Judge: H. Jay Ford, III, Case: 24SMCV01890, Date: 2024-10-31 Tentative Ruling

Case Number: 24SMCV01890    Hearing Date: October 31, 2024    Dept: O

Case Name:  Cagle v. Rublevich, et al.

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

MOVING PARTY:   Defendants Eve Rublevich, Eden Rublevich, Michael Rublevich, Yiffat Rublevich

RESP. PARTY:         Plaintiff Jeffrey Cagle

TENTATIVE RULING

            Defendants Eve Rublevich, Eden Rublevich, Michael Rublevich, Yiffat Rublevich Special Motion to Strike Plaintiff Jeffrey Cagle’s Complaint under CCP § 425.16 (anti-SLAPP) is DENIED. Defendants do not meet their burden to show that that Defendants’ alleged acts in the complaint arise out of protected public interest activity.

            Defendants RJN No. 1–4 is GRANTED.

Defendants RJN No. 5 is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.)

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 the  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 a “gravamen” test; but rather must determine whether the challenged speech or conduct supplies the element of each claim.])  

 I.          Anti-SLAPP First Step – Defendants Fail to Show Plaintiff’s From Protected Activity Under Code of Civil Procedure § 425.16.

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.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Citation.)Park, supra, 2 Cal.5th at p. 1060, 217 Cal.Rptr.3d 130, 393 P.3d 905.)

“To determine whether a claim arises from protected activity, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Citation.) Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of “ ‘act[s]’ ” protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) “In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. [Citations.] ‘A defendant 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) [((1)-(4)]...’ ” (Citations.)” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1251.)

            In their motion Defendants Eve Rublevich (“Eve”), Eden Rublevich (“Eden”), Michael Rublevich (“Michael”), Yiffat Rublevich (“Yiffat”)(collectively, “Defendants”) argue that the foundation for all causes of action in Plaintiff Jeffrey Cagle’s (“Plaintiff”) Complaint is the “affidavit submitted by Eve to the foreclosure trustee along with her winning bid.” (Defendants; motion, pp. 10:3–12:12; see also Compl., ¶¶ 12–17.)  Defendants do not address what element of each challenged cause of action is met by the claimed protected activity and, therefore, forms the basis for any liability. The Court rejects Defendants’ argument that it can meet its burden by simply stating “the foundation and basis for the first cause of action in the complaint (and by definition, every remaining cause of action) is the affidavit submitted by Eve to the foreclosure trustee along with her winning bid.” Again, 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.)

            Further, in their motion, Defendant’s argue the submittal of the affidavit of bidder eligibility to the foreclosure trustee under Civil Code section 4924m subdivision(c) fits within the requirements of Section 425.16, subdivision (e)(4), namely: “ (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.”  (Defendant’s motion, pp. 10.)  Whether speech or conduct is made in connection with an issue of public interest is based on a two-part analysis. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 148.) “First, [a court should] ask what ‘public issue or . . . issue of public interest’ the speech in question implicates—a question [courts can] answer by looking to the content of the speech.” (Ibid., quoting Code Civ. Proc., § 425.16, subd. (e)(4) (ellipsis in original).) )  “FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute.  (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1253.) FilmOn’s second step looks to the context of the speech to determine what functional relationship exists between the speech and the public conversation about some matter of public interest. (FilmOn.com Inc., supra 7 Cal.5^th at pp. 149–150.) These contextual factors include the identity of the speaker, the audience, and the “purpose of the speech.” (Id. at p. 145.)

