Judge: Gail Killefer, Case: 20STCV33175, Date: 2022-09-30 Tentative Ruling
Case Number: 20STCV33175 Hearing Date: September 30, 2022 Dept: 37
HEARING DATE: September 30, 2022
CASE NUMBER: 20STCV33175
CASE NAME: Holly Wiersma v. Frank Logan Levy, et al.
MOVING PARTY: Plaintiff/Cross-Defendant, Holly
Wiersma
OPPOSING PARTIES: Defendants/Cross-Complainants, Frank
Levy, Frank Logan Levy and Coya Levy
TRIAL
DATE: February 29,
2023
PROOF OF SERVICE: OK
MOTION: Cross-Defendant’s Special Motion to
Strike Portions of the Cross-Complaint pursuant to Section 425.16
OPPOSITION: September 12, 2022
REPLY: September 14,
2022
Tentative: Plaintiff’s
Special Motion to Strike is denied. Cross-Complainants are to give notice.
MOTION: Cross-Defendant’s
Motion for Sanctions
OPPOSITION: September 13, 2022
REPLY: September 21,
2022
Tentative: Plaintiff’s
motion is denied. Cross-Complainants are to give notice.
Background
This action arises out of a divorce settlement between Holly
Wiersma (“Plaintiff”) and Cassian Elwes (“Elwes”). According to the Third Amended Complaint (“TAC”),
Plaintiff and Elwes formally dissolved their marriage in September 2013 and
Elwes granted Plaintiff an option (the “Option”) beginning October 2013 and
ending September 2015 (the “Option Period”) to purchase residential property
located at 7776 Firenze Avenue, Los Angeles, California (the “Property”).
Thereafter, Defendant Frank Logan Levy (“Logan”) and
Plaintiff were engaged to marry in September 2013. Logan and Plaintiff moved
onto the Property with the intention of buying it. After Logan and Plaintiff
moved in, Logan and Defendants Coya Levy and Frank Levy (Logan’s parents) convinced
Plaintiff to begin renovations on the Property. On December 15, 2016, Elwes
agreed to transfer the Option to Coya Levy and Frank Levy (the “Elwes/Levy
Agreement”), following which Frank Levy and Coya Levy exercised the Option and
purchased the Property (the “Levy Firenze Purchase”).
Following the Levy Firenze Purchase, Frank Levy and Coya
Levy arranged in July 2017 for Logan to take out a loan and purchase the Property
through Defendant Langniappe Properties CA, LLC (“LP”). In January 2018, after Plaintiff had allegedly
vacated the Property following a dispute, Logan started decimating the
Property. Thereafter, Plaintiff and Logan reached an agreement for Plaintiff to
move back into the Property as a renter (the “Rental Agreement”).
Pursuant to the Rental Agreement, Plaintiff moved back in on
July 1, 2018. Plaintiff then began spending money to repair damage to the
Property. According to Plaintiff, the parties settled their various disputes in
December 2019 through a Settlement Agreement.
Plaintiff alleges that she moved out of the Property as agreed despite
continuing to pay all utilities for the Property. Additionally, Plaintiff alleges
that Logan continues to wrongfully withhold Plaintiff’s personal property and
wrongfully accused her of criminal trespass in connection with her attempts to
get her personal property.
On January 25, 2022, the court sustained Defendants’
demurrer to the sixth cause of action of Plaintiff’s Second Amended Complaint
(“SAC”). On February 23, 2022, Plaintiff filed her Third Amended Complaint (“TAC”).
Plaintiff’s TAC alleges the following causes of action: (1)
breach of written settlement agreement against Logan and LP, (2) breach of the
Elwes/Levy Agreement against Frank Levy and Coya Levy, (3) declaratory relief
against all defendants, (4) specific performance against all defendants, (5)
conversion against all defendants, (6) breach of fiduciary duty against Frank
Levy, (7) constructive trust against Logan and LP, (8) unjust enrichment
against all defendants, (9) injunction against all defendants, (11) accounting
against Logan and LP, (13) fraud against Logan, Frank Levy and Coya Levy, (14)
tortious conspiracy against all defendants.[1]
On April 28, 2022, Plaintiff filed her Fourth Amended
Complaint (“4AC”) alleging identical causes of action, and omitting the sixth
cause of action.
