Judge: David B. Gelfound, Case: 24CHCV03204, Date: 2025-01-09 Tentative Ruling

Case Number: 24CHCV03204    Hearing Date: January 9, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

SPECIAL MOTION TO STRIKE CROSS-COMPLAINT (CODE CIV. PROC., § 425.16)

Motion filed: 11/4/24

MOVING PARTY: Plaintiff/Cross-Defendant Michael R. Shaar, Trustee of the Michael R. Shaar Separate Property Trust

RESPONDING PARTY: Defendant/Cross-Complainant Rocio A. Flamenco

NOTICE: OK.¿¿¿ 

RELIEF REQUESTED: An order from this Court to strike Defendant/Cross-Complainant Rocio A. Flamenco’s Cross-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 September 5, 2024, Plaintiff/Cross-Defendant Michael R. Shaar, Trustee of the Michael R. Shaar Separate Property Trust, (“Plaintiff” or “Shaar”) filed the Complaint against Defendant/Cross-Complainant Rocio A. Flamenco (“Rocio”), Defendant Matthew Flamenco (“Matthew”), and Does 1 through 50, alleging two causes of action: (1) Breach of Lease & Damages pursuant to Civil Code, and (2) Common Counts. Subsequently, Rocio filed her Answer to the Complaint on October 3, 2024.

On the same day, October 3, 2024, Defendant/Cross-Complainant Rocio filed the Cross-Complaint against Plaintiff/Cross-Defendant Shaar, alleging Breach of Contract and Common Counts.

On November 4, 2024, Shaar filed the instant Special Motion to Strike Cross-Complaint (Code Civ. Proc., § 425.16) (the “Motion”). Subsequently, on November 26, 2024, Rocio filed her Opposition to the Motion, and Shaar submitted his Reply on January 2, 2025.  

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.    Request for Judicial Notice

Plaintiff/Cross-Defendant Shaar requests the Court take judicial notice of the following document:

1.      Request for Judicial Notice (“RJN”) No. 1: Unlawful Detainer Stipulation and Judgment, dated August 14, 2024, LASC Case No. 24CHUD00329 (Department 92). (RJN, Ex. “A.”)

Evidence Code section 452, subdivision (d) permits the court in its discretion to take judicial notice of the records of any court in this state. Upon taking notice of court records, the court accepts as true only that (1) they were filed and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.)

Accordingly, the court GRANTS Shaar’s request for judicial notice to the extent consistent with the above cited authorities.

B.     First Prong –Shaar’s Burden to Prove that 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).)

Here, Rocio’s form Cross-Complaint contains two causes of action labeled “Breach of Contract” and “Common Counts,” respectively. However, the only factual allegations in the entire Cross-Complaint consists only of a single paragraph:

“Wrongly evicted, discriminated against, retaliation & forced to move out with a false 3 day notice. Defendant [sic] lie to the courts to falsy [sic] evict me. Pain & suffering. Harassment & Physical, mental abuse.”

(Cross-Complaint ¶ 9.)

Shaar asserts that based on this allegation, the underlying conduct supporting Rocio’s gravamen stem from Shaar’s protected free speech and petition activities – specifically, the service of 3-day notice to quit and filing of an unlawful detainer action against Rocio. (Mot. at pp. 7-8.)

In Opposition, Rocio contends that she has not filed its Cross-Complaint in retaliation for Shaar’s right to petition; rather, she seeks to recover actual damage suffered as a result of Shaar’s violation of her rights as a tenant during her stay at the Subject Property. (Opp’n. at p. 5.)

The Court recognizes the general principle that pleadings should be liberally construed for the purpose of determining their effect and allegations. (Code Civ. Proc., § 452.) However, the Court finds that the single paragraph in the Cross-Complaint does not substantiate Rocio’s claim that the gravamen is centered on “her tenant’s right during her stay[.]”

The allegation is vague and conclusory, stating that Rocio was “wrongly evicted, discriminated against, relation [and] forced to move out [of the Subject Property] [due to Shaar’s] false 3 day notice.” Additionally, Rocio asserts that “[Shaar] lie[d] to the courts to fals[ely] evict Rocio.” Moreover, Rocio appears to allege that either or both of Shaar’s actions caused her “pain & suffering.” Lastly, Rocio claims “harassment and physical, mental abuse” without identifying any factual basis for these allegations.

The Cross-Complaint is devoid of any claim supporting Rocio’s assertion that the gravamen is centered on Shaar’s actions related to the claim that “the Subject Property was generally riddled with habitability violations and SHAAR failed, refused or neglected to fix the habitability violations despite repeated complaints from ROCIO.” (Opp’n. at p. 4.)