            Defendants argue that filing an affidavit under CC § 2924m is speech in furtherance of a public interest and meets the FilmOn public interest two-part test. (SLAPP, pp. 10:3–12:12.) The Court disagrees. Defendants fail to show any authority or persuasive argument why the filing of the affidavit pursuant to CC § 2924m (d) concerns a matter of public interest within the meaning of Section 425.16 subdivision (e)(4)t.  While the enactment of CC § 2924 was a matter of public interest, the Court concludes the filing of an affidavit under that statue is not.  As more recently explained in Li v. Jenkins:

“[I]mplicat[ing] a public issue” is not enough to pass the FilmOn test for conduct protected under section 425.16(e)(4). That requires an affirmative answer to the second question, “whether the activity contributed to public discussion of that issue.” (Geiser, supra, 13 Cal.5th at p. 1246, 297 Cal.Rptr.3d 592, 515 P.3d 623; see also Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 625, 243 Cal.Rptr.3d 1, 433 P.3d 899 [“we reject the proposition that any connection at all—however fleeting or tangential—between the challenged conduct and an issue of public interest would suffice to satisfy the requirements of section 425.16, subdivision (e)(4)”; “[a]t a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance”].)

Li v. Jenkins (2023) 95 Cal. App. 5th 493, 500–01.

Here, Defendants did not, and cannot, show the Defendant’s “affidavit submitted by Eve to the foreclosure trustee along with her winning bid” in any way contributed to a public discussion regarding any “public issue” no matter how broadly Defendant’s define the issue.

            Moreover, courts have specifically found filings in connection with nonjudicial foreclosure proceedings concern a commercial transaction and are not protected under the anti-SLAPP statute. (See Garretson v. Post (2007) 156 Cal.App.4th 1508, 1512 [“the trial court correctly found that the nonjudicial foreclosure proceedings, including the notice of foreclosure, were not constitutionally protected activity under the anti-SLAPP statute.”] The Complaint here includes the filing of an affidavit in connection with a nonjudicial foreclosure sale, a matter concerning a commercial transaction, and not a matter of public interest, thus not speech protected under Section 425.16.

            At the first hearing on the motion, the Court observed the sole basis of Defendant’s motion appeared to be under the “catch all” subdivision (b)(1).  Defendants counsel suggested their motion was made under “425.16 “subdivision (b)(1)” independently from subdivision (e)(4) but did not identify what other subdivision was raised in the motion.  The Court noted protected speech or conduct under subdivision (b)(1) is defined by subdivision (e)(1) through (e)(4). In that regard, the Court agreed to continue the hearing to permit the parties to simultaneously submit supplemental briefs addressing how defendant’s submittal of the affidavit to the foreclosure trustee was done “in connection with a public issue or an issue of public interest” under subdivision (e)(4).

            In their supplemental brief, however, Defendants now assert a new argument that the submittal of the affidavit mandated by Civil Code 2924m fits within Section 424.15, subdivisions (e)(1) and (e)(2) (in addition to (e)(4)) because it was submitted and recorded in connection with a “official proceeding.” Preliminarily, the Court did not give the Defendants leave to amend the basis of their motion by way of a supplemental brief.  Nowhere it their motion or memorandum, or even reply memorandum do Defendants assert the submittal of the eligibility affidavit fits withing subdivision (e)(1) or (e)(2).  The Court’s consideration of this new argument would be fundamentally unfair to the Plaintiff because it was not asserted in Defendant’s motion, and the Court permitted the simultaneous briefing to the issue that was raised in the motion of whether the recording of the affidavit was “a matter of public interest” under subdivision (e)(4). Under these circumstances, the Court finds it would be imporper to grant the motion on the new grounds asserted after the first hearing under subdivision (e)(1) or (e)(2).

            Regardless, Defendants observe that under Section 2924m, subdivision (j) the Attorney General and municipal attorneys “may bring an action for specific performance or any other remedy at equity or at law to enforce this section”; and, under subdivision (k) “[t]he Department of Justice shall include a summary of information contained in the reports received pursuant to subdivision (i) in a searchable repository on its official internet website.”  From this Defendants argue the statements made in the affidavit under section 2024m [in the course of a nonjudicial foreclosure sale] is a statement made before a “official proceeding” under (e)(1), or a statement 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” under (e)(2).  (Defendants’ supplemental brief filed 10/24/2024, p.3.)  The Court is not persuaded by Defendant’s belated argument that the submittal of the eligibility affidavit under Civil Code section 2924m is an issue under “official review.”  

