Judge: Helen Zukin, Case: SC126981, Date: 2022-08-04 Tentative Ruling

Case Number: SC126981    Hearing Date: August 4, 2022    Dept: 207

Background

Plaintiff, Hooman M. Melamed, M.D. (“Plaintiff”) owns a condominium located within a development known as The Ridge Condominium. This is a consolidated action arising from a series of interrelated disputes between Plaintiff and the homeowners’ association for the development, Defendant The Ridge Condominium Association (“Defendant”), as well as related parties, concerning, among other issues, Defendant’s refusal to allow Plaintiff a variance in the parking rules for the property to accommodate a disability following Plaintiff’s orthopedic surgery.

On June 8, 2022, the Court granted Plaintiff’s motion for leave to file a Second Amended Complaint (“SAC”) which would eliminate defendants, correct erroneous statutory citations, and seek punitive damages supported by new factual allegations. The SAC was filed on June 9, 2022, and Defendant has brought a special motion to strike these new factual allegations supporting Plaintiff’s request for punitive damages.

Request for Judicial Notice

Defendant requests the Court take judicial notice of the notice of consolidation previously filed in this action. Defendant’s request is unopposed and is GRANTED.

Legal Standard

In 1992, the Legislature enacted Code Civ. Proc. § 425.16 as a remedy for the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (C.C.P. §425.16(a); Wilcox v. Sup. Ct. (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as “SLAPP” lawsuits, an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any cause of action “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue….” (C.C.P. § 425.16(b)(1).)

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In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure” at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The procedure is a two-step process. First, the moving defendant must show that the acts of which the plaintiff complains were protected activity, namely, that they were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (C.C.P. §425.16(b)(1).) If the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (C.C.P. § 425.16(b)(3).)

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In making both determinations, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (C.C.P. § 425.16(b)(2); Equilon, supra, 29 Cal.4th at 67.)

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Pursuant to section 425.16(f) “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”

Analysis

As an initial matter, the Court finds Defendant’s motion was correctly filed in the lead case in this consolidated action and was timely pursuant to Code Civ. Proc. § 425.16(f), and rejects Plaintiff’s arguments to the contrary.

Plaintiff also argues Defendant’s motion is procedurally improper as it seeks to strike allegations related to punitive damages only rather than any cause of action asserted in the SAC. The Court agrees. Code Civ. Proc. § 425.16(b)(1) 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 Constitution or the 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.”

Plaintiff cites to a line of cases wherein California Courts have declined to apply the anti-SLAPP statute to remedies sought in a complaint. (Opposition at 4.) Defendant attempts to distinguish these cases as concerning only equitable remedies. However, plaintiff in Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (“1105 Alta Loma”) brought a complaint seeking “injunctive relief, statutory damages, actual damages and costs to the Housing Rights Center, actual damages to Mangine for her emotional distress, and punitive damages for housing discrimination, denial of civil rights and disability discrimination.” (Id. at 1280.) Defendant brought a special motion to strike under Code Civ. Proc. § 425.16 directed solely at the damages portion of the complaint. The Court determined the “motion to strike was technically deficient. It sought to strike only the damages portion of the complaint.” (Id. at 1281, fn. 3.) The Court noted the language of Code Civ. Proc. § 425.16(b)(1) limited an anti-SLAPP motion to strike to a “cause of action” and reasoned “damages are remedies, not causes of action, or claims. Accordingly, the [anti-SLAPP] statute was inapplicable for [defendant]’s purpose.” (Id.) Ultimately the Court considered the motion to strike on its merits, noting the trial court had “overlooked this defect” and instead had construed the defendant’s motion as a motion to strike the entire complaint. (Id.) The Court of Appeal in its discretion elected to do the same. (Id.)

