Judge Frank M. Tavelman, Case Number: 23BBCV00195, Date: 2024-01-26 Tentative Ruling

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TENTATIVE RULING

MARCH 6, 2024

Continued from March 1, 2024

Los Angeles Superior Court Case # 23BBCV00195

On January 27, 2023, Adrian Reyes (“Plaintiff”) filed this action against Antonella R. Mariduena (“Defendant”) and Does 1-50 (collectively “Defendants”) asserting the following causes of action: (1) breach of lease; (2) violation of Los Angeles Municipal § 49.99.2; (3) tortious breach of warranty of habitability; (4) breach of the covenant of quiet enjoyment; (5) negligence; (6) violation of the Los Angeles Rent Stabilization Ordinance; (7) nuisance; (8) violation of the California Business and Professions Code § 17200 et seq.; (9) violation of Los Angeles Municipal Code § 45.33; (10) retaliatory eviction; and (11) harassment & unlawful intimidation – California Civil Code § 1940.2.

The Complaint alleges the following, among other things. Plaintiff and Defendant have been in a landlord-tenant relationship since 2017. Plaintiff asserts that Defendant breached the lease by, failing to properly maintain the Property, failing to provide habitable premises, and allowing unsafe conditions to exist at the Property. In addition, the Defendants retaliated against Plaintiff by filing two frivolous unlawful detainer lawsuits in retaliation for him exercising his rights as a tenant.

On May 12, 2023, Plaintiff amended his Complaint to substitute Defendants Janina Mariduena and Luis Rodriguez (collectively, “Defendants”) for the defendants sued fictitiously as Does 1 and 2, respectively.

On October 5, 2023, Defendants filed the instant motion, seeking an order striking portions of the Complaint as a Strategic Lawsuit Against Public Participation (“SLAPP”). Defendants argue those portions arise from their right to petition.

On January 22, 2024, Defendants filed their objection to the opposition, arguing the opposition was untimely. The hearing for the motion was initially set for January 26, 2024, but on January 24, 2024, the Court continued the hearing to its current date, March 1, 2024.

On January 24, 2024, Plaintiff filed a supplemental request for judicial notice in support of his opposition to the motion.

On January 16, 2024, Plaintiff filed a request for judicial notice of the following:

· Exhibit A: Los Angeles Housing Department determination letter in re applicability of the Los Angeles Rent Stabilization Ordinance to the property at 7641 Tujunga Ave, North Hollywood, CA 91605.

· Exhibit B: Complaint filed in Los Angeles Superior Court (“LASC”) Case Number 22VEUD01233.

· Exhibit D: January 23, 2023 Order granting Plaintiff’s motion for judgment on the pleadings in re LASC Case Number 22VEUD01937.

· Exhibit H: Los Angeles County Department of Consumer & Business Affairs document dated April 11, 2022.

The Court grants the unopposed requests for judicial notice. (See Evidence Code § 452(c) and (d) [allowing courts to take judicial notice of official acts of the legislature and court records]; Crawley v. Alameda County Waste Management Authority (2015) 243 Cal.App.4th 396, 401, fn. 2 [granting the Alameda County Waste Management Authority’s unopposed request for judicial notice of its notice to property owners because the notice was an official act under Evidence Code section 452(c)].)

On January 24, 2024, Plaintiff filed and served a supplemental request for judicial notice, seeking judicial notice of the following documents.

· Exhibit J: Minute Order dated January 19, 2024, granting Plaintiff’s motion for summary judgment in unlawful detainer Case Number 23PDUD03028

· Exhibit K: Order dated January 22, 2024, granting the motion for summary judgment in the same case mentioned above (23PDUD03028)

The Court denies the request for judicial notice of those documents in Case Number 23PDUD03028 because that case is irrelevant for the purposes of this motion. (See AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313, fn. 2 [“a court must decline to take judicial notice of material that is not relevant …”].) Here, 23PDUD03028 is not mentioned in the Complaint, and the instant motion challenges Paragraphs 21 and 60, which only mention Van Nuys Superior Court Case Numbers 22VEUD01233 and 22VEUD019327.

The Court rules on Plaintiff’s objections filed on January 16, 2024, as follows.

“An anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity… If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ ‘Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2006) 136 Cal.App.4th 464, 472 (Citations Omitted).)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Baral v. Schnitt (2016) 1 Cal.5th 375, 384-85 (Baral).) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931.)

“[S]ection 425.16 provides no mechanism for granting anti-SLAPP motions with leave to amend.” (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 629 [italics removed].)

As an initial matter, Defendants object to Plaintiff’s opposition, arguing that it was untimely filed and served.

The Court exercises its discretion to consider the late-filed papers. (Cal. Rules of Court, Rule 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late-filed paper, the minutes or order must so indicate”].)

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883 [citations omitted] (“Digerati”).)

“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’ is defined by statute 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.’ If the defendant shows that the cause of action arises from a statement described in clause (1) or (2) of section 425.16, subdivision (e), the defendant is not required to separately demonstrate that the statement was made in connection with a ‘public issue.’” (Digerati, supra, 194 Cal.App.4th at p. 883 [citations omitted].)

