Judge: David Sotelo, Case: 22STCV18504, Date: 2022-08-23 Tentative Ruling
Case Number: 22STCV18504 Hearing Date: August 23, 2022 Dept: 40
MOVING PARTY: Defendant Nurbeh Baravarian.
Defendant Nurbeh Baravarian
brings an opposed anti-SLAPP Motion against Plaintiff Janet Weiss’s Four causes
of action ((1) IIED/NIED, (2) Violation of Easement (i.e., Breach of Contract),
(3) Violation of Covenant of Good Faith and Fair Dealing, and (4) Negligence),
claiming that all of the factual pleadings allege protected activity by Baravian
pursuant to Code of Civil Procedure section 425.16 (namely, seeking damages in
a small claims action against Weiss for damages to his condo unit caused by the
water leak between his and Weiss’s units) and that Weiss cannot show merit to
her claims on motion for various reasons.
The Court (1) DENIES
the anti-SLAPP Motion as to the Complaint’s second and fourth causes of action
because Defendant Baravarian fails to meet his burden of demonstrated that
these claims arise from protected activity within the meaning of Code of Civil
Procedure section 425.16 and (2) DENIES the anti-SLAPP Motion as to the
Complaint’s first and third causes of action because, even though these claims
appear to arise in part from protected activities—i.e., Mr. Baravarian seeking
damages from Weiss in the Small Claims Action—Weiss met her burden of
demonstrating even minimal merit to these claims through the exhibits attached
to the Complaint, her Declaration on Opposition, and the exhibits attached to
the Opposition.
On October 9, 2020, the Janet Weiss Separate Property Trust Dated August 10, 2020 (“Trust”) became
the owner entitled to possession and occupation of Unit 705 of the Condominium Project
located at 321 North Oakhurst, Beverly Hills, California (“Unit 705” in the “Condominium
Project”).
The Condominium Project was established by the Declaration and
Master Lease Agreement dated November 21, 1972, and amended November 20, 1972, recorded
in short form in the Office of the County Recorder on December 4, 1972, as Instrument
No. 161, identifying the real property at issue as 321 North Oakhurst Drive, Beverly
Hills. (Attached as Exhibit A to the Complaint.) Each property and leasehold co-owner’s
rights were subject to the Covenants, Codes, and Restrictions (“CC&Rs”) recorded
with the Office of the County Recorder on June 10, 1975, as Instrument No. 546.
(Attached as Exhibit B to the Complaint.) The property was improved with an eight
(8) level multi-family structure containing 36 units and appurtenances and facilities,
referred to in the Lease and the CC&Rs as the “Improvements.”
As the Trustee of the Trust, a beneficiary of the Trust, and
a Lessee of Unit 705 of the Condominium Project on November 24, 2021, Weiss had
all the rights, duties, and privileges of a co-owner and co-lessee in the Condominium
Project, with the right and duties to enforce the Condominium Project’s CC&Rs.
On November 24, 2021, the shower water drainage pipe leading
from Unit 705 to the Condominium Project’s sewer system leaked from or around Unit
705 and into Unit 605 of the Condominium Project (owned by Defendant Baravarian).
Mr. Baravarian notified Weiss that there was a water leak coming from the shower
drain above his Unit, after which Mr. Weiss ceased using the shower facility.
On November 26, 2021, Weiss requested Baravarian provide access for Weiss’s contractor
to inspect and repair any damage that the water leak had caused to Unit 605
because the leaking pipe was (apparently) below the concrete slab dividing Unit
705 from Unit 605 and because the leak could not be accessed from Unit 705 without
demolition of the shower in Unit 705 and concrete slab dividing the floors between
the Units. While Baravarian permitted Weiss’s contractors access to inspect the
drainpipe from his shower in Unit 605, Baravarian denied permission to make repairs.
Each contactor that Weiss consulted recommended making repairs through the ceiling
adjacent to Baravarian’s marble tile in Unit 605’s bathroom for ease of access,
to avoid demolition of the concrete slab and tile in Weiss’ Unit, and to
generally avoid excessive costs. However, Baravarian refused to permit Weiss access
to the premises to effect the repairs. (It is unclear from the pleadings how
much damages would have been caused to Unit 605 to effect these repairs.)
