Judge: Joseph Lipner, Case: 24STCV31068, Date: 2025-03-13 Tentative Ruling

Case Number: 24STCV31068    Hearing Date: March 13, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Elizabeth Dianne Mann and Mann Legal Team Inc. (the “Mann Defendants”) and John Uce (“Uce”) (collectively, “Moving Defendants”) separately move to strike the Complaint filed by Plaintiffs Michael Homayun Dental Corporation d/b/a Comfort Dental Center (“Comfort Dental”) and Michael Homayun (“Homayun”) (collectively, “Plaintiffs”) under California’s anti-SLAPP statute, Code of Civil Procedure, section 425.16. 

The Court GRANTS in part the anti-SLAPP motions as follows:

The Court strikes all causes of action asserted by Homayun,

The Court strikes Comfort Dental’s second through fourth causes of action.

The Court requests argument on the following questions with respect to Comfort Dental’s first cause of action for malicious prosecution:

1.      Are Moving Defendants’ state law claims still pending against Comfort Dental in LASC Case No. 24STCV11225?

2.      Did Moving Defendants’  RICO Claims against Comfort Dental in 24STCV11225 have the benefit of a statute of limitations reaching back to before May 2019, or did the RICO Claims only go back four years from the filing of the state law action on May 3, 2024?

The Court hereby informs counsel that they will have limited time for argument on March 13, 2025 because of a jury trial scheduled this date.  The Court encourages the parties to agree to move the hearing to March 25, 2025 at 9:30 a.m. to allow longer time for argument.

Background

This is an action for malicious prosecution and related claims.

In early 2023, Uce first began pre-litigation communications with the Mann Defendants regarding his legal case against Oral Aesthetic Advocacy Group, Inc. d/b/a Cosmetic Dentistry Grants (“CDG”) and Navid Zamani DMD Inc., d/b/a Dent-All by Dr. Z, (“Dr. Z”). (Uce Decl. ¶ 2; Mann Decl. ¶ 3.) During pre-litigation due diligence, the Mann Defendants discovered a separate case filed in state court by Richard Calvario against CDG (LASC Case No. 21STCV09956) and Plaintiffs based on claims of intentional misrepresentation and false promise. (Mann Decl. ¶ 3.) The facts alleged in Mr. Calvario’s state action were similar to those claimed by Uce because Mr. Calvario had also paid his dentist a certain sum of money, had his teeth pulled, and did not receive a grant from CDG for dental implants. (Id. at ¶¶ 3, 11.) The Mann Defendants also found a separate state lawsuit filed by Dr. Rashti against Plaintiffs and CDG for fraud and conspiracy to commit fraud (LASC Case No. BC707413). (Id. at ¶ 4.) In this lawsuit, Dr. Rashti alleged “Dr. Homayun was contracted with CDG and therefore bound by the 30-day patient referral exclusivity right that CDG promised Dr. Rashti in exchange for the payment of referral fees.” (Ibid.) Based on evidence submitted in both these case, the Mann Defendants reasoned that Uce and Mr. Calvario were connected to their respective dentists through CDG. (Id. at ¶¶ 4, 6, 12.) The Mann Defendants also found various online reviews of CDG and Plaintiffs’ dental practice relating to the purported grant scam. (Id. at ¶ 5.) From this research and through experience handling RICO violation claims, the Mann Defendants reasoned that Comfort Dental was liable, despite not having treated Uce. (Id. at ¶¶ 6-8, 14-15.)

On April 27, 2023, Uce, through the Mann Defendants, filed an action in federal court entitled Uce v. Oral Aesthetic Advocacy Group, Inc. d/b/a Cosmetic Dentistry Grants et al. (2:23-cv-03186 CBM-MRW) (the “Federal Action”). (Id. at ¶ 9.) Uce initially brought this action against CDG, Dr. Z, Comfort Dental and Mohammad Ali Zareh DDS, Inc., d/b/a Dental Views (“Dental Views”), and Dental Views was later dismissed. (Ibid.) It was the Mann Defendants’ understanding that Comfort Dental had been a contracted dentist with CDG in 2016 until May 1, 2019 based on an April 1, 2019 letter, but they presumed that the business relationship continued if it could be shown that Comfort Dental had continued to pay referral fees. (Id. at ¶ 16.) When asked to explain the meaning of the May 1, 2019 effective date and whether referral fees had been paid after that date, Comfort Dental’s attorney did not respond. (Ibid.) Comfort Dental attempted to have the Federal Action dismissed by relying on the April 1, 2019 letter, but this request was denied. (Ibid.) However, in light of the April 1, 2019 letter, Uce voluntarily dismissed his state law claims that were asserted against Comfort Dental. (Id. at ¶ 17.)

Plaintiffs filed this action against the Mann Defendants and Uce (collectively, “Defendants”) on November 25, 2024, raising claims for (1) malicious prosecution; (2) abuse of process; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.

