Judge: Lee W. Tsao, Case: 23NWCV02106, Date: 2023-11-30 Tentative Ruling
Case Number: 23NWCV02106 Hearing Date: November 30, 2023 Dept: C
CISNEROS v. LONDON
EXPRESS, LP
CASE NO.: 23NWCV02106
HEARING: 11/30/23
#5
Defendants LONDON EXPRESS, LP and JACQUES ASSAYAG’s Special
Motion to Strike Plaintiff’s Complaint is GRANTED
in part and DENIED in part. The Motion to Strike the First, Fourth,
and Fifth Causes of Action is GRANTED.
The Motion to Strike the second and Third Causes of Action is DENIED.
Moving Party to give notice.
This wrongful eviction case was filed by Plaintiff JAMES
CISNEROS (“Plaintiff”) against Defendants LONDON EXPRESS, LP and JACQUES
ASSAYAG (collectively “Defendants”) on July 7, 2023.
Plaintiff alleges that Defendants manage the trailer park
that Plaintiff currently resides in. “Plaintiff and Defendant entered into a
rental agreement that did to [sic] meet the requirements of the California
Mobilehome Residency Law or California Civil Code §§798.15, 798.16, 798.41.”
(Complaint ¶7.) “Plaintiff has tendered his rent as required in a timely manner
and additional rents in the form of utility payments that were presented to him
in a separate billing as required by the ‘void’ rental agreement.” (Id. ¶8.)
“Defendants… failed to credit Plaintiff for the utility payments by a reduction
in the rent as required by California Civil Code §798.41 thus resulting in an
illegal rent increase in violation of Civil Code §§798.30.” (Id. ¶9.) “In 2020,
a dispute arose between Plaintiff and Defendant over the failure of Defendant
to reduce the rent by the amount of the separately billed utilities. Plaintiff
filed an action in [LASC] case, 20BFSC00935, whereby the Court rendered a
judgment in Plaintiff’s favor. After the court ruled in Plaintiffs’ favor
Defendant illegally raised the amount of rent that Plaintiff purportedly owed
on the utility bill and another dispute ensued.” (Id. ¶10.)
“During the course of the LASC 20BFSC00935 the court found
London Express, LP was not a partnership registered on the website of the Secretary
of State of California…. Similarly, Defendant has not found a partnership
registration for London Express, LP on the California Secretary of State site.”
(Id. ¶11.) “Plaintiff tendered his rents to Defendant form July 1, 2022 until
September 30, 2022 and Defendant rejected of all Defendants for no reason other
than to retaliate against Plaintiff and to initiate an unlawful detainer
action.” (Id. ¶12.) “Defendant initiated an unlawful detainer action against
Plaintiff based upon the return of Plaintiffs’ rents payments tendered from
July 1, 2022 until September 30, 2022 without cause.” (Id. ¶14.) “Defendant
London Express, LP was not a proper party to file an unlawful detainer action
against Plaintiff because it was not the real party in interest per [CCP] §367
nor was it a legally recognized entity or real estate broker as required by
Corporations Code §15902.01 and Bus. & Prof. Code §10131” (Id. ¶15.) “Defendant
London fraudulently and illegally collected rents that it was not entitled to.”
(Id. ¶16.) Defendant Assayag dismissed the unlawful detainer action prior to
trial. (Assayag Decl., ¶18.)
Plaintiff alleges that London Express, LP is the alter ego
of Jacques Assayag. (Id. ¶5.)
The Complaint asserts the following causes of action: (1)
Malicious Prosecution; (2) Fraud; (3) Accounting; (4) Declaratory Relief; and
(5) Injunctive Relief.
Defendants now move to strike the first through fifth causes
of action, arguing that the instant action arises from protected activity
because this Complaint was filed by Plaintiff as a retaliatory action against
Defendants based on Defendants’ efforts to enforce the lease agreement in the
unlawful detainer action (23NWUD00290) against Defendants.
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 party’s burden is to demonstrate that the act or acts of which 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.)
