Judge: Gary I. Micon, Case: PC058369, Date: 2024-02-20 Tentative Ruling

Case Number: PC058369    Hearing Date: February 20, 2024    Dept: F43

Dept. F-43

Date: 2-20-24

Case # PC058369, Erik L. Lassman vs. Dorene Robinson

Trial Date: N/A

SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CCP § 425.16

MOVING PARTY: Plaintiff and Cross-Defendant DeWelt, LLC

RESPONDING PARTY: Defendant and Cross-Complainant Road Runner Land & Homes, LLC

RELIEF REQUESTED

Cross-Defendant DeWelt is requesting that the Court strike Cross-Complainant’s cross-complaint

RULING: Denied

SUMMARY OF ACTION

On October 17, 2023, Cross-Complainant Road Runner Land & Homes, LLC (Road Runner) filed a cross-complaint against Cross-Defendant DeWelt, LLC (DeWelt) with two causes of action for Cancellation of Instrument and Conversion.

On November 4, 2021, this Court entered an Order After Judgment which directed Road Runner to convey the subject property to DeWelt. On February 9, 2022, Road Runner conveyed the property to DeWelt, which then conveyed the property to a McConnell on the very same day for just $10,000, which Road Runner alleges was well below market value.

The Court of Appeal later reversed the default judgment as to Road Runner. This also reversed the Order After Judgment for the conveyance to DeWelt. Road Runner filed its cross-complaint in order to resolve any clouds on title and to be reimbursed for property that it alleges was converted after the property was conveyed to DeWelt.

Cross-Defendant’s Request for Judicial Notice: DeWelt has requested that the Court take judicial notice of documents from Nevada’s Secretary of State and Nevada revised statutes, as well as two deeds. The Court grants these requests.

Cross-Complainant’s Evidentiary Objections:

Declaration of Erik Lassman

                        Sustained: 1, 2, 3, 4, 5, 6, 7

                        Overruled: None

            Declaration of Christina Oronsaye

                        Sustained: 8, 9

                        Overruled: None

ANALYSIS

CCP § 425.16 (b)(1), the anti-SLAPP 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 or 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.”

The protected conduct is defined under CCP § 425.16 (e) (1) –(4) which states: “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 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.” 

Therefore, regardless of the label assigned to a cause of action, “[i]f the supporting allegations include conduct furthering the defendant's exercise of the constitutional rights of free speech or petition, the pleaded cause of action ‘arises from’ protected activity, at least in part, and is subject to [a] special motion to strike.” (Baral v. Schnitt (2016) 1 Cal.5th 376 at 381- 382 (Baral) quote marks omitted.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. Claims with the requisite minimal merit may proceed.” (Baral at 384-85, citations omitted.)

First Step

“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)

The Supreme Court has noted:¿¿

Critically, “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.” [Citations.] “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” [Citations.] Instead, the focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.] “The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....” [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.¿

(Id. at p. 1063.)¿

First, the complaint at issue is actually a cross-complaint. Though “a cross-complaint may be subject to an anti-SLAPP motion based on the plaintiff’s right to petition,” it should be noted that “such a cross-complaint must allege a cause of action arising from the plaintiff’s act of filing the complaint itself.” (See Joslin v. Third Laguna Hills Mutual (2020) 49 Cal.App.5th 366, 371-372.) Road Runner’s cross-complaint does not arise from a petitioning activity; rather, it arises from the same transaction, occurrence, or series of transactions as the original complaint. (See Kajima Engineering and Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 933-934.) Because it does not arise from petitioning activity, then it would not fall under the purview of the Anti-SLAPP statute.

Furthermore, neither of Road Runner’s causes of action, Cancellation of Instrument and Conversion, affect or challenge DeWelt’s ability to petition the Court. The Cancellation of Instrument cause of action arises out of events involving the conveyance of title. (Cross-Complaint, ¶ 13.) The Conversion cause of action involves DeWelt locking Road Runner out of the property and allegedly selling items therein. (Cross-Complaint, ¶ 15.) Both of these causes of action arise out of the same transaction or occurrence as the original complaint. Neither are subject to the Anti-SLAPP motion.

Accordingly, DeWelt has failed to make a threshold showing that the challenged causes of action arise in furtherance of the right of petition. DeWelt’s motion fails on the first step.

Second Step

Because DeWelt failed to meet its burden for the first step, it is unnecessary to determine the probability of Road Runner’s success on the merits.

However, DeWelt does argue that Road Runner does not have standing to bring the cross-complaint because Road Runner Nevada, not the current Road Runner, which is Road Runner Wyoming, was the Defendant to the original complaint. Road Runner Wyoming was never a defendant, though it was the owner of the subject property at the time it was ordered conveyed. Whether Road Runner Wyoming has standing to bring the cross-complaint is irrelevant, though, because standing is not a proper subject for an anti-SLAPP motion.

Standing is not a basis for a special motion to strike under CCP § 425.16, as special motions to strike deal with the merits of a complaint. “A litigant’s standing to sue is a threshold issue to be resolved before the matter can be reached on the merits.” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000.) “A party’s standing is thus a jurisdictional issue ‘unrelated to the merits’ of the action.” (Electronic Frontier Foundation, Inc. v. Superior Court (2022) 83 Cal.App.5th 407, 416, quoting Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592.)

Even if the Court were to find that Road Runner Wyoming did not have standing, the special motion to strike would still be denied because DeWelt failed to meet its burden for the first step.

Based on the foregoing, Cross-Defendant DeWelt’s Special Motion to Strike is denied.

Moving party to give notice.