Judge: Gail Killefer, Case: 24STCV26613, Date: 2025-05-09 Tentative Ruling
Case Number: 24STCV26613 Hearing Date: May 9, 2025 Dept: 37
HEARING DATE: Friday, May 9, 2025
CASE NUMBER: 24STCV26613
CASE NAME: Greg Mkrchyan v.
Asian Youth Center
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
MOVING PARTY: Defendant Asian Youth Center
OPPOSING PARTY: Plaintiff Greg Mkrchyan
PROCEEDING: Special Motion to
Strike (CCP, § 425.16) and Request for Attorney’s Fees
OPPOSITION: 28 April 2025
REPLY: 2
May 2025
TENTATIVE: Defendant AYC’s special motion to strike is granted.
The Complaint is dismissed with prejudice.
Defendant AYC’s request for attorney’s fees is granted in the sum of
$4,250.00 plus $60.00 in costs. Defendant to give notice.
Background
On October 14, 2024, Greg Mkrchayn (“Plaintiff”), in pro per,
filed this action against Asian Youth Center (“Defendant” or “AYC”) and Does 1
to 100. The Complaint alleges the following 14 causes of action:
1)
Discrimination in Violation of
California Plaintiff, Constitution, Article I, Section 8;
2)
Discrimination in Violation of
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.);
3)
Discrimination in Violation of
Unruh Civil Rights Act (Civ. Code §§ 54-55.2);
4)
Discrimination in Violation of
Ralph Civil Rights Act (Civ. Code §§ 51.7 and 52);
5)
Abuse of Process;
6)
Extortion;
7)
False Advertising in Violation
of California Bus. & Prof. Code § 17500 et seq;
8)
Unfair Business Practices in
Violation of California Bus. & Prof. Code § 17500 et seq;
9)
Intentional Interference With
Prospective Economic Advantage;
10)
Negligent Interference With
Prospective Economic Advantage;
11)
Intentional Infliction of
Emotional Distress;
12)
Negligent Infliction of
Emotional Distress;
13)
Injunctive Relief; and
14)
Declaratory Relief.
On December 19, 2024, Defendant AYC filed a Special Motion to
Strike under CCP § 425.16 (“Anti-SLAPP”). Plaintiff opposes the Motion. The
matter is now before the court.
ANTI-SLAPP
MOTION
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,
subd. (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.)¿¿¿¿¿¿
II. Request for Judicial Notice
The court may take judicial notice of records of
any court of record of the United States. (Evid. Code, § 452(d)(2).) However,
the court may only judicially notice the existence of the record, not that its
contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,
1565.)
Defendant AYC requests judicial notice of the
following:
Exhibit
1: A conformed copy of the Complaint-Unlawful Detainer, filed on
September 9, 2021, in LASC Case Number 21PDUD00822, entitled Asian Youth
Center v. Kristo Holdings, LLC; and Hranush Mkrtchyan.
Exhibit
2: A conformed copy of Defendants Kristo Holdings, LLC and Hranush
Mkrchyan's Notice of Motion and Motion for Summary Judgment, or Alternatively,
Summary Adjudication; Memorandum Of Points And Authorities and Declaration of
Kevin T. Kay In Support Thereof, filed on February 9, 2022, in LASC Case Number
21PDUD00822.
Exhibit
3: A conformed copy of the Order Granting Defendants' Motion for
Summary Judgment, Or Alternatively, Motion For Summary Adjudication, filed on
March 22, 2022, in LASC Case Number 21PDUD00822.
Exhibit
4: A conformed copy of the Complaint-Unlawful Detainer, filed on
August 1, 2022, in LASC Case Number 22PDUD01758, entitled Asian Youth Center
v. Kristo Holdings, LLC; and Hranush Mkrchyan.
Exhibit
5: A conformed copy of the Judgment, entered on February 23, 2024, in
LASC Case Number 22PDUD01758, in action entitled Asian Youth Center v.
Kristo Holdings, LLC; and Hranush Mkrchyan.
Defendant AYC’s request for judicial notice is granted.
