Judge: Gail Killefer, Case: 25STCV00425, Date: 2025-05-27 Tentative Ruling
Case Number: 25STCV00425 Hearing Date: May 27, 2025 Dept: 37
HEARING DATE: Tuesday, May 27, 2025
CASE NUMBER: 25STCV00425
CASE NAME: Demian Lichtenstein, et al. v. Fred Stalley, et al.
MOVING PARTY: Plaintiffs/Cross-Defendants Damian
and Brook Lichtenstein
OPPOSING PARTY: Defendant/Cross-Complainant Fred
Stalley
TRIAL DATE: Not set
PROOF OF SERVICE: OK
PROCEEDING: Special Motion to
Strike (CCP § 425.16)
OPPOSITION: 14 May 2025
REPLY: 20
May 2025
TENTATIVE: Plaintiff’s special motion to strike is denied. Defendant’s
request for attorney’s fees is denied.
Background
On January 7, 2025,
Damian and Brook Lichtenstein (“Plaintiffs”) filed a Complaint against Fred and
Laurey Stalley (“Defendants”). The Complaint alleges the following nine causes
of action: (1) Negligence; (2) Premises Liability; (3) Negligent Infliction of
Emotional Distress; (4) Breach of the Implied Warranty of Habitability; (5)
Breach of the Implied Warranty of Quiet Enjoyment; (6) Breach of Covenant of
Good Faith and Fair Dealing; (7) Breach of Contract; (8) Nuisance; and (9)
Constructive Eviction.
On March 17, 2025,
Defendant Fred Stalley filed a Cross-Complaint against Plaintiffs and Roes 1 to
10 for (1) Breach of Contract; (2) Breach of Implied Covenant; (3) Unjust
Enrichment; (4) Property Damage; (5) Declaratory Relief; and (6)
Indemnification.
On April 1, 2025,
Plaintiffs filed this Special Motion to Strike under CCP § 425.16
(“Anti-SLAPP”) directed at the sixth cause of action for indemnification. Defendant
Fred Stalley 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.)
Plaintiffs request judicial
notice of the following:
Exhibit A: Defendant’s Cross-Complaint.
Exhibit B: Plaintiff’s Complaint.
As Exhibits A and B are records of this
court, Plaintiffs’ request for judicial notice is granted.
III. Evidentiary Objections
Plaintiffs/Cross-Defendants
filed evidentiary objections to the Declaration of Christopher G. Hook, Esq.
filed in opposition to their Motion. The court rules as follows:
Objections Nos. 1 to 3 are overruled as Plaintiffs admit the objections are not material. Moreover,
the court finds that Defense Counsel is qualified to testify as to monetary
value of his services and the time spent opposing this Motion.
IV. Discussion
The Parties entered into a lease agreement (the “Lease”) on or
about October 13, 2023, for a residence located at 1241 Piedra Morada Dr.,
Pacific Palisades, CA 90272 (the “Property”).
(Compl., ¶¶ 2, 10, Ex. A; Cross-Comp., ¶ 2, Ex. 1; RJN Ex. A, B.)
Plaintiffs commenced this action on January 7, 2025, based on Defendant Fred
Stalley’s failure to maintain the Property and discharge his duties as
landlord. On March 17, 2025, Defendant filed the Cross-Complaint. (RJN, Ex. A.)
Plaintiffs
now bring this special motion to strike, seeking to strike the following from
the Cross-Complaint:
1)
Sixth cause of action for
Indemnification against Plaintiffs, paragraphs 22 – 24;
2)
Paragraph 3 under Defendant’s
prayer for relief, pp. 4:27; and 3.
3)
Alternatively, Defendant’s
third count insofar as it arises from paragraph 24, pp. 4:17, striking all such
allegations.
Plaintiffs assert the entire sixth cause of action for
indemnification in Defendant’s Cross-Complaint should be stricken because it arises
from Plaintiffs’ protected petitioning activity under CCP § 425.16(e).
