Judge: H. Jay Ford, III, Case: 23SMCV05353, Date: 2024-07-09 Tentative Ruling

Case Number: 23SMCV05353    Hearing Date: July 9, 2024    Dept: O

SUBJECT:                 SPECIAL MOTION TO STRIKE CROSS-COMPLAINT UNDER CCP 425.16 (ANTI-SLAPP)

MOVING PARTY:   Plaintiff/Cross-Defendant Lucas Atkins

RESP. PARTY:         Defendants/Cross-Complainants 23400 Malibu Road, LLC and Chuck A. Kloeris

TENTATIVE RULING

            Cross-Defendant Lucas Atkins’s Special Motion To Strike Cross-Complaint Under CCP 425.16 (anti-SLAPP) is DENIED. Cross-Defendant failed to meet their burden to establish the claims within the Cross-Complaint arise from protected activity pursuant to CCP § 425.16.

Cross-Defendants Objections to the Graham Decl., are OVERRULED, except the conclusion “which went straight to D. Luxe and Drabkina,” in ¶ 11 is SUSTAINED.

Cross-Defendants Objections to the Corona Decl., are OVERRULED.

Cross-Defendants Objections to the Kloeris Decl., are OVERRULED.

Cross-Defendants Objections to the Castruita Decl., are OVERRULED.

REASONING

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least minimal merit.  If the plaintiff cannot make this showing, the court will strike the claim.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether 1^st step is met based on “gravamen” test; but rather must determine whether each factual bases supplies the element of claim or merely provides context].)  The Court will grant the motion "if the plaintiff fails to produce evidence to substantiate his claim or if the defendant has shown that the plaintiff cannot prevail as a matter of law." (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.)

1. Anti-SLAPP First Step – Defendants Burden of Establishing Claims Arise From Protected Activity.

In the first step of the anti-SLAPP analysis, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.  The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.”  (Bonni, supra, 11 Cal.5th at p. 1009.)

“First, the moving defendant must show that the challenged claim or claims arise from the defendant's constitutionally protected free speech or petition rights. (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035.) A defendant has the “burden of identifying all allegations of protected activity” on the 1^st prong of SLAPP.  (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5^th 924, 936-937.)  Defendant only meets this burden by demonstrating that the act underlying the plaintiff’s cause of action “fits one of the categories spelled out in section 425.16, subdivision (e).”  (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 150.)

An “act in furtherance of a person's right of petition or free  . . . 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” (Code Civ. Proc., § 425.16, (e)(1).) “A claim for relief  filed in . . . court indisputably is a statement or writing made before a . . . judicial proceeding”. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90, quoting Code Civ. Proc., § 425.16, subd. (e)(1).) 

Cross-Defendant Lucas Atkins (“Atkins”) argues that Cross-Complainants 24300 Malibu Road, LLC and Chuck Kloeris (collectively “Cross-Complainants”) Cross-Complaint’s 4^th and 5^th causes of action for fraudulent and negligent misrepresentation respectively arise from protected activity for numerous reasons including: (1) the factual misrepresentation allegations attributed to Atkins are strictly from the Complaint (See Cross-Complaint ¶¶ 73(a), 73(d), & 82); (2) the lone intent to deceive allegation as to Atkins is the alleged attempt to use the Complaint to extort “an exorbitant and unsupported settlement” (See Id., ¶ 76.); and (3) the only alleged damages are that Atkins “has brought his Complaint.” (See Id., ¶ 78.)

            Atkins argues the Cross-Complaints 7^th cause of action for negligent interference with business contract arises from the protected activity of filing the complaint because of the allegation that “Cross-Defendants caused a meritless and baseless litigations” due to Atkins and Cross-Defendant’s negligence. (Id., ¶¶ 95–96.) Further, the cross-complaint states Atkins “had no claim or right to challenge anything to do with the Property” thus the cause of action is reliant on the filing of the Complaint. (Id., ¶ 96.)

            Atkins argues the Cross-Complaint’s contract claims, the 1^st and 2^nd causes of action, arise from the protected activity because the contract claims fail to state a cause of action against Atkins and thus arise from only from Complaint (See Motion, p. 12:3–16.) Atkins argues the additional 6^th, 7^th and 10^th causes of action arise from protected activity because “the only allegation in the entire Cross-Complaint that Mr. Atkins’s did anything ‘wrong’ is his filing of the Complaint.” (Motion, pp. 12: 18–24–13:1–4.)

