Judge: Edward B. Moreton, Jr, Case: 24SMCV04135, Date: 2024-12-03 Tentative Ruling

Case Number: 24SMCV04135    Hearing Date: December 3, 2024    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This case arises from alleged disparaging statements made by Defendants David Brierley (Mr. Brierley) and Matt Emery (Mr. Emery) (together, Defendants) about and against Plaintiffs Shima Hadidchi (Ms. Hadidchi) and her company 1169 Amherst LLC (together, Plaintiffs).

On August 26, 2024, Plaintiffs initiated the instant action.

On March 13, 2024, Plaintiffs filed the operative first amended complaint (FAC) against Defendants David Brierly and Matt Emery alleging causes of action for (1) slander, (2) trade libel, (3) tortious interference with prospective economic advantage, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress.

On November 4, 2024, Defendants filed a special motion to strike under California’s Anti-SLAPP statute.

On November 19, 2024, Plaintiffs filed an opposition.

On November 22, 2024, Defendants filed a reply.

Judicial Notice

Defendants request that the Court take judicial notice of the following pursuant to Evidence Code Section 452, subdivision (c):

1.     Certified copy of July 6, 2023 NOTICE AND ORDER TO COMPLY by the Los Angeles Housing Department Code Enforcement Division, and

2.     Los Angeles Housing Department Code Enforcement Division’s Worklog for Case No. 861427.

Defendants’ request for judicial notice is granted.

Evidentiary Objections

In support of their motion, Defendants advance the declarations of Mr. Brierley, Mr. Emery, Erin Lynch and Roxsanna Mobley with accompanying exhibits. Plaintiff objects to portions of these declarations and make general objections. The Court rules as follows:

OVERRULED: objections 1, 2, 3 (effect on listener), 4 (effect on listener), 5, 6, 7, 8 (effect on listener, opposing party admissions), 10, 11 (effect on listener), 12, 13, 14, 16, 17, 18, 19 (opposing party admissions), 20, 21, 22, 23 (opposing party admissions).

SUSTAINED: objections 9, 15.

Legal Standard

“If a defendant brings a special motion under the anti-SLAPP statute [Code of Civil Procedure Section 425.16] to strike a cause of action, the trial court evaluates that motion using a two-step process: The first examines the nature of the conduct that underlies the plaintiff's allegations to determine whether the conduct is protected by section 425.16; the second assesses the merits of the plaintiff’s claim. [Citation]” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 759.) 

“The defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A ‘claim may be struck only if the speech or petitioning activity¿itself¿is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’ [Citation.]  To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ‘act[s]’ protected by the anti-SLAPP statute. [Citations.]”  (Wilson v. Cable News Network, Inc.¿(2019) 7 Cal.5th 871, 884 [italics in original].) 

“In the first step of the analysis, the trial court determines whether the cause of action ‘arises from’ an ‘‘‘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.’’’ [Citation] The first step of the anti-SLAPP analysis ‘turns on two subsidiary questions: (1) What conduct does the challenged cause of action ‘arise[] from’; and (2) is that conduct ‘protected activity’ under the anti-SLAPP statute?’ [Citation]” (Laker, supra, 32 Cal.App.5th. at p.760.)  

“The Supreme Court has clarified that ‘arising from’ means ‘based on.’ [Citation] This element of the first step of the anti-SLAPP analysis is sometimes referred to as the ‘nexus’ requirement. [Citation] Conduct constitutes ‘protected activity,’ if it falls within one of the categories set out in section 425.16, subdivision (e). Section 425.16, subdivision (e), in turn, applies to (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) ‘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) ‘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.’ [Citation] The defendant bringing the anti-SLAPP motion to strike must make a prima facie showing that the allegations that form the basis of the plaintiff's claims arise from conduct that falls under one of these categories. [Citation]” (Ibid.) 

