Judge: Jon R. Takasugi, Case: 22STLC00241, Date: 2022-08-24 Tentative Ruling

Case Number: 22STLC00241    Hearing Date: August 24, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ special motion to strike is GRANTED.

            In light of this ruling, Defendants’ demurrers are MOOT.

            On 1/13/2022, Plaintiff in pro per Guillermo Claixtro (Plaintiff) filed suit against Rizwan Ahmed Uraizee and Steven D. Silverstein (collectively, Defendants) .

            Now, Defendants move for a special motion to strike Plaintiff’s Complaint.

            The motion is unopposed.

Legal Standard

On a special motion to strike pursuant to Code of Civil Procedure section 425.16, also known as an anti-SLAPP motion, moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) First, the court must determine whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest. (Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Code Civ. Proc., § 425.16, subd. (e).) Moving parties can satisfy this burden by showing (1) statements made before legislative, executive or judicial proceedings, or made in connection with matters being considered in such proceedings, or (2) statements made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (Code Civ. Proc., § 425.16, subd. (e); Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) 

If the court finds this showing has been made, it must dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1); Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.) This means that the plaintiff must state a legally sufficient claim and must then present evidence that substantiates or sustains the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited”].) 

Discussion

            As a preliminary matter, Plaintiff’s Complaint is highly uncertain. Defendants here are the only Defendants named in the heading, yet the body asserts claims against a number of additional Defendants including HSBC Bank USA and Clear Recon Corp.

Second, each cause of action is asserted against Defendants collectively despite that the conduct alleged therein was clearly not collectively performed by all Defendants. For example, Plaintiff asserts a cause of action against all Defendants for violating statutory requirements for recording a notice of default to foreclose on the property. Given that moving Defendants here are individuals and not mortgage servicers, they would not issue notices of default and are not bound by the underlying notice requirements. Moreover, Plaintiff does not allege that they were the parties foreclosing on the property. Rather, Defendant Uraizee here purchased the property in a foreclosure sale. After the purchase, Defendant Uraizee hired Defendant Silverstein to represent him to evict Plaintiff from the premises through an unlawful detainer action. (Complaint ¶ 142.)

            Defendants argue that Plaintiff’s Complaint arises out of protected activity because the sole basis of his claims against Defendants here is the unlawful detainer action.  Defendants also argue that Plaintiff cannot establish a possibility of prevailing because their conduct is absolutely protected by the litigation privilege.

            The Court agrees on both counts.

Plaintiff’s claims against Defendants here are based solely on the act of filing an unlawful detainer to evict Plaintiff from the premises. As such, Plaintiff’s claims arise from Defendant Uraizee’s availment of his right to petition, and Defendant Silverstein’s representation of him in the exercise of this right. (See Healy, supra, 137 Cal.App.4th at p. 5.)

Civil Code section 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code, § 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) The privilege “protects any statements or writings that have ‘some relation’ to a lawsuit,” meaning that “communications made both during and in anticipation of litigation are covered by the statute.” (Id. at 965 (quoting Rubin v. Green (1993) 4 Cal.4th 1187, 1193-94).)

            Here, Plaintiff’s claims against Defendants have more than “some relation” to a lawsuit, but rather consistent entirely of the act of filing a lawsuit. As such, Defendants’ statements or writing made as part of this lawsuit are completely protected by the litigation privilege. (Ibid.)

            Plaintiff’s failure to oppose this motion is considered a concession on the merits.

            Based on the foregoing, Defendants’ special motion to strike is granted. In light of this ruling, Defendants’ demurrers are moot.

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.