Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action stems from a dispute over a billboard lease.  Plaintiff Rittersbacher Sunset LLC was the owner of the real property located at 8300 West Sunset Boulevard, West Hollywood California (“Property”), which was the previous site of the Hollywood Standard Hotel.  Plaintiff claims Defendants Osik Media LLC (“Osik”) and Nicholas Petralia (“Petralia”, and together with Osik, the “Osik Defendants”) wrongfully possessed and held over a portion of the Property to operate a billboard.  Defendants New Tradition Media, LLC (“New Tradition”), Bret Richheimer and Evan Richheimer (collectively the “Moving Defendants”) sell advertising space on the billboard on behalf of the Osik Defendants in exchange for a portion of the revenue generated from operation of the billboard.   

Plaintiff alleges Defendants engaged in a scheme or conspiracy designed to disrupt and/or cause the termination of Plaintiff’s sale of the Property to 8300 Sunset Owner LLC (the “New Owner”).  Plaintiff claims Defendants were attempting to leverage the unlawful occupation of the Property to extort either a financial windfall in exchange for vacating the Property or a lucrative lease for a billboard that Defendants hoped to convert into digital signage in the future.  In so doing, Plaintiff alleges it suffered damages in excess of $15 million, as a result of having to reduce the purchase price to close the sale to the New Owner, to account for the continuing unlawful possession of the Osik Defendants. 

The operative First Amended Complaint (“FAC”) alleges claims for (1) holdover damages (against the Osik Defendants), (2) trespass (against the Osik Defendants), (3) intentional interference with prospective economic advantage (against all Defendants), (4) intentional interference with prospective economic advantage (against the Moving Defendants), (5) intentional interference with contractual relations (against all Defendants), (6) civil conspiracy (against all Defendants), (7) unjust enrichment (against all Defendants), and (8) unlawful, unfair and fraudulent business practices in violation of Cal. Bus. & Prof. Code § 17200 (against all Defendants). 

 This hearing is on the Moving Defendants’ special motion to strike.  The Moving Defendants argue that a special motion to strike should be granted because their alleged wrongful conduct was done in connection with litigation and is therefore protected activity, and Plaintiff cannot show a probability of success because the alleged wrongful conduct is protected by the litigation privilege.   

 

 

REQUEST FOR JUDICIAL NOTICE¿ 

Moving Defendants seek judicial notice of various filings in three court cases, two before the Los Angeles Superior Court (Case Nos. 22SMUD00094 and 22SMCV00828), and one before the U.S. District Court for the Central District of California (Case No. 2:22-CV-086700).  The court may in its discretion take judicial notice of any court record in the United States.  (Cal. Evid. Code §452(d).)  “This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the¿existence¿of each document in a court file, including the truth of results reached, they may not take judicial notice¿of the truth of hearsay statements in decisions and court files.” (In re Vicks¿(2013) 56 Cal.4th 274, 314.)¿ 

Defendants also seek judicial notice of three publications, two discussing the Standard Hotel and one covering the lawsuit.  Defendants seek judicial notice of these articles to show that the Property is the subject of public interest.  (Special Motion at 7.)  The Court grants judicial notice for this limited purpose and does not assume the truth of the matters contained in the articles.  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal. App. 4th 182, 194 (refusing to take judicial notice of the truth of the contents of the Web sites and blogs, including those of the Los Angeles Times and Orange County Register; Zelig v. County of Los Angeles¿(2002) 27 Cal.4th 1112, 1141, fn. 6¿(“The truth of the content of the articles is not a proper matter for judicial notice … .”);¿Unlimited Adjusting Group, Inc. v. Wells Fargo Bank, N.A. (2009) 174 Cal.App.4th 883, 888, fn. 4¿(statements of facts contained in press release not subject to judicial notice).)  

