Judge: Joseph Lipner, Case: 24STCV19399, Date: 2024-11-26 Tentative Ruling

Case Number: 24STCV19399    Hearing Date: November 26, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Brandi D’Amore (“Defendant”) moves to strike portions of the Complaint filed by Plaintiff 5959 Franklin Bliss, LLC (“Plaintiff”) pursuant to Code of Civil Procedure, section 425.16.

            The Court DENIES Plaintiff’s motion.

Background

This is a private nuisance case.

Plaintiff is the owner of real property located at 5959 Franklin Ave, Los Angeles, CA 90028 (the “Franklin Property”) and 1915 N. Tamarind Avenue, Los Angeles, CA 90068 (the “Tamarind Property”). (Complaint ¶¶ 5, 13.)

Plaintiff alleges that Defendant has made false criminal reports to the City of Los Angeles accusing Plaintiff of engaging in short term rentals of units at the Franklin Property in violation of the Los Angeles Municipal Code and the Los Angeles Rent Stabilization Ordinance. (Complaint ¶ 6.) Plaintiff alleges that Defendant made the allegedly false charges numerous times, including on or about June 3, 2024, on or about June 7, 2024, on or about June 13, 2024 and on or about June 25, 2024. (Complaint ¶ 6; Villaneda Decl. ¶¶ 9-12.)

Plaintiff alleges that officers of the City of Los Angeles have come to the Franklin Property numerous times to investigate Defendant’s reports. (Complaint ¶ 7; Villaneda Decl. ¶¶ 9-12.)

Plaintiff alleges that it entered into a contract with a film production company in April 2023 for filming to occur at the Tamarind Property. (Complaint ¶ 14.) Plaintiff alleges that Defendant contacted an organization known as FilmL.A., Inc. (“FilmLA”) and falsely told FilmLA that Plaintiff was engaging in unlawful activities in allowing filming at the Tamarind Property. (Complaint ¶ 14.) Plaintiff alleges that FilmLA confirmed the permits for filming. (Complaint ¶ 14.) Plaintiff’s evidence in support of its opposition appears to indicate that these allegations actually relate to the Franklin Property – also called the Villa Carlotta – and not the Tamarind Property. (Compare Villaneda Decl. ¶ 13 and Opposition at p. 4:13-14.)

Plaintiff filed this action on August 2, 2024, raising claims for (1) private nuisance; and (2) injunctive relief including temporary restraining order, preliminary injunction, and permanent injunction.

On October 11, 2024, Defendant filed the current motion to strike. Plaintiff filed an opposition and Defendant filed a reply.

Request for Judicial Notice

The Court grants Plaintiff’s request for judicial notice.

Evidentiary Objections

The Court has reviewed the parties’ evidentiary objections.  The Court overrules the parties’ respective objections.

Legal Standard

Code of Civil Procedure, section 425.16 requires courts to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

In assessing a defendant’s Code of Civil Procedure, section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in Code of Civil Procedure section 425.16, subdivision (e). 

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[T]he 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal quotations omitted.)

Discussion

Protected Activity

To determine the gravamen of an alleged SLAPP, courts look to the factual basis for liability. (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1190, as modified on denial of reh'g (July 26, 2011) disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal.5th 376.)

            The anti-SLAPP statute applies to 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.”  (Civ. Proc. Code § 425.16, subd. (b)(1).) The statute defines such acts to include 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. 

(Code Civ. Proc., §425.16, subd. (e).) 

Reports to the City of Los Angeles

“[T]he filing of the complaint [before a regulatory body] qualifie[s] at least as a statement before an official proceeding” because “the purpose of the complaint was to solicit an … investigation.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009.)

Defendant’s complaints to the City of Los Angeles therefore constitute protected activity.

Reports to FilmLA

Plaintiff contends that Defendant’s statements to FilmLA do not constitute protected activity. Defendant argues that her statements to FilmLA constitute a complaint because FilmLA is a quasi-governmental entity that processes film permit applications for the City of Los Angeles.

FilmLA is a California nonprofit corporation. (Request for Judicial Notice, Ex. D.)

On April 30, 2021, FilmLA and the City of Los Angeles entered into a “SECOND AMENDMENT AND RESTATED CONTRACT NO. C-127625” (the “FilmLA Contract”).

