Judge Kenneth J. Medel, Case 37-2020-00030655-CU-BC-CTL 2023-10-13 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2020-00030655-CU-BC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Breach of Contract/Warranty SLAPP / SLAPPback Motion Hearing 37-2020-00030655-CU-BC-CTL DONOVAN VS UPTOWN INVESTMENTS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 09/20/2023

Intervenor Defendant Uptown Investments, LLC's Special Motion to Strike the First Amended Complaint-in-Intervention based on CCP 425.16 is GRANTED.

Intervenor Defendants Michael Donovan and SDPB Holdings, LLC's Special Motion to Strike the First Amended Complaint-in-Intervention based on CCP 425.16 is GRANTED.

Preliminary Matters Intervenor Plaintiff JTB Investments, LLC (JTB)'s 'combined' opposition was belatedly filed and served.

(Cal. Code Civ. Proc. ('CCP') § 1005(b).) Nine court days before the hearings was October 2, 2023. JTB did not file the opposition until after business hours on October 3, 2023. (ROA, Nos. 513-514.) Given the moving Intervenor Defendants had the opportunity to respond by way of their respective replies, the Court exercises its discretion to consider the late-filed opposition.

Intervenor Defendant Uptown Investments, LLC (Uptown)'s objections to the declaration of Jason Elbers are OVERRULED.

Uptown's unopposed request for judicial notice of Exhibits A-B is GRANTED. (ROA, No. 497.) Intervenor Defendants Michael Donovan and SDPB Holdings, LLC (Donovan and SDPB)'s unopposed request for judicial notice of Exhibits 1-3 is GRANTED. (ROA, No. 511.) JTB's unopposed request for judicial notice of Exhibits 1-12 is GRANTED. (ROA, No. 515; see Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 525 [trial court may take judicial notice of an arbitration award].) However, '[a] court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.' (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22, emphasis original.) Discussion The First Amended Complaint-in-Intervention (FACI) alleges twelve causes of action and adds four Intervenor Defendants. (ROA, No. 490.) Pursuant to CCP § 425.16, Donovan, SDPB, and Uptown (collectively the moving Intervenor Defendants) seek to strike the twelfth cause of action for 'Enforcement and Foreclosure of Lien' brought against them. (ROA, Nos. 500, 508.) Standard Calendar No.: Event ID: TENTATIVE RULINGS

3014581 39 CASE NUMBER: CASE TITLE: DONOVAN VS UPTOWN INVESTMENTS LLC [IMAGED] 37-2020-00030655-CU-BC-CTL CCP section 425.16 (the so-called 'anti-SLAPP statute') authorizes a special motion to strike 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 or California Constitution in connection with a public issue.' (CCP § 425.16(b)(1).) In considering an anti-SLAPP motion, the court employs a two-step process. First, the moving party must make a prima-facie showing that the challenged claims arise from an alleged act that was taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.' (Equilon Enterprises v. Consumer Cause, Inc. (2002), 29 Cal.4th 53, 67; CCP § 425.16(b)(1).) If the moving party meets this burden, then second, the non-moving party must establish that there is a probability that it will prevail on the challenged claims. (Id.) 'In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (Id.) Prong-One: Are the challenged claims within the purview of the statute? CCP section 425.16 is triggered when a cause of action asserted against a defendant 'arise[es] from any act of that [defendant] in furtherance of the [defendant's] right of petition or free speech,' including those made in an official proceeding. (CCP § 425.16(e)(1)-(2).

'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.) 'In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.' (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, emphasis original.) In deciding whether the 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (Id., at p. 79.) A 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.) The moving Intervenor Defendants argue the conduct complained of by JTB falls within CCP sections 425.16(e)(1) and (e)(2), which provide that an 'act in furtherance of a person's right of petition or free speech' includes any written or oral statement or writing: (1) made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; or (2) 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.

'Statements made in litigation, or in connection with litigation, are protected by Code of Civil Procedure section 425.16, subdivision (e.)' (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803) A 'statement is 'in connection with' litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.' (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) 'Any act' under CCP section 425.16(b)(1) 'includes communicative conduct such as the filing, funding, and prosecution of a civil action. This includes qualifying acts committed by attorneys in representing clients in litigation.' (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 210, citations omitted.) 'Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, 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.' (Ibid.) 'Just as communications 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), such statements are equally entitled to the benefits of section 425.16.' (Digerati Holdings, LLC, supra, 194 Cal.App.4th at p. 887.) As to the twelfth cause of action, the FACI alleges conduct that arises from protected activity under CCP sections 425.16(e)(1) and (e)(2), because this claim is based on the moving Intervenor Defendants' communicative conduct in litigating this action. This claim alleges communicative conduct based on the Calendar No.: Event ID: TENTATIVE RULINGS