III. Discussion
A. Factual Summary
On October 13, 2024, Plaintiff obtained a right-to-notice from the
Civil Rights Department and subsequently proceeded with this action. (Compl., ¶
12, Ex. 5.) The Complaint alleges that Plaintiff has been the target of
“willful, malicious, targeted discrimination based on national origin,
ancestry, and/or religion” by Defendant. (Id. ¶ 7.) Plaintiff is an
Armenian immigrant. (Id. ¶ 9.)
The Complaint alleges that Plaintiff has tried to maintain a peaceful
relationship with Defendant, but Defendant instead chose to file two unlawful
detainer actions, LASC Case No. 21PDUD00822 and LASC Case No. 22PDUDO01758,
which it lost. (Id. ¶ 11, Ex. 3, 4.)
Without further facts, the Complaint asserts that “[b]y engaging
in the course of conduct as alleged herein in detail in the instant Complaint,
Defendants engaged in discrimination” or “[b]y engaging in the course of
conduct as alleged herein in detail in the instant Complaint, Defendants
engaged in wrongful acts” resulting in liability for the 14 causes of action
alleged in the Complaint. (Compl., ¶¶ 15, 19, 23, 27, 31, 35, 52.)
Defendant AYC now moves to strike the Complaint on the basis that
the wrongful conduct complained of in the Complaint arose from acts in
furtherance of Defendant’s exercise of free speech and petition rights and
Plaintiff cannot show a probability of prevailing on the merits.
B. Step 1: Does
the Alleged Wrongful Conduct Arise Out of 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¿ (Navellier).) 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.)¿“[T]he moving defendant must identify
the acts alleged in the complaint that it asserts are protected and what claims
for relief are predicated on them. In turn, a court should examine whether
those acts protected and supply the basis for any claims.” (Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni I).)¿¿
Defendant AYC asserts that the wrongful conduct complained of in
the Complaint relates to the two unlawful detainer actions Defendant filed.
(See Compl., ¶ 11, Ex. 3, 4.) “The gravamen of the present action is that
Mkrchyan suffered damages because he was named as a defendant in those two
proceedings, as reflected by the inclusion of a claim for, among others, abuse
of process.” (Motion, at p. 1:7-9.) Specifically, two unlawful detainer
actions, LASC Case No. 21PDUD00822 (“ 1st UD Action”) and LASC Case No.
22PDUDO01758 (“2nd UD Action”). (Compl., ¶ 11, Ex. 3, 4; RJN Ex. 1, 4.)
Defendant AYC asserts that it is the landlord of an industrial
condominium (the “Premises”) and Plaintiff is a tenant pursuant to a five year
lease (the “Lease”). (Freridge Decl., ¶ 2, Ex. A.) Defendant AYC asserts that
the 1st UD Action was filed in July 2021 because AYC sought possession of the
Premises as Plaintiff had breached covenants in the Lease and Defendant issued
and served two separate Three-Day Notice to Perform Covenant or Quit based on
the Lease requirement that Plaintiff have a license to operate a business and
requiring that Plaintiff provide proof of liability insurance. (Id. ¶¶
5-7, RJN Ex. 1.) Defendant AYC provides court documents showing that summary
judgment was granted in favor of Plaintiff here because the Lease required that
Plaintiff be provided with 10 days’ written notice to rather than 3 days’
notice under Section 13.1(d)(ix) of the Lease. (Id. ¶ 9; RJN Ex. 2, 3.)
Defendant AYC asserts that the 2nd UD Action was filed on August
1, 2022, due to Plaintiff’s failure to pay back-due rent from the period of
April 1, 2022, through June 30, 2022. (Freridge Decl., ¶¶ 11, 12, RJN Ex. 4.)
Plaintiff’s request for summary judgment was denied and the case was tried
before a jury, which found in favor of Plaintiff. (Id. ¶ 13, RJN Ex. 5.)
On October 14, 2024, Plaintiff filed this action asserting that the two UD
actions were due to discriminatory behavior by AYC despite the only
relationship between the parties being a commercial tenancy and the Complaint
being devoid of any allegations of discriminatory conduct other than the filing
of the two UD actions. (Id. ¶ 16.)