However, no such option is available to the Court here. Defendant’s motion does not challenge all damages such that the Court can construe it as a challenge to the complaint as a whole. Rather, Defendant’s motion challenges four factual allegations contained in the SAC which do not go to the essential elements of any of Plaintiff’s causes of action. The Court finds the reasoning of 1105 Alta Loma applies here and precludes an anti-SLAPP motion to strike directed at allegations supporting a request for punitive damages, as punitive damages are not a cause of action or claim for relief.

Defendant’s reliance on cases involving “mixed” claims is misplaced. (Reply at 3-4.) In Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, the California Supreme Court acknowledged an anti-SLAPP motion could be brought to strike claims for relief stemming from protected activity which were asserted in the same cause of action as claims for relief stemming from unprotected activity. “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.” (Id. at 1010.)

The California Supreme Court in Baral v. Schnitt (2016) 1 Cal.5th 376 similarly examined the scope of the term “cause of action” as used in section 425.16 encompassed claims for relief or actions giving rise to causes of action: “The scope of the term ‘cause of action’ in section 425.16(b)(1) is evident from its statutory context. When the Legislature declared that a ‘cause of action’ arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief. The targeted claim must amount to a ‘cause of action’ in the sense that it is alleged to justify a remedy. By referring to a ‘cause of action against a person arising from any act of that person in furtherance of’ the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion.” (Id. at 395.)

Baral and Bonni are best understood not as expansions of the scope of what constitutes a “cause of action” under Code Civ. Proc. § 425.16, but rather as the recognition that if a court were to strictly construe “cause of action” to mean a cause of action in its entirety, plaintiffs would be able to subvert the point of the statute by intermingling claims stemming from protected activity with those stemming from unprotected activity in a single cause of action: “Conversely, refusing to strike any part of a cause of action that rests in part on protected activity defeats the legislative goal of protecting defendants from meritless claims based on such conduct. Plaintiffs do, of course, have considerable discretion in how to shape their pleadings, and as Okorie observed, there is nothing to stop them from ‘deliberately or innocently’ pleading causes of action that ‘allege both protected and unprotected activity.’ [Citation.] But at the end of the day, we do not believe the Legislature in enacting the anti-SLAPP statute intended to make the protections of the anti-SLAPP law turn on a plaintiff's pleading choices.” (Bonni, supra, 11 Cal.5th at 1011.)

Further, the challenged factual allegations concerning punitive damages do not appear to be a “claim for relief” as used by the Baral and Bonni Courts. Here, the challenged allegations, standing alone, would not entitle Plaintiff to any remedy or relief as “It is well settled in California that punitive damages cannot be awarded unless actual damages are suffered.” (Esparza v. Specht (1976) 55 Cal.App.3d 1, 6.) In other words, a plaintiff may not recover punitive damages in a vacuum, rather a plaintiff must first succeed in establishing a separate cause of action or basis for relief from a defendant.

Defendant’s interpretation of Baral and Bonni as permitting the filing of anti-SLAPP motions to challenge any allegations in a complaint is controverted by the recent holding in Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 982. In Ratcliff the plaintiffs were suing various entities within the Catholic Church, alleging vicarious liability for sexual abuse purportedly committed by a priest, as well as negligence in their failure to prevent the alleged abuse. Defendants brought an anti-SLAPP motion to challenge allegations in a complaint relating to defendants’ conduct in supporting the priest in a prior civil action and sheriff’s investigation concerning allegations of sexual abuse. The Court recognized the holding in Bonni required separate analysis of individual claims asserted within a single cause of action. There, defendants alleged plaintiffs’ single cause of action for negligence actually encompassed four distinct claims for negligence which defendants alleged were based on protected conduct. The Court examined each of these four negligence claims along with the claim for vicarious liability and found none of them arose from defendants’ support in the prior civil litigation or sheriff’s investigation. Instead, the Court found plaintiffs’ claims “are based on unprotected conduct and any references to activity that might be considered protected under the anti-SLAPP statute are merely incidental, not a claim for recovery.” (Id. at 1003.) The Court held such “incidental” allegations are “not subject to attack by an anti-SLAPP motion.” (Id. at 1013.) Ratcliff thus rejected the argument that an anti-SLAPP motion may be brought to any parts of a complaint or any acts alleged therein without limitation.

