Judge: Holly J. Fujie, Case: 22STCV11383, Date: 2022-08-04 Tentative Ruling

Case Number: 22STCV11383    Hearing Date: August 4, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiff/Cross-Defendant Awilda Gisselle Hernandez (“Hernandez”)

RESPONDING PARTY: Defendant/Cross-Complainant Khalil Brian Zaghian (“Zaghian”)

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action arises out of the deterioration of a personal and professional relationship.  Hernandez initiated this matter by filing a complaint (the “Complaint”) alleging: (1) civil theft; (2) conversion; (3) tortious interference with contractual relations; (4) tortious interference with prospective economic advantage; (5) breach of fiduciary duty; (6) unfair competition; (7) accounting; (8) constructive trust; (9) identity theft; (10) invasion of privacy; (11) declaratory relief; and (12) temporary restraining order, preliminary injunction and permanent injunction.

Zaghian filed a cross-complaint (the “XC”) alleging: (1) declaratory relief; (2) summary judgment pursuant to Corporations Code section 709; (3) abuse of process; (4) breach of oral contract; (5) breach of the implied covenant of good faith and fair dealing; (6) breach of fiduciary duty; (7) wrongful termination; (8) conversion; (9) common count for claim and delivery; (10) constructive trust and unjust enrichment; (11) common count for money had and received; (12) accounting; (12) violation of Computer Fraud and Abuse Act; (14) fraud – concealment; (15) libel per se; (16) slander per se; (17) intentional interference with prospective economic relations; (18) intentional infliction of emotional distress (“IIED”); and (19) temporary restraining order, preliminary injunction and permanent injunction.

Hernandez filed a special motion to strike portions of the XC pursuant to California Code of Civil Procedure (“CCP”) section 426.16 (the “Motion”).

DISCUSSION

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.  (CCP § 425.16, subd. (b)(1).)   The court must engage in a two-step analysis under when evaluating anti-SLAPP motions.  (Rivera v.  First DataBank, Inc. (2010) 187 Cal.App.4th 709, 714.)  First, the court must determine whether the defendant has met its burden to show that the challenged cause of action arises from protected activity.  (Id.)  The defendant pursuing an anti-SLAPP motion must make an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s right of petition or free speech.  (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-43.)  A defendant meets this burden by demonstrating the act underlying the plaintiff’s cause fits one of the categories specified in CCP section 425.16, subdivision (e).  (Id. at 1043.) 

Once it has been determined that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the action.  (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843.)  If the plaintiff does so, the motion to strike under the anti-SLAPP statute must be denied.  (Id.)  To establish the requisite probability of prevailing, the plaintiff must state and substantiate a legally sufficient claim.  (Id.)  Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima face showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.  (Id.)  Anti-SLAPP motions must be supported (and opposed) by declarations stating facts upon which the liability or defense is based.  (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)  If the complaint itself shows that a claim arises from protected conduct (supplemented, if appropriate, with the plaintiff's description of the factual basis for its claim in its declarations), a moving party may rely on the plaintiff's allegations alone in making the showing necessary under prong one without submitting supporting evidence.  (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.)  In opposing an anti-SLAPP motion, the plaintiff cannot rely on allegations of the complaint, but must produce evidence that would be admissible at trial.  (Id.) 

Protected Activity

Abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.  (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)  The elements of abuse of process are: (1) the defendant contemplated an ulterior motive in using the judicial process; and (2) the defendant committed a willful act in the use of the process not proper in the regular conduct of the proceedings.  (Id. at 1057.)

Hernandez seeks to strike the third cause of action for abuse of process from the XC as well as certain paragraphs that form the factual basis for the claim.  The XC alleges Hernandez and Zaghian have a minor child (“Minor Child”) and that Hernandez sought a temporary restraining order limiting Zaghian’s contact with Minor Child based on lies about Zaghian and for the purpose of pressuring him to end his involvement with their business.  (See XC ¶¶ 25(B), 25(O)-25(Q.))

As a preliminary matter, the Court finds that the Motion is directed at allegations regarding Hernandez’s alleged use of the judicial system and that these allegations, on their face, arise out of her constitutionally protected right to petition.  Hernandez was therefore entitled to rely solely on the allegations in the XC to make the showing necessary under the first prong of the anti-SLAPP analysis without submitting supporting evidence.  (See Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.)

Zaghian concedes that the abuse of process claim arises out of protected activity but contends that the allegations in Paragraph 25 of the XC being challenged by the Motion should not be stricken as protected activity.  (See Opposition 2:16-18.)  Zaghian argues that the IIED claim is factually predicated on allegations beyond those being challenged by the Motion and that the allegations challenged by the Motion provide context for the claim.

The Court agrees that the IIED claim has a factual basis in allegations other than the allegations concerning Hernandez’s alleged misuse of the judicial process.  The Court notes, however, that the Motion is not directed at the IIED claim as a whole and only targets the allegations that underpin the abuse of process claim.  Zaghian has not presented evidence to demonstrate his likelihood of prevailing on these allegations as is required once the moving party establishes that the challenged allegations arise out of protected activity.  (See Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843.)  Therefore, while Zaghian’s IIED claim may proceed, the allegations concerning Hernandez’s alleged protected activity may not serve as a basis for establishing Hernandez’s liability for IIED.[1]  The Court therefore GRANTS the Motion in its entirety. 

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the

hearing, the motion will be placed off calendar.

                Dated this 4th day of August 2022