Plaintiffs assert that Defendant’s indemnification cause of action arises from
Plaintiffs’ filing of their Complaint, Plaintiffs’ pre-litigation preparation,
and Plaintiffs’ refusal to defend and indemnify Defendant in this action.
For the reasons outlined below, the court does not find that
Defendant’s sixth cause of action for indemnification arises from Plaintiffs’ protected
activity.
A. 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).)¿¿If Plaintiffs/Cross-Defendants
meet their initial burden, the burden shifts to Defendant/Cross-Complainant to
show his merit has claim by establishing a probability of prevailing on his
indemnification claim. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788.)
The sixth cause of action in the Cross-Complaint for
indemnification states as follows:
22.
Cross-Complainant incorporates all preceding paragraphs as though fully set
forth herein.
23. Pursuant
to the lease agreement, Cross-Defendants are
responsible for indemnifying Cross-Complainant for legal fees, repair costs,
and any additional damages resulting from their breach.
24.
Cross-Complainant seeks indemnification for all attorney’s fees and litigation
costs incurred in defending against the underlying complaint and pursuing this
Cross-Complaint.
(Cross-Compl., ¶¶ 22, 23, 24.)
“[T]here are only two basic types of indemnity: express indemnity
and equitable indemnity.” (Prince v. Pacific Gas & Electric Co.
(2009) 45 Cal.4th 1151, 1157 (Prince).) “Though not extinguished,
implied contractual indemnity is now viewed simply as ‘a form of equitable
indemnity.’ ” (Ibid.) “Express indemnity refers to an obligation that
arises ‘ “by virtue of express contractual language establishing a duty in one
party to save another harmless upon the occurrence of specified circumstances.”
’ ” (Id. at p. 1148.) Here, the Cross-Complaint asserts that the right
to indemnification arises “[p]urusant to the lease agreement,” meaning from an
express contractual obligation. (Cross-Compl., ¶ 23.)
“A claim for contractual indemnity is akin to a claim for breach
of contract” and is premised on the same elements of a breach of contract
claim. (Gumarang v. Braemer on Raymond, LLC (2025) 110 Cal.App.5th 370
[331 Cal.Rptr.3d 215, 225] (Gumarang).) Plaintiffs assert that the
indemnification claim, “arises entirely and solely from Plaintiffs’ filing of
the Complaint and suing Defendant” and because “the sole remedy Defendant seeks
in connection with Indemnification is recovery of their attorney fees and costs
incurred in this action” this entire sixth cause of action arises from
Plaintiffs’ protected activity. (Motion at p. 4:12-21.)
Plaintiffs broadly assert that the very nature of an indemnity
claim arises from a protected activity because an opposing party seeks
recompense for damages it incurred in defending a lawsuit. “Defendant’s claim
for indemnification does not exist without Plaintiffs’ action against them.”
(Motion at p. 6:18-19.) However, under the first step of the Anti-SLAPP statue,
the “ ‘focus is not the form of the plaintiff's cause of action but, rather,
the defendant's activity that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning.’ ” (Baral
v. Schnitt (2016) 1 Cal.5th 376, 393 [italics original].) The court’s focus
is on “what actions by the defendant form the basis for liability” and “ ‘the
speech or petitioning activity itself’ must constitute ‘the wrong
complained of.’ ” (C.W. Howe Partners Inc. v. Mooradian (2019) 43
Cal.App.5th 688, 701 (Mooradian) [italics original].)
Defendant’s indemnification claim is premised not on Plaintiffs’
filing this action, but on Plaintiffs’ signing the Lease wherein Plaintiffs
agreed to indemnify Defendant for attorney’s fees and costs. While the court
does not analyze the merits of Defendant’s claim in the first step of the
Anti-SLAPP, the court notes that the Paragraph 29 of the Lease agreement requires
Plaintiffs to obtain liability insurance and requires that Defendant be added
as an additional insured “for injury or damage to, or upon, the Premises.”