On June 13, 2022, Frank Levy, Logan and Coya Levy
(“Cross-Complainants”) filed a Cross-Complaint against Plaintiff. The
Cross-Complaint alleges two causes of action: (1) breach of contract; and (2)
defamation.
Plaintiff, also Cross-Defendant, now specially moves to
strike the second cause of action of the Cross-Complaint pursuant to CCP § 425.16(b).
Plaintiff also moves for sanctions against Defendants/Cross-Complainants as to
their Answer and Cross-Compliant. Cross-Complainants oppose both motions.
Discussion
CCP § 425.16 permits the Court to strike causes of action
arising from an act in furtherance of the defendant's right of free speech or
petition, unless the plaintiff establishes that there is a probability that the
plaintiff will prevail on the claim. There
is a two-step process for analyzing most anti-SLAPP motions.
First, the movant bears the initial burden of showing that
the challenged claims fall plead matters subject to a motion to strike
under CCP § 425.16, i.e., that plaintiff's claim is based on an act
of defendant in furtherance of his right to free speech or to petition
government. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89
Cal. App.4th 294, 304.)
Under CCP § 425.16(b)(2), in determining whether defendant
has sustained its initial burden, the court considers the pleadings,
declarations and matters that may be judicially noticed. [Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal. App. 4th
324, 329, 339. A defendant meets his initial burden by demonstrating that the
act underlying the plaintiff’s claim fits one of the categories identified in
section 425.16(e). (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78.
CCP § 425.16(e) defines the protected acts as the
following:
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.
The
anti-SLAPP motion need not address what the complaint alleges is an entire
cause of action and may seek to strike only those portions which describe
protected activity. [Baral v. Schnitt
(2016) 1 Cal. 5th 376, 395-396 (Baral).]
A
defendant meets its burden by showing that the act underlying the claim fits
one of the categories enumerated in CCP § 425.16(e). [City of Cotati v. Cashman, supra, 29 C4th at 78, 124 CR2d at 527; Baral v. Schnitt (2016) 1 C5th 376, 396,
205 CR3d 475, 490—at first step, defendant has “burden of identifying all
allegations of protected activity, and the claims for relief supported by
them”]
Where there
are “mixed” causes of action involving both protected and nonprotected
activity, it is the moving party's burden to identify in the motion the
allegations of protected activity and the claims arising from it. A motion
directed only to an entire complaint may be denied if some claims involve
nonprotected activity. [Baral v. Schnitt,
supra, 1 C5th at 391, 205 CR3d at 486]
Allegations
of “protected activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute.” [Baral v. Schnitt, supra, 1 C5th at 394,
205 CR3d at 488; see Park v. Board of
Trustees of Calif. State Univ. (2017) 2 C5th 1057, 1060, 217 CR3d 130,
132—claim struck only if the protected activity is itself the wrong complained
of, and is not just an allegation that is evidence of liability or a step
leading to some different act for which liability is asserted]
(Cal. Prac. Guide Civ. Pro. Before Trial, 
(Rutter Group 2020).)
Second, if the defendant meets this initial burden, the
plaintiff then has the burden of demonstrating a probability of prevailing on
the claim. (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 741.) Plaintiff must show that there is admissible
evidence that, if credited, would be sufficient to sustain a favorable
judgment. (McGarry v. University of San
Diego (2007) 154 Cal. App. 4th 97, 108.) (Id.) Under CCP § 425.16(b)(2),
a plaintiff may use pleadings, declarations and matters subject to judicial
notice, as well as evidence submitted by defendant, to meet the plaintiff’s
burden.
I.
First Prong: Arising from Protected Activity
“[T]he
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.” (Id.)