Weiss’s suit characterizes Baravarian’s refusal to permit
access to Unit 605 as a breach of Article II Section 4 of the CC&R, which imputes
on each owner and lessee in the Condominium Project an Easement for the use and
enjoyment of their property and for structural maintenance over the other Condominium
owners and co-lessees, and Article IX of the CC&R, which defined the water lines
in the condominium and sanitary sewer lines as Utilities and granted an easement
over all other Condominium Units to repair the water lines.
Weiss further alleges that Baravarian’s failure and refusal to
permit Weiss’s workers access to Unit 605 resulted in delay and excessive costs
to Mr. Weiss by forcing her to make repairs by having the shower in Unit 705 demolished
to gain access to the leaking pipe through the concrete slab that divided Units
705 and 605 in the Condominium Project. As a result, Weiss could not utilize the
shower at issue in Unit 705 for an extended period lasting through April 6, 2022,
during which time, Weiss’s 92-year-old live-in mother, Sally Weiss (suffering from
a urinary tract infection caused by a fistula between her bladder and her colon)
was not able to access this specific shower. (On Reply, Mr. Baravarian alleges
and provides evidence to show that Unit 705 has(d) three showers.)
On December 1, 2021, Baravarian obtained an estimate from the
Interinsurance Exchange for the Automobile Club for the repair work of the alleged
to Unit 605. However, Baravarian included in the repair estimate the replacement
of the tile flooring with “high grade” tile, detachment and resetting of the air
conditioning unit in the bathroom, painting of the bathroom door, window trim, and
jam, installation of a new electrical switch outlet, detachment and resetting of
the toilet, removal of the plumbing fixture supply line, installation of a new plumbing
fixture supply line, new ceramic and porcelain tile, removal and resetting of a
custom shower door, a new tub shower faucet, and new shower jets. The total cost
of the remodeling of the bathroom was a reported $7,286.04.
On December 10, 2021, Baravarian is alleged to have obtained
another estimate from Servpro of Beverly Hills-Westwood for the repair of the claimed
damages to Unit 605. Servpro estimated a total cost of $2,119.18 to fix and repair
all water damage caused by the water leak. Weiss argues that this estimate is a
correct representation of the costs to repair Unit 605.
On January 25, 2022, Baravarian obtained an estimate from P.W.
Stephens Environmental, Inc., for additional repairs of the alleged damages the
water leak had caused to Unit 605. Baravarian wanted the ceramic tile removed from
the shower walls, floor, and ceiling along with the mortar bed of the shower. P.W.
Stephens estimated a total cost of $3,960.00 to complete the work with the extra
scope of work beyond the actual fixing of the damages. Baravarian claimed that this
estimate was in addition to the $7,286.04 repairs estimated by the Automobile Club
and that the total amount of repairs was $11,246.12.
Around the same time, Baravarian is alleged to have cornered
Weiss at her car in the basement garage and demanded payment from Weiss, saying
that he (Baravarian) was going to put a lien of her (Weiss’s) property (meaning
Unit 705). Baravarian is also alleged to have screamed at Weiss during these
interactions and yelled at Weiss on the telephone, threatening to sue her many
times.
On April 14, 2022, Baravarian filed a small claims court
action numbered 22MSC00613 (“Small Claims Action”; case number provided by
Weiss), as against Weiss, and claiming that the Automobile Club had paid Baravarian
$6,246.11 and that he was seeking $5,000.00 as the deductible amount under his insurance
policy. Per Weiss’s evidence, Baravarian claimed that the $5,000 amount was arrived
at by taking the total of the Auto Club and P.W. Stevens Environmental estimates—totaling
$11,246.12 that he was ‘forced to pay’ to repair Unit 605—and deducting $5,000 as
the insurance policy deductible with the Automobile Club. (It thus appears that
Mr. Baravarian’s insurer has paid him $6,246.11 toward his damages related to
the leak.)
However, Weiss alleges that, as of June 6, 2022, more than six
(6) months after November 24, 2021, Mr. Baravarian has failed to make any repairs
to Unit 605. Instead, Weiss alleges, Mr. Baravarian has sought to force Weiss to
make payment based on the December 2021 and January 22 repair estimates alone,
without effecting any repairs consistent with the estimates.