(Compl., ¶¶ 2, 10, Ex. A; Cross-Comp., ¶ 2, Ex. 1; RJN Ex. A, B.)
Therefore, due to Plaintiffs’ breach, which Defendant asserts stems from their
failure to add Defendant as an additional insured, Plaintiffs could be liable
for repair costs and other additional damages. (Cross-Compl., ¶ 23.) Moreover,
Paragraph 36 of the Lease states that the prevailing party in any action or
proceeding arising out of the Lease is entitled to attorney’s fees and costs.
This means that if Plaintiffs lose this action, the Defendant can seek
“indemnification for all attorney’s fees and litigation costs incurred in defending”
the action. (Cross-Compl., ¶ 24.)
Therefore,
Plaintiffs’ obligation to indemnify Defendant arises not from Plaintiffs having
filed this action, but from Plaintiffs’ entering into a Lease with Defendant
and agreeing to comply with the Lease’s terms, and Plaintiffs’ subsequent
breach of the Lease and failure to indemnify Defendant.
Second,
Plaintiffs argue that the indemnification claim is barred by Civ. Code § 1953,
which voids provisions in a lease or rental agreement that modify or waive a
tenant’s rights. “Indemnification grossly limits Plaintiffs’ rights and curbs
Defendant’s landlord duties and delegates them to Plaintiffs. Such lease
provisions are therefore void, and Defendant’s claims thereunder arising are
meritless.” (Motion at p. 11-14.) However, Civ. Code § 1953 goes to the merits
of Defendant’s claim instead of whether the claim arises from Plaintiff’s
protected activity. Therefore, the court does not consider this defense under
the first step of the anti-SLAPP.
Plaintiffs
rely on Lennar Homes of California, Inc. v. Stephens (2014) 232
Cal.App.4th 673 (Lennar Homes), Moss Bros. Toy, Inc. v. Ruiz
(2018) 27 Cal.App.5th 424 (Moss) and Long Beach Unified School Dist.
v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87 (Williams) for
the proposition that any indemnity claims arise from protected activities.
However, these cases are distinguishable.
As
explained by the Mooradian Court, in Lennar Homes, “Lennar did
not dispute on appeal that its cause of action for indemnity as asserted
against Stephens and Timothy Young arose from actions in furtherance of their
right to petition” and therefore “did not consider whether the wrongful act
giving rise to an express indemnity claim for purposes of the first prong of
section 425.16 was the filing of the underlying action or the refusal to honor
the contractual indemnification obligation.” (Mooradian, supra,
43 Cal.App.5th at pp. 702-703.) The Gumarang Court expressly declined to
follow Lennar Homes. (Gumarant, supra, 110 Cal.App.5th at
p. 470 [331 Cal.Rptr.3d 215, 227–228] [“we decline to follow Lennar Homes,
which was decided before the California Supreme Court clarified in Park
and Wilson how to properly determine whether claims arise out of
protected activity under section 425.16.”].)
The
Mooradian Court also distinguished Moss because in Moss the
employer’s breach of contract claim was premised on the employee breaching “two
arbitration agreements by failing to submit his employment-related disputes to
arbitration, instead filing a putative class action complaint in superior court
against the employer.” (Mooradian, 43 Cal.App.5th at p. 701.) Thus, the
employees’ “petitioning activity itself constituted the alleged breach” because
the employer sought to impose liability based on the employee’s filing the
class action. (Id. at pp. 701-702.) Unlike in Moss, the wrongful
conduct that led to Plaintiffs’ breach in this action was their failure to
indemnify the Defendant, rather than the filing of this action.
The
Williams case is also distinguishable because although it involved a
contractual indemnity claim between a school district and the construction
company, the claim arose from protected activity and concerned a matter of
public interest. Specifically, the Williams Court concluded that the
construction manager's lawsuit involved a matter of public interest, and the
manager's refusal to fund the district's demand for defense and indemnity was
conduct in furtherance of petitioning activity. (See Gumarang, supra,
110 Cal.App.5th 370 [331 Cal.Rptr.3d 215, 228]; Mooradian, 43
Cal.App.5th at pp. 703-704.) Unlike in Williams, Plaintiffs fail to show
that enforcing an indemnity provision in a contract between private parties
implicates a matter of public interest.
