Judge: Deirdre Hill, Case: 22TRCV00457, Date: 2022-09-29 Tentative Ruling

Case Number: 22TRCV00457    Hearing Date: September 29, 2022    Dept: M

Hearing Date:                          September 29, 2022

Moving Parties:                      Defendants George Konstantouros and Tina Arambulo

Responding Party:                  Plaintiffs Luc Imberechts and Debbie Imberecht

Special Motion to Strike Complaint Pursuant to CCP § 425.16 (ANTI-SLAPP)

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED on the merits as well as its untimeliness.

BACKGROUND

            On June 8, 2022, plaintiffs Luc Imberechts and Debbie Imberechts filed a complaint against George Konstantouros, Tina Arambulo, and Does 1 through 25 for breach of written contract (settlement agreement), breach of contract (CC&R’s/Declaration of Restrictions), and nuisance.

OBJECTIONS

Plaintiff’s objections: 

All objections made by plaintiff are OVERRULED.

Defendant’s objections:         

The following objections made by plaintiff are OVERRULED: 1, 2, 4, 5, 8, 12, 13, 14, 15, 16

            The following objections made by plaintiff are SUSTAINED: 3, 6, 7, 9, 10, 11

LEGAL AUTHORITY

CCP§ 425.16 permits the court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. 

In assessing a defendant’s CCP § 425.16 special motion to strike, the court must engage in a two-step process. Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150. First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. Ibid. This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in CCP § 425.16(e). 

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. CCP § 425.16(b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. “[T]he 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.” Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548. At this “second stage of an anti-SLAPP hearing, the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.” Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.

The trial court properly considers the evidentiary submissions of both the plaintiff and the defendant, but it may not weigh the credibility or comparative strength of the evidence and must instead simply determine whether the plaintiff’s evidence would, if believed by the trier of fact, be sufficient to result in a judgment for plaintiff. McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 108, 109. The court “accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” Flatley v. Mauro (2006) 39 Cal.4th 299, 326. Further, whether or not the evidence is in conflict in the context of a motion to strike under the anti-SLAPP statute, if the plaintiff has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the plaintiff is entitled to proceed. Moore v. Shaw (2004) 116 Cal.App.4th 182, 193. Only a minimal showing of merit is required. Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.

DISCUSSION

A.    Timeliness of Anti-SLAPP Motion

Under CCP § 425.16(f), an anti-SLAPP motion “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.”

Here, defendants failed to timely file their anti-SLAPP motion because the complaint was filed on June 8, 2022, and they should have filed within 60 days of the service of the complaint, which would be August 8, 2022, but they filed on August 26, 2022. Although improper, and a basis for denial, the court discusses the merits as well.

B.     First Prong: Protected Activity

“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062. “The defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citations.] [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citations.] [I]n ruling on an anti-SLAPP motion, 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.” Id. at p. 1063.

Defendants claim that plaintiffs are suing them because of “oral statements made to the public Planning Commission at a public meeting to discuss whether a proposed remodel conformed to existing codes and regulations and whether the proposed driveway slope repair was safe and conforming.” Mot. p. 6. They argue plaintiffs’ suit was “to make sure defendants did not appear and speak at the next Commission meeting” and that their protected activity falls “squarely within each of the four categories in the statute.” Mot. pp. 6-7. The court disagrees.

In Third Laguna Hills Mutual v. Joslin, the court denied the HOA’s anti-SLAPP motion against defendant Joslin who filed a cross-complaint against the HOA alleging intentional interference with contractual relations and breach of implied in fact contract, along with other causes of action. (2020) 49 Cal.App.5th 366, 369-370. The HOA argued that the Joslin’s cross-complaint arose from their protected act of filing a complaint against him for violation of the covenants. Id. at p. 369. Although the court acknowledged that “[t]he filing of a complaint is a protected activity under the anti-SLAPP statute (the right to petition),” Joslin’s causes of action did not “arise from the [HOA’s] protected activities” because it was not the HOA’s “written or oral communications that [were] being challenged” but rather “the HOA’s underlying actions.” Id. at p. 369, 374. The HOA also argued that “the enforcement of its CC&Rs [was] a public issue and an issue of public interest, as it affects all of the 6,102 members (and residents) of the HOA.” The court disagreed, stating “[t]he instant lawsuit is essentially a monetary dispute between the HOA and Joslin,” and that even though this particular HOA was “relatively large,” this was “not a public issue or an issue of public interest within the meaning of the anti-SLAPP statute.” Id. at 376. Thus, the court held that the HOA failed to meet its burden under the first prong.

While defendants’ speech may have occurred in a public forum, plaintiff’s claim does not arise from defendant’s protected activity. Like in Joslin, where the court found the cross-complaint was based on the HOA’s underlying actions rather than their written or oral communications, here too, plaintiffs’ complaint is based on defendants’ breach of the settlement agreement and CC&Rs. Compl. pp. 8-10. Plaintiffs also filed a nuisance claim which has nothing to do with defendants’ claimed protected activity. Compl. pp. 10-11. Plaintiffs are not attempting to stifle defendants’ ability to speak or express their opinions at the public Planning Commission meetings, rather they are suing defendants’ based on conduct which violated a prior agreement. Although defendants’ conduct happens to be oral statements made in a public forum, their act underlying plaintiff’s claims are not themselves “an act in furtherance of the right of petition or free speech.” Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1063.

Defendants’ speech is neither a public issue nor issue of public interest. Like in Joslin, where the court deemed the enforcement of the HOA’s CC&Rs not to be a public issue nor issue of public interest despite the fact that it affected 6,102 members and residents of the HOA, finding that the lawsuit was essentially a monetary dispute between the HOA and Joslin, here, the lawsuit is also a dispute between two homeowners arguing about home modifications and nuisance claims. Thus, defendants fail to prove that plaintiffs’ claims arise from the exercise of their protected activity.

C.    Second Prong: Probability of Success

Analysis of plaintiffs’ probability of success is moot since the court finds defendants’ acts to not be protected.

D.    Attorney’s Fees

A plaintiff prevailing on an anti-SLAPP motion is entitled to reasonable attorney’s fees if the motion was frivolous or solely intended to cause unnecessary delays. CCP § 426.16.

The court finds that defendants’ claim was not frivolous nor solely intended to cause unnecessary delays because it was based on oral statements made in a public forum. Although they do not prevail on their motion, it was not entirely unreasonable to think that plaintiffs’ complaint was based on conduct taken in furtherance of their free speech or petition rights. Thus, the court will not grant plaintiffs attorney’s fees in defending this action.

            Plaintiffs are ordered to give notice of ruling.