Judge Lee W. Tsao, Case Number: 23NWCV00256, Date: 2023-05-11 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00256, Date: 2023-05-11 Tentative Ruling

Case Number: 23NWCV00256 Hearing Date: May 11, 2023 Dept: C

GARCIA v. 14322 CORBY AVE LLC

CASE NO.: 23NWCV00256

HEARING: 05/11/23

#13

TENTATIVE ORDER

Defendant 14322 CORBY AVE LLC’s Special Motion to Strike the Verified Complaint of Plaintiff ELIZABETH L. GARCIA is GRANTED. Plaintiff’s Complaint is STRICKEN.

Moving Party to give notice.

The parties’ Requests for Judicial Notice are GRANTED. (Cal. Ev. Code §452.)

This action concerning real property was filed by Plaintiff ELIZABETH L. GARCIA (“Plaintiff”) on January 24, 2023. Plaintiff alleges that she is over 65 years of age and has been the title owner of the Subject Property located at 14322-28 Corby Ave., Norwalk, CA (“Subject Property”) since April 24, 2018. Plaintiff alleges the following relevant facts: “On or about August 11, 2005, Plaintiff and her late husband Fernando C. Garcia entered into a contract with Defendants Abutin for the purchase of the Subject Property. Pursuant to the terms of the purchase agreement, Plaintiff agreed to make the mortgage payments to the lender…. [¶] A quitclaim deed from Defendants Abutin to Plaintiff was recorded… nearly one year before Defendant Corby Ave held an interest in the Note and Deed of Trust.” (Complaint ¶¶16-17.) “For approximately fourteen (14) years Defendant Corby Ave’s predecessor’s-in-interest… acknowledged and accepted Plaintiff’s personal checks and mortgage payments (175 regular monthly installment payments) directly from Plaintiff which were made regularly each month.” (Complaint ¶18.) “On or about March 1, 2019, Defendant Corby Ave’s predecessor-in-interest recorded a Notice of Default….” (Complaint ¶20.) “Upon the recordation of Banc of California’s March 2019 Notice of Default, Plaintiff repeatedly notified Banc of California… that she was ready, willing and able to pay off the loan in its entirety upon receipt of an accurate payoff demand and its accounting.” (Complaint ¶22.) “On or about December 4, 2019… Defendant Corby Ave sent a letter to Plaintiff’s counsel alleging that 1) the Abutins ‘colluded’ with Plaintiff to commit mortgage fraud; and 2) threatening both civil and criminal liability for Plaintiff and Defendants Abutin for the alleged mortgage fraud.” (Complaint ¶28.) “On or about February 18, 2020, Defendant Corby Ave filed a Complaint against the Plaintiff and Defendants Abutin alleging causes of action including but not limited to… fraud and judicial foreclosure…. Upon Plaintiff’s filing of [a] Demurrer, Motion to Strike and Motion to Compel Compliance with Deposition Subpoena, Defendant Corby Ave retracted its action and filed a Request for Dismissal of the entire action without prejudice.” (Complaint ¶30.) “Plaintiff requested from Defendant Corby Ave its payoff demand statement and accounting. As part of its statement, Defendant Corby Ave included a copy of a Default Judgment dated March 24, 2022, that it obtained against Defendants Abutin for Declaratory Relief only. It appeared that after dismissing the first lawsuit, Defendant Corby Ave filed, without any notice to Plaintiff, a second lawsuit, but this time only against Defendants Abutin deliberately omitting Plaintiff from the suit. Defendant Corby Ave and its Counsel… were well aware that Plaintiff is the current owner of the Subject Property and therefore an ‘Indispensable Party’ to any action affecting any interest in the Subject Property…. The filing of the second lawsuit without including Plaintiff was a calculated maneuver… since they knew and anticipated that if Plaintiff was not named in the second lawsuit, there would be no meritorious defense asserted and they would be able to obtain a default judgment without a defense….” (Complaint ¶33.)

The Complaint asserts the following causes of action: (1) Declaratory Relief; (2) Injunctive Relief; (3) Accounting; (4) Financial Elder Abuse; (5) Negligent Infliction of Emotional Distress; and (6) Intentional Infliction of Emotional Distress.

