Judge Holly J. Fujie, Case Number: 24STCV00856, Date: 2024-05-30 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: Defendant Judy Nagy Goetz, individually and as trustee of the Nagy Trust Dated May 10, 1988 (“Defendant”)

Plaintiff initiated this action by filing a complaint (the “Complaint”) on January 12, 2024 against Defendant, alleging causes of action for: 1) malicious prosecution; and 2) civil harassment.

As alleged in the Complaint, Defendant owns the real property located at 5105 Paseo de las Tortugas in Torrance, California (“Defendant’s Property”), and while she does not reside at Defendant’s Property, her mother and sister do reside there. (Compl. ¶ 2, 5.) Plaintiff, through IBMTB, LLC, owns the adjacent property located at t 5109 Paseo de las Tortugas in Torrance, California (“Plaintiff’s Property”). (Compl. ¶ 4.) Beginning in 2019, Plaintiff started renovating his property in order for his daughter to reside there (the “Project”). (Id. ¶¶ 4, 6.) Defendant opposed the Project by objecting to the City of Torrance’s approval of an interior removal and one-story addition to the Plaintiff’s Property. (Id. at ¶ 7.) The Complaint further alleges that Defendant harasses the construction crew and has told Plaintiff that “his kind” was not welcome. (Ibid.)

On November 20, 2019, the City of Torrance granted Plaintiff’s Minor Hillside Exemption (“MHE”) in order to perform renovations to Plaintiff’s Property. (Id. at ¶ 8.) Upon submitting plans to construct a pool and deck, Plaintiff faced opposition from Defendant and other neighbors, claiming that the proposed pool would impede their view and cause a loss in privacy. (Id. at ¶ 9.) In light of their concerns, Plaintiff redesigned the pool, but Defendant continued her opposition on the basis that the proposed pool would undermine the stability of the hillside that their properties shared. (Ibid.) In order to secure the permit for the proposed pool, Plaintiff commissioned a geotechnical report by Hamilton & Associates, whereby soil samples were taken for laboratory testing; the report concluded that there was no danger of liquefaction in case of an earthquake. (Id. at ¶ 10.) The report further concluded that the proposed pool could be safely constructed and proposed the use of steel piles to ensure the stability of the hillside. (Id. at ¶¶ 11-12.) Defendant maintained that the proposed pool posed a risk of landslides based on a landslide that had occurred in the area in 1986, but this landslide had occurred a quarter mile from Plaintiff’s Property. (Id. at ¶ 13.)

On May 18, 2021, the City of Torrance approved Plaintiff’s revised plans for the proposed pool. (Id. at ¶ 14.) On May 28, 2021 and June 1, 2021, neighbors appealed the grant of Plaintiff’s MHE. (Id. at ¶ 15.) At the appeal hearing, the planning commission unanimously approved the Project and found that the Project was exempt from CEQA under the Class 3 exemption for “new constructions or conversion of small structures.” (Id. at ¶ 15.) Thereafter, Defendant appealed this approval to the City Council, contending that the proposed pool would obstruct her ocean view and weaken the stability of the hillside. (Id. at ¶ 16.) Defendant further argued that the proposed Project was not exempt from CEQA. (Ibid.) These arguments were raised again at the October 26, 2021 City Council hearing, and with regard to Defendant’s geotechnical argument, Plaintiff informed the City Council that a geotechnical report had already been submitted. (Id. at ¶ 18.) Ultimately, the City Council approved the Project and confirmed that the construction of the pool and deck was exempt from CEQA. (Id. at ¶¶ 18-19.)

Following the City Council’s decision on October 26, 2021, Defendant filed a Petition for Writ of Administrative Mandate and Preliminary Injunction, titled Nagy Trust vs. City of Torrance et. al, LASC Case No. 21STCP03833, contending that the proposed Project fell under a CEQA exception to the MHE due to geotechnical concerns. (Id. at ¶ 20.) The petition was ultimately denied after a trial on the merits. (Id. at ¶ 21.)