In reviewing the operative Complaint, the court fails to identify
any instances of discriminatory conduct, other than the filing of the two UD
actions. “In the anti-SLAPP context, the critical consideration is whether the
cause of action is based on the defendant's protected free speech or
petitioning activity.” (Navellier, supra, 29 Cal.4th at p. 89.) CCP
§ 425.16(e) states in the relevant part:
As
used in this section, “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” includes: (1) any written or oral statement or writing
made before a . . . 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 . . . 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.
Accordingly, the filing of a UD action is an action made in
furtherance of Defendant AYC’s petitioning activity because it was a statement
made in a judicial proceeding for consideration by a judicial body. (CCP §
425.16(3).) The Complaint fails to identify other wrongful conduct that was
separate from AYC’s filing of the two UD actions. Plaintiff’s opposition also
fails to rebut the assertion that the wrongful conduct at issue is unrelated to
the filing of the two UD actions.
Defendant AYC also succeeds in showing that its conduct is
protected by the litigation privilege. The litigation privilege “applies to any
publication required or permitted by law in the course of a judicial proceeding
to achieve the objects of the litigation, even though the publication is made
outside the courtroom and no function of the court or its officers is
involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212; see also Civ.
Code § 47(b).) The court agrees that the filing that the serving a 3-Day Notice
to Quit and filing a UD Complaint are publications that are permitted by law.
“If the publication has a reasonable relation to the action and is permitted by
law, the absolute privilege attaches.” (Albertson v. Raboff (1956) 46
Cal.2d 375, 381.)
Therefore, the court agrees that the Defendant AYC’s filing of the
two UD actions are protected conduct. As Defendant AYC has met its burned under
the first prong of the Anti-SLAPP statute, the burden shifts to Plaintiff to
establish a probability of prevailing on his claims.
C. Step 2: Plaintiff’s 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.)¿
Plaintiff’s Complaint is unverified because it is not signed by
Plaintiff. Even if it were verified, it
is devoid of any facts showing actionable discrimination or disruption in
Plaintiff’s business relationships stemming from the filing of the two UD
actions. “It would defeat the obvious purposes of the anti-SLAPP statute if mere
allegations in an unverified complaint would be sufficient to avoid an order to
strike the complaint. Substantiation requires something more than that. Once
the court determines the first prong of the statute has been met, a plaintiff
must provide the court with sufficient evidence to permit the court to
determine whether ‘there is a probability that the plaintiff will prevail on
the claim.’” (DuPont Merck Pharmaceutical Co. v. Superior Court (2000)
78 Cal.App.4th 562, 568 citing CCP § 425.16(b)(1); see also Navellier, supra,
106 Cal.App.4th at p. 776 [bare allegations in a complaint are insufficient
to survive the motion to strike that cause of action].)
Plaintiff’s opposition focuses on Plaintiff’s right to due process
and right to a jury trial, rather than establishing facts and providing
evidence to show that Plaintiff has a probability of prevailing on at least one
of his 14 causes of action. “The SLAPP statute does not
provide a defense to a claim or a license to do anything. It merely subjects
certain causes of action to closer scrutiny because they target certain
activities. A cause of action that targets such activities will nonetheless survive
if the plaintiff, in the second prong of the SLAPP analysis, establishes some
minimal degree of merit to the claim.” (Haight Ashbury Free Clinics, Inc. v.
Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550.)
Plaintiff’s argument that he is entitled to due process is moot
because Plaintiff had due process in the adjudication of the two UD actions,
and in fact prevailed in those two actions and received the relief to which he
was entitled. Plaintiff also received notice of this hearing and has failed to
present any evidence sufficient to persuade the court that he can prevail on
his claims. Lastly, Plaintiff is entitled to a jury trial only as to the common
law claims that have merit. Here, Plaintiff fails to show that any of his 14
causes of action have a probability of succeeding.
Therefore, Defendant AYC’s special motion to strike is granted.