On June 6, 2022, Weiss brought the instant action against Baravarian,
alleging:
(1) Intentional and Negligent Infliction of Emotional Distress
(“IIED/NIED”), against Mr. Baravarian, based on (a) Mr. Baravarian’s refusal to
permit Weiss access to Unit 605 to make the necessary repairs to the drainpipe/water
line at issue between the Units by “delaying and preventing the repair of [Weiss’s]
shower facility,” (b) Baravarian making “a fraudulent claim for damages to … Unit
605” against Weiss, (c) Weiss and her mother suffering from lack well-being as a
result of their lack of access to Unit 705’s shower, resulting in a hospital visit
for Sally Weiss, where Baravarian is alleged to have known about Sally Weiss’s condition;
(2) “Violation of Easement”—actually a Breach of CC&R Contract
claim (see Preliminary Considerations discussion infra)—against Baravarian,
based on Baravarian’s refusal to permit Weiss access to
Unit 605 to make the necessary repairs to the water line at issue between the Units,
which Baravarian refused to do in order to (per Weiss’s allegations) inflate costs
of repair to Unit 605;
(3) Violation of Covenant of Good Faith and Fair Dealing in the
CC&R, against Baravarian, based on (a) Baravarian’s failure to repair Unit 605
while simultaneously “claiming extensive damages to Unit 605” against Weiss as a
result of the water leak, (b) Baravarian’s refusal to permit Weiss access to Unit
605 to make the necessary repairs to the water line at issue between the Units,
and (c) Baravarian “presenting Weiss with [allegedly] false and fraudulent repair
bills where Defendant [Baravarian] has failed to undertake[] the repairs identified
in the repair bills”; and
(4) Negligence—reading like a Negligence + Nuisance claim—against
Baravarian, based on Baravarian “failing to abide by and honor the easement granted
by the CC&R’s” by “interfer[ing] with Weiss’[s] use of her premises and the
easements which were granted by the CC&Rs,” amounting to a “failure to exerc[ise]
due care and negligent[] interfer[ence] [by Baravarian] [against] … Weiss’[s] quiet
enjoyment and use of her property and the rights [that] were appurtenant to her
property.”
On July 25, 2022, Baravarian brought an anti-SLAPP Motion against
Weiss’s Complaint’s four causes of action on the grounds that the four claims arose
from protected activity insofar as they are moored in Baravarian seeking damages
from Weiss in the 22MSC00613 Small Claims Action and that Weiss cannot show merit
to her claims.
Weiss filed an Opposition to the Motion on August 10, 2022, and
Baravarian filed a Reply on August 16, 2022.
The Court DECLINES to take Judicial Notice of the MLS listing
provided by Baravarian as to Unit 705 of the Condominium Project. (Evid. Code, §§
452, subd. (h), 453.)
Baravarian’s Objections
Objection Nos. 1-25: OVERRULED
Preliminary Consideration
Baravarian argues that the IIED/NIED claim and the Violation
of Easement (i.e., Breach of Contract) claim should be struck, specifically because
the emotional distress claims are uncertainly pleaded together rather than separately,
and because “there is no recognized cause of action for ‘violation of easement,’”
making the second cause of action “uncertain [and] … [im]properly pled.” (Mot.,
9:4-9 [IIED/NIED], 10:4-6 [Violation of Easement].)
However, while section 425.16 and similar motions operate “like
a demurrer or motion for summary judgment in ‘reverse’” (Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 [citation omitted]),
a special “motion to strike under section 425.16 is not a substitute for a motion
for a demurrer or summary judgment” (Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1062 [citation omitted]). Baravarian cites no authority to
the contrary. (See Mot., 9:7-9, 10:4-6; see also Reply generally [making no mention
of uncertainty or sufficiency as on demur].) Baravarian must bring a separate general
or special demurrer against the Complaint if he wishes to challenge sufficiency
or uncertainty of pleading in the Complaint.
Further, to the degree that Baravarian argues that no Violation
of Easement cause of action exists, making the second cause of action uncertain,
the Court notes that it is “an elementary principle of modern pleading that the
nature and character of a pleading is to be determined from its allegations, regardless
of what it may be called, and that the subject matter of an action and issues involved
are determined from the facts alleged rather than from the title of the pleadings
or the character of the damage recovery suggested in connection with the prayer
for relief.”¿ (McDonald v. Filice (1967) 252 Cal.App.2d 613, 622; accord,
Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95
Cal.App.4th 1273, 1281; Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85,
98.)¿ To determine the nature of a cause of action, California courts look at the
facts alleged, not its label.¿ (See, e.g., Saunders v. Cariss (1990) 224
Cal.App.3d 905, 908.)