3014581 39 CASE NUMBER: CASE TITLE: DONOVAN VS UPTOWN INVESTMENTS LLC [IMAGED] 37-2020-00030655-CU-BC-CTL Intervenor Defendants' litigation activities in this action, including: 'statements and conduct by counsel for Plaintiffs and Defendant indicate that Plaintiffs and Defendant do not consider JTB a party to [sic] in this matter' (ROA, No. 490, at ¶ 154); 'counsel for Defendant [Uptown] has refused to confirm that any funds due and payable to Plaintiffs under any judgment of this Court will be interpleaded, escrowed, or otherwise protected' (Id., at ¶ 155); and '[t]he recent actions and inactions of Plaintiffs and Defendant suggest they will not honor the Notices of Lien, will not comply with the Code provisions regarding the rights of JTB as a judgment lienholder' (Id., at ¶ 156). No statutory authority or other bases for the twelfth cause of action is alleged in the FACI. Moreover, the declaration of JTB's counsel in support of JTB's motion for leave to amend the Complaint-in-Intervention also indicates the conduct alleged in this claim arose from the Intervenor Defendants' communicative conduct in this action, including depositions and responses to JTB's ex parte applications. (ROA, No. 511, Donovan and SDPB's RJN, at Exh. 3, ¶¶ 45-47, 48-52, 57-60.) Accordingly, the moving Intervenor Defendants have met their initial burden to show the twelfth cause of action in the FACI arise from protected activity.

Prong-Two: Probability of Prevailing If the defendant meets its burden as to the first prong, the burden shifts the plaintiff to ' ' 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.' ' (Navallier v. Sletten (2002) 29 Cal.4th 82, 88-89 citations omitted.) By doing so, Plaintiffs may defeat the anti-SLAPP motion through establishing a probability of prevailing on their claims. (Id. at 95; see Equilon, supra, 29 Cal.4th at 63.) The second step is a 'summary-judgment-like procedure.' (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The burden shifts to the Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (Ibid.) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (CCP § 425.16(b)(2).) '[A] plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.' ' (Emphasis added.) (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; see also Optional Capital, Inc. v Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 118-119 [anti-SLAPP motion 'is an evidentiary motion,' which requires a showing 'with evidence that is admissible at trial,' not just unverified allegations or averments on information and belief].) Here, JTB has not met its burden as to the twelfth cause of action. The communicative conduct that forms the basis for the twelfth cause of action are protected by the litigation privilege. The 'litigation privilege' derives from Civil Code § 47(b): 'A privileged publication or broadcast is one made: . . . In any . . . judicial proceeding.' The litigation privilege 'applies to any communication (1) made in . . . judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. This includes pre-litigation communications involving the subject matter of the ultimate litigation.' (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058.) JTB fails to demonstrate with arguments and evidence it can overcome the litigation privilege pursuant to Civil Code section 47(b). 'The litigation privilege under section 47 is an absolute privilege, and it bars all tort causes of action except a claim of malicious prosecution. The privilege in section 47 is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing.' (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522.) The litigation privilege is absolute and '[a]ny doubt as to whether the privilege applies is resolved in favor of applying it.' (Crossroads Invs., L.P. v. Fed. Nat'l Mortg Assn. (2017) 13 Cal.App.5th 757, 786.) '[T]he litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct.' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) Additionally, JTB's evidence submitted in opposition indicates JTB has failed to file a notice of lien and either an abstract or certified copy of its money judgment as required by CCP § 708.410(b) to obtain a Calendar No.: Event ID: TENTATIVE RULINGS

3014581 39 CASE NUMBER: CASE TITLE: DONOVAN VS UPTOWN INVESTMENTS LLC [IMAGED] 37-2020-00030655-CU-BC-CTL lien. (ROA, No. 515, JTB's RJN, at Exhs. 3-4.) Assuming arguendo JTB has obtained a valid and enforceable lien in this action, JTB has not shown a probability of prevailing on this claim. A lien created in a pending action may be enforced by any applicable procedure '[a]fter the judgment subject to the lien is entered and the time for appeal from the judgment has expired. (CCP § 708.480(a).) 'If the judgment debtor is entitled to money or property under the judgment in the action or special proceeding and a lien created under this article exists, upon application of any party to the action or special proceeding, the court may order that the judgment debtor's rights to money or property under the judgment be applied to the satisfaction of the lien created under this article as ordered by the court. Application for an order under this section shall be on noticed motion.' (Id., § 708.470(a).) JTB has not provided argument or evidence of the existence of a final monetary or property judgment in Donovan and SDPB's favor upon which JTB can seek satisfaction of its lien under CCP § 708.470. Moreover, the Court granted Donovan and SDPB's motion to dismiss their Complaint. (ROA, No. 517.) As a result, there is no underlying complaint or claims upon which Donovan and SDPB can obtain a judgment against Uptown, precluding JTB from satisfying the lien in this action under CCP § 708.470.

Based on the foregoing, the special motions to strike are granted as to the twelfth cause of action.

Attorneys' Fees and Costs Any attorneys' fees and costs sought by Intervenor Defendant Uptown Investments, LLC and Intervenor Defendants Michael Donovan and SDPB Holdings, LLC will be determined upon separately noticed motions.

Conclusion The minute order will be the final ruling of the Court. Intervenor Defendant Uptown Investments, LLC and Intervenor Defendants Michael Donovan and SDPB Holdings, LLC are ordered to serve written notice of ruling on all parties.

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