On February 15, 2024, Defendant filed her answer to the Complaint. On March 5, 2024, Defendant filed the instant special motion to strike pursuant to Code of Civil Procedure § 425.16 (“Anti-SLAPP Motion”). On May 3, 2024, Plaintiff filed his opposition to the Anti-SLAPP Motion, and on May 9, 2024, Defendant filed her reply.

Defendant objects to various portions of the evidence submitted by Plaintiff in opposition to the Anti-SLAPP Motion. It is noted that these objections are not enumerated. As to the objections raised to the Declaration of Ajim Baksh, the Court rules as follows:

The first objection to the statement regarding the photograph attached as Exhibit 6 and the photograph itself is sustained because the evidence is not relevant. (See Baksh Decl. ¶ 6, pg. 2:19-22; Compendium of Exhibits (“COE”), Exh. 6.) The sixth objection to remarks Defendant made to SoCal Edison and what a SoCal Edison employee stated to Plaintiff is sustained because these remarks are hearsay. (See Baksh Decl. ¶ 23, pg. 5:25-27.) The seventh objection to Plaintiff’s explanation for why Defendant removed the floodlights pointed at Plaintiff’s properties is sustained in part because the statement is speculative. (See Baksh Decl. ¶ 26, pg. 6:15-16.) Thus, the cited evidence will not be considered in the Court’s analysis. As to the remaining objections raised to Plaintiff’s declaration, they are overruled.

With regard to the objections to the declarations submitted by Juan Soto and Omar Valdez, the Court overrules these objections in their entirety.

Lastly, as to the objections raised against portions of the Declaration of Ernesto F. Aldover, the first objection is overruled, and the second objection is sustained because it improperly contains legal argument. (See Aldover Decl. ¶ 5, pg. 18:22-25.) Thus, the cited portion will not be considered in the Court’s analysis.

In connection with her request for judicial notice filed on March 5, 2024, Plaintiff requests that the Court take judicial notice of the following documents: (1) Landslide Inventory Map of the Palos Verdes Peninsula; (2) Pages from City or Torrance 2017-2022 Local Hazard Mitigation Plan – Final Plan; (3) State of California Office of the Secretary of State Statement of Information Limited Liability Company for IBMTB Properties, LLC; (4) Case Summary from the Los Angeles Court website for Case No. 21STCP03833; (5) Verified Petition for writ of Administrative Mandate and for Preliminary Injunction (Case No. 21STCP03833); (6) Petitioners The Nagy Trust and Judith Nagy Goetz, Trustee’s Trial Brief in Support of Petition for Writ of Mandate (Case No. 21STCP03833); (7) Notice of Order Denying Petitioners’ Writ of Mandate (Case No. 21STCP03833); (8) Community Development Director Approval of Case No. MHE20- 01086, dated May 17, 2021; (9) Minutes of a Regular Meeting of the Torrance Planning Commission for Agenda Item 8C: Minor Hillside Exemption – MHE20-01086, dated August 4, 2021; (10) Community Development Director Recommendations for Agenda Item 8C: Minor Hillside Exemption – MHE20-01086, dated August 4, 2021; (11) Planning Commission and Assistant City Manager Recommendation on Agenda Item 10A: Consider appeal of Planning Commission approval of a Minor Hillside Exemption (MHE20-01086), dated September 14, 2021; (12) Resolution No. 2021-86 – Fully Executed, dated October 26, 2021; (13). Staff PowerPoint presentation for 5109 Paseo de las Tortugas MHE20-01086, dated October 26, 2021.

As to items 1-3 and 8-13, the Court takes judicial notice of these documents pursuant to Evidence Code § 452(c). With regard to items 4-7, the Court takes judicial notice of these documents pursuant to Evidence Code § 452(d).

