants’ alleged actions remain within the ambit of protected activities under the anti-SLAPP statute.

Therefore, the Court finds that Moving Defendants have met their initial burden of demonstrating that the allegations under the First Cause of Action arise from protected activities. The Court will assess Plaintiff’s argument on the illegality in the second step of the analysis.

2)      Second Cause of Action – State Wire Fraud

Plaintiff asserts that the Second Cause of Action is brought pursuant to statute, Penal Code section 502, which provides, “8) “Data” means a representation of information, knowledge, facts, concepts, computer software, or computer programs or instructions. Data may be in any form, in storage media, or as stored in the memory of the computer or in transit or presented on a display device. (c) Except as provided in subdivision (h), any person who commits any

of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer

system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.” (Compl. ¶ 31a.)

            The Complaint alleges that “defendants ... wrongfully evict plaintiff, including as part of that plan, (1) using the fake Notices to Quit, and in particular, the fake Fourth Notice to quit, referenced herein, by use of sending the fake Fourth Fake Notice to Quit, by way of wire transmission; and, (2) that defendants, ... intended that the wrongful act of trying to evict plaintiff, by use of wire transmission, as set forth herein above, be committed.” (Compl. ¶ 31.) (Underlines added.)

            As previously analyzed for the First Cause of Action, the gravamen of the Second Cause of Action is also based solely on Moving Defendants’ action of “using ... [and] sending the fake ... Notice to Quit, by way of wire transmission.”

            Because prelitigation and preparatory communications in the form of Notice to Quit is a protected activities included in the wide ambit of the anti-SLAPP statute, the Court finds that Moving Defendants have satisfied their initial burden in the Motion as to the Second Cause of Action.

3)      Third Cause of Action – Declaratory Relief as to Breach of Contract

The Complaint alleges that “[t]he Notices to Cure or Quit ... were contractual offers.” (Compl. ¶ 37.) Plaintiff seeks declaratory relief, under Code of Civil Procedure section 1060, regarding the Notices to Quit written by Defendants, as to whether: “(A) a legally proper Notice to Quit must specify the conduct upon which the Notice to Quit is based; (B) a legally proper Notice to Cure of Quit, must state the conduct which must be cured, and how to cure such; (C) whether plaintiff, having cured any potential conduct, which could have been the basis for the third fake Notice to Quit, could have, thereafter, without having engaged in any acts, which would have allowed Barrister to evict plaintiff, be evicted, pursuant to the fake Fourth Notice to Quit; (D) whether Barrister, in conspiracy with defendants, named in this cause of action,, and with said defendants aiding and abetting Barrister, breached the fake Third Notice to Cure of Quit, by giving plaintiff the fake Fourth Notice to Quit, in light of the fact; that, between the fake Third Notice to Quit and, the fake Fourth Notice to Quit, plaintiff engaged in no conduct that could have been a breach of his obligations, pursuant to his tenancy, nor, a basis for the fake Fourth Notice to Quit.” (Compl. ¶ 38.)

As was previously discussed, at the first prong, courts consider whether a defendant has made a prima facie showing that activity underlying a plaintiff’s causes of action is statutorily protected, “not whether it has shown its acts are ultimately lawful.” (Wilson, supra, 7 Cal.5th at p. 887.) Therefore, any claimed illegitimacy of the defendant’s acts is an issue that must be raised and supported by the plaintiff in discharging its burden on prong two. (Id. at p. 888.) “To conclude otherwise would effectively shift to the defendant a [merits] burden statutorily assigned to the plaintiff.” (Ibid.)

In RGC Gaslamp, supra, the plaintiff’s declaratory relief cause of action challenged the validity of defendant’s fourth filing of duplicative mechanical liens. The Court of Appeal upheld the trial court’s granting of the anti-SLAPP motion, finding that “the filing of a mechanic’s lien constitutes protected activity, even if the lien was invalid or otherwise improper.” (RGC Gaslamp, supra, 56 Cal.App.5th at p. 421.) (Underlines added.)

Here, Plaintiff seeks declaratory relief challenging the validity of the Moving Defendants’ Notice to Quit and Notice to Cure or Quit, the underlying basis for plaintiff’s claim as to breach of contract.