Additionally, the Moving Defendants seek judicial notice of a signage policy by the City of West Hollywood.  Moving Defendants claim the signage policy supports their position that the billboard on the Property is a matter of public interest.  (Special Motion at fn. 4.)  The Court grants the request for judicial notice pursuant to Cal. Evid. Code §§452(b) and 452(c).  (Cf. Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal. App. 5th 175, 183 (school board¿policies and regulations may be recognized by¿judicial notice); In re H.C. (2017) 17 Cal. App. 5th 1261, 1268 fn. 4 (taking judicial notice of policy manual because its publication is an¿official act of an executive department of the federal government); see also Marek v. Napa Community Redevelopment Agency¿(1988) 46 Cal.3d 1070, 1076, fn. 5¿(county agency constituted state entity for purposes of judicial notice).) 

EVIDENTIARY OBJECTIONS 

The Court overrules Plaintiff’s evidentiary objections to Exhibits J, K and L to the Declaration of Alicia Hou.  The exhibits are not being admitted for the truth of the matter asserted and therefore, are not hearsay.  The Court sustains the objection to the Declaration of William Litvak.  The Court overrules Objection Nos. 36, 72, 73, 82, 83 and sustains Objection Nos. 1-35, 37-71, 74-81, 84-88 to the Declaration of Randy Garrity.   

LEGAL STANDARD¿ 

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.¿ Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’¿ If the plaintiff cannot make this showing, the court will strike the claim.”¿ (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)¿¿¿ 

 

 

ANALYSIS 

First Prong 

On the first prong, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.¿ The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.”¿ (Bonni, 11 Cal.5th at 1009.)¿ “A defendant need only make a prima facie showing at this stage.”¿ (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)¿¿¿ 

Where the plaintiff alleges multiple factual bases for a particular cause of action and the defendant moves to strike the entire cause of action, the defendant must demonstrate that each factual basis qualifies as protected activity and supplies an element of the challenged claim, as opposed to being merely contextual or incidental.¿ (Bonni, 11 Cal.5th at 1011-1012.)¿ If a defendant seeks to strike an entire cause of action with multiple factual bases, it is defendant’s burden to address each factual basis.¿ (Id. at 1011.)¿ If the defendant fails to address a particular subpart or factual basis, the defendant fails to carry its first prong burden as to that subpart or claim.¿ (Id.)¿ “If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims.”¿ (Id.)¿ 

Here, the Moving Defendants argue that Plaintiffs’ allegations can be grouped into three categories, each of which constitutes protected activity: (1) in anticipation of and during an unlawful detainer action brought by Plaintiff against Osik, Defendants acted as part of a scheme to disrupt or cause the termination of an agreement between Plaintiff and the New Owner for the purpose of securing a favorable lease to operate billboards on the Property or alternatively to secure a substantial cash payment in exchange for Osik’s vacating the Property (FAC ¶¶ 1, 24, 25, 28); (2) throughout the pendency of the unlawful detainer action, Defendants made statements to potential purchasers and individuals in the real estate and media industries, specifically intended to interfere with Plaintiff’s efforts to sell the Property including that they owned the actual billboard structure and the purported intellectual property associated with it, and would be suing Plaintiff (FAC ¶26); and (3) Defendants submitted an application with the City of West Hollywood for permits necessary to construct and operate Defendants’ planned digital billboard on the Property, despite knowing that the Property was owned by Plaintiff and failing to secure Plaintiff’s consent (FAC ¶¶14-19). 

As to the first category (the “scheme”), the Moving Defendants argue the alleged tortious actions undertaken by them were part of communications between the parties in anticipation of and in connection with the unlawful detainer action.  Plaintiff sent Osik a Notice to Vacate, and then by the following month, Defendants began to negotiate avenues for Osik to remain at the Property, culminating in Plaintiff’s filing of the unlawful detainer action.  (FAC ¶¶22-25.)  