Request for attorney’s fees
I. Legal Standard
Pursuant to CCP § 425.16(c), a prevailing defendant is entitled to
recover attorneys’ fees and costs associated with the motion. Under CRC 3.1702,
a request for attorneys’ fees must be made within 180¿days of service of the
notice of entry of judgment or “within the time for filing a notice of appeal
under rules 8.104 and 8.108 in an unlimited civil case[.]” A defendant may only
recover fees and costs related to the motion to strike. (Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379,
1383.) This includes fees associated with bringing the motion for fees. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not
only the fees incurred with respect to the underlying claim, but also the fees
incurred in enforcing the right to mandatory fees under Code of Civil Procedure
section 425.16.”).) Additionally, “[a]ny fee award must also include those
incurred on appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th
113, 122.)¿¿
II. Discussion
Defendant AYC seeks $12,457.50 in attorney fees for prevailing on
this Motion. Plaintiff’s opposition fails to challenge AYC’s request for
attorney’s fees.
A. Reasonable
Hourly Rate
¿
“A trial 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.” (Christian Research Institute v. Alnor (2008)
165 Cal.App.4th 1315, 1321 (Christian Research).) “The reasonableness of
attorney fees is within the discretion of the trial court, to be determined
from a consideration of such factors as the nature of the litigation, the
complexity of the issues, the experience and expertise of counsel and the amount
of time involved. The court may also consider whether the amount requested is
based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan
(2002) 99 Cal.App.4th 443, 448.)¿¿
Defense counsel was admitted to the California Bar in 1991 and has
extensive experiences experience representing commercial and residential
property owners. (Freedman Decl., ¶¶ 3, 4. 5.) Defense counsel’s hourly billing
rate for 2024 is $475.00/hour. (Id. ¶ 6.)
The court finds that an hourly rate of $425.00/hour is reasonable
considering Defense counsel’s experience, the lack of complexity in this manner
given that Plaintiff is not represented by
counsel, and the time that should have reasonably been spent on this
matter.
B. Reasonable Time Spent Litigating the
Anti-SLAPP
The burden is on the party seeking attorney’s fees to prove that
the fees it seeks are reasonable. (See Vines v. O'Reilly Auto Enterprises,
LLC (2022) 74 Cal.App.5th 174, 184.) But “ ‘[i]n challenging attorney fees
as excessive because too many hours of work are claimed, it is the burden of
the challenging party to point to the specific items challenged, with a
sufficient argument and citations to the evidence. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada
Biomedical v. Nunez¿(2014) 230 Cal.App.4th 459, 488 citing Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163¿Cal.App.4th¿550, 564.)¿“The anti-SLAPP statute provides for an award of
attorney fees and costs to the prevailing defendant on a special motion to
strike. (§ 425.16, subd. (c).) The defendant may recover fees and costs only
for the motion to strike, not the entire litigation.” (Christian Research,
supra, 165 Cal.App.4th at p. 1320.)¿
Defense counsel represents that they spent 20.1 hours researching
and drafting this Motion, drafting the request for judicial notice, the two
declarations, proposed order, and reviewing, analyzing, and identifying the
supporting evidence, totaling $9,547.50 in fees. (Freedman Decl. ¶ 7.) Defense
counsel further asserts that they anticipate spending 6.0 hours reviewing the
opposition, drafting, a reply, and preparing for the hearing; thus incurring an
additional $12,457.50 in fees. (Ibid.) Lastly, Defense counsel also
request costs in the sum of $60.00 for filing his Motion. (Ibid.)
The court finds that the 26.1 hours spent on this matter are
excessive, given that the gathering of documents and evidence could have been
done by a paralegal or a less expensive timekeeper, as well as the preliminary
drafting of this motion, such as proposed order. Second, given Defense
counsel’s experience, research in this action should have been no more than 3
hours. Lastly, the opposition, reply, and preparation for this hearing did not
warrant 6 hours of work.
The court finds that in research, drafting, and preparing for the
hearing on this Motion, Defense counsel should have spent no more than 10 hours
billed at a rate of $425.00/hour or $4,250.00 in fees.
Therefore, the court grants Defendant’s request for attorney’s
fees in the sum of $4,250.00 plus $60.00 in costs.
Conclusion
Defendant AYC’s special motion to strike
is granted. The Complaintis dismissed with prejudice. Defendant AYC’s request for attorney’s fees
is granted in the sum of $4,250.00 plus $60.00 in costs. Defendant to give
notice.