Judge: George F. Bird, Jr., Case: 22LBCV00848, Date: 2023-02-16 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 22LBCV00848    Hearing Date: February 16, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff Yuri Imuta (“Plaintiff”) instituted the present action against The Wolf Firm, A Law Corporation, Alan S. Wolf, Kayo Manson-Tompkins, Parnaz Parto, David L. Chaffin, and Stephen Hicklin (“Defendants”) on November 23, 2022, after Defendants represented the entity known as “U.S. Bank” in an unlawful detainer action against Plaintiff . (Complaint (“Compl.”), ¶ 11, subd. (d) and (e).) On November 22, 2022, the Honorable Michael P. Vicencia granted a motion for summary judgment, found in favor of U.S. Bank, and ordered possession of the property located at 5802 East Gossamer Street, Long Beach, CA 90808 (the “Property”) to U.S. Bank. The unlawful detainer action was commenced after a foreclosure sale of the property which Plaintiff also contested.

            On November 23, 2022, Plaintiff filed the Complaint in this action alleging causes of action for (1) violation of 42 U.S.C. 1983, (2) violation of due process, (3) conspiracy to commit real estate fraud, (4) forgery, (5) wrongful eviction and foreclosure, (6) breach of contract, and (7) obstruction of the administration of justice. Causes of action contained within the body of the Complaint, but not listed in the caption, are (1) negligent/reckless conduct, (2) slander of title, (3) slander of credit, and (4) infliction of emotional distress. (Compl., ¶¶ 15, 16, 17.)

II.       SPECIAL MOTION TO STRIKE (ANTI-SLAPP)

A.    Defendants’ Motion.

            Defendants bring this Motion to Strike pursuant to Code of Civil Procedure section 425.16. Defendants allege that the present lawsuit is aimed at chilling a valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances. Defendants allege that filing documents and pleadings to initiate an unlawful detainer action are protected activities. Defendants argue that the claims against them are based entirely on their role as attorneys of record for the unlawful detainer action, and none of the claims allege actions beyond the protected activity of filing an action and pursuing redress by the court. Defendants also argue that they are protected by the litigation privilege which makes Defendants immune from prosecution for communications made in judicial proceedings, made by litigants or participants authorized by law, to achieve the object of the litigation, and have some logical connection to the action. (Cal. Civ. Code § 47.) 

B.     Plaintiff failed to file an opposition.

            Under Code of Civil Procedure section 1005, subdivision (b), an opposition to a motion to strike must be filed and served at least nine court days before the hearing. As of February 14, 2023, two court days before the hearing, Plaintiff has not filed an opposition.

III.       LEGAL STANDARDS

            In analyzing an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16, the court must engage in a two-step process. (Equilon Enterprises v. Consumer Cause, Inc., (2002) 29 Cal.4th 53, 67.)  The court first determines whether a defendant has made a threshold showing that the challenged cause of action is one arising from protected activity namely, that the acts of which a plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution." (Id.) An act in furtherance of a person’s right of petition or free speech includes among other things, "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subd. (e).) If that threshold burden is met, the court then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1); Enterprises v. Consumer Cause, Inc., supra., 29 Cal.4th at p. 67.)

            A probability of prevailing on the claim is established if a plaintiff makes a factual showing to establish a prima facie case. The court does not weigh the evidence. The court credits plaintiff’s evidence if it is admissible. “Minimal merit” will suffice. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646.)

            In making this determination, the trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)  Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” A plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Hailstone v. Martinez, (2008) 169 Cal.App.4th 728, 736.)

IV.       REQUEST FOR JUDICIAL NOTICE

            Defendants ask this Court to take judicial notice of 10 documents: (1) A Trustee’s Deed Upon Sale, recorded in the Official Records of Los Angeles County as instrument number 20200161286 on February 10, 2020; (2) A Verified Complaint for Unlawful Detainer filed by Plaintiff U.S. Bank NA, Successor Trustee to Bank of America, NA, Successor in Interest to LaSalle Bank NA, as Trustee, on Behalf of the Holders of the WAMU Mortgage Pass-Through Certificates, Series 2006-AR12 in the Superior Court of California, County of Los Angeles in case number 22LBUD00487; (3) An Answer—Unlawful Detainer filed by defendant Yuri-Imuta Lee in the Superior Court of California, County of Los Angeles in case number 22LBUD00487; (4) A Judgment entered and filed in the Superior Court of California, County of Los Angeles in case number 22LBUD00487; (5) A Complaint for Declaratory Relief, Injunctive Relief, and to Enjoin Foreclosure Sale Scheduled for December 22, 2010, filed on February 28, 2011 in the Superior Court of California, County of Los Angeles under case number NC055738; (6) A Judgment entered and filed on June 6, 2011, in the Superior Court of California, County of Los Angeles under case number NC055738; (7) A Case Summary of case number NC055738; (8) Summons and Complaint filed on December 1, 2017, in the Superior Court of California, County of Los Angeles under case number NC061515, removed to the U.S. Bankruptcy Court for the Central District of California as case number 2:18-ap-01130-VZ; (9) An Order Granting Motion to Dismiss Complaint entered and filed in the U.S. Bankruptcy Court for the Central District of California as case number 2:18-ap-01130-VZ; and (10) A Memorandum filed in the U.S. Court of Appeals for the Ninth Circuit under case number 19-55020.

