Judge: Kevin C. Brazile, Case: BC599796, Date: 2025-02-27 Tentative Ruling

Hearing Date: February 27, 2025

Case Name: Felahy v. Omni Real Estate IX, LLC, et al.

Case No.: 24STCV31353

Matter: Anti-SLAPP Motion

Moving Party: Defendant Omni Real Estate IX

Responding Party: Plaintiffs Allen Felahy

Notice: OK

Ruling: The Anti-SLAPP Motion is granted.

Moving party to give notice.

The Court encourages all parties to appear remotely via LA CourtConnect.  If submitting on the Court's tentative ruling, please follow the instructions provided above.

On November 27, 2024, Plaintiff Allen Felahy filed the operative Complaint against Defendants Omni Real Estate IX, LLC (“Omni”) and Kimball, Tirey & St. John, LLP for abuse of process.  

Plaintiff alleges that on “November 8, 2024, Defendant Onni, while represented by its attorney Defendant Kimball, filed an Unlawful Detainer action with the Los Angeles Superior Court, entitled Onni Real Estate IX, LLC v. Allen Fellahy, LASC Case No. 24STUD13962 . . .  Defendant Onni’s Complaint falsely and fraudulently alleged that Plaintiff had executed a residential lease agreement with Defendant Onni on July 11, 2023, which Defendant Onni and its counsel, Defendant Kimball, knew was untrue. Although a lease agreement was ostensibly signed on that date, it was not between Plaintiff and Defendant Onni. Instead, the lease was between an individual identified as ‘Alllen Fellahy’ which is not Plaintiff’s name and was electronically signed at an IP address which is not registered to Plaintiff. Even the email contact address identified with the signing of the lease is not Plaintiff’s email address and has never been Plaintiff’s email address. In short, Plaintiff never signed a lease agreement . . . .”

Plaintiff further alleges that “Defendants Onni and Kimball intentionally used the Complaint to harass and intimidate Plaintiff into paying money which was not due.”

Defendant Omni now asserts a Special Motion to Strike pursuant to CCP § 425.16.

1. Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.  In pertinent part, the statute states, “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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  (Code Civ. Proc. § 425.16(b)(1).)  The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech.  (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)  To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech.  (Ibid.)  From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.  It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ”  (Ibid.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

2. Protected Activity 

To meet their burden for the first prong of the anti-SLAPP analysis, Defendants must demonstrate that the abuse of process claim arises from protected activity.  That is, it must be that “defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . ‘the act underlying the plaintiff’s cause’ or ‘the at which forms the basis for the plaintiff’s cause of action’ must itself have been an act in furtherance of the right of petition or free speech.’ ”  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63 (internal citations omitted).)  

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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(e).)

Here, the abuse of process claim is premised on Defendants’ filing of the UD complaint, which is protected activity under Code Civ. Proc. § 425.16(e)(1).  Indeed, “ ‘The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.’ (Birkner, supra, 156 Cal.App.4th at p. 281, 67 Cal.Rptr.3d 190, citing Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728, 734–735, 3 Cal.Rptr.3d 636, 74 P.3d 737; Navellier I, supra, 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087, 114 Cal.Rptr.2d 825 [‘It is well established that filing a lawsuit is an exercise of a party's constitutional right of petition’]; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19, 43 Cal.Rptr.2d 350 [right to petition includes act of filing litigation or otherwise seeking administrative action].)”  (Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1479.) 

Plaintiff only argues that the filing of the UD complaint is not protected because Defendants engaged in fraud and/or a crime in filing a false UD complaint.  The merit of the UD lawsuit, however, is irrelevant, and it is not uncontroverted that extortion or any other crime took place.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.)  Plaintiff targets the act of filing a lawsuit, which is itself sufficient here.  (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89-90 [action alleging “misrepresentations and omission” in connection with the execution of a release, the wrongful filing of a counterclaim containing the released claims, and false arguments in court about the released claims “falls squarely within the ambit of the anti-SLAPP statute ‘arising from’ prong”]; JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1521 [“[f]iling a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit”]; Booker v. Rountree (2007) 155 Cal.App.4th 1366, 1370 [“[T]here is no doubt the cross-complaint arises out the underlying litigation, so it is subject to the anti-SLAPP statute. [T]he claim is misconduct in the underlying litigation”].)

Defendant has met its burden.  (See Booker, supra, 155 Cal.App.4th at p. 1370 [“The gravamen of the claim is misconduct in the underlying litigation. Indeed, that is the essence of the tort of abuse of process—some misuse of process in a prior action—and it is hard to imagine an abuse of process claim that would not fall under the protection of the statute.”].)

3. Minimal Merit

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.”  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)  In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard.  The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP.  (Soukup, supra, 39 Cal.4th at p. 291.)

“[T]o establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.”  (State Farm Mut. Auto. Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)

The abuse of process claim is defective.  This claim is premised on the filing of the UD complaint.  Notably, however, “the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”  (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.)  

The Complaint also makes reference to Defendants having propounded written discovery.  Plaintiff only alleges that in “order to prepare for trial, Plaintiff . . . drafted written responses to Defendant Onni’s written discovery requests . . . .”  (Compl. ¶16.)  Plaintiff specifically testifies that Defendant propounded requests for production that sought financial information, stating that the requests were “invasive and sought highly confidential financial information of me which included bank records, applications for financial assistance and disclosures of assets from which Defendant could ascertain my net worth.”  (Felahy Decl. ¶11.)  

“Some definite act or threat that is not authorized by the process, or that is aimed at some collateral objective not legitimate in the use of the process, is required. The defendant is not liable for abuse of process where he or she has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.”  (5 Witkin (2024) Summary 11th Torts § 616.)  The subject discovery, based on the limited allegations and evidence, appears wrongful only to the same extent that the UD lawsuit should not have existed in the first place.  (See, e.g., Plaintiff’s Opposition at p. 14 [Defendant “falsified and forged lease document as its basis to file its Unlawful Detainer against Plaintiff; and thereafter using that false document as a predicate and basis for discovery designed to obtain Plaintiff’s personal financial data and money.”].)  That is, the abuse of process claim is entirely based on the wrongful filing and maintenance of the UD lawsuit, which, as discussed above, is not proper.

Because Plaintiff does not have a reasonable probability of prevailing on the abuse of process claim, the Motion is granted.  

The objections are overruled.  The RJN are granted.

Moving party to give notice.