Plaintiff
contends that the Cross-Complaint’s second cause of action arises from
protected activity because Plaintiff’s statements “regarding her relationship
with Logan and his family were made in the context of an adversarial setting...”
(Motion, 2-3.) Plaintiff further contends the
“crippling
vagueness of the allegations of defamation in the Cross-Complaint prevent a
more specific discussion of why any possible statements by Holly may be a
matter of public interest. Holly meets her burden of proof by establishing that
her disputes with Logan and [LP] were a subject of numerous actions in Superior
Court, including three purported applications for a restraining order, an
unlawful detainer action and this action... Holly’s position and renown [sic]
in the motion picture business render any statements made by her a matter of
‘public interest’ under the very broad standard applied in interpretation of
Section 425.16(e)(4).” (Motion, 4.)
Plaintiff
however fails to explain how any statements made by anyone within a
public-facing industry can be defined as a matter of public interest.
In
opposition, Cross-Complainants contend “Plaintiff stating to third parties that
Defendants stole property from Plaintiff does not implicate any right of
petition or free speech,” as necessary under CCP § 425.16(b). (Opposition, 3.) Cross-Complainants also
point out that Plaintiff’s reliance on Taus v. Lofton, (2007) 40
Cal.4th 683 is also unavailing as Taus “concerns publication of an
article on repressed memory recovery, clearly a matter of ‘public interest.’”
(Opp., 3-4.) Cross-Complainants further contend:
“Plaintiff fails to specify how Plaintiff’s statements of
theft are a matter of ‘public interest.’ Plaintiff seeks to hide behind the
absurd assertion that Defendants’ claims suffer from ‘crippling vagueness.’
Defendants’ allegations are plain, simple, and unambiguous – that Plaintiff
stated verbally and in writing that Defendants stole property from Plaintiff
and that Plaintiff communicated those statements to third parties...” (Opp., 4.)
Cross-Complainants further cite Albanese v. Menounos,
(2013) 218 Cal.App.4th 923, where the court found that even though a public
figure had made alleged statements that plaintiff stole from defendant:
“[t]he alleged statement that
plaintiff stole from defendant does not involve conduct that could affect
large numbers of people beyond the direct participants. Further, the alleged
statement does not involve a topic of widespread public interest. Simply put,
defendant's alleged statements are not of public concern.”
(Albanese v. Menounos, 218 Cal.App.4th 923, 927-28
[internal citations omitted].)
In reply, Plaintiff contends “Cross Complainants in their
Opposition offer no evidence – in the form of declarations of otherwise – on
any issue, including the “first prong” of anti-SLAPP analysis...Holly submitted
a detailed Declaration discussing the background of the dispute, the four
public actions in Superior Court, a public arrest as well as the claimed
defamation.” (Reply, 1.)
In her declaration, Plaintiff
states:
“I have never at any time ‘defamed’ Logan, Frank or Coya. I
have expressed my negative opinion of Logan's conduct as stated in this Declaration
to others in private conversation with persons who knew us both. These opinions
are based on the facts set forth above which are true and correct in all
respects. When expressing these opinions and now, I believed that Logan had
released me from all claims he could make against me arising out of our
relationship, except specifically as set forth in the Settlement Agreement. I
made no such statements on or after June 18, 2021. I may have expressed
negative opinions regarding Logan in the context of prosecution of this
litigation but have no specific recollection of any such expressions of
opinions.” (Wiersma Decl. ¶44.)
As
such, Plaintiff’s declaration undermines her own motion. Plaintiff’s
declaration specifically speaks as to how the alleged statements were not a
public issue, or a matter of public interest as they were allegedly made “in
private conversation with persons who knew us both.” (Id.) Further,
Plaintiff’s efforts to engage in a dispute over the validity of the claims as
part of the second-prong do not support Plaintiff’s efforts to satisfy the
first prong of the motion, specifically to show that the alleged acts arose
from or invoked a protected activity. Plaintiff’s arguments and contentions may
be better suited to an inquiry under a demurrer, but that is not the relevant
inquiry at this junction.
