Judge H. Jay Ford, III, Case Number: 24SMCV03353, Date: 2025-01-21 Tentative Ruling

Defendant’s special motion to strike (anti-SLAPP) is granted in part and denied in part. The motion is granted as to the First Amended Complaint (FAC) ¶¶ 32, 50, 84(e), and 124. The motion is otherwise denied. Each party having prevailed in part, the Court finds there is no prevailing party pursuant to Code of Civil Procedure section 425.16(c)(1).

Defendant requests judicial notice of four (4) records from the restraining order proceeding against Plaintiff. The Court grants the request as to the existence of the records and the fact of the proceedings, but not as to the truth of any of the records’ contents.

Plaintiff Suna Goksel (“Plaintiff”) filed this action against defendants Olfa B’Chir, U.S. Bank Trust Company, N.A., U.S. Bank National Association, and All Persons Known & Unknown, etc. on July 11, 2024. She filed her operative first amended complaint (“FAC”) on September 18, 2024. The FAC asserts causes of action for:

As alleged in the operative FAC: from August 2020 to June 2023, the parties lived together in an apartment on Santa Fe Avenue in Los Angeles. (Id., ¶ 11.) They had agreed to share certain housing expenses, and Defendant failed to satisfy her obligations under that agreement. (Id., 11.)

Around February 2023, the parties decided to purchase a property on Sweetzer Avenue in West Hollywood (“the Property”). (Id., ¶ 15.) Plaintiff paid cash toward the purchase and assumed other obligations related to the Property, but she was not placed on the title at the time of purchase; Defendant agreed to add her to the title afterward. (Id., ¶¶ 23, 29.)

In the ensuing months, the parties’ relationship soured. Ultimately, each party claimed the other had violently attacked each. (Id., ¶¶ 31 [Plaintiff’s allegations; ¶¶ 50, 84 [Defendant’s allegations].) Defendant barred Plaintiff from the Property. (Id., ¶¶ 31, 33.) Defendant also petitioned for and obtained a Domestic Violence Restraining Order against Plaintiff. (Id., ¶¶ 32-33.) Defendant has not added Plaintiff to the title and has not reimbursed any expenses Plaintiff paid toward the purchase price or other costs. (Id., ¶¶ 64, 74, 82, 99, 106.)

On October 17, 2024, defendant Olfa B’Chir (“Defendant”) specially moved to strike Plaintiff’s complaint in its entirety pursuant to Code of Civil Procedure section 425.16, California’s “anti-SLAPP” statute. Although Defendant’s Notice of Motion is directed to the entire FAC, its memorandum and the relief requested are directed only to FAC paragraphs 29, 32, 33, 50, 84(c), 84(e), 113, and 124 and to Plaintiff’s seventh and fourteenth causes of action.

Plaintiff argues partly that Defendant’s motion must be denied because it is untimely based on the deadline to file the motion challenging the original complaint.

An anti-SLAPP motion must be filed within sixty (60) days of the pleading it attacks. (Code Civ. Proc., § 425.16(f).) The statute permits a defendant to attack an amended pleading, as well as an initial pleading, within sixty days of its filing. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840-841; Yu v. Signet (2002) 103 Cal.App.4th 298, 314.) But the permission to challenge an amended pleading via anti-SLAPP motion is not unlimited. It extends only to protected claims not made in earlier pleadings. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 643-644.) “A rule automatically reopening a case to anti-SLAPP proceedings upon the filing of any amendment permits defendants to forgo an early motion, perhaps in recognition of its likely failure, and yet seize upon an amended pleading to file the same meritless motion later in the action, thereby securing the ‘free time-out’ condemned in [controlling case law].” (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1192, fn. 11.)