The FilmLA Contract recites that “FilmLA, Inc. operates as a non-profit public benefit corporation under Section 501(c)4 of the Internal Revenue Code. FilmLA’s public benefit purpose is to improve the economy of the greater Los Angeles region and thus promote the social welfare of the people, by ensuring film activities in the greater Los Angeles area are conducted in a manner the results in a minimum of interference, and are consistent with public health, safety, and general welfare.” (Request for Judicial Notice, Ex. E at p. 2 § 1.)

The FilmLA Contract provides that “FilmLA will work to centralize the issuance of film permits and will coordinate and improve actions for commercial filming and photography activities.” (Request for Judicial Notice, Ex. E at p. 2 § 1.) FilmLA’s duties under the FilmLA contract include, inter alia, coordinating the film permitting process in compliance with Los Angeles ordinances, providing guidance and advice on the permit process to customers, providing pre-production walkthroughs to assess and mitigate the impacts of proposed film activities, coordinating permit revisions and extensions, responding to complaints, collecting funds for remittance to the City of Los Angeles, and coordinating permits in a time frame which allows proper review by city officials. (Request for Judicial Notice, Ex. E, Exhibit A at pp. 1-3.)

Our Supreme Court considered the definition of the phrase “other official proceeding authorized by law” in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler). There, the Supreme Court considered whether a hospital’s peer review disciplinary proceeding was an “official proceeding authorized by law” for purposes of applying subdivision (e)(2) of the anti-SLAPP statute. (Id. at p. 196.)  The Supreme Court concluded that it was.  (Id. at p.203.)  The Supreme Court emphasized that “Hospital peer review, in the words of the Legislature, ‘is essential to preserving the highest standards of medical practice’ throughout California.” (Id. at p. 199, quoting Bus. & Prof. Code, § 809, subd. (a)(3).) The Court noted that there is an extensive statutory scheme requiring that hospitals have peer review provisions in their bylaws, and that they both report any peer-review disciplinary actions and seek such reports from the state medical board when hiring or renewing a physician. (Id. at pp. 199-200, see also Bus. & Prof. Code § 805, et seq.) “Because a hospital’s disciplinary action may lead to restrictions on the disciplined physician's license to practice or to the loss of that license, its peer review procedure plays a significant role in protecting the public against incompetent, impaired, or negligent physicians.” (Id. at p. 200.) Furthermore, a hospital’s peer review decisions are subject to judicial review by administrative mandate, granting them “a status comparable to that of quasi-judicial public agencies[.]” (Ibid., citing Bus. & Prof. Code, § 809.8.)

Based on these facts, the Supreme Court found that the hospital’s peer review procedure qualifies as an “official proceeding authorized by law.” (Id. at p. 199.) The Supreme Court explained that the Legislature has granted to individuals “the primary responsibility for monitoring the professional conduct of physicians licensed in California.”  (Id. at p. 201.)  These are “matters of public significance” as set forth in the anti-SLAPP statute.  (Ibid.) 

Subsequent appellate decisions have provided additional guidance on the issues discussed by Kibler. In Garretson v. Post (2007) 156 Cal.App.4th 1508, the Court concluded that a nonjudicial foreclosure was not an “official proceeding” for anti-SLAPP purposes. The Court acknowledged that there is a complex statutory framework governing nonjudicial foreclosures and that they result in a “final adjudication of the rights of the borrower and lender.” (Id. at p. 1516.) Despite acknowledging that nonjudicial foreclosure activities are protected by statutory litigation privilege, the court found that nonjudicial foreclosures are not an official proceeding for anti-SLAPP purposes. (Id. at pp. 1519, 1522.) In reaching this conclusion, the court relied on statements by the proponents of the amendment to the relevant code section which stated that “a nonjudicial foreclosure is a private, contractual proceeding, rather than an official, governmental proceeding or action.” (Id. at p. 1518, quoting Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1488 (1995–1996 Reg. Sess.) as amended June 26, 1996, p. 2 [italics added by Garretson].)

In Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, the Court of Appeal weighed the foregoing cases and posited that “the case law demonstrates that nongovernmental proceedings must have a strong connection to governmental proceedings to qualify as ‘official.’” (Id. at p. 732.) The court concluded that a homeowners association meeting was not an official proceeding because “a homeowners association is not performing or assisting in the performance of the actual government's duties” and “decisions by the board of a homeowners association are not reviewable by administrative mandate.” (Ibid.) “Thus they have not been delegated government functions to the same extent.” (Ibid.)

Another Court of Appeal determined that “the initiation of a State Bar sponsored fee arbitration proceeding is … covered; … [because] it is an official proceeding established by statute to address a particular type of dispute.” (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358.)