In alignment with the established case law, the Court finds that Moving Defendants’ action is issuing the Notice to Quit and Notice to Cure or Quit, which are preparatory step in filing a judicial proceeding, was protected activity, without regard to whether the notice itself was invalid or otherwise improper. (RGC Gaslamp, supra, 56 Cal.App.5th at p. 421.)

Accordingly, the Court concludes that Moving Defendants have satisfied their initial burden in the Motion as to the Third Cause of Action. 

B.     Second Prong – Plaintiff’s Burden of Demonstrating A Probability of Prevailing

1)      Illegality of the Notices

“If the court finds such a showing [Defendant’s initial burden] has been made, it then determines whether the plaintiff [here the Feldman cross-complainants] has demonstrated a probability of prevailing on the claim.’” (Taus v. Loftus (2007) 40 Cal.4th 683, 712.) “Put another way, the plaintiffs ‘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 plaintiff is credited.’ [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “[P]laintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768.) “If the plaintiff fails to carry that burden, the cause of action is “subject to be stricken under the statute.” (Navellier I, supra, 29 Cal.4th 82, 89.)

            Here, Plaintiff’s Opposition solely asserts the invalidity or illegality of the notices on the following grounds: (1) that Plaintiff was never served with any of the four purported Notices to Quit (Opp’n. at p. 4), (2) that the Notices to Quit were never intended to be used in litigation (Id. at p. 2), (3) that the Notices to Quit do not state acts or omission of Plaintiff. (Ibid.)

However, Plaintiff has failed to support the assertions with any evidence, besides citing the allegations originally stated in the Complaint.

            By contrast, Moving Defendants present the following evidence. As to the service of the notices, Moving Defendants provide the declaration of Dorthy Bright, the president and Chief Operating Officer of the non-party landlord Barrister Executive Suites, Inc., who authenticated both Notice to Cure or Quit and Notice to Quit, along with proof of service demonstrating proper service by both personal service and Certified Mail. (Bright Decl. ¶¶ 3-5.)

            Regarding Plaintiff’s argument that theses notices were never intended to be used in litigation, Dorthy Bright attest that “[i]n February of 2021, Barrister engaged attorney James Damon of Voss, Cook & Thel, LLP to prepare an unlawful detainer complaint against Plaintiff Kenneth M. Stern for the reasons stated in the Notice to Cure or the Notice to Terminate. Barrister intended to go to court to pursue an unlawful detainer action against Plaintiff.” (Bright Decl. ¶ 7.”) Additionally, “Plaintiff vacated the Premises. Accordingly, Barrister did not need to file the unlawful detainer complaint against Plaintiff[.]” (Id. ¶ 7.)

            Lastly, Moving Defendants also point out that the served Notice to Cure or Quit, attached as Exhibit 1 to Dorthy Bright’s declaration, states in pertinent part:

“(2) Section 15 at page 6 of the Lease, which provides: “Rules and Regulations. Lessee shall observe at all times Lessor’s Rules and Regulations, a copy of which is attached hereto as Exhibit D.” Additionally, Rule/Regulation 19, which provides: “Lessee shall not disturb … any occupant of the Building and shall cooperate to prevent same.” This covenant has been violated in that Lessor has received numerous complaints that Lessee has been disturbing occupants of the Building. (3) Section 14 at page 5 of Exhibit D to the Lease, which provides: “Professional Conduct. If Lessee conducts himself or his business in such a manner that reflects unfavorably on them or the Suite, Lessor may terminate this Lease on 15 days notice to Lessee and any rent paid in advance will be returned to Lessee on a pro rata basis. Lessor further reserves the right to exclude, expel from the Suite or terminate the Lease of (on 5 days notice to Lessee) any person who, in the sole judgment of Lessor, is abusive to Lessor’s employees, tenants or visitors to the Premises … or who shall in any manner do any act in violation of any of these rules and regulations or applicable laws.” This covenant has been violated in that Lessee has published a libel that reflects unfavorably on the Suite and Lessee has been abusive to Lessor’s employees, tenants and/or visitors to the Premises.”

(Bright Decl. Ex. “1.”) (Underlines added.)

