Judge: Holly J. Fujie, Case: 22STCV27147, Date: 2022-10-06 Tentative Ruling

Case Number: 22STCV27147    Hearing Date: October 6, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Dennis P. Block & Associates (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving and opposition papers.  No reply papers were filed.  Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

This action arises out of a landlord/tenant relationship and a previously litigated unlawful detainer lawsuit.  Plaintiff’s complaint (the “Complaint”) alleges: (1) violation of Civil Code sections 51 and 52; (2) violation of Civil Code section 46; (3) intentional infliction of emotional distress; (4) breach of contract; (5) breach of implied covenant of good faith and fair dealing; and (6) malicious prosecution.  The sixth cause of action is the sole claim alleged against Moving Defendant.

In relevant part, the Complaint alleges: Defendants discriminated against Plaintiff for unlawfully discriminating against him due to his medical condition and failing to make an accommodation that excused him from the rule of the homeowner’s association (the “HOA”) that required residents to wear a face mask in public areas.  (See, e.g., Complaint ¶¶ 15-30.)  Defendant Wenny Susanto initiated an unlawful detainer action in the case styled as Wenny Susanto v. Shahrouz Mangoli, LASC Case No. 22SMUD00101 (the “Unlawful Detainer Action”).  (Complaint ¶ 57.)  Moving Defendant represented Susanto throughout the Unlawful Detainer Action.  (Id.)  Moving Defendant never contacted Plaintiff’s medical provider to verify the validity of his medical exemption.  (Complaint ¶ 59.) 

Moving Defendant filed a special motion to strike pursuant to CCP section 426.16 (the “Motion”).  The Motion seeks to strike the entire Complaint, or alternatively, strike the sixth cause of action for malicious prosecution.

REQUEST FOR JUDICIAL NOTICE

Moving Defendant’s Request for Judicial notice is GRANTED.  Plaintiff’s Request for Judicial Notice is GRANTED.

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.) 

Protected Activity

Every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute.  (Alston v. Dawe (2020) 52 Cal.App.5th 706, 721.)  The Court finds that the first prong of the anti-SLAPP analysis has been satisfied and Moving Defendant has shifted the burden to Plaintiff to demonstrate a probability of prevailing on the merits.

Probability of Prevailing on the Merits

In the second prong of the anti-SLAPP analysis, the court employs a summary-judgment-like procedure, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)  In other words, the court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)  The court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP.  (Id.)  The plaintiff is required to present facts which would, if proved at trial, support a judgment in the plaintiff’s favor.  (CCP § 425.16, subd. (b); Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-51.)  

To state a cause of action for malicious prosecution, a plaintiff must allege: (1) the defendant initiated or maintained a prior action without probable cause; (2) the defendant acted with malice in doing so; and (3) the prior action was terminated in the plaintiff’s favor on the merits.  (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537.) 

The basis of the favorable termination element is that the resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff’s innocence.  (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 217. 

The question of probable cause is whether, as an objective matter, the prior action was legally tenable or not.  (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.)  A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.  (Id.)  In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.  (Id.) 

The malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action.  (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 496 (emphasis in original).)  The motive of the defendant must have been something other than that of the satisfaction in a civil action of some personal or financial purpose.  (Daniels v. Robbins, supra, 182 Cal.App.4th at 224.)  A malicious prosecution plaintiff must plead and prove actual ill will or some improper or ulterior motive.  (Id.)  The lack of probable cause is one factor in determining the presence of malice, but alone it is insufficient.  (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)  Merely because the prior action lacked legal tenability, as measured objectively (i.e., by the standard of whether any reasonable attorney would have thought the claim tenable) without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor's subjective malicious state of mind.  (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at 498.)  In other words, the presence of malice must be established by other, additional evidence.  (Id.)  A lawsuit with an “improper purpose” includes, but is not limited to, a lawsuit in which: (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; or (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.  (Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.)  Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.  (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at 218.)  Malice can consist of a party knowingly bringing an action without probable cause because malice can be inferred when a party continues to prosecute an action despite becoming aware the action lacks probable cause. 

Plaintiff was the prevailing party in the Unlawful Detainer Action.  Judge Lisa K. Sepe-Wiesenfeld held that Plaintiff was unlawfully penalized against for violating the HOA mask requirement because the requirement did not allow for medical exemptions and Moving Defendant failed to engage in the interactive process in good faith.  (See RJN, Exhibit A.)  The Court found that the enforcement of the restriction violated the California Fair Employment and Housing Act (“FEHA”), which provides that it is unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.  (Id.; see Gov. Code § 12927, subd. (c)(1), §12955; see also 2 CCR § 12176, subd.(c).)

            Plaintiff contends that Moving Defendant knew that the Unlawful Detainer action was meritless throughout its litigation, from its filing through adjudication because it knew that Plaintiff was legally entitled to an accommodation for his disability.  (See Declaration of David Hakimfar (“Hakimfar Decl.”) ¶¶ 15-20.)  Plaintiff’s counsel declares that Moving Defendant had access to Plaintiff’s medical records establishing his disability and knowledge of state and federal laws which provide protections for disabled tenants.  (Hakimfar Decl. ¶ 18.) 

            The Court finds that Plaintiff has demonstrated adequate evidence to show that the malicious prosecution claim has “minimal merit” since he has provided evidence that Moving Defendant knew or should have known that the HOA restriction was unenforceable because Plaintiff had a disability and nonetheless proceeded with prosecuting an action to deprive Plaintiff of a property interest in the Unlawful Detainer Action. 

            The Court therefore DENIES the Motion in its entirety.  The Court does not, however, find that the Motion was completely frivolous and accordingly DENIES Plaintiff’s request for attorney’s fees.  (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

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 6th day of October 2022