Upon review of the Complaint’s second cause of action, it is
readily apparent to the Court that the Complaint pleads, on its face, a Breach of
Contract claim, as premised on the Condominium Project’s CC&Rs, recorded with
the Office of the County Recorder on June 10, 1975, and breached by Baravarian through
his refusal to permit Weiss access to Unit 605 to make the necessary repairs to
the water line at issue between the Units. (Complaint, ¶¶ 5-11 [facts], 28 [incorporation],
30 [allegations in second cause of action].)
Legal Standard
Anti-SLAPP analysis under Code of Civil Procedure section 425.16
proceeds in two familiar steps. In the first step, the defendant or moving party
must make “a threshold showing that the challenged cause of action is one ‘arising
from’ protected activity.” (Barry v. State Bar of California (2017) 2 Cal.5th
318, 321 [quotations omitted].) In this context, the term “protected activity” refers
to speech or petitioning activities. (Barry, 2 Cal.5th at p. 321.) A claim
arises from protected activity when that activity underlies or forms the basis for
the claim; otherwise stated, “the defendant’s act underlying the plaintiff’s cause
of action [must] itself [be] … an act in furtherance of the right of petition or
free speech.” (Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1063 [quotations omitted].) “[T]he focus is on determining what
‘the defendant’s activity [is] that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning.’” (Ibid.)
In teasing out whether protected conduct exists, courts should consider the elements
of the challenged claim and what actions by the defendant supply those elements
and consequently form the basis for liability. (Ibid.)
If the court finds the defendant or moving party succeeds at
the first step, then the burden shifts to the plaintiff to “demonstrate[] a probability
of prevailing on the claim.” (Ibid. [quotations omitted].) At the second
step, courts “evaluate the defendants’ evidence only to determine if it defeats
that submitted by the plaintiff as a matter of law.’ [Citation.] ‘[I]n order to
establish the requisite probability of prevailing [citation], the plaintiff need
only have “‘stated and substantiated a legally sufficient claim.’” [Citation.] “Put
another way, the plaintiff ‘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.] … That burden [is] not particularly high.” (Area 51 Productions,
Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 602.) “Claims with the requisite
minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.)
If the cause of action satisfies both prongs of the anti-SLAPP statute, then it
is subject to being struck. (Barry, supra, 2 Cal.5th at p. 321.)
As stated by our State’s highest Court: “This is a ‘summary-judgment-like
procedure at an early stage of the litigation.’” (Varian Medical Systems, Inc.
v. Delfino (2005) 35 Cal.4th 180, 192.)
First Prong, Protected Activity: BURDEN SATISFIED,
First and Third Causes of Action; BURDEN NOT SATISFIED, Second and Fourth Causes
of Action.
Introduction: A defendant meets his burden of showing that a
plaintiff’s claim arises from that defendant’s exercise of free speech or petition
rights by making a prima facie showing that the act or conduct underlying the plaintiff’s
claims falls within one of the four categories found in Code of Civil Procedure
Section 425.16, subdivision (e). (Navellier, supra, 29 Cal.4th at
p. 88.) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action
that determines whether the anti-SLAPP statute applies [citation], and when the
allegations referring to an arguably protected activity are only incidental to a
cause of action based essentially on non-protective activity, collateral allusions
to protected activity should not subject the cause of action to the anti-SLAPP statute.”
(Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188;
see also Navellier, supra, 29 Cal.4th at p. 89 [“the critical consideration
is whether the cause of action is based on the defendant’s protected free speech
or petitioning activity”].)
Code of Civil Procedure Section 425.16, subdivision (e) states:
As used in this section, “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” includes:
(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.
(Code Civ.
Proc., § 425.16, subd. (e).)
General Argument
Here, Baravarian argues that all four causes of action alleged
in the Complaint arise from protected activity because all four claims are, by incorporation
or outright pleading, supported by allegations that Weiss was injured by Baravarian’s
filing of the 22MSC00613 Small Claims Action, putting the Complaint’s claims
within the ambit of the litigation privilege in California Civil Code section 47,
subdivision (b). (Mot., 9:10-25 [IIED/NIED], 10:6-17 [Violation of Easement, i.e.,
Breach of CC&Rs Contract], 11:6-22 [Covenant of Good Faith & Fair Dealing],
12:6-18 [Negligence].)
