Judge: Kevin A. Enright, Case: 37-2023-00010536-CU-MC-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 06, 2023

10/06/2023  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  Misc Complaints - Other SLAPP / SLAPPback Motion Hearing 37-2023-00010536-CU-MC-CTL 151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant's Special Motion to Strike Plaintiff's Complaint under Code of Civil Procedure section 425.16 is GRANTED.

DISCUSSION Preliminary Matters This matter was first before the Court on September 1, 2023. The Court requested supplemental briefing on two issues set forth in the tentative ruling and continued the hearing. (ROA 63.) The parties timely filed supplemental briefs. (ROA 71, 73.) Defendant's unopposed request for judicial notice of Exhibits 4-9 is GRANTED. (ROA 21.) 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.) The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the reply declaration of John Cooley and exhibits. (ROA 57.) Background This is the latest action involving a landlord/tenant dispute based on the alleged breach of two commercial lease agreements arising from Defendant's alleged conduct after the leases came to an end in 2014 and insurance coverage issues over the damages caused by that conduct.

Plaintiff and Defendant are parties to an action filed June 2, 2016 and currently pending before this Court, David A. Blackburn, et al. v. County of San Diego, SDSC Case No.

37-2016-00018510-CU-EI-CTL (the Blackburn action). The Phase II trial in the Blackburn action following remand is set for October 20, 2023.

On August 25, 2016, Plaintiff filed a separate action against Travelers Property Casualty Company of America that was removed to federal court, 151 Limited Liability Company v. Travelers Casualty Insurance Company of America, S.D. Cal. Case No. 3:16-cv-02484-AJ-MDD (the Travelers action).

Defendant was not a party to that action. The parties to the Travelers action ultimately entered into a Calendar No.: Event ID:  TENTATIVE RULINGS

3020525 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL settlement agreement and moved to dismiss the action with prejudice. On October 20, 2017, U.S.

District Court Judge Anthony Battaglia issued an order granting the motion to dismiss and retaining jurisdiction to enforce the settlement for two years.

In the instant action, Plaintiff's operative Complaint alleges two causes of action for declaratory relief and intentional interference with contractual relations. (ROA 1.) The allegations in the Complaint concern the settlement agreement from the Travelers action as well as Defendant's alleged conduct in the Blackburn action.

Defendant moves to strike the entire Complaint on the ground that both causes of action arise from protected activity under C.C.P. section 425.16. (ROA 18.) Analysis As a preliminary matter, Plaintiff dismissed the second cause of action for intentional interference with contractual relations without prejudice while the instant motion was pending. (ROA 25.) Nevertheless, a ruling on the merits of an anti-SLAPP motion is required as a predicate to an award of fees under C.C.P.

section 425.16(c), provided that a timely fees motion is filed. (Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 775, fn. 5; Moore v. Liu (1999) 69 Cal.App.4th 745, 751.) If a plaintiff voluntarily dismisses an action after a defendant filed an anti-SLAPP motion, a defendant may recover their attorneys' fees and costs if the defendant shows they would have prevailed on the merits of the anti-SLAPP motion. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456-1457.) Here, Defendant's special motion to strike also includes a request for attorneys' fees. (ROA 18, at p. 1; ROA 19, at pp. 1, 19: 17-19.) Such a request is proper. (See Briggs v. Elliott (2023) 92 Cal.App.5th 683, 692; Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 777 [noting a party can split its fee request into separate requests for an order on entitlement to fees and one for an award of fees, or make both requests in one motion].) Accordingly, the Court will consider the merits of the motion as to the dismissed cause of action for the purpose of determining Defendant's entitlement to attorneys' fees and costs.

A special motion to strike involves a two-step process. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1161.) First, the defendant must establish that the challenged claim arises from activity protected by C.C.P. section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Second, if the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Ibid.) First Step – Protected Activity As to the first step, Defendant has the burden to demonstrate the challenged cause of action is one arising from protected activity under C.C.P. section 425.16(e). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67-68.) '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.) Defendant argues the conduct complained of by Plaintiff falls within C.C.P. 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3020525 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

Statements made before an 'official proceeding' or in connection with an issue under consideration or review by a legislative, executive, or judicial body, or in any other 'official proceeding' are not limited to statements made after the commencement of such a proceeding. Rather, statements made in anticipation of a court action or other official proceeding may be entitled to protection under the anti-SLAPP statute. (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 886-887.) 'Any act' under C.C.P. 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.) A statement or writing is 'in connection with' litigation 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.) As to the intentional interference with contractual relations cause of action, the Complaint alleges conduct that arises from protected activity under C.C.P. sections 425.16(e)(1) and (e)(2), because this claim is based on Defendant's communicative conduct in litigating in the Blackburn action. The Complaint alleges communicative conduct based on Defendant's litigation activities in the Blackburn action, including: requiring Plaintiff to participate in litigation, including 'complex discovery and legal disputes' (Complaint, ¶ 82); undergoing efforts to relitigate and set aside the effects of the settlement agreement in the Travelers action (Id., ¶¶ 6, 8, 67); interfering with the settlement agreement by serving discovery on that agreement, filing a motion to compel that discovery, and advocating positions in litigation regarding the settlement agreement (Id., ¶¶ 40-43, 45, 52, 53, 54, 59, 82); making false statements and allegations in motions and its Answer to the Complaint (Id., ¶¶ 7-8, 50-54, 57); and utilizing and disclosing information from the settlement agreement (Id., ¶¶ 7, 45, 61-63, 66). These allegations were made before an official proceeding (the pending Blackburn action) and/or relate to an issue under consideration or review by an official proceeding or body and form the basis of this claim.