The Complaint alleges that Defendants illegally collected rent, then
rejected Plaintiff’s rental payments, and then filed an unlawful detainer
action which was later dismissed by the Defendants. Defendants argue that Plaintiff’s
factual allegations arise out of the
filing of the unlawful detainer action and fall within CCP §425.16(e),
specifically, “(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law….”
The filing and prosecution of the underlying unlawful detainer action is
“… an act in furtherance of the right to petition…” in a judicial proceeding
which qualifies for SLAPP protection. However, speech or petitioning activity
that is “illegal as a matter of law” is not constitutionally protected, and
defendant cannot use the anti-SLAPP statute. (Flatley v. Mauro (2006) 39
Cal.4th 299, 320.; Novartis Vaccines & Diagnostics, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296-1297;
Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1478-1479 [exception for
illegal activity applies only if no factual dispute about illegibility]. The Zucchet
court, citing Flatley, states: “Flatley held that ‘where a
defendant brings a motion to strike under section 425.16 based on a claim that
the plaintiff’s action arises from activity by the defendant in furtherance of
the defendant’s exercise of protected speech or petition rights, but either the
defendant concedes, or the evidence conclusively establishes, that the
assertedly protected speech or petition activity was illegal as a matter of
law, the defendant is precluded from using the anti-SLAPP statute to strike the
plaintiff’s action.’ [Citation.]” (Zucchett v. Galardi, supra, at 1478.)
Plaintiff argues that the filing of the unlawful detainer action does
not constitute protected activity because it was unlawful on two grounds: (1)
London Express, LP lacked standing to sue for unlawful detainer; and (2)
Defendants produced and relied upon a “void” rental agreement in violation of
the Mobilehome Residency Law (“MRL”) which caused Plaintiff to enter into an
illegal rental agreement with an entity that was not the owner of the trailer
park.
Plaintiff maintains that the unlawful detainer action filed by London
Express, LP constitutes unlawful activity because London Express, LP lacked
standing to sue Plaintiff for unlawful detainer based on its failure to file a
certificate of limited partnership with the California Secretary of State in
violation of CCP §367, which states that “[e]very action must be prosecuted in
the name of the real party in interest.” London Express, LP’s filing of the
unlawful detainer action does not constitute unlawful activity in violation of
CCP §637. As argued in Reply, in American Alternative Entergy Partners II v.
Windridge, Inc. (1996) 42 Cal.App.4th 551, the Court of Appeal did not
indicate that a failure to obtain a certification rendered a partnership
without capacity to sue—“Under [CCP §] 369.5, partnerships are granted
authority to sue in the partnership name. Thus, AAEP, although legally a
general partnership until it complied with the certification requirement, did
not lack capacity to sue.” (Id. at 561.) Plaintiff does not cite to, and
this Court has not found, any current statute which states that the failure of
an entity to file a record with the Secretary of State in connection with its
limited partnership means that it cannot commence a lawsuit.
Plaintiff also argues that Defendants “made the requisite concession”
that they entered into a “void” rental agreement in violation of the MRL because
Defendants fraudulently represented that they were owners of the trailer park,
and because Paragraph 30 of the subject Lease states “30 days to vacate” when
the MRL requires at minimum 60 days. Here, the evidence does not conclusively
establish that the rental agreement between the parties is necessarily void.
In fact, the Small Claims Judgment in favor of Plaintiff evidences
enforceability of the lease.
Fourth and Fifth causes of Action – Declaratory Relief
and Injunctive Relief
Plaintiff’s fourth
and fifth causes of action for Declaratory Relief and Injunctive Relief arise
out of Defendant’s filing of the unlawful detainer action. Therefore, Defendants have met the burden of
demonstrating that Plaintiff’s fourth and fifth causes of action arise from
protected activity. Plaintiff’s declaratory relief claim is based on Defendant’s
rent collection efforts, resulting in the filing of the unlawful detainer
action. Plaintiff’s injunctive relief claim is based on Defendants’ standing to
file the unlawful detainer action.