Plaintiffs allege that Uce had never been a patient of their, and this fact should have been known to the Mann Defendants. (Compl. ¶ 8.) The Federal Action had been brought against Comfort Dental on a theory of liability that the “Participation Agreement” between Comfort Dental and CDG formed an ongoing enterprise, but Plaintiffs allege that no enterprise existed because any business relationship had terminated three years before Uce’s alleged date of loss. (Id. at ¶ 9.) Plaintiffs allege that they had asked Defendants to voluntarily dismiss them from the Federal Action, but this request was refused. (Id. at ¶ 10.) It is further alleged that the district court granted Comfort Dental’s initial motion to dismiss on February 23, 2024 with leave to amend. (Id.at ¶¶ 10-11.) After an amended complaint was filed, Comfort Dental moved to dismiss again, and it is alleged the district court notified the parties that the motion was appropriate for decision without oral argument. (Id.at ¶¶ 12-13.) Thereafter, Uce moved to voluntarily dismiss the Federal Action on May 2, 2024. Following this dismissal, Uce is alleged to have filed a complaint in state court against the same defendants named in the Federal Action and asserted the same causes of action asserted in the amended complaint (24STCV11225) (the “State Action”). (Id. at ¶¶ 14-15.) The State Action was moved to federal court on May 8, 2024, where the district court ruled on the motion to dismiss in Comfort Dental’s favor. (Id. at ¶¶ 16.)

Plaintiffs allege that they had incurred over $15,000 in attorneys’ fees to defend against the Federal Action and State Action. (Id. at ¶ 16.) It is further alleged that Defendants acted with actual malice for the following reasons: (1) the Federal Action was brought despite there being no relationship between Uce and Comfort Dental; (2) the Federal Action was not dismissed following the granting of the initial motion to dismiss; (3) Defendants chose to dismiss the Federal Action, known that the district court was to rule against their favor in the subsequent motion to dismiss; and (4) Defendants chose to file the identical action in state court to avoid dismissal with prejudice. (Id. at ¶ 17.)

Uce and the Mann Defendants filed two separate anti-SLAPP motions on January 31, 2025. Plaintiffs filed oppositions to the anti-SLAPP motions on February 27, 2025. Uce and the Mann Defendants filed separate replies in support of their anti-SLAPP motions.

Evidentiary Objections

            The Mann Defendants object to five excerpts from the Declaration of Michael Homayun. The Court sustains these five objections.

Request for Judicial Notice

            The Mann Defendants request the Court to take judicial notice of the following documents: (1) a copy of the initial Complaint filed on April 27, 2023, in the Federal Action; (2) a copy of the order on the motion to dismiss entered on February 23, 2024 in the Federal Action; (3) a copy of the First Amended Complaint filed on March 20, 2024 in the Federal Action; (4) a copy of the Complaint filed on March 3, 2024 in the State Action; (5) a copy of the Notice of Removal of the State Action to federal court, filed on May 8, 2024; (6) a copy of the Order re: (1) Defendant Navid Zamani DMD, Inc. dba Dent-All by Dr. Z’s Motion to Dismiss; and (2) Defendant Michael Homayun Dental Corporation D/B/A Comfort Dental Center’s Motion to Dismiss and Motion to Strike issued on October 24, 2024 in the Federal Action; (7) ; (8) a copy of the Notice of Remand dated November 1, 2024. The request is granted pursuant to Evidence Code § 452(d).

            Plaintiffs request the Court to take judicial notice of similar documents that were requested by the Mann Defendants. The request is granted pursuant to Evidence Code § 452(d).

Additionally, Plaintiffs request the Court to take judicial notice of the Complaint filed in this action as well as the anti-SLAPP motion filed by the Mann Defendants.  The Court denies this request as unnecessary, as these are parts of the current file the Court can review without the need for judicial notice.

Legal Standard

Code of Civil Procedure § 425.16 requires the court 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 § 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

Anti-SLAPP Motion

As a preliminary matter, it is noted that the motions filed by Uce and the Mann Defendants are largely identical. Thus, the Court shall treat them as one for the purpose of analysis.

Timeliness

Plaintiffs argue that both motions are untimely because they were not filed within 60 days from the date when the Complaint was filed. (Oppositions at pg. 8.) When the complaint was filed is immaterial because the 60-day period starts from the date of service of the complaint. (Code Civ. Proc. § 425.16(f).) Because Defendants were served with the Complaint on December 3, 2024 and the instant motions were filed on January 31, 2025 before the 60-day period cutoff, the motions were timely filed.

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).) 

The Anti-SLAPP statute protects statements and writings made before a legislative, executive, or judicial proceeding. (Code Civ. Proc., § 425.16, subd. (e)(1).) “The constitutional right to petition ... includes the basic act of filing litigation....” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “It is beyond question that the initiation and prosecution of [... a lawsuit is] protected under the anti-SLAPP statute.” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017-1018).

“A cause of action arising from defendant's litigation activity may appropriately be the subject of a section 425.16 special motion to strike. Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action.” (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154 [internal citations and quotation marks omitted; cleaned up].) All communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th 471; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

Here, the allegations are comprised of litigation activity because all of the causes of action stem from the actions Defendants took in prosecuting the Federal Action and State Action. (Thayer, supra, 207 Cal.App.4th at 154.) Notably, Plaintiffs fail to raise any argument contesting this prong.