            For documents 2 through 10, the court may take judicial notice of records of any court of this state under Evidence Code section 452, subdivision (d). The Court will take judicial notice of documents 2 through 10. For document 1, a record on file with Los Angeles County is judicially noticeable to the extent it is “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h); Pratap v. Wells Fargo Bank, N.A. (N.D. Cal. 2014) 63 F.Supp.3d 1101, 1104; Preciado v. Wells Fargo Home Mortg. (N.D. Cal., May 7, 2013, No. 13-00382 LB) 2013 WL 1899929, at *2.) The Court will take judicial notice that the document presented is the document on file with Los Angeles County, but it will not take judicial notice of the facts contained within the document as the facts are reasonably subject to dispute.

V.       DISCUSSION

            Defendants have the initial burden to demonstrate their activities were in furtherance of the right to petition the court or engage in free speech. (Code Civ. Proc., § 425.16, subd. (e).) Actions that are in furtherance of the right to petition include any written or oral statements made during a judicial proceeding, or in connection with a judicial proceeding, if the statement has a logical connection to the action. (Ibid.)

            Here, Defendants demonstrate that they have been involved with Plaintiff only as opposing counsel who brought a claim for unlawful detainer on behalf of U.S. Bank against Plaintiff in a separate action before the Superior Court in case number 22LBUD00487. (Defendants’ Request for Judicial Notice (“D-RJN”), Exhibit 2.) “[A]n attorney who has been made a defendant in a lawsuit based upon a written or oral statement he or she made on behalf of clients in a judicial proceeding or in connection with an issue under review by a court, may have standing to bring a SLAPP motion.” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629 [7 Cal.Rptr.3d 715, 718–719].)  

            Plaintiff generally argues that the original loan contract, which was the subject of a prior case number NC055738, was altered and involved a forged promissory note and that the foreclosure sale on the Property was illegal. (Compl., ¶ 14; D-RJN, Exhibit 5.) After the foreclosure was allowed to proceed, Plaintiff alleges that the unlawful detainer action involving the present Defendants as attorneys for U.S. Bank was also illegal. (Compl., ¶¶ 12, 13(e); D-RJN, Exhibit 2.) After a determination in favor of U.S. Bank in the unlawful detainer action, case number 22LBUD00487, Plaintiff now alleges that the Defendants caused injury to Plaintiff based on their actions in the unlawful detainer action. (Compl., ¶ 21.) Plaintiff has identified the wrongful action of Defendants as filing the unlawful detainer action against Plaintiff. (Compl., ¶¶ 21, 77.)

            The basic act of filing litigation is definitively a protected activity under the right to petition the courts. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530, 52 P.3d 703] More specifically, the Court of Appeal has stated that “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Internal quotations omitted.) (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479 [74 Cal.Rptr.3d 1, 10] citing Birkner v. Lam (2007) 156 Cal.App.4th 275, 281, 67 Cal.Rptr.3d 190.)

            Plaintiff also alleges that documents filed in the unlawful detainer action were “created, verified, declared, recorded and/or signed by THE WOLF and their contractors.” (Compl., ¶ 24(f).) Writings made before and in connection with a judicial proceeding are in furtherance of the right to petition and free speech under Code of Civil Procedure section 425.16, subdivision (e).

            Defendant has satisfied their initial burden. Now, Plaintiff must demonstrate a probability of prevailing on the claims. Plaintiff may not just rely on the pleadings but “the plaintiff must adduce competent, admissible evidence.” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735 [87 Cal.Rptr.3d 347, 351].) Because Plaintiff has failed to oppose this motion or present any admissible evidence in this matter, Plaintiff cannot satisfy their burden.