On May 9, 2024, Defendant filed a supplemental request for judicial notice. Defendant asks the Court to take judicial notice of the following government webpage: https://www.torranceca.gov/our-city/communitydevelopment/environmental. The request is granted pursuant to Evidence Code § 452(h).

¿ The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.)

Here, Defendant contends that Plaintiff’s claims for malicious prosecution and civil harassment arise from a protected activity. The Court agrees.

As to the malicious prosecution claim, Plaintiff alleges that Defendant’s petition for writ of mandate and preliminary injunction pursuant to CEQA constituted malicious prosecution. (Compl. ¶¶ 22-32.) The court in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 stated that “[b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit…[a]ccordingly, 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.” (Jarrow at 735; internal citations omitted.) Notably, Plaintiff does not assert any argument opposing this position. Therefore, the Court finds that the first cause of action in the Complaint arises from a protected activity.

With regard to the second cause of action for civil harassment, Plaintiff argues that it arises from protected speech because the alleged harassing conduct includes making complaints to the City of Torrance, filing administrative appeals to hinder Plaintiff’s Project, and proceeding with the underlying CEQA action. (Compl. ¶¶ 35-37.)

In opposition, Plaintiff argues that the second cause of action does not arise from a protected activity because the harassing conduct purportedly perpetrated by Defendant towards Plaintiff included verbal taunts, intimidation and physical acts. (Opposition at pp. 11-12.) Plaintiff contends that this conduct had no connection with an official proceeding or was of public interest. (Id. at pg. 12.) These arguments are unavailing because, while the second cause of action consists of a mix of protected activities and non-protected activities, the alleged protected conduct is not merely incidental to the unprotected conduct. (See Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th 1539, 1551.) In fact, Plaintiff’s civil harassment claim is based in significant part on Defendant’s protected petitioning activity in the underlying CEQA action as well as the administrative appeals through the City of Torrance because it was allegedly part of Defendant’s campaign to prevent Plaintiff from enjoying Plaintiff’s Property. (Compl. ¶¶ 15-16, 18, 20, 34-37.) Even though the allegations suggest that Defendant is driven by personal animosity against Plaintiff and engaged in allegedly repugnant behavior, this does not undermine the fact that the protected activity is not incidental to the unprotected activity. (Haight Ashbury Free Clinics, Inc., supra, 184 Cal. App. 4th at 1551.)

Accordingly, the Court finds that both the first and the second causes of action of the Complaint arise from protected activity.

Defendant argues that Plaintiff is unable to establish a likelihood of prevailing on either his malicious prosecution claim or his civil harassment claim. The Court will address each in turn.

Generally, “to establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in [plaintiff’s] favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458 quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) “[T]he termination must reflect on the plaintiff's innocence of the alleged wrongful conduct.” (Garcia v. Rosenberg (2019) 42 Cal. App. 5th 1050, 1058.)

The following is the Court’s analysis of each element of this cause of action:

Here, Plaintiff has shown that the underlying CEQA action was terminated on the merits in his favor. (Opposition, RJN, Exh. 3-4.) Thus, this element has been met.

“An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted.” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.)

Here, Defendant argues that she had probable cause in proceeding with the underlying CEQA action. Within that action, Defendant raised two arguments. First, she asserted that the location exception precluded the City of Torrance from granting Plaintiff an MHE, and she reasoned that a further environmental investigation was needed. (Opposition, Exh. 2 at pg. 2, lns 22-24.) Defendant asserts that this argument was made in good faith because the neighboring hillside was prone to landslides. (Motion at pg. 15; Goetz Decl. ¶ 3; Defendant’s compendium of exhibits: Exhs. H, X.) In opposition, Plaintiff points out that this location exception was inapplicable in the underlying CEQA action because such an exception only applied to environmental resources, not proximity to hazards. (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 891.) Thus, this theory was pursued without probable cause.