“A cause of action is one ‘arising from’ protected activity within the meaning of section 425.16, subdivision (b)(1) only if the defendant’s act on which the cause of action is based was an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. In deciding whether the ‘arising from’ requirement is satisfied, ‘the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ Whether the ‘arising from’ requirement is satisfied depends on the ‘gravamen or principal thrust’ of the claim. A cause of action does not arise from protected activity for purposes of the anti-SLAPP statute if the protected activity is merely incidental to the cause of action.” (Digerati, supra, 194 Cal.App.4th at pp. 883-884 [emphasis added; citations omitted].)

“An anti-SLAPP motion need not be directed at a cause of action in its entirety, but ‘may be used to attack parts of a count as pleaded.’ [Citation.] Thus, when a cause of action is supported by allegations of both protected and unprotected activity, the anti-SLAPP statute applies to the former but does not reach the latter.” (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1104.)

Here, Defendants move to strike the Complaint’s second cause of action for violation of Los Angeles Municipal Code § 49.99.2 in its entirety (or, alternatively, portions of Paragraph 21 under that claim) and Paragraph 60(c), which is under the ninth cause of action for violation of Los Angeles Municipal Code § 45.33.

Defendants argue that those portions of the Complaint should be stricken because they arise from Defendants serving termination notices on Plaintiff and allegedly instituting an unlawful detainer action on Plaintiff, which are protected activities.

“The filing of an unlawful detainer complaint is anti-SLAPP protected activity, as is service of a notice of termination preceding an unlawful detainer complaint.” (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248.)

Here, the Court agrees that Paragraphs 21(b), (c), (d), (e), and (f) in the Complaint arise from protected activity, and none of the arguments Plaintiff raises in his opposition are persuasive. In those paragraphs, Plaintiff clearly alleges that the defendants violated Los Angeles Municipal Code § 49.99.2 by serving him with eviction notices and filing two unlawful detainer proceedings (Case Numbers 22VEUD01233 and 22VEUD01937) without complying with various ordinances. In those paragraphs, Plaintiff is not alleging only statutory violations as he argues in his opposition. He is seeking to hold the Defendants liable for serving him with eviction notices and filing unlawful detainer actions against him. Those are protected activities.

The Court also agrees Paragraph 60(c) allegations arise from protected activity. In that paragraph, Plaintiff alleges that Defendants violated Los Angeles Municipal Code § 45.33 by “[t]hreatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true.” Since the only examples Plaintiff gives of Defendants allegedly “threatening or taking action” to terminate his tenancy are Defendants (1) serving him with eviction notices and (2) filing an unlawful detainer action against him, the Court finds the allegations in Paragraph 60(c) also fall under the anti-SLAPP statute because, as stated above, serving an eviction notice and filing an unlawful detainer action are protected activities.

Notwithstanding the above findings, Defendants have failed to meet their burden of showing why Paragraph 21 should be stricken in its entirety when it is based on some unprotected conduct. For example, Paragraph 21(a) alleges that the Defendants violated Los Angeles Municipal Code § 49.99.2 by failing “to comply with the initial Protections Notice of the Anti-Eviction Ordinance ...,” and Paragraph 21(g) alleges that the Defendants violated the municipal code by “[h]arassing Plaintiff on numerous occasions between 2021 and up until the present.” Defendants have not shown how those activities arise from their right to petition or other protected activity. The Court finds that those paragraphs only allege statutory violations of Los Angeles Municipal Code § 49.99.

For the reasons set forth above, the Court finds that Defendants have met their burden of establishing Paragraph 60(c) and Paragraph 21(b), (c), (d), (e), and (f) arise from activity protected by Section 425.16. However, Defendants have failed to meet their burden as to the rest of Paragraph 21.

Accordingly, with regard to Paragraph 60(c) and Paragraph 21(b), (c), (d), (e), and (f), the burden shifts to the Plaintiff to demonstrate the merit of his claims by establishing a probability of success.

Defendants argue that Plaintiff cannot prevail on her allegations in Paragraph 60(c) and Paragraph 21(b), (c), (d), (e), and (f) because of the litigation privilege.

“The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 216.) “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 [has] some connection or logical relation to the action.” (Id. at 212.) “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 Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Citations)” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.)

The Court finds that the Defendants’ alleged acts of filing and refusing to dismiss the unlawful detainer cases (22VEUD01233 and 22VEUD01937) fell under the litigation privilege. (Compl., ¶ 21(d)-(f).)

Accordingly, since Plaintiff has not disputed Defendants’ litigation defense, the Court finds that he has failed to meet his burden of showing a probability of prevailing on the merits as to his allegations in Paragraph 21, subsections (d) through (f).

With regard to the allegations that Defendant served Plaintiff with eviction notices in bad faith, “[a] notice of eviction is a communication regarding prospective litigation, and, as such, it is not necessarily part of a judicial proceeding.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1250 (“Action Apartment”).)

Therefore, “courts have developed a test for determining when a communication regarding prospective litigation is subject to the litigation privilege.” (Action Apartment Assn., supra, 41 Cal.4th at p. 1251.)

“A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration.” (Action Apartment Assn., supra, 41 Cal.4th at p. 1251.)

