Judge: Gail Killefer, Case: 23TCV17998, Date: 2024-02-08 Tentative Ruling
Case Number: 23TCV17998 Hearing Date: February 8, 2024 Dept: 37
HEARING DATE: Thursday, February 8, 2023
CASE NUMBER: 23TCV17998
CASE NAME: Andrew Arbour, et al. v. Mansour Youshei, et al.
MOVING PARTY: Plaintiffs/Cross-Defendants
Paola and Andrew Arbour
OPPOSING PARTY: Defendants/Cross-Complainants
Hannah and Mansour Youshei
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Special Motion to Strike
Cross-Complaint
OPPOSITION: 23 January 2024
REPLY: 01
February 2023
TENTATIVE: Plaintiffs/Cross-Defendants’ special motion
to strike the first and second causes of action for IIEd and NIED in the
Cross-Complaint is granted.
Background
On
July 31, 2023, Andrew and Paola Arbour (“Plaintiffs”) filed a Complaint against
Mansour Youshei and Hannah Youshei (“Defendants”) and Does 1 to 20. The
Complaint alleges three causes of action: (1) nuisance, (2) intentional
infliction of emotional distress, and (3) Trespass.
On September 1, 2023, Defendants
filed a Cross-Complaint (“CC”) alleging three causes of action for (1)
intentional infliction of emotional distress, (2) negligent infliction of
emotional distress, and (3) damage to property.
On November 8, 2011,
Plaintiffs/Cross-Defendants filed a special motion to strike pursuant to CCP § 415.16
as to the first two causes of action in the Cross-Complaint.
Defendants/Cross-Complainants oppose the Motion. The matter is now before the
court.
I. Legal Standard
CCP § 425.16
sets forth the procedure governing anti-SLAPP motions.¿ In pertinent part, the
statute provides: “A cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or free speech
under the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion to strike,
unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (CCP § 425.16(b)(1).)
“[A]n anti-SLAPP motion, like a conventional motion to strike, may be used to
attack parts of a count as pleaded.” (Baral v. Schnitt¿(2016) 1 Cal.5th
376, 393.) The purpose of the statute is to identify and dispose of lawsuits
brought to chill the valid exercise of a litigant’s constitutional right of
petition or free speech. (CCP § 425.16(a); Sylmar Air Conditioning v. Pueblo
Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)¿¿¿
¿
Courts employ a
two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To invoke the statute's
protections, the defendant must first show that the challenged lawsuit arises
from protected activity, such as an act in furtherance of the right of petition
or free speech. (Ibid.) From this fact, courts “‘presume the purpose of
the action was to chill the defendant’s exercise of First Amendment rights.¿ It
is then up to the plaintiff to rebut the presumption by showing a reasonable
probability of success on the merits.’” (Ibid.) In determining whether
the plaintiff has carried this burden, the trial court considers “the
pleadings, and supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (CCP, § 425.16(b)(2); see Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)¿¿
II. Discussion
Plaintiffs/Cross-Defendants
move to strike the first and second causes of action for intentional infliction
of emotional distress (IIED) and negligent infliction of emotional distress
(NIED) alleged in the Cross-Complaint. Plaintiffs assert that the IIED and NIED
causes of action arise out of constitutionally protected activities made in
connection with anticipated and actual litigation under CCP § 425.16(e)
The Cross-Complaint
alleges that Defendants own Unit # 201 and Plaintiffs own Unit # 101, located
on Cashio Street, Los Angeles, CA. (CC ¶¶ 1, 2.) On April 20, 2023, a
Homeowner’s Association (“HOA”) meeting was held in which Defendants were
informed that to fix the structural problems in Unit # 101, the beam in
Defendants’ Unit # 201, must be trimmed. (CC ¶ 2.) Defendants maintain they had
no problem with the repair work but they were concerned whether a permit from
the City of Los Angeles was required to perform the work in their unit. (CC ¶
9.)