Defendant’s reliance on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 is misplaced.  In Kibler the Supreme Court concluded “the Legislature has accorded a hospital's peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate. In that respect, these peer review committees oversee “matters of public significance,” as described in the anti-SLAPP statute.  Here, the is nothing about the submittal of the eligibility affidavit in connection with a nonjudicial foreclosure sale that is comparable to a hospital’s peer review decisions that are conducted as an “aid to the appropriate state licensing boards” or is “comparable to that of quasi-judicial public agencies whose decisions are reviewable by administrative mandate” [See id. at 46.).

            Defendants do not meet their burden to show Plaintiff’s claims a are based on protected speech or conduct under CCP § 425.16. Because Defendants do not meet their burden on the first step of the SLAPP analysis, the Court will not analyze the second step including Plaintiff’s probability of prevailing on the Complaint.

Case Name:  Cagle v. Rublevich, et al.

SUBJECT:                 DEMURRER W/O MTS

MOVING PARTY:   Defendants Eve Rublevich, Eden Rublevich, Michael Rublevich, Yiffat Rublevich

RESP. PARTY:         Plaintiff Jeffrey Cagle

TENTATIVE RULING

            Defendants Eve Rublevich, Eden Rublevich, Michael Rublevich, Yiffat Rublevich Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1^st cause of action in for Violation of Cal. Civ. Code § 2924m, and OVERRULED as to the 2^nd–7^th causes of action. The 1^st cause of action for Violation of Cal. Civ. Code § 2924m is not a private right of action, and thus fails as matter of law. Defendant does not provide any persuasive arguments for the demurrer to the additional causes of action, nor does Defendant argue that the necessary facts are not properly alleged within the causes of action.

            Plaintiffs Request for Leave to File an Amended Complaint is DENIED for failing to follow the procedural requirements of Cal. Rules of Court, Rule 3.1324. Plaintiff is urged to file a procedurally correct motion for leave to amend.

            Defendants RJN No. 1–4 is GRANTED.

Defendants RJN No. 5 is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.)

REASONING

I.                Demurrer to the 1^st cause of action for Violation of Cal. Civ. Code § 2924m) – SUSTAINED WITHOUT LEAVE TO AMEND

(d) The trustee may reasonably rely on affidavits and declarations regarding bidder eligibility received under this section. The affidavit or declaration of the winning bidder shall be attached as an exhibit to the trustee's deed and recorded. If the winning bidder is not required to submit an affidavit or declaration pursuant to this section, the trustee shall attach as an exhibit to the trustee's deed a statement that no affidavit or declaration is required by this section, and the lack of an affidavit or declaration shall not prevent the deed from being recorded and shall not invalidate the transfer of title pursuant to the trustee's deed.

(Civ. Code, § 2924m, subd. (d).)

(i) For trustee's sales where the winning bidder is an eligible bidder under this section, the trustee or an authorized agent shall electronically send the following information to the office of the Attorney General within 15 days of the sale being deemed final:. . . .

(4) A copy of the trustee's deed, as executed, including the attached affidavit or declaration of the winning bidder.

(Civ. Code, § 2924m, subd. (i)(4).)

             Defendants Eve Rublevich, Eden Rublevich, Michael Rublevich, Yiffat Rublevich (collectively “Defendants”) demur to the 1^st cause of action for violation of Cal Civ. Code §2924m in Plaintiff Jeffrey Cagle’s (“Cagle”) Complaint arguing there is no express or implied  private right of action under this statute. (Demurrer, at p. 6–9.) Defendants argue that the statute expressly states that the “[t]he Attorney General, a county counsel, a city attorney, or a district attorney may bring an action for specific performance or any other remedy at equity or at law to enforce this section,” but is silent as to private parties enforcing the statute. (Civ. Code, § 2924m, subd. (j).)