Further,
the Cross-Complaint alleges “Wiersma made false and defamatory statements
regarding Cross-Complainants and Cross-Complainants’ business dealings,
personal integrity, and general character... Wiersma made the false and
defamatory statements to Cross-Complainants’ business associates,
Cross-Complainants’ friends and in Cross-Complainants’ business community in general.”
(Cross-Complaint ¶21.) “Wiersma has stated verbally and in writing that
Cross-Complainants stole property from Wiersma. Wiersma made these statements
to third parties.” (Cross-Complaint ¶22.)
The
court finds that Cross-Defendant/Plaintiff has failed to meet her burden under
the first prong.
The
court agrees with Cross-Complainants that Plaintiff has failed to show how
these statements are matters of public interest or in connection with a public
issue. The court is further not persuaded by Plaintiff’s attempts to point to
the heavily litigated record between the parties, as Plaintiff has asked the
court to embark on a fishing expedition to determine as to how statements
regarding the alleged stealing of Plaintiff’s property are part of the lengthy
record between the parties here.
Further,
to the extent that Plaintiff argues that the Cross-Complaint addresses “public
issues” and falls under CCP § 425.16(e)(3) or (e)(4), this argument fails on
its face. The Cross-Complaint relates to a private dispute with
Cross-Defendants regarding the sale and exclusive use of a private residential
property. Such a dispute does not pertain to any public issue.
Because Plaintiff has failed to meet their burden under the
first prong, Plaintiff’s motion is denied. Having denied Cross-Defendant’s
motion on this basis, the court does not address the remainder of the parties’
arguments.
CROSS-DEFENDANT’S
MOTION FOR SANCTIONS
Discussion
I.
Legal Authority
CCP § 128.7 states that a court may impose sanctions on a
party or attorney that presents a pleading, petition, motion, or other similar
papers in the following circumstances:
1) the document is presented primarily for an
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.
2) the claims, defenses, and other legal
contentions therein are not warranted by existing law or by
a nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law.
3) the allegations and other factual contentions
have no evidentiary support;
4) the denials of factual contentions are not
warranted on the evidence.
CCP § 128.7 permits the Court to
impose monetary sanctions on an attorney or an unrepresented party that
violates any one of these requirements. (Eichenbaum v. Alon (2003)
106 Cal App 4th 967, 976.) In addition, CCP § 128.7 does not require a
finding of subjective bad faith; instead it requires only that the Court
find that the conduct be objectively unreasonable. (In re
Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)
Under CCP § 128.7, a court may impose
sanctions if it concludes a pleading was filed for an improper purpose or was
indisputably without merit, either legally or factually. (Bucur v.
Ahmad (2016) 244 Cal.App.4th 175, 189-190.) A claim is
factually frivolous if it is “not well grounded in fact” and is legally
frivolous if it is “not warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law.” (Ibid.) In
either case, to obtain sanctions, the moving party must show the party's
conduct in asserting the claim was objectively unreasonable. (Ibid.) A
claim is objectively unreasonable if “any reasonable attorney would agree that
[it] is totally and completely without merit.” (Ibid.) However, “section
128.7 sanctions should be ‘made with restraint’ [Citation], and are not
mandatory even if a claim is frivolous.” (Peake v. Underwood (2014)
227 Cal.App.4th 428. at 448.)
II.
Analysis
Cross-Defendant/Plaintiff contends that sanctions pursuant
to CCP § 128.7 are warranted because Cross-Complainants allegedly had no
reasonable legal grounds to sue her. (Motion, 1-2.) Specifically, Plaintiff
contends the twelfth affirmative defense of Defendants’ Answer, as well as the
first cause of action of their Cross-Complaint, contain “frivolous factual
contentions and defenses.” (Motion, 1.) These contentions include that
Plaintiff “breached the Settlement Agreement” by releasing to third parties all
or portions of Logan’s private journal, failed to return to Logan any and all
copies of said private journal, have been damaged as a result of Plaintiff’s
alleged breaches of the Settlement Agreement, and that Cross-Complainants have
performed all unexcused obligations under the Settlement Agreement. (Motion,
1-2.)