“If the defendant prevails in this step of the analysis, the trial court must then assess the merits of the plaintiff's claim. The Supreme Court has described this second step of the SLAPP analysis as a ‘summary-judgment-like procedure.’ [Citation.]  The plaintiff carries the burden of demonstrating that its claim has ‘at least ‘minimal merit.’’ [Citation.] If the plaintiff is unable to demonstrate that his or her claim has at least minimal merit, then the trial court should deem the cause of action a SLAPP and should strike it. [Citation.]” (Ibid.)   

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, 108-09.) The court “accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citations.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) Further, whether 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.) 

Analysis

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.)  “[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.’ [Citation.]”  (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063.) 

In determining whether an entire cause of action should be stricken from a complaint: “[T]the statutory phrase ‘cause of action ... arising from’ means simply that 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.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (Ibid.) “In terms of whether 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 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 … If not, the claim is stricken.” (Baral v. Schnitt¿(2016) 1 Cal.5th 376, 396.)

“‘The only means specified in section 425.16 by which a moving defendant can satisfy that [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ [Citation.]” (Ibid.)  

Code of Civil Procedure Section 425.16 subdivision (e), in pertinent part, defines protected acts to include “(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(e)(1-4).)   

Pursuant to Baral, supra, 1 Cal. 5th at p, 396, “[a]t the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” Here, Defendants contend that each of Plaintiffs’ causes of action for (1) slander, (2) trade libel, (3) tortious interference with prospective economic advantage, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress arise from Defendants’ speech that is protected activity, and that Defendants’ protected speech is the central issues of the complaint. (See, e.g., FAC ¶¶ 4–5, 11, 13, 20–21, 30, 38–39, 45.)

Defendants firstly contend that the entirety of Plaintiffs’ complaint arises from and are grounded within allegations that Defendants filed “complaints to City Inspectors on three separate occasions regarding illegal listings of the Subject Property for less than thirty (30) days” and made “claims [about Plaintiffs] at multiple City of Los Angeles’s General Manager hearings.” (FAC, ¶ 5.) To reiterate, subdivision (e)(1) of the Anti-SLAPP statute protects “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subd. (e)(1).) Complaints to executive officials of City government and claims made during City hearings qualify as statements “made before a … executive … proceeding, or any other official proceeding authorized by law.” (Ibid.)

In ComputerXpress, Inc. v. Jackson, (2001) 93 Cal.App.4th 993, 1009, the court held, in the context of the defendants filing a complaint with the SEC, that a “communication to an official administrative agency . . . designed to prompt action by that agency is as much a part of the ‘official proceeding’ as a communication made after the proceedings had commenced.” Similarly, Defendants filed their complaints with City Government Housing officials in an effort to initiate prompt action by the City Inspectors in ameliorating Plaintiffs’ alleged violations of the short-term rental ordinance. (Emery Decl., ¶¶ 12-13; Brierley Decl., ¶¶ 5, 11, 13, 14.)

Plaintiffs, in opposition, argue that while “in a difference scenario . . . Defendants’ speech would be protected,” “that is not the case in this instant scenario” because “false speech is not protected speech.” (Opposition, page 4.)

“Unlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute [Citation.] . . . But when the defendant's assertedly protected activity may or may not be unlawful, the defendant may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law. [Citation.] An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful. [Citation.]” (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.)

Here, Plaintiffs have not proffered conclusive evidence to suggest that the complaints Defendants filed with the Los Angeles City officials were false. Plaintiffs contend that the reports of an appeal showed that there was no evidence to support that Plaintiffs were violating the short-term rental ordinance. (Opposition, page 4.) However, on appeal, according to Ms. Hadidchi, the City Inspector stated that “any information regarding [short-term rental activities] was inconclusive.” (Hadidchi Decl., ¶ 10.) This is far from being “uncontroverted evidence” that Defendants’ complaints were false. While following the appeal, the Senior Housing Inspector may have found that Plaintiffs were no longer in violation of the short-term rental ordinance, Defendants contend that Plaintiffs were previously engaged in short-term rentals.  