Court’s Conclusion on Protected Activity
The Court disagrees and finds that only the first and third of
four claims arise, only in part, from Baravarian’s filing of the Small Claims Action.
The Complaint’s second cause of action for Violation of Easement,
i.e., Breach of CC&Rs Contract, is premised on Baravarian’s refusal to permit
Weiss access to Unit 605 to make the necessary repairs to the water line at issue
between the Units. (Complaint, ¶ 30 [“Defendant failed and refused to permit Weiss
access to Unit 605 as required by the CC&Rs to effect repairs to the water system
for Unit 705 and thereby interfered and trespassed upon Weiss’[s] easement”].) While
the Complaint alleges that Baravarian undertook this refusal in order to inflate
costs of repair to Unit 605 (Complaint, ¶ 30)—thus alluding to the costs sought
by Baravarian in the 22MSC00613 Small Claims Action BUT also or instead to the
estimates by the Interinsurance Exchange for the Automobile Club and P.W.
Stephens Environmental, Inc. that undergird those same damages—the Complaint’s allegations
do not state that Baravarian violated the CC&Rs easement provisions by filing
suit against Weiss, but rather, by failing to provide Weiss access to Unit 605 to
effect the water leak repairs between Units 705 and 605. (Complaint, ¶ 30; cf. Mot.,
9:10-25.)
The Complaint’s fourth cause of action for Negligence premises
liability on Baravarian for “failing to abide by and honor the easement granted
by the CC&R’s” by “interfer[ing] with Weiss’[s] use of her premises and the
easements which were granted by the CC&Rs,” amounting to a “failure to exerc[ise]
due care and negligent[] interfere[nce] [by Baravarian] [against] Weiss’[s] quiet
enjoyment and use of her property and the rights which were appurtenant to her property.”
(Complaint, ¶ 36.) On Motion, Baravarian argues that the Complaint’s 1st through
20th, 22nd through 27th, 30th, and 32nd and 33rd paragraphs encapsulate the gravamen
of the fourth cause of action. (Mot., 12:6-18.) However, the Court finds that while
the fourth cause of action incorporates all prior allegations made in the
paragraphs referenced by Baravarian (Complaint, ¶ 34), this Negligence claim
specifically turns on Baravarian not giving Weiss access to Unit 605 to effect the
water leak repair and nothing more. (See Complaint, ¶ 36.)
Baravarian’s anti-SLAPP Motion is thus DENIED as to the Complaint’s
second and fourth causes of action for Violation of Easement (i.e., Breach of the
CC&Rs Contract’s easement provisions) and Negligence (reading like a Negligence
and Nuisance claim).
In analyzing the Complaint’s first and third causes of action
(characterized by pleading of both protected and unprotected activity, as
discussed infra), the Court follows the instructions of the Supreme Court of California
in Baral v. Schnitt regarding the proper analysis in an anti-SLAPP
Motion for claims supported by allegations of protected and non-protected behavior:
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 complaint, 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.)
The First Cause of Action for IIED/NIED is moored on protected
and unprotected activity. These jointly pleaded claims are premised on (a) Baravarian’s
refusal to permit Weiss access to Unit 605 to make the necessary repairs to the
water line at issue between the Units by “delaying and preventing the repair of
[Weiss’s] shower facility,” (b) Baravarian making “a fraudulent claim for damages
to … Unit 605” against Weiss, (c) Weiss’s and her mother’s lack of well-being as
a result of their lack of access to Unit 705’s shower, including hospital visits
for Sally Weiss, where Baravarian is alleged to have had knowledge of Sally Weiss’s
condition. (Complaint, ¶¶ 23-25.) The Court interprets the “fraudulent claim for
damages” (Complaint, ¶ 24) to mean the damages sought by Baravarian in the Small
Claims Action, allegations which clearly fall within the ambit of the anti-SLAPP
statute (see Code Civ. Proc., § 425.16, subds. (e)(1)-(2)), though the Court
notes that the Complaint could be referring to the estimates by the
Interinsurance Exchange for the Automobile Club and P.W. Stephens
Environmental, Inc. in making its “fraudulent claim of damages” statement. However,
the Court interprets this language as referring to the Small Claims Action, and
thus, Baravarian has pointed to a portion of the allegations supporting the first
cause of action arising from protected activity and meets his burden on anti-SLAPP
as to the Complaint’s IIED/NIED claim. (See Mot., 9:10-25.)