Accordingly, the Court finds that Defendants have satisfied their burden in establishing the first prong.

Probability of Success

Litigation Privilege

California law does not permit liability for filing lawsuits, except in the case of malicious prosecution. (See Civ. Code, § 47.) This “litigation privilege[ ] has been referred to as ‘the backbone to an effective and smoothly operating judicial system.’ [Citation.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 214-215.) “The litigation privilege is absolute… . [Citation.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892.) 

All of the behavior that is the subject of the current lawsuit consists of litigation-related conduct. Thus, all claims, except for the ones for malicious prosecution and abuse of process, are covered by the litigation privilege. (Civ. Code § 47; See also Drum v. Bleau, Fox Associates (2003) 107 Cal.App.4th 1009.) In opposition, Plaintiffs attempt to argue that the litigation privilege does not apply in this case because the tort claims stem from the malicious prosecution. (Oppositions at pg. 9.) However, Plaintiff has failed to cite to any legal authority that supports this argument. As a result, because the litigation privilege applies, Plaintiffs claims for intentional infliction of emotional distress and negligent infliction of emotional distress fail.

Accordingly, the Court grants the motions as to the third and fourth causes of action. They are stricken.

Homayun’s Standing

Defendants also argue that the claims individually raised by Homayoun are subject to be stricken because he lacks standing to bring those claims. In particular, they argue that the Federal Action and State Action were brought against Comfort Dental, not Homayoun. (Motion re: Mann Defendants at pp. 7-5; Motion re: Uce at pp. 4-5.)

In opposition, Plaintiffs contend that Homayun has standing because he suffered damages as a result of his business entity being sued. (Opposition re: Uce at pg. 8; Opposition re: Mann Defendants at pg. 9.) This argument is threadbare and insufficient for the Court to disregard the separate identity of Comfort Dental. “One individual does not, under our law, become entitled to a damage award for injuries sustained by another, and a corporation is a distinct legal entity apart from its shareholders.” (Tan Jay Internat. Ltd. v. Canadian Indem. Co. (1988) 198 Cal.App.3d 695, 706 citing Jones v. H.F. Ahmanson & Co. (1969) 1 Cal. 3d 93, 106-107.) To state one example, Homayun did not achieve a termination of the underlying lawsuit in his favor as he was not a party to the underlying lawsuit.

Based on the allegations in the Complaint and the evidence submitted, any alleged conduct was directed towards Comfort Dental only. Accordingly, the motions are granted against Homayun on this ground as well.

Malicious Prosecution

  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.)

“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.) “While an attorney is entitled to rely on information from his or her client for purposes of assessing a claim's legal tenability, ‘[a]n exception to this rule exists where the  attorney is on notice of specific factual mistakes in the client's version of events.’” (Olivares, supra, 40 Cal.App.5th at 355 [quoting Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512–513].) 

“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 Cal.App.5th 343, 356.) “Evidence tending to show that an attorney did not subjectively believe the action was tenable is relevant to¿whether an action was instituted or maintained with malice.”  (Ibid [citing Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881].) 

Moving Defendants argue that Plaintiffs have no evidence of a legal termination in Comfort Dental’s favor.  The Court disagrees.  Uce 1 ended in Comfort Dental’s favor when Uce dismissed the action in the face of an imminent District Court ruling.  Uce 2 ended in Comfort Dental’s favor at least in part when the case was removed from state court to federal court and then its RICO claims were dismissed by the District Court.

Moving Defendants’ primary argument on the malicious prosecution claim is that Comfort Dental has presented no evidence of lack of probable cause or malice with respect to claims terminated in its favor.  The questions that the Court posed at the beginning of this tentative go to that issue.  Critically, no later than June 8, 2023, Comfort Dental specifically informed the Moving Defendants that Comfort Dental’s relationship with the Oral Aesthetic Advocacy Group had ended no later than May 1, 2019.  (Mann Decl. ¶ 16 & Ex. 4.)  Indeed, Comfort Dental provided written proof of that termination. (Ibid.)  Yet Moving Defendants continued to maintain their claims against Comfort Dental in LA Superior Court No. 24STCV11225 after being informed of this fact.  Arguably, Moving Defendants acted with malice in maintaining their claims starting on June 8, 2023—unless those claims reached back to the period before the May 1, 2019 termination.  Accordingly, the Court has requested clarification about certain of the facts relating to the claims Moving Defendants asserted in the state court action.

Abuse of Process

“[T]he essence of the tort `abuse of process' lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. . . .” (Meadows v. Bakersfield S. L. Assn. (1967) 250 Cal.App.2d 749, 753.) “Its elements are: (1) an ulterior motive; and (2) a willful act in the use of process not proper in the regular conduct of the proceedings. ” (Drum, supra, 107 Cal.App.4th at 1019.)

Plaintiffs have not shown that they have evidence of “process not proper in the regular conduct of the proceedings.”  In truth, their claim is one for malicious prosecution and not abuse of process.  Accordingly, the Court grants the motion as to the abuse of process claim.