Additionally, Defendants affirmatively dispute that any of their alleged statements to City officials were false, creating a “factual dispute . . . about the legitimacy of [Defendants’] conduct.” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424; see also Kenne v. Stennis, (2014) 230 Cal.App.4th 953, 967 [“when allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of section 425.16.”].)

To conclude, The Court finds that Defendants sufficiently demonstrated that each of Plaintiffs’ causes of action in the first amended complaint arise from Defendants’ protected activity of filing complaints to Los Angeles City Inspectors and managers. Additionally, because each cause of action realleges and reincorporates every allegation contained in previous paragraphs, the Court finds further support that each of Plaintiffs’ claims arise from Defendants engaging in protected activity. As stated above, any allegation of unprotected activity within Plaintiffs’ causes of action is disregarded at this stage. (Baral, supra, 1 Cal.5th at p. 396.)

The burden now shifts to Plaintiffs to show that they have a probability of success on their claims.

Second Prong: Minimal Merit

For the second prong of the anti-SLAPP analysis, Plaintiff bears the burden of establishing a probability of succeeding on the merits. (See Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)  However, Plaintiff is “not required ‘to prove the specified claim to the trial court;’ rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.”  (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 364.) “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.] (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88–89.)

“In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.] Thus, declarations may not be based upon ‘information and belief’ [Citation] and documents submitted without the proper foundation will not be considered.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) The complaint, even if verified, is insufficient to carry the plaintiff’s shifted burden.  (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 614; Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354 [“pleadings do not constitute evidence”].)

“The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. [Citation.] The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward.” (HMS Capital, Inc., supra, 118 Cal.App.4th at p. 212.)

First through Fifth Causes of Action: Litigation Privilege

Defendants contend that each of Plaintiffs’ claims in the first amended complaint is barred by the litigation privilege, and thus, Plaintiffs do not have a reasonable probability of success on each of their claims. Defendants are correct, and Plaintiffs have not met their burden in establishing that the privilege would be overcome.

“‘The usual formulation is that the [litigation] 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 [has] some connection or logical relation to the action.’¿[Citation.]  The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’ [Citation.]”  (Action Apartment Assn., Inc. v. City of Santa Monica¿(2007) 41 Cal.4th 1232, 1241.)  “[T]he litigation privilege was founded on defamation actions, and has been applied primarily to provide absolute immunity from¿tort¿liability for communications with ‘some relation’ to judicial proceedings.” (Feldman v. 1100 Park Lane Associates¿(2008) 160 Cal.App.4th 1467, 1494.) 

Moreover, the Supreme Court noted that it had previously “directed that¿section 47(b) be applied broadly to bar tort actions based on privileged communications, excepting only the tort of malicious prosecution.” (Hagberg v. California Fed. Bank (2004) 32 Cal. 4th 350, 358.) “The privilege applies to communications relative to the defense of an action as well as those relative to its filing and prosecution.” (Cabral v. Martins¿(2009) 177 Cal.App.4th 471, 485.) 

As discussed in connection with the first prong, Defendants have established that the entire first amended complaint arises from them allegedly filing complaints with Los Angeles City officials, as well as speaking at City hearings, regarding Plaintiffs’ alleged violations of the short-term rental ordinance. “The absolute privilege under Civil Code section 47, subdivision (b), encompasses communications made to instigate an official investigation and in connection with the investigation once commenced.” (Lemke v. Sutter Roseville Med. Ctr. (2017) 8 Cal.App.5th 1292, 1299.) Because Defendants allegedly filed these complaints with the City and engaged in City hearings in an effort to correct Plaintiffs’ purported wrongdoing related to the short-term rentals, their official communications with City officials are privileged. The litigation privilege protects individuals, such as Defendants, “from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.” (McNair v. City & Cty. of S.F. (2016) 5 Cal.App.5th 1154, 1163.)

Additionally, Defendants correctly contend that not only are their complaints and official communications with City officials privileged, but also all communications logically related to Plaintiffs’ suit and were made to achieve the objects of the litigation. Plaintiffs allege in the first amended complaint that Defendants’ statements were also “communicated orally amongst neighbors within the surrounding Subject Property.” (FAC, ¶¶ 11, 20.)