Here, the Complaint alleges that Defendants served Plaintiff with eviction notices in bad faith. (Compl., ¶¶ 21(b)-(c), 60(c).)

“During the second prong of a court’s anti-SLAPP analysis, a defendant bears the burden of proving a privilege’s applicability.” (Neurelis, Inc. v. Aquestive Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 794.)

To prove that Plaintiff’s allegations that they never served him with eviction notices in bad faith, Defendants submit their declarations in which they testify that at no time has Defendant Antonella R. Mariduena been their agent or employee, and at no time have they (1) been in a landlord-tenant relationship with Plaintiff, (2) owned the Property, or (3) been agents or employees of Defendant Antonella R. Mariduena. (Motions, declarations of Janina Mariduena and Luis Rodriguez, ¶ 4.) Defendant Luis Rodriguez adds: “At no time have I ever served, or otherwise caused to be serve any notice relating to any tenancy of Plaintiff at any portion of said premises, and at no time has any notice been served by anyone without contemplation of institution of filing an unlawful detainer action upon defendants.” (Motion, Rodriguez Decl., ¶ 4.)

In opposition, Plaintiff argues that Antonella R. Mariduena testified at her deposition that Defendants are her agents and property managers for the property. (Opposition, pp. 5:22-6:2 [citing “Plt Depo, 19:18-20:4, 36:5-14”].)

However, the Court has not found the evidence Plaintiff cites in support of that argument in the papers he has submitted with his opposition. Most importantly, showing that Defendants were agents of Defendant Antonella R. Mariduena is not enough to establish that (1) Defendants, in fact, served Plaintiff with eviction notices and (2) that they served those eviction notices in bad faith.

Accordingly, since Defendants have disputed having any landlord-tenant relationship with Plaintiff and there is no evidence they served any eviction notices to Plaintiff in bad faith, the Court finds that Defendants have established the litigation privilege applies to the eviction notices allegations in Paragraphs 21(b) to (c) and 60(c).

Notwithstanding the above findings, in his opposition, Plaintiff also points to the fact that he obtained favorable terminations in Case Numbers 22VEUD01233 (because the defendant in that case dismissed it) and 22VEUD01937 (because Plaintiff prevailed in a motion for judgment on the pleadings) to imply that he has also shown a probability of prevailing in his allegations in Paragraphs 21 and 60(c) against the moving defendants.

However, the Court has taken judicial notice of those cases and notes that Defendants (i.e., the ones bringing this motion) are not named anywhere in those lawsuits.

For the reasons set forth above, the Court finds that Plaintiff has failed to meet his burden of establishing a probability of succeeding in his allegations in Paragraphs 60(c) and 21(b)(f).

“‘In any action subject to [the special motion to strike], a prevailing defendant ... shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to [Code of Civil Procedure] [s]ection 128.5.’ (Code Civ. Proc., § 425.16, subd. (c).)” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) “Thus, under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ibid.)

However, “because the anti-SLAPP provisions refer to attorney fees and costs without indicating any restrictions on how they are to be calculated, [the California Supreme Court has] accordingly presume[d] that the Legislature intended courts use the prevailing lodestar adjustment method.” (Ketchum, supra, 24 Cal.4th at p. 1136.)

“[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’ [Citation.]” (Ketchum, supra, 24 Cal.4th at pp. 1131-1132.)

Here, Defendants seeks attorney’s fees and costs of $3,660, consisting of 5 hours defense counsel spent on the moving papers, 2 hours they anticipated spending on the reply, and 1 hour they anticipated spending at the hearing, a total of 8 hours at counsel’s billing rate of $450 per hour (equals $3,600), plus a $60 filing fee. (Motion, Declaration of H.G. Long, ¶ 6.)

However, “only those fees and costs incurred in connection with the portion of the anti-SLAPP motion that is granted may be recovered.” (Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation (2019) 33 Cal.App.5th 38, 45.)

Here, the Court has found that the Defendants failed to meet their burden under the first prong with regard to Paragraph 21(a) in their Complaint.

Accordingly, Defendants’ request for attorney’s fees and costs is GRANTED, but in the reduced amount of $2,760, representing 6 hours of defense counsel’s time at their billing rate of $450 per hour, plus a $60 filing fee.

The Special Motion to Strike is DENIED IN PART and GRANTED IN PART as follows. The motion is GRANTED as to Paragraphs 21(b)-(f) and 60(c). Those paragraphs are hereby stricken. The motion is DENIED as to Paragraph 21(a) in the Complaint. The request for attorney’s fees and cost is GRANTED, but in the reduced amount of $2,760. These fees shall be payable within 30 days.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

Defendants Janina Mariduena and Luis Rodriguez’s Special Motion to Strike came on regularly for hearing on March 1, 2024 and continued to March 6, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, took the matter under submission and now rules as follows:

The motion is GRANTED as to Paragraphs 21(b)-(f) and 60(c). Those paragraphs are hereby stricken. The motion is DENIED as to Paragraph 21(a) in the Complaint.

The request for attorney’s fees and cost is GRANTED, but in the reduced amount of $2,760 to be paid within 30 days.