Judge Joel R Wohlfeil, Case 37-2020-00046315-CU-OR-CTL 2023-10-06 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2020-00046315-CU-OR-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 04, 2023

10/06/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2020-00046315-CU-OR-CTL OSNATH SIAG VS EDEN DAHAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 08/15/2023

The special Motion (ROA # 308) of Cross-Defendants OSNATH DAHAN, DANY SIAG, EMILY SIAG, OSB INVESTMENTS, LLC and MEGA HOLDINGS GROUP LLC ('Cross-Defendants') striking the Cross-Complaint by Defendants / Cross-Complainants ISRAEL DAHAN and EDEN DAHAN ('Cross-Complainants'), is DENIED.

This ruling is based on the analysis set forth below.

The Request (ROA # 311) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's '2, 3, 4 and 7;' otherwise, the Request is DENIED.

The evidentiary objections (ROA # 315) are OVERRULED IN PART and SUSTAINED IN PART. The objections are OVERRULED except as noted: No. 3 is SUSTAINED.

The evidentiary objections (ROA # 316) are OVERRULED.

First Prong: Protected Activity A party seeking the protection of section 425.16 has the initial burden of establishing that the statute applies. Code Civ. Proc. 425.16(b).

Section 425.16(b)(1) requires the Court to engage in a two-step process. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67, 68.

First, the Court decides whether Defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Id. Defendant's burden is to demonstrate the acts of which Plaintiff complains were taken in furtherance of Defendant's right of petition or free speech under the United States or California Constitutions. Id. 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.' Code Civ. Proc. 425.16(b)(2).

Section 425.16 encompasses any cause of action against a person 'arising from' any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body. Code Civ. Proc. 426.16(e)(1) and (2); Briggs v. Eden Council For Hope & Opportunity (1999) Calendar No.: Event ID: TENTATIVE RULINGS

3005265 CASE NUMBER: CASE TITLE: OSNATH SIAG VS EDEN DAHAN [IMAGED] 37-2020-00046315-CU-OR-CTL 19 Cal. 4th 1106, 1113.

'Midland's cause of action for breach of contract is based on the Kings' submission of the High Density Tract Map to the planning commission and city council. These acts were in the course of an official proceeding and were clearly in furtherance of the Kings' right of petition and free speech.' Midland Pacific Building Corp. v. King (2007) 157 Cal. App. 4th 264, 272.

However, the mere fact that an action is filed after protected activity takes place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. Episcopal Church Cases (2009) 45 Cal. 4th 467, 477 (quoting Navellier v. Sletten (2002) 29 Cal. 4th 82, 89).

Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail it is one arising from such activity. Id. In the anti-SLAPP context, the critical consideration is whether the cause of action is based on Defendant's protected free speech or petitioning activity. Navellier v. Sletten, supra.

'In filing this action, the Los Angeles Diocese sought to resolve a property dispute. The property dispute is based on the fact that both sides claim ownership of the same property. This dispute, and not any protected activity, is the gravamen or principal thrust of the action .... The additional fact that protected activity may lurk in the background - and may explain why the rift between the parties arose in the first place - does not transform a property dispute into a SLAPP suit.' Episcopal Church Cases, supra at 477, 478.

'[W]hen a cause of action alleges both protected and unprotected activity, a court must examine the cause of action to determine whether protected activity forms the 'principal thrust or gravamen' of the claim.' Guessous v. Chrome Hearts, LLC (2009) 179 Cal. App. 4th 1177, 1187.

The Court must determine 'whether allegations referring to arguably unprotected activity are only incidental or collateral to a cause of action based essentially on protected activity and therefore we examine the principal thrust or predominant nature of the complaint to determine applicability of the anti-SLAPP statutory scheme.' Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal. App. 4th 790, 802.

Moreover, the Court examines the claim's 'gravamen by identifying [t]he allegedly wrongful and injury-producing conduct ... that provides the foundation for the claim.' Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal. App. 5th 581, 594.

The Court looks 'to see whether the essence or bulk of the cause of action is based on protected activity.' Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal. App. 5th 574, 588.

'A claim arises from protected activity when that activity underlies or forms the basis for that claim.' Park v. Board of Trustees of California State University (2017) 2 Cal. 5th 1057, 1062.

The focus 'is on determining what the defendant's activity [is] that gives rise to' the 'asserted liability' and 'whether that activity constitutes protected speech or petitioning.' Id. The Court must 'distinguish between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity.' Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal. App. 4th 1207, 1214 - 15.

The Court should grant the Motion 'if liability is based on speech or petitioning activity itself.' Id. However, if 'the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not Calendar No.: Event ID: TENTATIVE RULINGS

3005265 CASE NUMBER: CASE TITLE: OSNATH SIAG VS EDEN DAHAN [IMAGED] 37-2020-00046315-CU-OR-CTL trigger application of the anti-SLAPP statute.' Area 51 Productions, Inc., supra.

The Cross-Complaint in this action alleges a history of previous civil litigation and criminal proceedings.

Cross-Complaint at ¶¶ 16 - 19.

It is further alleged that these previous proceedings, and a recent bankruptcy action evidence a course of conduct that was also utilized in this action. Id. at ¶¶ 20 - 23.

Part of the wrongful conduct alleged within paragraph 43 is as follows: 'Failing to disclose D. Siag's previous business transactions, lawsuits, and criminal charges filed against D. Siag in connection with wire transfers and real property ....' Given the allegations referenced above, the allegations related to an issue under consideration or review by an official proceeding or body do not form the basis for the causes of action asserted in the Cross-Complaint. The asserted causes of action were not triggered by protected conduct. Instead, the petitioning activity set forth in the Cross-Complaint merely evidences a course of conduct related to alleged fraudulent real estate transactions, and the failure to disclose prior criminal activity. This action was not triggered by, and is not based on, conduct of Cross-Defendants in the prior actions to defend themselves. The potential liability of Cross-Defendants is not based on protected speech or petitioning activity such that Cross-Defendants have not satisfied their burden of demonstrating that the anti-SLAPP statute applies.

Second Prong: Prevailing on the Merits Where a claim arises from protected activity the burden shifts to the plaintiff to establish a probability of prevailing on the merits. Code Civ. Proc. 425.16(b)(1). As Defendants have not satisfied the initial burden on prong one, it is not necessary for the Court to address the second prong of the analysis.

However, the Court nonetheless notes that even assuming the litigation privilege of Civil Code section 47(b) applied with respect to conduct occurring in the prior litigation, this would not bar the entire action.

Most of the wrongful conduct alleged within paragraph 43 is unconnected to the prior litigation such that the litigation privilege would not apply.

Attorney's Fees and Costs The opposition filed by Cross-Complainants includes a request for an award of attorney fees. '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, pursuant to Section 128.5.' Code Civ. Proc. 425.16(c).

The Court finds that the anti-SLAPP Motion filed by Cross-Defendants was not frivolous or solely intended to cause delay such that the request for attorney fees is denied. The multiple detailed references to prior litigation contained within the Cross-Complaint provided a reasonable basis for making this Motion, even though it was ultimately unsuccessful.

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