In Cayley v. Nunn (1987) 190 Cal.App.3d 300, the court dealt with the question as to whether the litigation privilege applies to alleged slanderous statements made by the defendants to potential petition signers, “where the remarks were made while defendants were circulating a petition to be given to the City Council.” (Id. at p. 303.) The court found it “clear” that “the alleged slanderous statements were made during preliminary conversations while defendants were marshalling evidence and preparing for their presentation at the City Council meeting,” and that the statements “cannot be considered irrelevant to the proceedings and they were directed toward the achievement of the objects of the proceeding.” (Id. at p. 304.) Thus, the defendants’ communications with potential petition signers were protected by the litigation privilege. (Ibid.) 

Similarly here, all Defendants’ communications, whether with other neighbors or with Plaintiffs themselves, bear a logical connection to their effort to have City officials remedy Plaintiffs’ alleged violations of the short-term rental ordinance. There is a direct relation between Defendants’ actions of filing complaints with the City and engaging in City hearings regarding Plaintiffs’ alleged misconduct and Defendants’ purported statements with other tenants, or Plaintiffs themselves, regarding Plaintiffs’ purported misconduct. Defendants’ statements made to neighbors were part of a broader attempt in trying to have City officials cure Plaintiffs’ alleged ordinance violations with the short-term rentals.

Part of an attempt to satisfy their burden, Plaintiffs argue that the litigation privilege does not apply pursuant to Code of Civil Procedure, Section 47, subdivision (b)(5). The section does provides that the litigation privilege does not cover “any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” (Civ. Code § 47(b)(5).)

Plaintiffs state that “Plaintiffs have alleged that the reports made by Defendants to LAHD were false with reckless disregard for the truth.” (Opposition, page 6.) However, as stated above, Defendants “must produce evidence that would be admissible at trial,” and cannot rely solely on the allegations delineated in the first amended complaint. (HMS Capital, Inc., supra, 118 Cal.App.4th at p. 212.) The only evidence that Plaintiffs produced related to the falsity of Defendants’ complaints and general statements is Ms. Hadidchi’s declaration, which states that on appeal, there were no short-term rental activities “after investigation and any information regarding that was inconclusive.” (Hadidchi Decl., ¶ 10.) Ms. Hadidchi’s declaration further states that a “a General Hearing Matter was held and Senior Housing Inspector Jean-Claude Olivier found that there were no violations of short-term rentals.” Looking at the declaration in the light most favorable to Plaintiffs, this is still insufficient evidence to conclude that Defendants’ statements were false because, as explained above in the first prong, Defendants’ statements maintained that Plaintiffs were previously engaged in invalid short-term rentals.

However, even if the Court were to conclude that Plaintiffs satisfied their burden in demonstrating that the Defendants’ statements were false, Plaintiffs have failed to provide any evidence that the statements were made with Defendants “knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” (Civ. Code § 47, subd. (b)(1).) Plaintiffs have not provided any evidence regarding the state of mind of Defendants when they made their alleged false statements. The only piece of evidence that Plaintiffs proffer, Ms. Hadidchi’s declaration, does not mention Defendants’ state of mind at all.

Therefore, the litigation privilege bars each cause of action alleged in Plaintiffs’ first amended complaint, as Plaintiffs have failed to satisfy their burden in establishing that the litigation privilege does not apply. Because the litigation privileges bars each of Plaintiffs’ claims, the Court does not proceed to address other potential reasons as to why Plaintiffs would not have a reasonable probability in succeeding on their claims.

Conclusion

Based on the foregoing, Defendants David Brierley and Matt Emery’s special motion to strike based on California’s Anti-SLAPP statute is GRANTED.

The entirety of Plaintiffs’ first amended complaint is hereby stricken. When a court grants an Anti-SLAPP motion, the unsuccessful party is not entitled to leave to amend. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074.)

Dated: December 3, 2024

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court