Judge: Gail Killefer, Case: 22STCV11122, Date: 2022-09-21 Tentative Ruling
Case Number: 22STCV11122 Hearing Date: September 21, 2022 Dept: 37
HEARING DATE: September 21, 2022
CASE NUMBER: 22STCV11122
CASE NAME: Robert Gentino, Trustee of the
BN Family Trust, et al. v. Bob Termechi, et al.
MOVING PARTY: Defendant, Bizhan Yaghoobia
OPPOSING PARTY: Plaintiff, Robert Gentino, Trustee
of the BN Family Trust Dated June 5, 2000
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
MOTION: Special Motion to Strike
Cross-Complaint
OPPOSITION: June 28, 2022
REPLY: None as of
September 20, 2022.
TENTATIVE: Defendant’s motion is denied. Plaintiff is to give notice.
Background
This action arises out of an ownership dispute in real
property located at 1901 E. Carson Street, Long Beach, California (the “Subject
Property Property”). Plaintiff is the successor
trustee to the BN Family Trust dated June 5, 2000, settled by Behrouz Nopavar
(“Nopavar”) on June 5, 2000. Plaintiff claims
ownership to the Subject Property, as do Bob Termechi (“Termechi”) and Bizhan
Yaghoobia (“Moving Defendant”).
Plaintiff’s Complaint alleges Termechi falsely identified a
Grant Deed to the Subject Property as a bona fide gift and obtained Nopavar’s
signature after Nopavar and Moving Defendant had jointly purchased the Subject
Property on May 7, 2008. Plaintiff claims that only three days after Nopavar
passed away on September 28, 2014, Termechi recorded the Grant Deed to the
Subject Property on October 1, 2014, allegedly knowing that Nopavar could no
longer challenge the false ownership claims.
On August 24, 2018, Plaintiff and Termechi signed a
Settlement Agreement (“Settlement”) to resolve the dispute which would confer
standing to Plaintiff to seek a partition of the Subject Property. The
Settlement erroneously conferred an interest in Termechi’s sale proceeds from
the Subject Property, as opposed to an interest in Termechi’s recorded property
interest. Plaintiff’s Complaint also alleges Moving Defendant interfered with
Plaintiff’s ownership in the Subject Property without Plaintiff’s consent by
distributing funds from the trust to Moving Defendant and Termechi, which
damaged Plaintiff.
Plaintiff’s Complaint alleges four causes of action: (1) reformation
of contract against Termechi; (2) partition against all Defendants; (3) breach
of constructive trust against Yaghoobia; and (4) accounting against Yaghoobia.
Moving Defendant now bring the instant Special Motion to
Strike (“Anti-SLAPP Motion”) to the Complaint. Plaintiff opposes the motion.
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 defendant bears the initial burden of showing
that the challenged claims fall within the class of suits 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 CCP § 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.)
Here,
Moving Defendant contends identical claims were made in an earlier complaint
which was dismissed in a matter titled, Robert Gentino, Trustee of the BN
Family Trust Dated June 5, 200 v. Bob Termechi, et al., LASC Case No.
BC706408. (Motion, 6.) Moving Defendant points to further decisions by other
departments in this court, contending that they show Plaintiff lacks standing
to bring these claims. (Motion, 6-7.) As such, Moving Defendant contends
judicial estoppel applies. (Motion, 8-9.)
Moving
Defendant also contends that the claims in the Complaint arise from protected
activity under CCP § 425.16(e)(1). (Motion, 9.) According to Moving Defendant,
the Complaint arises from “quitessential [sic] petitioning activity
under the First Amendment of the United States,” and contends that the right to
access to the court is invoked here by citing to caselaw which has found such a
right of access to the judicial system to be couched within, and protected by,
the First Amendment. (Id.)
In opposition, Plaintiff contends Defendant “erroneously
argues” these claims arise of any protected activity “without ever
demonstrating how the Complaint arises out of defendant’s exercise of a
constitutional right of free speech or petition.” (Opp., 1-2.) Plaintiff
further explains that all referenced cases “arose from Defendant’s part
ownership of real property (Partition), Defendant’s breach of constructive
trust by wrongfully disbursing money held in constructive trust (Breach of
Constructive Trust), and the necessity for an accounting of all Property income
and expenses (Accounting) — none of which involves Defendant’s exercise of a
constitutional right of free speech of petition.” (Opp., 2.) Plaintiff further
cites Lefebvre v. Lefebvre, (2011) 199 Cal.App.4th 696, 703 to
show that an act in furtherance of a constitutional right is a necessary
prerequisite to an anti-SLAPP motion to strike. The court agrees.
The court finds that Moving Defendant has failed to meet
their burden under the first prong.
The court agrees with Plaintiff that Moving Defendant’s conduct,
as alleged in the Complaint, regarding the maintenance of the Subject Property
and the disbursement of funds for the benefit of the Trust, do not further a
constitutional right and thus, the claims do not arise from any protected
activity as needed to establish the first prong of an anti-SLAPP motion to
strike.
Further,
to the extent that Moving Defendant argues that the Complaint addresses “access
to the court” and falls under CCP § 425.16(b)(1), this argument fails. The
Complaint relates to a private ownership dispute regarding a private
residential property. Such a dispute does not pertain to any public issue.
Thus, because the Complaint does not address any public issues or protected
activities, Moving Defendant’s arguments fail.
Because
Moving Defendant has failed to meet their burden under the first prong, Moving Defendant’s
motion is denied. Having denied Moving Defendant’s motion on this basis, the
court does not address the remainder of the parties’ arguments.
Conclusion
Moving Defendant’s
motion is denied. Plaintiff is to give notice.