            The Cross-Complainants argue that the allegations in the Cross-Complaint do not arise from the protected activity of filing the Complaint, but instead from Atkins’s, and the additional named Cross-Defendants, actions occurring during the tenancy of the Property at issue between 8-1-24 and 9-3-23, prior to the filing of the Complaint on 11-13-23. (Oppo., pp. 6–11.)

            The Court agrees with the Cross-Complainants and finds that the filing of the Cross-Complaint does not arise from the filing of the Complaint. “[A] cross-complaint must allege a cause of action arising from the plaintiff's act of filing the complaint itself. (Third Laguna Hills Mutual v. Joslin (2020) 49 Cal.App.5th 366, 372 [“a cross-complaint will ordinarily not be considered a SLAPP suit because a cross-complaint usually arises from the underlying dispute alleged in the complaint, and not out of the litigation process itself”].)

            Cross-Complainants makes the following allegations in the Cross-Complaint against Atkins which show that the Cross-Complaint’s causes of action arise out of the Property rental issue, and not the filing of the Complaint itself:

1.     “It was not until right around the beginning of the term of the rental that anyone on behalf of property even knew the name Lukas Atkins.” (Cross-Complaint, ¶ 23.)

2.     “Shortly after move in and for the duration of the rental, Mr. Atkins performed acts that violated the CAR Lease including but not limited to having a dog living at the Property (pets were not allowed under the lease) who defecated inside the house, causing damages and waste to various doors and fixtures that required repair, and other damages.” (Id., ¶ 24.)

3.     “Cross-Claimants are informed and therefore alleged that Lukas Atkins engaged Entourage Collection, a company not licensed to do business in the United States, who then engaged Compass via Drabkina all to rent a property where ultimately Atkins would reside for the month of August 2023. Drabkina, then hid the proper lease from Entourage Collection, and thereby Atkins and instead presented a fraudulent lease the DLUXE Lease, while still employed by Compass only days after the CAR lease was signed.” (Id., ¶ 37.)

4.     “Atkins engaged a sham company to rent him a short-term rental for the month of August. That sham company, which did not reach out the Property Owner but instead reached out to another renter’s real estate agent to rent the Property. The agent, Drabkina, on behalf of Compass, stated to 24300’s Property Agents that she represented renter.” (Cross-Complaint, ¶ 73(a).)

These allegations above show that the Cross-Complaint arises out of the same issue as the Complaint, the short-term rental of the Property at issue, but not specifically from the filing of the Complaint itself, as needed to meet the first burden of a SLAPP suit. The Cross-Complaint is essentially a compulsory cross-complaint, as it is a related cause of action which “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1373.) Compulsory Cross-Complaints “would rarely, if ever, qualify as a SLAPP suit arising from petition activity . . . [because] [t]he SLAPP suit is not related to transaction or occurrence which is the subject of the plaintiff’s complaint, but arises out of the litigation process itself.” (Id., at pp. 1373–1374.)

The portions of the Cross-Complaint which mention the filing of the Complaint merely provide context and are not required to meet the elements of the Cross-Complaint’s causes of action. (See Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012 [“Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”]; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 394 [“Assertions that are merely incidental or collateral are not subject to section 425.16.”].) The Cross-Complaint includes factual allegations regarding the short-term rental itself, issues that arose prior to the complaint filing, and thus the Cross-Complaint is not subject to a SLAPP motion.

Atkins therefore does not meet his burden on the first prong of the SLAPP analysis, and so it follows that the Court need not analyze the second prong of whether Cross-Complainants can demonstrate a probability of prevailing on their claims.

Atkins SLAPP Motion as to the Cross-Complaint is DENIED.

            Atkins’s request in the alternative to strike portions of the Cross-Complaint is also DENIED. Atkins provides no authority or arguments for this alternative argument, and the Court will not provide them for him. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [“We may . . . disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.”].)]

            Cross-Complainants request for attorney’s fees is denied without prejudice to hearing a noticed motion under CCP § 425.16(c)(1).