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] 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.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063.) “[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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) [suit may be in “response to, or in retaliation for,” protected activity without necessarily arising from it].) The allegations targeted by Defendant’s motion do not underly or form the basis of any of Plaintiff’s claims.

Plaintiff’s operative SAC asserts four causes of action: (1) violation of the Federal Fair Housing Act, (2) violation of California’s Fair Employment and Housing Act, (3) violation of the Unruh Civil Rights Act, and (4) breach of fiduciary duty. Each of these claims arises from the alleged failure of Defendant to accommodate an orthopedic condition. (SAC at ¶ 27 [alleging Defendant “has discriminated and continues to discriminate against Dr. Melamed on account of his disability”], ¶ 39 [alleging Defendant “has discriminated and continues to discriminate against Dr. Melamed on account of his physical disability”], ¶ 51 [“alleging Defendant “has discriminated and continues to discriminate against Dr. Melamed on account of his physical disability”], ¶ 65 [alleging Defendant “breached its duty of care to Dr. Melamed by failing to exercise reasonable care in accommodating his disability”].)

Defendant moves to strike four allegations in the SAC. Those allegations fall into two categories: (1) claims that one of Defendant’s board members participated in the filing of an amicus brief in prior, separate litigation in which Plaintiff was a party (SAC at ¶ 19), and (2) claims that Defendant’s board members testified falsely at deposition in this action (id at ¶¶23-25). As to the first category, none of Plaintiff’s causes of action concerning Defendant’s alleged failure to accommodate his disability arise from or relate to the filing of an amicus brief in prior litigation involving Plaintiff. The same is true for the second category. The targeted allegations in paragraphs 23, 24, and 25 of the SAC similarly do not form the basis of any cause of action asserted by Plaintiff. Paragraph 23 alleges a board member falsely testified that he had never seen Plaintiff using crutches. Paragraph 24 alleges another individual falsely testified that he had never seen the handicap placard which Plaintiff states was always on his car. Paragraph 25 alleges another board member “testified that he would make a point to respond to all homeowner concerns. Paragraphs 23 and 24 thus simply allege Defendant’s witnesses have been less than forthright in their deposition testimony, but Plaintiff’s claims for discrimination and breach of fiduciary duty stem from Defendant’s failure to accommodate his disability, not their failure to testify truthfully at deposition. Further, the challenged portion of paragraph 25 simply alleges one board member testified that he would make a point to respond to homeowner emails. This allegation does not even suggest wrongdoing by Defendant, and similarly does not give rise to any of Plaintiff’s claims.

The Court finds Defendant has failed to demonstrate any of Plaintiff’s claims arise from protected activity and thus Plaintiff’s newly asserted factual allegations concerning punitive damages are not subject to attack by an anti-SLAPP motion. Accordingly, Defendant’s motion to strike is DENIED.

Plaintiff asks the Court to award him the attorney’s fees he incurred in opposing Defendant’s motion pursuant to Code Civ. Proc. § 425.16(c)(1). Section 425.16(c)(1) provides in pertinent part: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion….” The Court does not find Defendant’s motion to strike to be frivolous or solely intended to cause unnecessary delay. The caselaw regarding what allegations or claims may be properly subject to a motion to strike is anything but clear. While the Court ultimately disagreed with the arguments Defendant raised on the subject, this does not mean Defendant’s arguments were frivolous. Accordingly, the Court finds no basis to award Plaintiff his attorney’s fees under Code Civ. Proc. § 425.16(c)(1).

Conclusion

Defendant’s special motion to strike pursuant to Code Civ. Proc. § 425.16 is DENIED.