            First, Defendants state that they are private actors. To succeed on a claim pursuant to 42 USC section 1983 “the party charged with the deprivation must be a person who may fairly be said to be a state actor, either because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” (Lugar v. Edmondson Oil Co., Inc. (1982) 457 U.S. 922, 923 [102 S.Ct. 2744, 2746, 73 L.Ed.2d 482].) Plaintiff does not produce any evidence for the allegation that Defendants are acting as agents of the state, acting together with the state, or the conduct is chargeable to the state. If Plaintiff is arguing that acting on behalf of U.S. Bank was on behalf of the state, Plaintiff fails to offer evidence that U.S. Bank is a state actor or that actions of U.S. Bank and their agents are attributable to actions of the state. Filing the unlawful detainer suit is also protected by the litigation privilege in California Civil Code section 47.

             California Civil Code section 47, known as the litigation privilege, makes communications made during a judicial proceeding by litigants, or participants authorized by law, that have some logical connection or relation to the litigation immune from prosecution for those communications. (Civ. Code, § 47, subd. (b); Rohdev. Wolf (2007) 154 Cal.App.4th 28, 37.) The filing of a complaint is a communication which initiates the judicial proceeding that frames the litigation and is the basis for all the claims brought. This Court finds that filing of a complaint is protected by the litigation privilege and Plaintiff cannot demonstrate a probability of success on the claim against Defendants for violation of 42 USC section 1983.

            Any claims by Plaintiff that the foreclosure sale was illegal, that U.S. Bank lacked standing, or that the unlawful detainer action was improper have already been adjudicated in favor of U.S. Bank as demonstrated by the dismissal of the action by Plaintiff attempting to prevent the foreclosure in case number NC055738 and the granted motion for summary judgment in the unlawful detainer case number 22LBUD00487. (D-RJN, Exhibits 4 and 6.) Collateral estoppel applies and prevents Plaintiff from bringing their claims if the following conditions are met: (1) the issue sought to be precluded from re-litigation is identical to that decided in a former proceeding, (2) this issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding was final and on the merits, and (5) the party against whom preclusion is sought are the same as, or in privity with, the party to the former proceeding. (American Continental Ins. Co. v. American Casualty Co. (2001) 86 Cal.App.4th 929, 943 [103 Cal.Rptr.2d 632], as modified (Feb. 1, 2001), as modified (Feb. 7, 2001), as modified (Feb. 16, 2001).)

            Here, Plaintiff bases the allegations of conspiracy to commit real estate deed fraud, forgery, wrongful eviction and foreclosure, breach of contract, negligent and reckless conduct, slander of title, slander of credit, and infliction of emotional distress on allegations Plaintiff asserted in the prior unlawful detainer and wrongful foreclosure actions. Plaintiff states that she submitted the arguments that U.S. Bank lacked standing, did not own the Property, forged a promissory note, wrongfully foreclosed, and wrongfully evicted Plaintiff to the courts, but the courts determined, on the merits, that U.S. Bank was entitled to the Property. (Compl., ¶¶ 25, 26, 32, 33, 77, 85, 88, 89.) As to privity, “[a] nonparty alleged to be in privity must have an interest so similar to the party's interest that the party acted as the nonparty's virtual representative in the first action.” (Internal quotations omitted.) (Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 672–673 [223 Cal.Rptr.3d 506, 515, 14 Cal.App.5th 663, 672–673].) Defendants meet this standard as they were the actual representatives of U.S. Bank in the prior action. Plaintiff has failed to demonstrate a probability of success on the merits for the claims for conspiracy to commit real estate deed fraud, forgery, wrongful eviction and foreclosure, breach of contract, negligent and reckless conduct, slander of title, slander of credit, and infliction of emotional distress due to collateral estoppel.

            For the remaining cause of action for obstruction of the administration of justice, it is unclear if Plaintiff is alleging this cause of action against Defendants. Plaintiff merely states “The defendants’ reckless disregard for the plaintiff’s notices, affidavits and evidences was the direct and proximate result of the plaintiff’s injuries.” (Compl., ¶ 64(c).) Plaintiff has not met their burden of demonstrating a probability of success on this cause of action against Defendants because no evidence is offered for how Defendants disregarded Plaintiffs notices, affidavits, and evidence, nor how ignoring such papers is a violation of Plaintiffs legal rights or how it caused an injury to Plaintiff.

            Based on the foregoing, this motion to strike is GRANTED. Plaintiff has no right to amend the claim after an Anti-SLAPP motion is granted, thus no leave to amend will be granted. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1293 [74 Cal.Rptr.3d 873, 888].)

VI.    CONCLUSION

             This Motion to Strike is GRANTED.

Dated: February 16, 2023                                                      _______________________

                                                                                                Judge of the Superior Court