Judge: Joseph Lipner, Case: 25STCV04440, Date: 2025-05-27 Tentative Ruling

Case Number: 25STCV04440    Hearing Date: May 27, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Sona Darbinyan (“Darbinyan”), Artashes Lalayan (“Lalayan”), and Gurgen Mkrtchyan (“Mkrtchyan”) (collectively, “Moving Defendants”) move to strike the First Amended Complaint filed by Plaintiff Empire Fire and Marine Insurance Company (“Empire”) under California’s anti-SLAPP statute, Code of Civil Procedure, section 425.16.

The Court DENIES the motion as to the first claim for declaratory relief.

The Court GRANTS the motion as to the second claim for unjust enrichment.

Background

In this action, Empire, an insurer, alleges that Defendant Aibek Alymkulov (the “Insured”) and the Moving Defendants are engaging in a collusive personal injury lawsuit relating to an allegedly staged car crash.

This action arises out of an automobile collision wherein a rental car driven by the Insured and insured by Empire collided with an Uber vehicle in which Moving Defendants were passengers.

Empire alleges that on January 10, 2023, the Insured rented a car (the “Rental Car”) from Enterprise-Rent-A-Car Company of Los Angeles, LLC (“Enterprise”). As part of the rental transaction, the Insured purchased Supplemental Liability Protection (“SLP”) from Enterprise and insured through Empire under policy number RSI5525807-11 (the “Policy”).

Empire alleges that, around 5:40 p.m. on the same day, while driving the Rental Car, the Insured rear-ended an Uber vehicle (the “Uber”) in which Moving Defendants were passengers (the “Collision”).

Empire alleges that the Collision was staged. Empire alleges that the Insured intentionally rear-ended the Uber. Empire alleges that there is therefore no coverage under the Policy.

Empire alleges that Moving Defendants and are seeking damages from the insured for the Collision. Although the FAC alleges that Moving Defendants had not yet filed a lawsuit, Empire alleges that the likely result of Defendants’ alleged collusion is the entry of a judgment against the Insured that Moving Defendants will subsequently seek to enforce against Empire.

On January 9, 2025, Moving Defendants filed a lawsuit against the Insured, Los Angeles Superior Court Case No. 25NNCV00170 (the “Underlying Action”). (Declaration of Attorney Gurgen Mkrtchyan (“Attorney Mkrtchyan Decl.” [attorney Gurgen Mkrtchyan is not related to Defendant Gurgen Mkrtchyan]) ¶ 7, Ex. 1.)

Empire filed this action on February 14, 2025. The operative complaint is now the FAC, which raises claims for (1) declaratory relief; and (2) unjust enrichment.

On April 8, 2025, Moving Defendants filed this anti-SLAPP motion. Empire filed an opposition and Moving Defendants filed a reply.

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.) “[A] 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.)

Discussion

Declaratory Relief

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.) “If the allegations of protected activity are merely incidental to a cause of action based essentially on non-protected activity, the allegations will not transform the non-protected cause of action into an action subject to the anti-SLAPP law.” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 923.)

          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 underlying issue in Empire’s declaratory relief is the Insured’s tender of the defense under the Policy, and not Defendants’ litigation activity.

“ ‘The phrase “arising from” in section 425.16, subdivision (b)(1) has been interpreted to mean that 'the act underlying the plaintiff's cause' or 'the act which forms the basis for the plaintiff's cause of action' must have been an act in furtherance of the right of petition or free speech.’ [Citation.] Here, the act that underlies and forms the basis for [the insurer’s] declaratory relief action is not the personal injury lawsuit filed by appellants, but the [insured’s] tender of the defense of that lawsuit under a policy that contains an arguably applicable exclusionary clause. [The personal injury plaintiffs’] personal injury suit against the [insureds] did trigger the chain of events that caused [the insurer] to seek a judicial declaration of its coverage obligations. And the nature of the claims in the underlying personal injury case frames the scope of coverage under the [insurance] policy. But the action for declaratory relief arose from the tender of defense and the terms of an insurance policy issued well before the underlying litigation commenced, not from the litigation process itself. [Citation.] Section 425.16 does not apply merely because the declaratory relief action followed the filing of appellants' personal injury case.” (State Farm Gen. Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 977.)

Treating a declaratory relief action with regard to insurance coverage as a SLAPP suit is inconsistent with the purpose of section 425.16 where “the issue to be litigated in the declaratory relief action is [the insurer’s] obligations to the [the insureds]” and “[n]o damages or other forms of affirmative relief are sought against appellants.” (Id. at pp. 977-978.)

Here, Empire does not allege damages under its declaratory relief claim (although the unjust enrichment claim is a different matter). Thus, the controversy encapsulated by the declaratory relief claim can be fairly said to arise out of the Insured’s tender, and not the litigation activity. It is therefore not protected activity.

Unjust Enrichment

“The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769, quotation marks and citations omitted.)

Notably, “[u]njust enrichment is not a cause of action”; it is simply “a restitution claim.” (Hill v. Roll International Corp. (2011) 195 Cal.App.4th 1295, 1307; see also Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [“there is no cause of action in California for unjust enrichment”].)

Protected Activity

Moving Defendants’ communications with Empire to attempt to obtain the Policy benefits were attempts to settle their claim against the Insured, and were therefore communications preparatory to litigation. Similarly, Moving Defendants’ subsequent filing of the Underlying Case and their prosecution of that case constitute litigation activity.

Unlike the declaratory relief claim, the unjust enrichment claim has damages attached to it – distinguishing this case from State Farm Gen. Ins. Co. v. Majorino, supra, 99 Cal.App.4th at pp. 977-978. Here, Moving Defendants’ litigation activity is not “merely incidental to a cause of action based essentially on non-protected activity” (People ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at p. 923), as argued by Empire. Rather, the core of Empire’s alleged harm in this case is that “[t]he likely result of [the Insured’s] collusion in this case is a judgment to be entered against him with [Moving Defendants] seeking to enforce that judgment against Empire pursuant to California Insurance Code section 11580.” (FAC ¶ 7.)

Empire argues that the FAC alleges that Empire has already paid benefits of $22,422.81 under the Policy, and that its unjust enrichment claim therefore does not arise out of the Underlying Action. (Opposition at 4:5-11.) But the FAC does not allege that Empire has already paid benefits. The FAC alleges that Empire faces a subrogation demand as a result of a potential judgment against the Insured – there are no facts alleged showing that Moving Defendants have already made a subrogation demand, let alone even conclusory allegations that Empire has already paid it out.

Thus, the Court finds that Empire’s unjust enrichment claim arises out of 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.)

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.)

Here, Empire has not alleged the receipt of a benefit, as is required for a claim of unjust enrichment. (Lyles v. Sangadeo-Patel, supra, 225 Cal.App.4th at p. 769.) Rather, Empire alleges that Moving Defendants will likely obtain a benefit from Empire in the future. But that alleged benefit is contingent on certain future events happening – namely, Moving Defendants prevailing in the Underlying Action. Nor has Empire presented evidence in support of its contention that it has already paid out a benefit. Thus, Empire neither states a claim for unjust enrichment, nor provides evidence showing a minimum probability of success.

The Court therefore grants the anti-SLAPP motion as to this claim.