Plaintiffs
fail to explain why recent cases -- Mooradian, Gumarang, and Wong
v. Wong (2019) 43 Cal.App.5th 358 (Wong) -- found indemnity claims
do not arise from protected activity are distinguishable from the present case.
“The filing of the Mooradians’ first amended complaint is not the wrongful act
forming the basis for the Mooradians’ liability as alleged in the Howes’
cross-claims. Rather, the alleged wrongful act that forms the basis for the
express indemnity cause of action is the Mooradians’ failure to indemnify,
defend and hold harmless the Howes in breach of section 4(b) of the Howe
agreement . . . ” (Mooradian, supra, 43 Cal.App.5th at p. 701.)
“In sum, Management's cross-claims for contractual indemnity, breach of
contract, and declaratory relief concerning Gumarang’s obligations to defend
and indemnify Management under the Lease do not arise from protected activity.”
(Gumarang, supra, at p. 370 [331 Cal.Rptr.3d 215, 228].) “The
Tang Estate has not been sued for pursuing the Asian Square litigation but for
breaching its obligation to indemnify the Wong Estate for expenses incurred in
that litigation.” (Wong, at p. 365.)
Based
on the above, the court finds that the Cross-Complaint’s sixth cause of action
for indemnification arose from Plaintiffs’ contractual obligations under the
Lease and not their filing of this action.
Lastly,
Plaintiffs assert that the litigation privilege bars the sixth cause of action.
The California Supreme Court has made it clear that the litigation privilege
applies only to tort-based causes of action, not contract-based claims like
express indemnity. “We have repeatedly stated that the litigation privilege
bars all tort causes of action except malicious prosecution.” (Jacob B. v.
County of Shasta (2007) 40 Cal.4th 948, 960.) Plaintiffs fail to cite a
single case applying the litigation privilege to indemnification claims. “We
conclude the policies behind the litigation privilege are not furthered by
applying the privilege in this breach of contract case.” (Wentland v. Wass
(2005) 126 Cal.App.4th 1484, 1487.) The court finds that the litigation
privilege does not apply to the sixth cause of action for indemnification.
As
Plaintiffs have failed to show that the sixth cause of action arises from a
protected activity, the court does not need to address the second step of the
Anti-SLAPP, as the burden has not shifted to the Defendant/Cross-Complainant.
(See ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36
Cal.App.5th 1037, 1050.)
Plaintiff’s
Motion is denied.
B. Defendant’s
Request for Attorney Fees
“Unlike
a prevailing defendant who is entitled as a matter of right to attorney fees, a
prevailing plaintiff is entitled to attorney fees only if the anti-SLAPP motion
was ‘frivolous or is solely intended to cause unnecessary delay.’ ” (Mann v.
Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338 citing CCP,
§ 425.16(c).)
Defense
counsel seeks attorney’s fees in the sum of $1,850.00 for 4.0 hours of work
billed at $450.00/hour, in addition to $50.00 costs for “e-filing, parking and
miscellaneous expenses.” (Hook, Decl., ¶¶ 2, 3.) Defendant states,
“[c]onversely, if a plaintiff defeats an anti-SLAPP motion, and the motion is
found to be frivolous or solely intended to cause unnecessary delay, the
plaintiff may recover attorney’s fees and costs.” (Opposition at p. 5:19-21.)
Defendant
fails to articulate how the Plaintiffs’ Motion is frivolous or solely intended
to cause unnecessary delay. Therefore, the court denies Defendant’s request for
attorney’s fees.
Conclusion
Plaintiff’s special motion to strike is denied. Defendant’s
request for attorney’s fees is denied.