The declaratory relief cause of action also alleges conduct that arises from protected activity under C.C.P. sections 425.16(e)(1) and (e)(2). Plaintiff's request for a judicial determination of the rights and obligations under the settlement in the Travelers action is similarly based on Defendant's communicative conduct in litigating the Blackburn action. The Complaint alleges Defendant has attempted to set aside the settlement in the Travelers action and has refused and will continue to refuse the recognize the preclusive effect of that action. (Complaint, ¶¶ 1, 5, 6, 52, 54, 57, 65, 66.) The Complaint also alleges declaratory relief is sought 'to enforce the Judgment against the County and to obtain judicial decrees and other relief intended to end the County's conduct and declare the effects of the Judgment on the parties, including the County.' (Id., ¶ 74, emphasis added.) The Complaint further alleges 'The County persists in its misconduct, requiring injunctive relief and an end to the County's improper conduct.' (Id., ¶ 8.) Plaintiff's declaratory relief claim is based on the same communicative conduct relied on for the intentional interference with contractual relations claim, and this conduct arises from protected activity as set forth above.

Accordingly, Defendant has met its initial burden to show the first and second causes of action in Plaintiff's Complaint arise from protected activity.

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3020525 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL Second Step – Probability of Success The second step is a 'summary-judgment-like procedure.' (Baral, supra, 1 Cal.5th at p. 384.) The burden shifts to the Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (Ibid.) The Court does not weigh evidence or resolve conflicting factual claims; instead, the Court's inquiry is limited to whether Plaintiff stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. (Id. at p. 384-85.) 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. (C.C.P., § 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].

Preliminarily, the declaration of Plaintiff's counsel does not attach the exhibits relied upon in opposition.

Instead, the declaration of Plaintiff's counsel cites to exhibits used in the opposition to Defendant's motion for summary judgment/adjudication in the Blackburn action and only attaches an exhibit list.

(ROA 55, Winters Dec., at ¶ 20 and pp. 7-12.) Plaintiff has not provided courtesy copies of the exhibits or requested the Court take judicial notice of documents in the Blackburn action. Plaintiff has thus not provided 'competent, admissible evidence' establishing a probability of prevailing on the merits.

(Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) Even if the Court exercises its discretion to consider the exhibits referenced in the declaration, Plaintiff has not met its burden on the second step.

Plaintiff has not met its burden as to the intentional interference with contractual relations claim. Plaintiff fails to demonstrate with evidence it can overcome the litigation privilege pursuant to Civil Code section 47(b). (Feldman v. 110 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1485 ['The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.'].) 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.) Nor has Plaintiff addressed Defendant's arguments that Defendant has governmental immunity from tort liability that is not based on statute.

Similarly, Plaintiff has not met its burden as to the declaratory relief claim. The elements of a cause of action for declaratory relief include: (i) a proper subject of declaratory relief, and (ii) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (C.C.P., § 1060; Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) ' 'The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.' ' (City of Cotati, supra, 29 Cal.4th at p. 79.) Here, the fact Plaintiff asserts controversies exist and declaratory relief is 'necessary' is insufficient. The 'mere existence of a controversy is insufficient to overcome an anti-SLAPP motion against a claim for declaratory relief.' (Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 670.) Instead, '[f]or a declaratory relief action to survive an anti-SLAPP motion, the plaintiff must introduce substantial evidence that would support a judgment of relief made in plaintiff's favor.' (Id. at pp.

670-671.) Plaintiff has failed to provide evidence to support showing it is entitled to the grounds for declaratory relief requested in the Complaint. Plaintiff has not provided admissible evidence that Defendant was a party to the Travelers action or a loss payee to Travelers' insurance policy, Defendant was in privity with the parties in the Travelers action and thus subject to claim and/or issue preclusion, the settlement of the Travelers action resolved all issues related to Plaintiff's insurance claims, or that Defendant has disseminated confidential information.

Accordingly, the special motion to strike is granted as to the first cause of action for declaratory relief.

Defendant has also shown it would have prevailed on the merits of the motion as to the second cause of Calendar No.: Event ID:  TENTATIVE RULINGS

3020525 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL action for intentional interference with contractual relations and is thus entitled to award attorneys' fees for this claim. (Tourgeman, supra, 222 Cal.App.4th at pp. 1456-1457.) Pursuant to C.C.P. section 425.16(c)(1), 'a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.' A prevailing defendant is 'allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.' (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21.) Defendant prevailed on the anti-SLAPP motion and is therefore entitled to recover attorneys' fees and costs, which Defendant can seek via a separate noticed motion.

Conclusion If this tentative ruling is confirmed, the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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