Consequently, Plaintiff has established a probability of prevailing on at least one theory presented in the underlying CEQA action as the basis for his malicious prosecution claim. (Dunning v. Clews (2021) 64 Cal.App.5th 156, 173.) Therefore, in the interest of judicial economy, the Court declines to address whether Defendant’s alternative theory under “unusual circumstances” was brought without probable cause.

“The malice element goes to the defendant's subjective intent in initiating or continuing

the prior action. It is not limited to actual hostility or ill will and may be present when

proceedings are instituted or maintained primarily for an improper purpose.” (Olivares, supra, 40

Defendant argues that her concerns regarding the integrity of the hillside was what prompted the underlying CEQA action. (Motion at pp. 16-18.) In light of Plaintiff’s evidence highlighting Defendant’s alleged prejudice and animosity, the Court is not persuaded by this argument. As presented by Plaintiff, Plaintiff asserts that Defendant has implied that she will continue her conduct to prevent Plaintiff’s Project from being completed and has stated “your kind does not belong here” and “we don’t want you here” to Plaintiff. (Baksh Decl. ¶¶ 17, 19.) This evidence presents an insight into Defendant’s subjective intent in proceeding with the underlying CEQA action, and it undermines Defendant’s contention that she was only seeking to preserve the integrity of the hillside. Therefore, the Court finds that this element has been met.

Accordingly, because Plaintiff has established a likelihood of success on his malicious prosecution claim, the Anti-SLAPP Motion as to this cause of action is DENIED.

Defendant argues that Plaintiff is unable to prevail on his civil harassment claim on the ground that Plaintiff failed to comply with Code of Civil Procedure § 527.6, which mandates the use of Judicial Council forms when seeking injunctive relief under this statute. (Motion at pg. 20.) Additionally, Defendant argues that Plaintiff is improperly seeking monetary damages for his civil harassment claim. (Id. at pp. 20-21.)

In opposition, Plaintiff contends that Defendant’s conduct constitutes civil harassment, and that Code of Civil Procedure § 527.6 allows a victim also to recover through other civil remedies. (Opposition at pp. 15-16.)

While the evidence submitted by Plaintiff supports the notion that Defendant has harassed Plaintiff, the claim is defective on procedural grounds. As stated in the Complaint, Plaintiff seeks injunctive relief to prevent the harassing conduct as well as monetary damages. (Compl. ¶¶ 38-39.) As a result, Plaintiff in “seeking a civil harassment restraining order [is] confined by the limited nature of section 527.6 proceedings.” (Olson v. Doe (2022) 12 Cal.5th 669, 683.) Therefore, Plaintiff must use the mandatory petition created by the Judicial Council (CH-100) if he seeks a restraining order against Plaintiff. Furthermore, “Section 527.6 was passed to supplement the existing common law torts of invasion of privacy and intentional infliction of emotional distress by providing quick relief to harassment victims threatened with great or irreparable injury,” not to supplant those complementary remedies. (Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591.)

Considering Plaintiff is seeking injunctive relief pursuant to Code of Civil Procedure § 527.6 within this action and has not filed the requisite form to initiate the proper proceedings, he is unable to maintain a claim for civil harassment under Section 527.6. Moreover, by requesting injunctive relief, this is inapposite with typical tort remedies that could be sought from claims of invasion of privacy or intentional infliction of emotional distress. (See Olsen, supra, 12 Cal.5th at 682.) Thus, such tort claims would not be supported under the current complaint. After all, it is not the Court’s burden to redraft a complaint to presume facts that have not actually been alleged. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883.)

Accordingly, because Plaintiff has not established a likelihood of success on the merits of his second cause of action for civil harassment, the Anti-SLAPP Motion as to this cause of action is GRANTED.

Based on the foregoing, Defendant’s Anti-SLAPP Motion is GRANTED as to the first cause of action of the Complaint and DENIED as to the second cause of action of the Complaint.

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.

Hon. Holly J. Fujie

Judge of the Superior Court