Defendants
assert that they subsequently learned that a permit was required to trim the
beam in their unit. They informed
Plaintiffs that once the permit was obtained, Defendants would grant access to Plaintiffs’
worker to trim the beam in their unit. (CC ¶ 10.) On June 25, 2023, Defendants
sent an email to Plaintiffs reminding them that the job should be done by a
licensed contractor and a permit from the city should be obtained. (CC ¶ 11.)
On
July 17, 2023, Plaintiffs responded emailed Defendants that a worker would be
arriving to perform the work. (CC ¶ 12.) Defendants responded by asserting that
because it was a “structure job,” the job “has to be done properly by a license
and issued contractor with a permit from the city . . . .” (CC ¶ 13 [italics
omitted].) Kenneth A Linzer, Esq., who represents the Plaintiffs responded as
follows:
This is not what my clients intends
[sic] to do- that is- break the law or obtain a permit, it is not required. You
have expressed your uninformed layperson 's opinion that a permit is required
and you don't know what you 're talking about. You are simply being an
obstructionist individual. As stated previously, Arji is arriving at 9 a.m.
tomorrow to begin the work. If you refuse to allow Arji access or if you absent
yourself from your unit and deny Arji access, the very next thing you will
receive will be a summons and complaint and you will be held liable for all of the
damages that have been incurred by my client as a result of your negligence and
now interference. That amount could easily be in the hundreds of thousands of
dollars . . .
(CC
¶ 14 [italics omitted].)
Defendants
responded on July 18, 2023, by stating “I checked it need [sic] the permit.”
(CC ¶ 14 [italics omitted].) On August 10, 2023, Defendants were handed a copy
of the summons and Plaintiff’s Complaint for this present action. (CC ¶ 15.)
The Cross-Complaint asserts that Mr. Linzer’s communication was a threat that was
unjust, unlawful, and wrongful, and said conduct was done with the knowledge
and intent that Defendants would suffer emotional and physical distress. (CC ¶¶
16, 17.)
Plaintiffs
now move to strike the first two causes of action alleged in the Cross-Complaint
on the basis that Mr. Linzer’s communication with Defendants was protected
prelitigation communication.
A. Step 1: Does the Alleged Wrongful
Conduct Arise from a Protected Activity?
“In ruling on a defendant's anti-SLAPP motion, the trial
court engages in a two-step analysis.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 88.) First, the court determines “whether the defendant has made a
threshold showing that the challenged cause of action is one arising from
protected activity,” which includes the defendants’ right of petition, or free
speech, under a constitution, in connection with issues of public interest. (Ibid;
CCP § 425.16.)
In Briggs v. Eden Council for Hope &
Opportunity
(1999) 19 Cal.4th 1106, the California Supreme Court found that “communications
preparatory or in anticipation of bringing an action or other official
proceeding” are protected by section 425.16. (Id. at p. 115.) In Flatley v. Mauro (2006) 39 Cal.4th 299, the California
Supreme Court again rejected the contention that prelitigation communications
do not fall within the scope of section 415.16 and asserted that such
communications are “privileged under the litigation privilege, and protected by
state and federal constitutional guarantees of the right of petition.” (Id.
at pp. 322, fn. 11 - 323.) Moreover, “although litigation may not have
commenced, if a statement ‘concern[s] the subject of the dispute’ and is made
‘in anticipation of litigation ‘contemplated in good faith and under serious
consideration,’ [citations] then the statement may be petitioning activity
protected by section 425.16.” (Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255, 1268.) “Thus, statements, writings, and pleadings
in connection with civil litigation or in contemplation of civil litigation are
covered by the anti-SLAPP statute, and that statute does not require any
showing that the litigated matter concerns a matter of public interest.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459,
472.)