            Accordingly, the Court finds Rocio’s argument unpersuasive, and concludes, after liberally construing the factual allegation and looking beyond labels and conclusion of law or facts, that the basis of Rocio’s Cross-Complaint arise from the alleged facts that Shaar served Rocio “a false 3 day notice,” and that Shaar “lie[d] to the courts to falsy [sic] evict [Rocio].”

            The Court will now analyze these two actions under the framework of the Anti-SLAPP statute (Code Civ. Proc., § 425.16.)

1)      Service of 3-Day Notice

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 bringing 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.)

Here, it is undisputed that an underlying unlawful detainer action between the parties was filed and resolved by way of stipulated judgment. (RJN No. 1.) Therefore, just as the 3-day notice to quit in Feldman, which constituted a communication preparatory to the unlawful detainer action, the “3 day notice” alleged by Rocio also qualifies as protected communicative activity within the meaning of Code of Civil Procedure section. 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.

Unlike the DFEH case, where the core issue was the landlord's alleged disability discrimination, which was unrelated to the landlord’s notices of removal of rental units from the market, Rocio’s claim is specifically centered on Shaar’s act of issuing a '3-day notice.' Rocio contends that the '3-day notice' was 'false'; however, this allegation alone does not automatically negate the protection afforded to the communication. An assertion of falsity does not, in itself, render the act unprotected, especially when the notice is part of a legitimate business practice or a procedural step.

Well-established law affirms that the moving party in an anti-SLAPP motion is not required to prove the lawfulness of their conduct at this early stage. Imposing such a requirement would improperly shift the burden of proof onto the moving party, essentially conducting a merits inquiry that should be reserved for later proceedings. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 429; 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."])

By contrast, 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.)

The present case is distinguishable from Flatley. The allegation against Shaar – serving a '3-day notice' – does not, as a matter of law, constitute illegal or criminal conduct. Unlike Flatley, where the defendant’s actions were indisputably criminal and extortionate, here the legality of the '3-day notice,' and whether it is indeed false, remains unresolved.

Therefore, the exception outlined in Flatley does not apply. Instead, the general legal principle 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 Rocio to prove the illegality of Shaar’s conduct at the second prong of the analysis.

            Accordingly, Shaar’s service of 3 day notice remains within the ambit of protected activities under the anti-SLAPP statute.

2)      Petition to the Court

Rocio alleges that “[Shaar] lie to the courts to falsy [sic] evict me.” (Cross-Complaint ¶ 9.)

“The constitutional right to petition ... includes the basic act of filing litigation or otherwise seeking administrative action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19; California Motor Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510 [“[t]he right of access to the courts is indeed but one aspect of the right to petition”].) “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735 (Jarrow).)

Here, it is clear that Shaar’s petition to the court, through prosecuting an unlawful detainer action or engaging in other litigation, to obtain possession of the Subject Property “indisputably is protected activity within the meaning of section 425.16.” (Jarrow, supra, 31 Cal.4th at pp. 734-735.)

As the Court previously explained, Rocio’s allegation that Shaar “lie[d] to the courts” does not automatically strip Shaar of the right to petition unless the illegality can be conclusively established as a matter of law.

Here, whether Shaar’s petition involved lying or misrepresentation remains undetermined, and the burden rests on Rocio to establish the probability of prevailing in the second prong of the analysis.

Accordingly, the Court finds that Shaar has met the initial burden of proving that the allegations in the Cross-Complaint arise from protected activities within the meaning to Code of Civil Procedure section 425.16. 

C.    Second Prong – Rocio’s Burden of Demonstrating Probability of Prevailing

“If the court finds such a showing [moving party’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, the Cross-Complaint contains only conclusions of law and facts. It is entirely deficient in providing factual allegations to substantiate the claim that the “3 day notice” was false, or that “[Shaar] lie[d] to the courts.”

Aside from the single paragraph containing vague and conclusory statements, the Cross-Complaint also fails to sufficiently state a cause of action. Here, Rocio labels her two causes of action as Breach of Contract and Common Counts. However, the Cross-Complaint does not allege any facts showing the existence of a contract, breach, or damages related to a contractual relationship. (See Richman v. Hartley (2014) 224 Cal.App.4th 1182 [elements of a breach of contract claim]) The "common counts" cause of action is also entirely unrelated to the allegations in the complaint.

Therefore, the Court concludes that Rocio has failed to meet her burden of demonstrating a probability of prevailing.  

            Based on the foregoing, the Court GRANTS the Special Motion to Strike Cross-Complaint under Code of Civil Procedure section 425.16, WITHOUT LEAVE TO AMEND.

CONCLUSION

The Special Motion to Strike Cross-Complaint under Code of Civil Procedure section 425.16, filed by Plaintiff/Cross-Defendant Michael R. Shaar, Trustee of the Michael R. Shaar Separate Property Trust, is GRANTED WITHOUT LEAVE TO AMEND.

Moving party to give notice.