Similarly, the Notice to Quit, attached as Exhibit 2 to Dorthy Bright’s declaration, states in pertinent part:

“(2) Section 15 at page 6 of the Lease, which provides: “Rules and Regulations. Lessee shall observe at all times Lessor’s Rules and Regulations, a copy of which is attached hereto as Exhibit D.” Additionally, Rule/Regulation 19, which provides: “Lessee shall not disturb … any occupant of the Building and shall cooperate to prevent same.” This covenant continues to be violated in that Lessor has received additional complaints that Lessee has been disturbing occupants of the Building. (3) Section 14 at page 5 of Exhibit D to the Lease, which provides: “Professional Conduct. If Lessee conducts himself or his business in such a manner that reflects unfavorably on them or the Suite, Lessor may terminate this Lease on 15 days notice to Lessee and any rent paid in advance will be returned to Lessee on a pro rata basis. Lessor further reserves the right to exclude, expel from the Suite or terminate the Lease of (on 5 days notice to Lessee) any person who, in the sole judgment of Lessor, is abusive to Lessor’s employees, tenants or visitors to the Premises … or who shall in any manner do any act in violation of any of these rules and regulations or applicable laws.” This covenant continues to be violated in that Lessee continues to publish libelous statements that reflect unfavorably on the Suite and Lessee has been abusive to Lessor’s employees, tenants and/or visitors to the Premises.”

(Bright Decl. Ex. “2.”) (Underlines added.)

            Based on the above evidence, the Court finds that Plaintiff has failed to satisfy his burden in claiming any illegitimacy of the Moving Defendants’ action of using and serving the notices.

2)      Plaintiff’s Probability of Prevailing

            Furthermore, Moving Defendants argue that the Notices to Quit were served upon Plaintiff in anticipation of unlawful detainer lawsuit, therefore, litigation privilege under California Civil Code section 47(b) applies. (Mot. at p. 16.)

            “The litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Felman, supra, 160 Cal.App.4th at p. 1485.) (Underlines added.) A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. [Citations.]” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.)

“[T]he trial court must consider facts so as to make a determination whether plaintiffs can establish a prima facie probability of prevailing on their claims. [Citations.] Thus, while the court does not weigh evidence, it must determine whether plaintiffs have demonstrated evidence which, if credited, would justify their prevailing at trial. The court also considers [the defendant's] evidence to determine if it has defeated that submitted by plaintiffs as a matter of law. [Citation.]” (Blanchard v. DirectTV, Inc. (2004) 123 Cal.App.4th 903, 920-921.) (Italics in original)

            Here, Moving Defendants’ evidence establishes that they were engaged by the landlord to prepare an unlawful detainer complaint against Plaintiff. (Bright Decl. ¶ 6.) The Notice to Cure or Quit was served by personal delivery and certified mail on February 19, 2021. (Bright Decl. Ex. “1.”) The Notice to Quit was served by personal delivery and certified mail on March 9, 2021. (Bright Decl. Ex. “2.”) Plaintiff terminated his tenancy by moving out the premises on April 30, 2021. (Compl. ¶ 19.)  Due to Plaintiff’s vacating the premises, the landlord “did not need to file the unlawful detainer complaint with the ... court.” (Bright Decl. ¶ 8.)

            The Court finds that the notices were closely connected to and logically related to the intended unlawful detainer action, given the timeline and progression of events as shown by the evidence. The Court determines that the evidence provided by Moving Defendants, including the declaration of Dorthy Bright, demonstrates that litigation was seriously contemplated, and only avoided because Plaintiff vacated the premises.

Plaintiff’s assertions to the contrary are unsupported by any evidence, while Moving Defendants have effectively refuted Plaintiff’s claims with substantial proof. Because Plaintiff cannot, as a matter of law, make a prima facie showing of his probability of prevailing on the merits, the Court must conclude that the litigation privilege applies, thus barring Plaintiff’s Complaint.

            Based on the foregoing, the Court GRANTS the Special Motion to Strike under Code of Civil Procedure section 425.16 as to Moving Defendants.

CONCLUSION

Moving Defendants’ Special Motion to Strike under Code of Civil Procedure section 425.16 is GRANTED as to Moving Defendants.

Moving party to give notice.