Plaintiff contends that their suit is not based on any of these communications but rather is based on Osik’s refusal to vacate the Property and the conduct of the Moving Defendants in conspiring with Osik in that regard.  (Opp. at 8.)  When a tort cause of action is alleged under a conspiracy theory, it is the acts that constitute the tort itself, rather than the acts that evidence defendant’s participation in the conspiracy, that determine whether defendant’s acts are protected activity for purposes of the first prong of the anti-SLAPP analysis.”  (Spencer v. Mowat (2020) 46 Cal.App.5th 1024, 1037, 1040 (plaintiff sued defendants on conspiracy theory for public nuisance and assault and battery, which was not protected speech or petitioning activity, even though there may have been some speech and petitioning activity in connection with conspiracy).)  Here, the acts that constitute the tort itself are Osik’s unlawful detainer and trespass, which are not protected activity.   

As to the second category (communications to third parties), the Moving Defendants argue the statements were made in anticipation of and during litigation on their intellectual property rights.  The California Supreme Court has held that “communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within” the broad ambit of and entitled to protection under¿§ 425.16. ¿(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1115.)  Such a statement is made in connection with an issue under judicial review and falls under § 426.16(e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.¿ (Neville v. Chudacoff, (2008) 160 Cal. App. 4th 1255, 1266).  

Here, Plaintiff's claims are predicated on the Moving Defendants’¿communications to interested third parties (i.e., “potential purchasers and those in the real estate and media industries”) about its intellectual property rights and intent to sue Plaintiff.  (Compl. ¶26.)  Plaintiff argues that these statements are commercial speech, exempt from anti-SLAPP protection.  The Court disagrees.   

Pursuant to Code Civ. Proc. §425.17(c), Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services if the cause of action (1) arises from the statement or conduct by the defendant “consist[ing] of representations of fact about [the defendant’s] or a business competitor’s business operations, goods or services”; (2) the defendant’s statement or conduct was “made for the purpose of obtaining approval for, promoting or securing sales or leases of … [its] goods or services,” and (3) “the intended audience is an actual or potential customer or a person likely to repeat the statement to, or otherwise influence an actual or potential buyer or customer” or the conduct “arose out of or within the context of a regulatory process, proceeding or investigation.” “The purpose of the exemption is straightforward: a defendant who makes statements about a business competitor’s goods or services to advance the defendant’s business cannot use the anti-SLAPP statute against causes of action arising from those statements.”  (Simpson Strong-Tie Co. Inc. v. Gore (2010) 49 Cal.4th 12, 30.)  

The commercial speech exemption “must be narrowly construed, and the plaintiffs bear the burden of proving each of its elements.”  (Xu v. Huang (2021) 73 Cal.App.5th 802, 813.) According to the California Court of Appeal, “[§]425.17 subdivision (c) and subsequent case law indicate that the provision exempts ‘only a subset of commercial speech’ – specifically comparative advertising.”  FilmOn.com Inc. v. Double Verify Inc. (2019) 7 Cal.App.5th 133, 147; see also Mendoza v. ADP Screening & Selection Services Inc. (2010) 182 Cal.App.4th 1644, 1652 “the Legislature appears to have enacted 425.17(c), for the purpose of exempting from the reach of the anti-SLAPP statute cases involving comparative advertising by business.”).  Defendant’s alleged speech does not involve comparative advertising, and therefore, §425.17 subdivision (c) does not apply.   

Plaintiff next argues that the Moving Defendant’s statements to interested third parties were not made in connection with an issue under consideration by a legislative, executive or judicial body, because the statements were made on or about January 13, 2022, prior to the initiation of the unlawful detainer action and have nothing to do with any of the substantive issues in that case.  The Court agrees.  The Moving Defendants’ alleged statements did not relate to the singular issue involved in the unlawful detainer action:  whether Osik was entitled to remain in possession of the portion of the Property where the billboard structure was located.  The statements were also not directed to any person having any involvement in the unlawful detainer action.  (See Seltzer v. Barnes¿(2010) 182 Cal.App.4th 953, 962 (a statement is made “in connection with” a proceeding if it relates to substantive issues in the proceeding and is directed to persons having some potential interest in the proceedings).)  