Plaintiff filed her FAC on September 18, 2024, and Defendant filed her motion twenty-nine days later. If the motion is properly directed to the FAC, then it is well within the deadline. But Plaintiff filed her initial complaint on July 11, 2024, which placed Defendant’s deadline to file her anti-SLAPP as to that complaint on September 9, 2024. If the claims subject to Defendant’s motion were made in the initial complaint, then Defendant’s motion was thirty-eight days late.

Defendant’s motion is timel because the claims and allegations Defendant attacks in her motion appear for the first time in the FAC. Plaintiff’s FAC refers specifically to a restraining order proceeding, multiple times, and includes those allegations as a basis for relief under two of her causes of action.

In contrast, Plaintiff referred generally to “false claims in court proceedings” in her initial complaint in a single paragraph. (Compl., ¶ 32.) Those claims, referred to apparently for context, were not referred to under the heading of any particular cause of action.

The claims Defendant attacks in her motion did not appear in her initial complaint in a manner inviting anti-SLAPP relief. Not until the FAC did Plaintiff those allegations to several paragraphs and include them specifically among her bases for relief.

Because Defendant’s time to file runs from the FAC, not the initial complaint, Defendant’s motion is timely.

2. The Notice of Motion is vague but sufficiently clarified in Defendant’s memorandum.

Defendant seeks broader relief in her Notice of Motion than she argues for in her memorandum of points and authorities. Defendant’s memorandum focuses on seven (7) paragraphs of the FAC related to Defendant’s petition for a restraining order against Plaintiff. Defendant argues she is entitled to relief because “Plaintiff cannot possibly prevail on her allegations [in those paragraphs]” only. (MPA, 9:4-5.) But Defendant did not seek to strike only these paragraphs. Her Notice requests that the Court strike the entire FAC. The parties appear to concede – and the Court agrees – that the bulk of the FAC alleges activity that falls outside the ambit of section 425.16.

An omission in a notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807-808; 366–386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200.) The purpose of these requirements is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” (Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493.) Here, Defendant could, and did, respond fully to Plaintiff’s argument despite the erroneous Notice.

In determining whether to grant or deny an anti-SLAPP motion, the court engages in a two-step process. (Park v. Board of Trustees of California State University¿(2017) 2 Cal.5th 1057, 1061.) First, the court must decide whether the moving party has met the threshold burden of showing that the plaintiff’s cause of action arises from the moving party’s constitutional rights of free speech or petition for redress of grievances. (See ibid.) This burden may be met by showing the act underlying the plaintiff’s cause of action fall within one of the four categories of conduct set forth in Code of Civil Procedure Section 425.16, subdivision (e):¿

(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.¿

a. As to Plaintiff’s entire pleading, or to any whole cause of action, Defendant has not shown Plaintiff’s claims arise from protected activity.

None of Plaintiff’s causes of action, and certainly not her whole pleading, falls in its entirety within the ambit of section 425.16.

“[A] defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) “In determining ‘whether the challenged claims arise from acts in furtherance of the defendants' right of free speech or right of petition under one of the categories set forth in section 425.16, subdivision (e). [Citation.] .... “[the court] examine[s] the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” ’ [Citation.] The ‘gravamen is defined by the acts on which liability is based, not some philosophical thrust or legal essence of the cause of action.’ ” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 111, cited with approval in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012.)

Plaintiff’s suit and each of her causes of action, taken whole, arise from a private real property and contract dispute. The “gravamen” of her claims does not relate to free speech or other protected conduct.

As to Plaintiff’s whole claims or whole complaint, Defendant has not carried her burden and the motion is denied.

b. As to Defendant’s restraining order petition specifically, Defendant’s conduct is protected.

Based on the moving papers, however, Defendant appears to construe her motion more narrowly. She directs her arguments only to individual allegations and claims for relief that she argues arise from her filing of a domestic violence restraining order.

This is the proper use of a special motion to strike. “[T]he Legislature's choice of the term ‘motion to strike’ reflects the understanding that an 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.) “Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief — each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action — to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 [281 Cal.Rptr.3d 678, 688.)

