Judge Lee W. Tsao, Case 22NWCV00730 2023-03-30 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00730, Date: 2023-03-30 Tentative Ruling

Case Number: 22NWCV00730 Hearing Date: March 30, 2023 Dept: C

ORTIZ v. BARRIOS

CASE NO.: 22NWCV00730

HEARING: 03/30/23

#10

TENTATIVE ORDER

Plaintiff/Cross-Defendant BLANCA E. ORTIZ’s Special Motion to Strike Portions of Defendant/Cross-Complainant LETICIA BARRIOS’s Cross-Complaint is GRANTED. The First Cause of Action for Elder Abuse is STRICKEN.

Moving Party to give notice.

A “special motion may be filed within 60 days of the service of the complaint, or in the court’s discretion, at any later time upon terms it deems proper.” (CCP §425.16(f).) It is undisputed that the Special Motion to Strike at issue was filed one day late. Upon review of the Declaration of Paul S. Sienski submitted in conjunction with the Moving Papers, and absent any prejudice to the opposing party, the Court finds good cause to consider the untimely filed Motion on its merits.

This quiet title action was filed by Plaintiff/Cross-Defendant BLANCA E. ORTIZ (“Ortiz”) on August 19, 2022. Ortiz seeks quiet title of condominium located at 6811 Rugby Avenue, Huntington Park, CA 90255 (“Subject Property”). (See Complaint ¶8.) On December 20, 2022, Defendant/Cross-Complainant LETICIA BARRIOS (“Barrios”) filed the Cross-Complaint at issue. The parties to this action are sisters. The sisters lived together in the subject property, and each owned a half interest as joint tenants. In the complaint, Ortiz (younger sister) alleges that Barrios (older sister) forged her signature on a quitclaim deed, took a loan out on the property, and then put the house up for sale without her knowledge. After discovering the subject property was up for sale, Ortiz sued. In the cross-complaint, Barrios alleges she took out a loan on the subject property and gave Ortiz half of the loan proceeds in exchange for Ortiz's half interest in the subject property.

The Cross-Complaint asserts the following causes of action: (1) Financial Elder Abuse; and (2) Declaratory Relief.

The instant anti-SLAPP Motion is directed towards the first cause of action for financial elder abuse. Ortiz argues that Barrios’s allegations used to support her elder abuse claim is subject to the litigation privilege.

Barrios alleges the following relevant facts:

· “Subsequent to the filing of the unverified Complaint and the recording of the Lis Pendens and in order to prevent the sale and purchase transaction from falling through, counsel for the Defendant and Cross-Complainant and counsel for the Plaintiff and Cross-Defendant entered into discussions for an interim solution. On October 18, 2022, Ms. Barrios and Ms. Ortiz entered into a written agreement wherein (1) the Lis Pendens would be removed allowing the sale and purchase transaction to close, and (2) the net sale proceeds would be retained by the escrow holder until the dispute between the parties is resolved through settlement or court order.” (XC ¶20.)

· “[A]s a result of the false and unsubstantiated claims made by the Plaintiff and Cross-Defendant as set forth in the unverified complaint, Blanca E. Ortiz is in the process of attempting to take, secrete, appropriate, obtain, and/or deprive Leticia Barrios of the net sale proceeds to which she is clearly and unequivocally entitled as a result of her fee simple ownership interest in the Subject Property…. Ms. Barrios further alleges that her sister, Blanca E. Ortiz, should have known that her actions in attempting to take, secrete, appropriate, obtain, and/or deprive Ms. Barrios of her fee simple ownership interest in the Subject Property and the subsequently obtained net sale proceeds would likely be harmful to Ms. Barrios. Ms. Barrios further alleges that such unlawful conduct did, in fact, result in harm to her.” (XC ¶24.)

In ruling on a special motion to strike, the Court engages in a two-step process. First, the Court decides whether the moving party has made a threshold showing that the challenged claims arise from protected activity. The moving party’s burden is to demonstrate that the act or acts of which the opposing party complains were taken “in furtherance of the [moving party’s] right of petition or free speech under the United States or California Constitution in connection with a public issue” as defined by statute. If the court finds such a showing has been made, the burden then shifts to the opposing party, who must demonstrate a probability of prevailing on the merits claim. (Equillion Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

A moving party can satisfy its burden by showing: (1) statements were made before legislative, executive, or judicial proceedings, or made in connection with matters being considered in such proceedings; or (2) statements were made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (CCP §425.16(e); Equillon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) A plaintiff opposing a special motion to strike meets his or her burden by making a prima facie showing of facts which would support a judgment in plaintiff’s favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

In order to invoke the protection of CCP §425.16, a moving party need only demonstrate that a suit “arises from” moving party’s exercise of free speech or petition rights. (See CCP §425.16(b).) The opposing party must present admissible evidence and cannot rely on the allegations of the complaint (or cross-complaint). (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 613-614.)

There is no question that the first cause of action arises from protected activity. Barrios’s financial elder abuse claim is clearly based on Ortiz’s filing of her Complaint and recording of the lis pendens in this action. (See CCP § 425.16(e)(1), (2); Rusheen v. Cohen (2006) 37 Cal.4^th 1048.) The absolute litigation privilege bars a civil action for damages for communications made in any judicial proceeding. (Cal. Civ. Code § 47.) Statements made during or in connection with a judicial or official proceeding are privileged, whether or not the statements were made with malice, or other bad motive. (Silberg v. Anderson (1990) 50 Cal.3d 205.)

Ortiz has met the burden of demonstrating that the financial elder abuse claim at issue arises from protected activity.

It is then Barrios’s burden of establishing a probability of prevailing on the merits of the financial elder abuse claim. (CCP §425.16(b).) Barrios has not done so. As indicated, the elder abuse claim arises out of Ortiz’s filing of this action and the recording of the lis pendens. These “statements” are protected under Cal. Civ. Code §47(b), the litigation privilege. “The litigation privilege is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a [litigant] must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) “The litigation privilege states simply that ‘A privileged publication or broadcast is one made… [i]n any… judicial proceeding….” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737.) “[C]ommunications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege. [Cite.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)

The Special Motion to Strike is GRANTED as to the first cause of action for financial elder abuse.

As the prevailing party, Ortiz is entitled to reasonable attorney’s fees, which may be requested in a separately noticed motion. (CCP §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. (Id.) “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, the award of attorney fees must be reasonable. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) [“We readily conclude section 425.16 similarly authorizes an award of reasonable attorney fees to the prevailing party…The right of prevailing defendants to recover their reasonable attorney fees under section 425.16 adequately compensates them for the expense of responding to a baseless lawsuit.”