There can be little dispute that Mr. Linzer’s July 17, 2023
email, where he accused Defendants of being “obstructionist,” that if the
worker was not granted access “the next thing you will receive will be a
summons and complaint,” and that Defendants would be held liable “for all
damages that have been incurred by my client as a result of your negligence and
now interference” that “could easily be in the hundreds of thousands of
dollars” was a prelitigation communication by Plaintiffs’ counsel that provided
a preview of Plaintiffs’ litigation posture. (CC ¶ 13.) When Defendants
insisted that a permit was required, Plaintiffs responded by filing a Complaint
and commencing this action. (CC ¶ 15.) The court finds that Mr. Linzer’s
communication with Defendants and serving the Defendants with a copy of the
summons and Complaint was petitioning activity protected by the anti-SLAPP
statute. (CCP § 425.16.)
Defendants’ opposition fails to address Plaintiffs’ assertion
that the first and second causes of action in the Cross-Complaint are barred
because the causes of action arise out of the Plaintiffs’ petitioning activity,
which is protected by the anti-SLAPP statute. Instead, Defendant argues that the
Motion is untimely and should be denied.
i. Plaintiffs’
Motion is Not Untimely, and Even if the Motion is Untimely, the Court Retains
Discretion to hear the Motion.
CCP § 425.16(f) states:
The
special motion may be filed within 60 days of the service of the complaint or,
in the court’s discretion, at any later time upon terms it deems proper. The
motion shall be scheduled by the clerk of the court for a hearing not more than
30 days after the service of the motion unless the docket conditions of the
court require a later hearing.
Defendants assert that the Motion was not timely filed
because Plaintiffs had 60 days from August 31, 2023, or until October 31, 2023,
to file the Motion. The Motion was not
filed until November 8, 2023 (CCP § 425.16(f).) Plaintiffs argue that the
Cross-Complaint was not filed unit September 1, 2023, and that the proof of
service shows that the Cross-Complaint was served by mail, meaning that service
is extended by 5 days. (CCP § 1013(a).)
Plaintiffs’ counsel asserts that on September 11, 2023, his
office received an envelope containing two copies of the Cross-Complaint and a
copy of the Answer, with each pleading having a different mailing date on the
proof of service. (Linzer Supp. Decl.
¶¶2, 3, 4, 5, Ex. A, B, C, and D.) The Answer had a September 6, 2023, mailing
date. (Id. at Ex. B.) The first copy of the Cross-Complaint had a
September 6, 2023, mailing date, while the second copy of the Cross-Complaint
had an August 31, 2023, mailing date. (Id. Ex. C, D.) The court notes
that the Summons on the Cross-Complaint was issued on September 1, 2023.
For this reason, the court agrees that the mailing date was
September 6, 2023. With the 5-day extension for service by mail, Plaintiffs had
until November 10, 2023, to file the Motion. (See CCP § 1013(a)). This Motion was filed on November 8, 2023,
making it timely under CCP § 425.16(f).)
A hearing “30 days after service of the motion” is not
required when “docket conditions of the court require a later hearing.” (CCP §
425.16(f).) Plaintiffs reserved the first available date for a hearing on the
Anti-SLAPP motion, which was February 8, 2024. (Linzer Supp. Decl. ¶ 8, Ex. e.)
Even if Plaintiffs’ Motion were
untimely, section 425.15 “vests the trial court with discretion
to entertain an anti–SLAPP motion
proffered after expiration of the 60–day period.” (Hewlett-Packard Co. v. Oracle
Corp. (2015) 239 Cal.App.4th 1174, 1187.)
As the Defendants fail to challenge Plaintiffs’ assertion
that the first and second causes of action in the Cross-Complaint are protected
activities, the burden shifts to Defendants to show they have a probability of
prevailing on the merits.