Thus, although the Court denies Defendant’s motion as to the whole complaint or whole causes of action, it also considers the motion as directed solely to those “claims” arising from Defendant’s restraining order petition against Plaintiff.

Defendant’s filing of a court action is protected activity under subdivision subdivisions (e)(1) and (2) of section 425.16:

“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[; and]

No further discussion is required; the filing of a court petition is protected activity. The Court proceeds to the second step, as to the restraining order allegations only.

a. Plaintiff has not shown a probability of prevailing as to claims arising from the restraining order petition.

If the defendant meets its initial burden to show its activity is protected by the anti-SLAPP statute, then the burden shifts to the plaintiff to prove he has a legally sufficient claim and to prove with admissible evidence a probability of prevailing on the claim. (De Havilland v. FX Networks, LLC¿(2018) 21 Cal.App.5th 845, 855.)

At the second prong of the anti-SLAPP analysis, the trial court considers the pleadings and evidence of both parties. (Ibid.) The plaintiff’s proof must be made upon competent admissible evidence. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) The court “does not weigh evidence or resolve conflicting factual claims.” (Ibid.)

Plaintiff has not shown a probability that she can defeat the absolute litigation privilege as to her allegations arising from the restraining order proceeding. California law does not permit liability for filing lawsuits, except in the case of malicious prosecution. (See Civ. Code, § 47.) “ ‘[U]nderlying the [litigation privilege] is the vital public policy of affording free access to the courts and the crucial functions of the finder of fact’ [Citation] … . The fears of chilled speech and hindered justice are too much a part of our case law to be disregarded as unproved.” (McClatchy Newspapers, Inc v. Superior Court (1987) 189 Cal.App.3d 961, 971.)

Plaintiff’s opposition relies on the Court taking Defendant’s causes of action as a whole. She does not meaningfully argue that Defendant can be held liable for the filing of the restraining order petition by itself. Plaintiff implies at one point that her claims can survive the privilege because they are contract, rather than tort, claims. (Opp., 16:16-18.). This is incorrect; the privilege applies to communications in the course of judicial proceedings, regardless of the label placed on the complaint. (Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 99.)

To the extent Plaintiff’s claims arise from restraining order proceedings, they are protected by the litigation privilege, and Plaintiff has made no persuasive argument she can overcome the privilege as to those particular claims.

b. Some, but not all, of the “claims” Plaintiff has individually identified relate to the restraining order petition.

Defendant challenges the following allegations and claims for relief in Plaintiff’s FAC:

¶ 29.	“Shortly after the Property was purchased, Defendant B’chir intentionally, knowingly and wrongfully refused to recognize Plaintiff’s 50% ownership interest in the Property and intentionally refused to add Plaintiff to the title of the Property as agreed. Moreover, Defendant B’chir refused to allow Plaintiff access to the Property by, inter alia, excluding Plaintiff from the entry code system and refusing to provide her with the code.”
¶ 32.	“Upon information and belief, thereafter, Defendant B’chir intentionally manufactured multiple false claims against Plaintiff in effort to harass, annoy and defame Plaintiff, including bringing false claims against Plaintiff in court proceedings.”
¶ 33.	“Defendant B’chir has knowingly, intentionally and improperly kept Plaintiff from entering into, inhabiting or being near the Property, of which Plaintiff owns a 50% interest[.]”
¶ 50.	“Prior to the filing of this action, Defendant B’chir knowingly, intentionally, wrongfully and expressly (1)refused to recognize Plaintiff as a co-tenant; (2)refused to place Plaintiff on title to the Property in violation of their Agreement; (3)refused to allow Plaintiff access or entry into the Property;(4) refused to return Plaintiff’s $650,000, (5) has wrongfully and maliciously brought a TRO action against Plaintiff with manufactured evidence; has continued to malign and harass Plaintiff. Thus, Plaintiff had no recourse but to file this action.”
¶ 84.	“Defendant not only breached the Agreement by failing to perform her obligations thereunder, but also unfairly interfered with Plaintiffs’ right to receive the benefits of the Agreement as set forth in detail above, by, inter alia: . . . (c) knowingly and intentionally refusing to allow Plaintiff entry into or access to the Property; [and] . . . (e) manufacturing false claims for the purpose of obtaining a TRO against Plaintiff to further obstruct her entry or access to the Property.”
113.	“Defendant B’chir multiple wrongful and intentional acts and omissions, including, inter alia, fraud and breach of contract, have improperly and unjustly enriched Defendant B’chir to the detriment of Plaintiff in that Defendant B’chir intentionally and fraudulently obtained sole legal title to the Property; failed and refused to add Plaintiff to title of the Property despite Plaintiff providing $650,000 cash toward the property Purchase in keeping with the parties’ Agreement; return to pay Plaintiff her $650,000, and has refused Plaintiff access or entry into the Property.”
¶ 124.	“Defendant B’chir has intentionally and wrongfully omitted Plaintiff from title the Property; has taken Plaintiff’s $650,000 as her own and reaped the benefit thereof without compensation to Plaintiff; has refused Plaintiff entry into the Property; has wrongfully and maliciously made false statements about Plaintiff to obtain a TRO against Plaintiff.”