The Complaint’s third cause of action for Violation of Duty of
Good Faith & Fair Dealing, as existing in the Condominium Project’s CC&Rs,
is also supported by allegations of protected and unprotected activity. The cause
of action is based on (a) Baravarian’s failure to repair Unit 605 while simultaneously
“claiming extensive damages to Unit 605” against Weiss as a result of the water
leak, (b) Baravarian’s refusal to permit Weiss access to Unit 605 to make the necessary
repairs to the water line at issue between the Units, and (c) Baravarian “presenting
Weiss with [allegedly] false and fraudulent repair bills where Defendant [Baravarian]
has failed to undertake[] the repairs identified in the repair bills.” (Complaint,
¶ 33.) The Court interprets “claiming extensive damages to Unit 605” to connote
the Small Claims Action filed by Baravarian, again within the ambit of the anti-SLAPP
statute (see Code Civ. Proc., § 425.16, subds. (e)(1)-(2)), though the Court
again notes that the pleadings could be referring to the Interinsurance
Exchange for the Automobile Club and P.W. Stephens Environmental, Inc.
estimates alone. However, as the Court has interpreted these pleadings to refer
to the Small Actions Claim, Baravarian has pointed to a portion of the allegations
supporting the first cause of action arising from protected activity and meets his
burden on anti-SLAPP as to the Complaint’s IIED/NIED claim. (See Mot., 11:6-22.)
To the extent that Plaintiff argues that the Complaint does not
allege protected activity when it raises allegations surrounding the damages sought
by Baravarian in the Small Claims Action (Opp’n 7:15-9:2), the Court notes that
case law clearly holds that “where a defendant brings a motion to strike under section
425.16 based on a claim that the plaintiff’s action arises from activity by the
defendant in furtherance of the defendant’s exercise of protected speech or petition
rights, [only where] … the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was illegal as a matter
of law[] [is] the defendant … precluded from using the anti-SLAPP statute to strike
the plaintiff’s action.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320; see
also Reply 4:16-28.) Here, Baravarian fails to concede illegality in filing the
Small Claims Action (see Reply, Baravarian Decl., ¶¶ 1-9), and Weiss’s evidence
fails to conclusively show that Baravarian committed fraud when he filed the Small
Claims Action (see Complaint, Exs. A-B; see also Opp’n, Weiss Decl., Exs. C-D).
Second Prong, Minimal Merit of Success: BURDEN
SATISFIED, First and Third Causes of Action.
As Baravarian has met his burden of showing the Complaint first
and third causes of action arise, at least in part, from protected activity under
the anti-SLAPP statute, “the burden shifts to the plaintiff [i.e., Weiss] to demonstrate[]
a probability of prevailing on the claim[s].” (Park, supra, 2 Cal.5th
at p. 1063 [quotations omitted].) “Claims with the requisite minimal merit may proceed.”
(Navellier, supra, 29 Cal.4th at p. 94.) The plaintiff “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.” (Area 51 Productions, Inc., supra,
20 Cal.App.5th at p. 602 [quotations omitted].)
First Cause of Action, IIED/NIED
On Motion, Baravarian sparingly argues without meaningful
elaboration that the first cause of action fails on anti-SLAPP because “none of
the allegations [in the Complaint] qualify as ‘extreme or outrageous’ conduct
sufficient to maintain a cause of action for intentional infliction [of
emotional distress].” (Mot., 9:25-27.)