             “A private party can sue for violation of a statute only where the statute in question allows it.” (Mayron v. Google LLC (2020) 54 Cal.App.5th 566, 571.) “Where the text does not contain an unmistakable directive, the legislative history may indicate whether the Legislature intended to create a private cause of action. (Ibid.) Defendants are correct that there is no express private right of action within CC § 2924m, and in fact the statute expressly states who can bring an action under this statute.

            Defendants argue there is no implied private right action in the legislative history because the legislative history between 2020 and 2023 was silent on permitting a private right of action, and over the course of three amendments in three consecutive years the legislature added the “ability for governmental entities and only governmental entities as the enforcement arm of the statute.” (Demurrer, p. 8.) Upon a search of the legislative history provided by Defendants in their RJN, no enforcement mechanism is mentioned other than what the motion currently states. Thus it would appear as if additionally there is no implied private right of action in the legislative history to allow this claim to proceed.

            Additionally, in the opposition, Cagel concedes the point of no private right of action within CC § 2924m, and argues that Cagle has successfully pled the 4^th cause of action for quiet title, 5^th cause of action for violations of bus and prof code 17200, and 7^th cause of action for tortious interference.

            Thus, at the very minimum Defendants Demurrer to the 1^st cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

II.             Demurrer to the 2^nd–7^th causes of action—OVERRULED

            Defendants demur to the remaining causes of action arguing that a SLAPP motion is the appropriate mechanism to dispose of these causes of action. (Demurrer, at p. 10.) Defendants do not provide any arguments to show that Plaintiff has not plead the remaining causes of action with sufficient facts to satisfy the individual elements of the causes of action.  Instead, Defendants conclusively argue that Cagel will “not be able to prevail on any causes of action as a matter of law.” (Ibid.)

            In the Reply, Defendants argue that because there is no private right of action for a CC § 2924m violation, all the additional claims fail because the claims are based on a violation of the statute. Defendants provide no authority for this argument other than the conclusory statement. The Court cannot find any authority for the argument that a claim cannot survive demurrer if it is based on a statute with no private right of action but the cause of action itself is not a violation of the statute with no private right of action. Defendants ignore the fact that the additional causes of action might state the facts to reach the elements of those specific causes of action, but also include additional allegations of a violation of CC § 2924m. Thus, Defendants argument is not persuasive as to the remaining causes of action.

            Defendants argue that the remaining cause of action fail because when the Unlawful Detainer proceedings were commenced, the occupancy requirement of CC § 2924m(g) was statutorily excused. (Demurrer, pp. 9:18–10:3; see Civ. Code, § 2924m, subd. (g) [“A prospective owner-occupant shall not be in violation of this section if a legal owner's compliance with the requirements of Section 2924n renders them unable to occupy the property as their primary residence within 60 days of the trustee's deed being recorded.”].)

            Defendants argue factual elements allegedly located within their RJN No 5. The Court cannot take judicial notice to the truth of the facts within the documents submitted in the RJN No. 5, and thus Defendants arguments are without merit at this stage.

            Defendants demurrer to the 2^nd–7the causes of action is OVERRULED.

III.           Leave to Amend  

            A motion for leave to amend a pleading must “[i]nclude a copy of the proposed amendment or amended pleading,” “[s]tate what allegations in the previous pleading are proposed to be” deleted and/or added. ((Cal. R. Ct. 3.1324(a).)  A motion for leave to amend a pleading must also be supported by a separate declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier. (Cal. R. Ct. 3.1324(b).)

            In the Opposition, Cagle requests leave to amend the complaint to add additional causes for Cancellation of Written Instrument, Conspiracy and Aiding and Abetting Fraud action. Cagel does not provide a supporting declaration abiding by Rule 3.1324(b) of the Cal Rules of Court, nor does Cagle include a copy of the proposed FAC within the opposition. Thus, the request for leave to file the FAC is DENIED for failing to abide by the procedural requirements. Cagle can file a separate motion for leave to file the FAC abiding by the statutory requirements.