¶ 32.	“ . . . including bringing false claims against Plaintiff in court proceedings.”
¶ 50.	“ . . . (5) has wrongfully and maliciously brought a TRO action against Plaintiff with manufactured evidence; has continued to malign and harass Plaintiff.”
¶ 84.	“ . . . (e) manufacturing false claims for the purpose of obtaining a TRO against Plaintiff to further obstruct her entry or access to the Property.”
¶ 124.	“ . . . has wrongfully and maliciously made false statements about Plaintiff to obtain a TRO against Plaintiff.”

The remainder refer to Defendant’s alleged efforts, in general, to keep Plaintiff from accessing the Property.

The claim that Defendant refused Plaintiff access to the Property rely primarily, if not entirely, on the factual allegations appearing in paragraph 29:

“Shortly after the Property was purchased, Defendant B’chir intentionally, knowingly and wrongfully refused to recognize Plaintiff’s 50% ownership interest in the Property and intentionally refused to add Plaintiff to the title of the Property as agreed. Moreover, Defendant B’chir refused to allow Plaintiff access to the Property by, inter alia, excluding Plaintiff from the entry code system and refusing to provide her with the code.”

The purchase of the Property appears to have been complete as of at least April 1, 2023. (FAC, ¶ 26; see also FAC, Exh. C.) Defendant filed her petition for a restraining order on July 19, 2023. (MPA, 1:18-19.) Defendant concedes that Plaintiff’s allegations arise from an incident that took place, at the latest, on June 1, 2023. (B’Chir Decl., ¶ 12.) But Plaintiff also alleges a scheme to keep her off the Property that dated back to the Property’s purchase in April 2023. (FAC, ¶ 26.)

Plaintiff’s allegations that Defendant attempted to block access to the Property date to incidents that precede Defendant’s filing of her restraining order application. They also rely in part on allegations that were not raised in Defendant’s DVRO. (See B’Chir Decl., Exh. 1.)

As a result, Plaintiff’s generally-framed allegations that Defendant blocked access to the Property do not arise solely from the matters raised in the DVRO. Nor do matters raised in the DVRO amount to protected conduct simply because they were raised in a court petition. (See Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 [statute applies to “statements and writings” themselves, if related to issue under review].) Allegations that do not refer directly to the court proceedings are not protected conduct under section 425.16, and they are not subject to a special motion to strike.

Case No.: 24SMCV03353	Complaint Filed: 7/11/24
Hearing Date: 1/23/25	Discovery C/O: n/a
Calendar No.: 10	Discover Motion C/O: n/a
POS: OK	Trial Date: n/a