B. Step 2: Defendants Reasonable
Probability of Success on the Merits
“The plaintiff need only establish that his or her claim has
‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup,
supra, 39 Cal.4th at p. 291.) “The trial court merely determines whether
a prima facie showing has been made that would warrant the claim going
forward.” (HMS Capital, Inc. v. Lawyers Title Co.¿(2004) 118 Cal.App.4th
204, 212.) “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.”¿(Id.
at p. 212.)¿¿
The burden is on Defendants to
show that there is a reasonable probability they can succeed on their IIED and
NIED claims. “A cause of action for intentional infliction of emotional
distress exists when there is ‘(1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress;(2) the plaintiff’s suffering severe
or extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct.’ A defendant’s
conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that
usually tolerated in a civilized community.’ And the defendant’s conduct must
be ‘intended to inflict injury or engaged in with the realization that injury
will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051
[internal citations omitted.].) A cause of action for negligent infliction of
emotional distress, is not an independent tort, but the tort of negligence such
that the traditional elements of duty, breach of duty, causation, and damages
apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114
Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic,
Inc. (1989) 48 Cal.3d 583, 588.)
“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 are not to be considered.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 212.) “[T] he 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. [Citations.] The
trial court merely determines whether a prima facie showing has been made that
would warrant the claim going forward.” (Ibid.)
Here, the Defendants’ evidence consists
only of the declaration of Defendant’s counsel which offers two pieces of
evidence: Exhibit 1, the Register of Action from the lacourt.org website
offered to show Plaintiffs’ Motion is untimely; and Exhibit 2, the
Cross-Complaint. (Yadidi Decl. ¶¶ 3, 4.) Defendants submit no declarations
attesting to emotional and physical distress they suffered due to Plaintiffs’
conduct or other evidence to show that they can prevail on their claims. “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.’ [Citation.]” (Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931, 940.) Accordingly, Defendants cannot rely on their
Cross-Complaint alone to assert their claims have merit, but must instead
present admissible evidence, something they failed to do in opposing this
Motion.
While Defendants have a right to assert
their property rights and bring claims seeking declaratory and/or injunctive
relief to stop Plaintiffs from accessing their unit with a permit, Defendants
instead choose to bring claims based on emotional distress. In opposing this
Motion, Defendants failed to present any evidence to show that they have a
probability of succeeding on their IIED and NIED claims.
To establish an IIED claim, the wrongful
conduct must be “unprivileged.” (Fletcher v. Western National
Life Ins. Co. (1970) 10 Cal.App.3d 376, 394; see also State Rubbish Collectors Ass'n v. Siliznoff (1952) 38
Cal.2d 330, 337.) Here, Plaintiffs’ conduct was privileged because the July 17,
2023, email from Mr. Linzer and the service of the Complaint were all actions
done in furtherance of protecting the Plaintiffs’ property from further harm
and petitioning the court. Defendants
fail to show that such conduct was not privileged and was sufficiently
outrageous to support an IIED claim.
Moreover, for
conduct to be “outrageous,” it must be so extreme as to exceed all bounds of
that usually tolerated in a civilized society. (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050-1051.) Liability for¿intentional¿infliction¿of emotional
distress does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. (Ibid.) Here,
Defendants fail to submit declarations showing that Plaintiffs’ conduct was
outrageous and proximately caused Defendants to suffer emotional distress. (See
Belen v. Ryan Seacrest Productions, LLC (2021) 65
Cal.App.5th 1145, 1165.) Accordingly, the court finds that Defendants have
failed to show they can prevail on their IIED claim. As for the NIED claim,
Defendants fail to allege what duty the Plaintiffs owed Defendants and how they
breached that duty to support the negligence claim.
Defendants fail to show that they can
succeed on their IIED and NIED cause of action. For the reasons set forth above,
Plaintiffs’ special motion to strike is granted. The court declines to strike
the Cross-Complaint’s request for punitive damages and Plaintiffs failed to
make such a request in the notice of the Motion and failed to show that
punitive damages can be stricken in an anti-SLAPP motion.
C. Plaintiffs’ Request for Attorney’s Fees