Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

 

Plaintiffs Reuben Felan Hernandez and Ashley Rose Sigler entered into a consulting agreement with Defendant Scott Wells for services related to the development of a gaming and global financial application.  (Compl. at 3:1-3.)  The agreement also required Defendant to provide office space and lodging for Plaintiffs.  (Id. at 3:17-19.)   

Plaintiffs allege Defendant defaulted on the agreement by failing to make a payment of $14,669.06 and to provide office space and lodging.  (Id. at 3:8-11.)  Plaintiffs sent a notice of delinquency, and in retaliation, Plaintiffs claim Defendant “wrongfully filed an eviction” against Plaintiffs.  (Id. at 3:19-21.) 

Plaintiffs allege other wrongdoing by Defendant including fraudulent misrepresentations about his experience, background and connections, which Plaintiffs claimed were intended to induce them into entering into the consulting agreement.  (Id. at 4:2-16.)  Plaintiffs further allege Defendant engaged in inappropriate behavior including hosting drug parties and displaying an “unsettling obsession with the romantic lives” of female associates, that was in contravention of the business’s objective of developing children’s games.  (Id. at 4:17-21.) 

  The operative complaint alleges nine causes of action for (1) fraud, (2) intentional interference with prospective economic advantage, (3) wrongful eviction, (4) breach of the covenant of good faith and fair dealing, (5) negligent misrepresentation, (6) conversion, (7) violation of the unfair competition law (“UCL”), (8) tortious interference with contract, and (9) abuse of process.         

This hearing is on Defendant’s special motion to strike pursuant to Code Civ. Proc. §425.16(e).  Defendant seeks to strike references to an eviction proceeding and two claims for wrongful eviction and abuse of process on the grounds they arise from Defendant’s right to petition, and Plaintiffs have no probable validity of prevailing on the claims because they are barred by the litigation privilege.  Defendant seeks attorneys’ fees and costs in the amount of $2,985.  Plaintiffs’ “Objection” to the motion was filed late and without leave and will therefore not be considered.   

REQUEST FOR JUDICIAL NOTICE 

Defendant requests judicial notice of (1) the complaint in this case, (2) the complaint for unlawful detainer in Case No. 24SMUD00146, and (3) the minute order dated May 7, 2024 in Case No. 24SMUD00146.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(d) and 453.   

 

LEGAL STANDARD 

An anti-SLAPP motion to strike may be used to strike portions of a cause of action, even if it does not eliminate the entire cause of action. (Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)  A moving party may seek to strike an entire cause of action or just parts of it.  (Bonni, 11 Cal.5th at 1011.).   

“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.)   

DISCUSSION 

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.)   

To make a showing under the first prong, the moving defendant must demonstrate that the alleged conduct underlying each cause of action fits one of the categories spelled out in § 425.16 subdivision (e).  (Nevallier v. Sletten (2002) 29 Cal.4th 82, 88.)  Here, the alleged wrongdoing falls within two categories:  Subd. (e)(1) protects “any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.”  Subd. (e)(2) protects “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.”   

The allegations and claims Defendant seeks to strike relate to the filing of an unlawful detainer complaint.  All aspects of an unlawful detainer action, including the service of a termination notice, arise out of a right to petition and are therefore subject to the anti-SLAPP statute.  (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45 (“An unlawful detainer action and service of notices legally required to file an unlawful detainer action are protected activity within the meaning of section 425.16.”); Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479 (“prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16”); Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 (“There is no question that the prosecution of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16.”).)   

Accordingly, Plaintiffs’ references to a wrongful eviction (on page 2, line 10; page 3, line 2; page 3, line 7; page 4, line 28) and the claims for wrongful eviction and abuse of process arise from protected activity, and the Court concludes Defendant has met the first prong, and the burden shifts to Plaintiffs. 

Second Prong 

Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show 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.  (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)  “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence.  Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.”  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)  

The SLAPP statute’s second element--a “probability of prevailing”--means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence.  For this reason, a court must apply a “summary-judgment-like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law.”  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) 

Here, Plaintiffs’ references to an eviction and the claims for abuse of process and wrongful eviction are barred by the litigation privilege.  The¿litigation privilege immunizes litigants from liability for torts, other than¿malicious prosecution, which arise from communications in judicial proceedings.  (Silberg v. Anderson¿(1990) 50 Cal.3d 205, 212, 215.)  The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to¿achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.¿[Citations.]” (Id.)¿ 

The privilege generally applies to any communication by a litigant in a judicial proceeding that is made “to achieve the objects of the litigation” and has “some connection or logical relation to the action.” (Id.¿at p. 212.)  It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law,¿supra,¿Torts, §§ 470, 505, pp. 554, 591.)  The primary purpose of the privilege is to afford litigants “the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.¿at p. 213.)  

Pleadings and process in a case are generally viewed as privileged communications. (Rubin v. Green¿(1993) 4 Cal.4th 1187, 1195 (complaint and subsequent pleadings in case were privileged); Merlet v. Rizzo¿(1998) 64 Cal.App.4th 53, 64–66¿(motions for writ of sale and reconsideration were privileged);¿California Physicians’ Service v. Superior Court¿(1992) 9 Cal.App.4th 1321, 1330¿(defensive pleadings were privileged).)   

Here, none of Plaintiffs’ claims are for malicious prosecution.  Further, the allegations and claims Defendant seeks to strike relate to the filing of an unlawful detainer complaint, which is subject to the litigation privilege.  (Feldman, 160 Cal.App.4th at 1486.)  Accordingly, Plaintiff cannot satisfy the second prong.  (See, e.g., Abraham v. Lancaster Community Hospital¿(1990) 217 Cal. App. 3d 796, 824 (the tort of abuse of process is barred by litigation privilege); Bisno v. Douglas Emmett Realty Fund¿1988 (2009) 174 Cal.App.4th 1534, 1535 (wrongful eviction claim barred by¿litigation privilege to the extent it is based on landlord’s filing of unlawful detainer action).)¿ 

Sanctions 

Because Defendant prevailed on his special motion to strike, he is entitled to attorneys’ fees and costs.¿ David seeks $2,985 in attorneys’ fees and costs representing 6.5 hours at an hourly rate of $450.¿ (Long Decl. ¶4.)¿  

Counsel has not provided any information on how long he has been practicing or on which areas of law he specializes.  Accordingly, the Court cannot assess whether his hourly rate of $450 is reasonable for an attorney of similar experience in the prevailing market.  The Court will instead use an hourly rate of $250.   

As to the number of hours expended by defense counsel, the Court concludes it is reasonable.  Counsel spent 4 hours to prepare the anti-SLAPP motion and anticipates spending an additional 2.5 hours to prepare the reply and attend the hearing.  Defendant also requests costs in the amount of $60.00, for the filing fee.  The Court concludes these amounts are reasonable.  ¿¿¿¿¿    

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendants’ special motion to strike the first amended complaint and awards sanctions in the amount of $1,685. 

 

DATED: August 15, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Cour