Stop notices, although governed by statute, are not official proceedings. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128–1129.)

Contractual arbitration, also governed by a statutory scheme, is not an official proceeding because it is not mandatory, is not subject to judicial review, and is not part of a comprehensive licensing scheme. (Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 9; Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 703.) This is because “[a]rbitration is not a judicial proceeding—it is an alternative thereto.” (Century 21, supra, 173 Cal.App.4th at p. 8.) However, “where a statute required two parties to agree to arbitration in their contract, the arbitration was an official proceeding for anti-SLAPP purposes.” (Dorit v. Noe (2020) 49 Cal.App.5th 458, 469, citing Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 541-542.)

Thus, as one appellate court characterized it, “[w]hen nongovernmental entities are involved, courts have limited ‘official proceeding’ anti-SLAPP protection to (1) quasi-judicial proceedings that are part of a comprehensive statutory licensing scheme and subject to judicial review by administrative mandate, and (2) proceedings established by statute to address a particular type of dispute.” (Century 21, supra, 173 Cal.App.4th at p. 9, internal citations and quotation marks omitted.)

Here, FilmLA had the “primary responsibility for monitoring” issues relating to film permitting, a “matter of public significance.” (Kibler, supra, 39 Cal.4th at p. 201.) Because FilmLA was required by contract to process complaints, Defendant’s complaint to FilmLA was “an official proceeding established by statute to address a particular type of dispute.” (See Philipson & Simon v. Gulsvig, supra, 154 Cal.App.4th at p. 358; Century 21, supra, 173 Cal.App.4th at p. 9)

The Court therefore concludes that Plaintiff’s complaint to FilmLA was protected activity.

Probability of Success

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16, subd. (b).) “[T]he 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.” (Matson v. Dvorak, supra, 40 Cal.App.4th at p. 548, internal quotations omitted.)

A plaintiff need only show “a minimum level of legal sufficiency and triability[.]” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.] Thus, declarations may not be based upon “information and belief” [citation] and documents submitted without the proper foundation are not to be considered. [Citation.] The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. [Citation.] The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

Privilege

“[C]ommunications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b)[.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) “The “official proceeding” privilege has been interpreted broadly to protect communications to or from governmental officials which may precede the initiation of formal proceedings.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 155.)

“This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” (Civ. Code, § 47, subd. (b)(5).)

The penalties of the short-term rental ordinance are in addition to other existing civil and criminal penalties. (Los Angeles Municipal Code §12.22 A. 32.) “Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” (Gov. Code, § 36900, subd. (a).)

Defendant admits that she made the reports at issue. Plaintiff has provided evidence that it was not, in fact, violating the prohibition on rentals for less than 30 days. (Villaneda Decl. ¶¶ 9, 9-12.) Thus, Plaintiff has shown a prima facie case that Defendant made false criminal complaints. Furthermore, because the complaints occurred in rapid succession (on or about June 3, 2024, on or about June 7, 2024, on or about June 13, 2024 and on or about June 25, 2024) despite each of them being found false by law enforcement, Defendant has shown a triable issue that Plaintiff acted with, at minimum, reckless disregard to the falsity of her complaints.

The Court therefore concludes that Plaintiff’s alleged conduct is not protected by the litigation privilege for the purposes of the anti-SLAPP motion.

Sufficiency

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.)

“The requirements of substantial damage and unreasonableness are not inconsequential.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 263.) “ ‘Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of ‘give and take, live and let live,’ and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.’ [Citation.] ” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937–938, quoting Rest. 2d Torts, § 822, com. g, p. 112.)

Defendant argues that Plaintiff cannot show substantial damage to Plaintiff, rather than to Plaintiff’s tenants. Plaintiff has made a prima facie case that Defendant made repeated false criminal complaints. Plaintiff has made a prima facie showing that these complaints resulted in repeated investigations of Plaintiff’s property, tenants, and leases – until the investigator determined on the third and fourth occasions that no investigation was necessary because the investigator knew that the complaint was false. (Villaneda Decl. ¶¶ 9-12.) Ongoing criminal investigations, with the recurring threat of potential criminal penalties, can constitute a substantial harm to the party being investigated due to the costs associated with compliance and the stress involved. Defendant’s conduct in making repeated complaints against Plaintiff after each complaint was found false appears to be the opposite of the ‘live and let live’ principle put forth by the California Supreme Court. The Court concludes that Plaintiff has met its burden to show a reasonable probability of success.

The Court therefore denies Plaintiff’s motion.