On Opposition, Weiss sparingly argues the merits of her
IIED/NIED claim and, most on point here, cites to the first four paragraphs of
her Declaration (Opp’n, 11:22-12:11), which provide that, among other
allegations: Weiss and Baravarian were subject to a reciprocal easement
permitting access to one another’s properties in order to effect repairs on
water pipes/for water leaks (Opp’n, Weiss Decl., ¶ 1); Baravarian failed to
grant Weiss access to effect the repairs from Unit 605, a place from which
contractors could more easily access the work for water damage to Units 705 and
605 (Opp’n, Weiss Decl., ¶¶ 2-3); Baravarian’s refusal to grant Weiss an easement
for repair purposes caused Weiss to demolish her bathroom shower floor and the
cement slab dividing Units 705 and 605 to access the water leak that could have
been more easily repaired from Unit 605 (Opp’n, Weiss Decl., ¶ 3); Baravarian’s
failure to grant easement access deprives him of any damages (which the Court
could infer to connote recovery in the Small Claims Action) because his refusal
to grant access to Unit 605 to Weiss was a waiver of rights pursuant to the
CC&Rs easement provisions (Opp’n, Weiss, Decl., ¶ 3); and, most
importantly, “[f]rom November, 2021, through March, 2022, Defendant
[Baravarian] screamed at and harassed [Weiss], demanded money, threatened to
lien [Ms Weiss’s Unit 705] property, and frightened [Weiss,] causing extreme
emotional distress when [Baravarian] telephoned [Weiss], texted [Weiss], [and]
approached [Weiss] in the basement garage, and when … [Baravarian] refused to
permit access to his Unit 605 to make repairs and violated the CC&Rs which
granted [Weiss] an easement of access to Unit 605 as a co-owner and co-lesees”
(Opp’n, Weiss Decl., ¶ 3.)
Paragraph 12 of the Weiss Declaration repeats these critical
allegations by asserting that Baravarian “repeatedly screamed at [Weiss] at
[her] car in the basement garage[] and demanded payment saying he was going to
put a lien of [her] property [Unit 705], including repeatedly screaming at [Weiss],
yelling at [her] on the telephone, and [thus] causing [Weiss] severe emotional
distress.” (Opp’n, Weiss Decl., ¶ 12.)
The Weiss Declaration also provides that Weiss and her
mother Sally Weiss were not able to use the shower in Unit 705 where repairs
were being made between November 2021 and April 2022, contributing to Sally
Weiss’s urinary tract infections and eventual hospitalization therethrough. (Opp’n,
Weiss Decl., ¶¶ 5-6.) (Though the Court does not weigh evidence on an
anti-SLAPP Motion, it notes that on Reply, and with his Request for Judicial
Notice, Baravarian argues and shows that the MLS listing for Unit 705 shows
that Weiss’s unit contains three showers, affording Sally Weiss two additional
showers in which she could have bathed between November 2021 and April 2022. (Reply,
10:26-11:3; Reply, RJN, Ex. 1.))
With her Complaint, Weiss provided (A) a copy of the Declaration
and Master Lease Agreement dated November 21, 1972, and amended November 20,
1972, recorded in short form in the Office of the County Recorder on December
4, 1972, as Instrument No. 161, which identified the real property located at
321 North Oakhurst Drive, Beverly Hills and created the Condominium Project and
(B) a copy of the Condominium Project’s Covenants, Codes, & Regulations
(CC&Rs). (See Complaint, Exs. A, B.)
With her Opposition, Weiss provides (C) an admission by
Baravarian in the Small Claims Action showing he assigned his claims in that
case to his insurer and (D) a copy of the City of Beverly Hills register for
repair permits for properties in the Condominium Project showing that Unit 705
effected repairs during all relevant times to this litigation but failing to
show similar repairs for Unit 605 have taken place (despite Baravarian’s claim
of damages, as embodied in the Small Claims Action). (Opp’n, Weiss Decl., Exs.
C, D.)
The Court finds that allegations that Baravarian followed
and screamed Weiss regarding payment for damages to Unit 605 (Complaint, ¶ 18;
Opp’n, Weiss Decl., ¶¶ 3, 12) show minimal merit to emotional distress damages
insofar as a reasonable factfinder could determine that Baravarian engaged in
extreme and outrageous conduct beyond that usually tolerated in civilized
society by berating a neighbor for payment on an alleged debt. When combined
with the Weiss Declaration’s allegations of the pain and suffering by Weiss and
her mother Sally Weiss and a review of the Master Lease for the Condominium
Projects, the CC&Rs, and the allegations/Weiss Declaration relating to
whether Weiss had rightful easement authority to enter Unit 605 to effect
repairs for the water leak, the Court finds more than ample grounds for this claim
to survive the minimal burden on anti-SLAPP opposition.
