Judge: Elaine W. Mandel, Case: 20SMCV00130, Date: 2023-02-02 Tentative Ruling

Case Number: 20SMCV00130    Hearing Date: February 2, 2023    Dept: P

Tentative Ruling

Aimco Venezia LLC v. Huesca et al., Case No. 20SMCV00130

Hearing Date February 2, 2023

Aimco Venezia LLC’s Special Motion to Strike (Anti-SLAPP Motion) Second Amended Cross-Complaint (UNOPPOSED)

Plaintiff Aimco Venezia LLC alleges its former tenants Luske and Huesca wrongfully used their rental property for short-term rentals on Airbnb and similar websites. Luske and Huesca cross-complained. The third amended cross complaint (TACC), containing causes of action for negligent infliction of emotional distress and abuse of process. Aimco moves to strike under California’s anti-SLAPP statute.

Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 must follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In the prong one, the court determines whether the conduct underlying plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue; if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, supra, 31 Cal.4th at 733. The anti-SLAPP statute covers litigation-related activities, with any statement or writing made in “connection with” litigation receiving protection. Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962. Therefore, any cause of action for abuse of process automatically fulfills the first prong of an anti-SLAPP motion. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057.

Under the second prong, the burden shifts to plaintiff to show a legally sufficient claim and to prove with admissible evidence a reasonable probability that the plaintiff will prevail. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88. To fulfill prong two, a plaintiff cannot rely on the allegations of the complaint but must produce evidence that is admissible at trial. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

The gravamen of the TACC is that Aimco filed a lawsuit against Huesca and Luske, causing them financial and emotional harm. There are no allegations of wrongdoing against Aimco that do not arise from Aimco’s decision to sue. Filing a lawsuit is protected litigation activity. The first prong of an anti-SLAPP motion is fulfilled.

The burden shifts to cross-complainants to show a reasonable probability of prevailing. Since there is no opposition, that burden cannot be fulfilled. GRANTED.