The analysis is the same with regards to the pending federal copyright action against Plaintiff.  At the time of the alleged communications to third parties in January 2022, there was no copyright litigation.  The Moving Defendants did not file their copyright action until November 2022.  Defendants could not have seriously and in good faith considered litigation against Plaintiff in January 2022, because they had no lawful right to initiate any lawsuit until they registered their copyright in their digital billboard design on July 11, 2022.  (Ex. VV to Garritty Decl.; see also People ex. rel. Allstate Ins. Co. v. Rubin (2021) 66 Cal.App.5th 493, 499-502 (Prelitigation communications may constitute protected activity, but only if those communications are “relate[d] to litigation that is contemplated in good faith and under serious consideration.” Litigation is not “under [serious] consideration” if it is only a “possibility.”  (internal quotations and citations omitted); Bel Air Internet, LLC v. Morales¿(2018) 20 Cal.App.5th 924, 941 (when a cause of action arises from conduct that is a ‘necessary prerequisite’ to litigation, but will lead to litigation only if negotiations fail or contractual commitments are not honored, future litigation is merely theoretical rather than anticipated and the conduct is therefore not protected prelitigation activity).) 

The Moving Defendants’ statements to third parties also have nothing to do with any issue of public interest.  “The fact that a broad and amorphous public interest can be connected to a specific dispute is not sufficient to meet the statutory requirements” of the anti-SLAPP statute.  (Workman v. Colichman (2019) 33 Cal. App. 5th 1039, 1048.)  In articulating what constitutes a matter of public interest, courts look to certain specific considerations such as “whether the subject of the speech or activity was a person or entity in the public eye” or “could affect a large number of people beyond the direct participants … and whether the activity occur[red] in the context of an ongoing controversy, dispute or discussion” or “affect[ed] a community in a manner similar to that of a government entity.”  (FilmOn.com, Inc., 7 Cal.5th at 145-146.) 

Here, none of the parties is a person or entity in the public eye.  Further, the statements at issue do not concern the Standard Hotel itself nor its designation as a historic property.  Instead, the statements at issue concern ownership of a billboard structure and purported intellectual property in the design of a digital billboard.  These issues do not affect a large number of people beyond the direct participants.  And there was no ongoing controversy, dispute or discussion at the time Moving Defendants made their private statements to various potential purchasers.  (See Du Charme v. Int’l Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (“in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization or community), the constitutionally protected activity must, at a minimum occur in the context of an ongoing controversy, dispute or discussion …”).)   

As to the third category (the Application to the City of West Hollywood), the Moving Defendants contend the application is protected activity under §425.16 subdvs. (e)(1) (e)(2) because it was a “written or oral statement or writing made before a legislative, executive or judicial proceeding or any other official proceeding authorized by law” or “under consideration or review by a legislative, executive or judicial body.”  The application, however, is not a basis for Plaintiff’s claims but is merely an incidental, background fact.  Allegations of protected conduct that are “merely incidental” or “collateral” or “that merely provide context without supporting a claim for recovery” are not subject to §425.16.  (Baral v. Schmitt (2016) 1 Cal.th 376, 394; see also Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 42 (“In deciding whether a lawsuit is a SLAPP action, the trial court must distinguish between speech or petitioning activity that is mere evidence related to liability, and liability that is based on speech or petitioning activity.”) (emphasis in original).) 

Because the Moving Defendants have not met the first prong, the burden does not shift to Plaintiff on the second prong, and the Court denies the special motion to strike.   

Conclusion 

For the foregoing reasons, the Court DENIES the Moving Defendants’ special motion to strike.   

IT IS SO ORDERED. 

 

DATED: May 4, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court