To the extent that Baravarian argues on Reply that Weiss
never had a right to access Unit 605 based on the CC&Rs easement provisions
because Weiss’s negligence led to the damages in the first place and because
the CC&Rs prohibit easements when one’s own negligence resulted in damages
(Reply, 10:3-11:3), the Court notes that this argumentation and supporting
evidence (Reply, Baravarian Decl., Ex. 2 [picture of leaking pipe with
corrosion]) does not conclusively compel the Court to conclude that Weiss was
in fact negligent or otherwise responsible for the water leak that led to this
action and the Small Claims Action, leaving this question as a question of fact
for the jury or factfinder.
Baravarian’s anti-SLAPP Motion is thus DENIED as to the
Complaint’s first cause of action.
Third Cause of Action, Violation of Covenant of Good Faith
& Fair Dealing
On Motion, Baravarian argues that the third cause of action fails
on anti-SLAPP by citing to authority holding that “claim for breach of the implied
covenant … [alleging] nothing more than allege a mere contract breach and, relying
on the same alleged acts, simply seek[ing] the same damages or other relief already
claimed in a contract cause of action[] … may be disregarded as superfluous because
no additional claim is actually stated” and arguing that this precedent “describes
the third cause of action almost exactly,” i.e., the third cause of action is duplicative
of the second, based on the same facts, and seeking the same damages. (Mot., 11:23-28.)
The Court, however, notes that the second cause of action
for Violation of Easement (Breach of CC&Rs Contract) is more restricted
than the third cause of Action for Violation of Covenant of Good Faith &
Fair Dealing. The second cause of action is based on Baravarian’s refusal to permit
Weiss access to Unit 605 to make the necessary repairs to the water line at issue
between the Units (Complaint, ¶ 30). While the second cause of action alleges
that Baravarian undertook this conduct as to inflate costs of repair to Unit
605 (Complaint, ¶ 30), this information is provided as context for the second
cause of action, not its impetus. By contrast, the Violation of Covenant of Good
Faith and Fair Dealing claim is based on (a) Baravarian’s failure to repair Unit
605 while simultaneously “claiming extensive damages to Unit 605” against Weiss
as a result of the water leak, (b) Baravarian’s refusal to permit Weiss access to
Unit 605 to make the necessary repairs to the water line at issue between the Units,
and (c) Baravarian “presenting Weiss with [allegedly] false and fraudulent repair
bills where Defendant [Baravarian] has failed to undertake[] the repairs identified
in the repair bills.” (Complaint, ¶¶ 32, 33.) This comparison shows that the
third cause of action is supported by additional facts and additional grounds
for damages: beyond Baravarian’s failure to grant Weiss access to Unit 605,
Weiss makes allegations that Baravarian is seeking costs for repair to Unit 605
without effecting those repairs, and thus, in effect, defrauding Weiss. On
these grounds, Baravarian’s Motion fails as to the third cause of action. The
Court also adopts its reasoning as to the evidence provided in support of the
Complaint’s first cause of action to deny the anti-SLAPP Motion as to the
Complaint’s third cause of action because the same evidence could show a
reasonable factfinder, even in a minimal fashion, that Baravarian acted in bad
faith when he refused to allow Weiss to effect repairs to a mutual leak problem
between Units 705 and 605 of the Condominium Project only to later bill Weiss
for these repairs, at a seemingly excessive rate, and under conditions where it
appears that Baravarian never effected the repairs at issue in his Unit 605
after already being paid $6,246.11 by his insurer for the same damages.
Baravarian’s anti-SLAPP Motion is thus DENIED as to the
Complaint’s Third cause of action.
Defendant Nurbeh Baravarian’s Motion to Strike Complaint per
CCP § 425.16 is (1) DENIED as to the Complaint’s second and fourth causes of
action because Defendant Baravarian failed to meet his burden of demonstrated
that these claims arise from protected activity within the meaning of Code of
Civil Procedure section 425.16 and (2) DENIED as to the Complaint’s first and
third causes of action because, even though these claims appear to arise in
part from protected activities—i.e., Baravarian seeking damages from Weiss in
the Small Claims Action—Weiss met her burden of demonstrating even minimal
merit to these claims through the exhibits attached to the Complaint, her
Declaration on Opposition, and the exhibits attached to the Opposition.