Plaintiff also points to the special motion to strike as
discussed above, and further contends the second cause of action of the
Cross-Complaint contains frivolous claims regarding any alleged defamation by
Plaintiff. (Motion, 3-4.) Plaintiff thus contends that allegations of any
breach of the Settlement Agreement are without merit because “Cross
Complainants have no evidence to the contrary because such evidence does not
exist.” (Motion, 5.) Plaintiff also contends that any damages relying on the
penalty clause of the Settlement Agreement are also “fantastic claims.” (Id.)
Plaintiff contends any such liquated damages clause of the Settlement Agreement
is without merit. (Motion, 6-7.) As such, Plaintiff contends the “First Cause
of Action of the Cross Compliant and the Twelfth Affirmative Defense in the
Answer are objectively frivolous and sanctionable because there is literally no
evidence whatsoever to support these allegations.” (Motion, 8.) Plaintiff also
repeats arguments against the second cause of action of the Cross-Complaint,
arguing it is vague and conclusory. (Motion, 8-9.)
As such, Plaintiff requests Cross-Complainants’ counsel to
be sanctioned, and the court grant further sanctions by excluding any further
claims of alleged breaches or defamation claims against Plaintiff. (Motion,
9-10.)
In opposition, Cross-Complainants contend Plaintiff’s
efforts are “little more than an attempted end run around proper discovery and
demurrer procedures. Defendants make specific allegations in their
Cross-Complaint and assert specific affirmative defenses in their Answer.”
(Opposition, 2.) Therefore, Cross-Complainants contend a demurrer is the proper
method of challenging the factual sufficiency of an Answer or a Complaint,
which Plaintiff has not done so here; rather, Cross-Complainants contend “Plaintiff
does not rely upon extrinsic facts, matters or judicial notice, or any other
objective basis. Plaintiff instead relies solely on facts that Plaintiff alone
disputes. This dispute is properly resolved through the trial process.” (Opp.,
3.)
Cross-Complainants further correctly point out Plaintiff’s
motion “lacks sufficient specificity and clarity to accurately ascertain the
true basis of the violations Plaintiff is alleging” in her motion. (Opp., 4.)
Further, Cross-Complainants contend they have evidence to support each of the
claims referenced by Plaintiff in her motion. (Opp., 4-7.) Lastly,
Cross-Complainants contend “Plaintiff fails to establish that there is an
improper motive in Defendants seeking redress for Plaintiff’s breach of the
settlement agreement and Plaintiff’s defamation of Defendants.” (Opp., 7-8.) Thus,
Cross-Complainants contend that because Plaintiff cannot prove that this action
is completely devoid of supporting facts, then terminating and monetary
sanctions under CCP § 128.7 should not issue. (Opposition, 4-9.)
The court does not find that CCP § 128.7(b) was violated.
First, the court disagrees with Plaintiff that their special
motion to strike demonstrates that the Cross-Complaint was without merit. Plaintiff’s
special motion to strike was denied in its entirety. Additionally, Cross-Complainants’
opposition demonstrates that factual support exists for their claims, at least
sufficient to create a factual dispute and necessitate factual discovery on
this matter. Thus, the court is not persuaded that Cross-Complainants’ entire
action was brought solely for an improper purpose, such as to harass or cause
unnecessary delay or needlessly increase the cost of litigation. As such, the
court agrees with Cross-Complainants that Plaintiff’s motion for sanctions is
an improper method of challenging the sufficiency of the claims in the
Cross-Complaint, and again reiterates that the inquiries requested by Plaintiff
are better suited in a demurrer to the Cross-Complaint. As the court is not
considering a demurrer to the Cross-Complaint here, Plaintiff’s arguments are
again unavailing.
For these reasons, Plaintiff’s motion is denied.
Conclusion
Plaintiff’s special motion to strike is denied. Plaintiff’s
motion for sanctions is also denied. Cross-Complainants are to give notice.