Defendant 14322 Corby Ave special motion to strike is directed towards Plaintiff’s entire Complaint. Corby Ave argues that Plaintiff’s allegations and claims arise out of protected activity and are subject to the litigation privilege.

In Opposition, Plaintiff argues: (1) Corby Ave is a suspended entity and lacks the legal capacity to appear and defend in this action; (2) Corby Ave’s actions are not privileged; (3) Plaintiff’s claims do not arise from protected activity; and (4) Plaintiff will prevail on her causes of action.

Capacity:

When a corporation’s suspended status “comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable the suspended corporation to effect reinstatement… to defend itself in court. [Citation.]” (Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 512-513.) Leniency permits a delinquent corporation to secure a revivor, even at the time of the hearing, at the request of the corporation or on the trial court’s own motion.

In Reply, Corby Ave submits (and this Court takes judicial notice of) a Certificate of Revivor issued by the California Franchise Tax Board.

Given the fact that Corby Ave has secured a revivor prior to this hearing, the Court finds that Corby Ave has demonstrated standing/capacity to appear in this action.

Merits:

In ruling on a special motion to strike, the Court engages in a two-step process. First, the Court decides whether the moving defendant has made a threshold showing that the challenged claims arise from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which a plaintiff complains were 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” as defined by statute. If the court finds such a showing has been made, the burden then shifts to the cross-complainant, 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 defendant need only demonstrate that a suit “arises from” defendant’s exercise of free speech or petition rights. (See CCP §425.16(b).) In opposing an anti-SLAPP, a plaintiff must present admissible evidence and cannot rely on the allegations of the complaint. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 613-614.)

There is no question that Plaintiff’s claims in the instant action arise from protected activity. Plaintiff seeks to enjoin any sale of the Subject Property, and seeks a judicial determination of Plaintiff’s and Defendants’ respective rights and duties and the amount owed under the loan before the Subject Property can be sold at any foreclosure sale. (See e.g. Complaint ¶55.) The Judgment entered on March 24, 2022 in the “Second Lawsuit” states: “2. The Court finds and declares that the September 24, 2005 transfer of the Property by [the Abutins] was in violation of the terms of the Note and Deed of Trust. 3. The Court finds and declares that the September 24, 2005, transfer of the Property by [the Abutins] was in violation of the terms of the Note and Deed of Trust.” (Cienfuegos Decl., ¶3., Ex. 1.) Plaintiff now alleges that “[t]he filing of the second lawsuit without including Plaintiff was a calculated maneuver… since they knew and anticipated that if Plaintiff was not named in the second lawsuit, there would be no meritorious defense asserted and they would be able to obtain a default judgment without a defense….” (Complaint ¶33.)

Plaintiff’s action is clearly based on and arises out of Corby Ave’s Complaints in the first and second lawsuits, and the Default Judgment obtained in the second lawsuit. (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.)

Corby Ave has met the burden of demonstrating that Plaintiff’s claims arise from protected activity.

It is then Plaintiff’s burden of establishing a probability of prevailing on the merits. (CCP §425.16(b).) Plaintiff has not done so. As indicated, Plaintiff’s claims arise out of Corby Ave’s statements made in connection with the filing of the first and second lawsuits. 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 plaintiff 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.)

This Court further notes that “[t]he Superior Court of Los Angeles County, though comprised of a number of judges, is a single court and one member of that court cannot sit in review on the actions of another member of that same court.” (People v. Woodard (1982) 131 Cal.App.3d 107, 111.)

The Special Motion to Strike is GRANTED.

Attorney’s Fees

As the prevailing party, Corby Ave 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.”]

Corby Ave seeks to recover $19,355.00 for almost 22.7 hours of work based on Attorney Cienfuegos’ hourly rate of $850.00/hr.; plus $60.00 for filing fees. The Court has reviewed the Declaration of Attorney Cienfuegos, which provides a summary of the time spent litigating the instant anti-SLAPP motion. The Court finds that Corby Ave has established an entitlement to $5,560.00 ($550/hr. x 10 hrs.) + ($60), payable to Defendant Corby Ave’s Counsel of Record within 60 days of the date of the Court’s issuance of this Order. This date may be extended by agreement of the parties.

Plaintiff’s Evidentiary Objections to the Declaration of Yehouda Masjedi:

Nos. 1-11. Sustained

No. 12. Overruled