It is then Plaintiff’s burden to establish a probability of
prevailing on the merits. (CCP §425.16(b).) Plaintiff has not done so. As
indicated, Plaintiff’s causes of action arise out of Defendant’s filing of the
unlawful detainer action. 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.)
The Special Motion to Strike is GRANTED as to the fourth and fifth
causes of action.
First Cause of Action - Malicious
Prosecution
A malicious prosecution claim falls
within the anti-SLAPP statute because, by definition, it is based on an underlying
lawsuit, i.e., a petition for the courts for redress of grievances. (Robinzine
v. Vicory (2006) 143 Cal.App.4th 1416, 1421.) “To prevail on a malicious
prosecution claim, the plaintiff must show that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination favorable to the plaintiff; (2) was brought without probable cause;
and (3) with malice.” (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 292.)
Defendants contend that the unlawful
detainer action did not result in a legal termination favorable to Plaintiff,
and that the unlawful detainer action was not initiated with malice.
Plaintiff argues that Defendants did
not have probable cause to file the unlawful detainer action and that Plaintiff
prevailed in the unlawful detainer action upon Defendants dismissal.
Probable
Cause
A plaintiff has probable cause to bring
a civil suit if his claim is legally tenable. (Roberts v. Sentry Life Ins.
(1999) 76 Cal.App.4th 375, 382.) “The court determines as a question of law
whether there was probable cause to bring the maliciously prosecuted suit.
Probable cause is present unless any reasonable attorney would agree that the
action is totally and completely without merit.” (Id.)
Based on the evidence submitted, this
Court finds that Defendants decision to file the unlawful detainer action did
not lack probable cause. Defendants filed the action based on Plaintiff’s
failure to make rental payments. Moreover, even if Defendants did lack probable
cause to file the unlawful detainer action, the final element, malice, requires
more and is not evident here.
Malice
A lack of probable cause to sue, while
indicative, is not itself enough to establish malice in the bringing of the
underlying action. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th
478, 498.) Rather, additional evidence must be brought forth to establish the
presence of malice, such as “proof of either actual hostility or ill will… or a
subjective intent to deliberately misuse the legal system for personal gain or
satisfaction at the expense of the wrongfully sued defendant.” (Id. at
498-499.)
While both sides have resorted to
litigation tactics in this and preceding cases, the Court does not find that
Defendants’ act of filing the unlawful detainer action equals “malice”. The
zealous representation of their client against the nonpayment of rent is not
malicious.
The Special Motion to Strike is GRANTED
as to the first cause of action.
Second and Third Causes of Action – Fraud and Accounting
The essence of intentional misrepresentation is a
misrepresentation. Plaintiff alleges a misrepresentation as follows: “Defendant
Assayag held Defendant London out as a limited partnership and represented to
Plaintiff that London was authorized to manage the real property, collect
rents, enter into a mobilehome park contract with Plaintiff for the lease of
the mobilehome park space number 12.” (Complaint ¶30.)
The alleged misrepresentation is not based upon the unlawful
detainer action. Nor does it concern a
matter of public interest. It is a representation of a term of a private
contract between two litigants. It is not shown to be connected to any lawsuit
that was in progress or contemplated at the time. The third cause of action for
an accounting seeks an accounting of all sums paid to Defendants as a result of
the “void” lease between the parties and the ”fraud” perpetrated on Plaintiff
by Defendants.
The Court does not find that the
second, and the related third, causes of action arise out of protected
activity.
The Motion to Strike the second and third causes of action is DENIED.
Attorney’s Fees
The Court finds that the moving defendants are the prevailing
party on this motion. Although the motion did not succeed on the scale
contemplated by defendants, the weight of the ruling is in Defendants’ favor.
The extent to which the Motion was and was not successful may be considered in
determining the amount of the fees recovered. (See Mann v. Quality Old Time
Service, Inc. (2006) 139 Cal.App.4th 328, 344-345.) As the prevailing party,
Defendants are 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.”
The Moving
Papers indicate that Defendants will file a separate Motion for Attorneys’
Fees.
Plaintiff’s
Evidentiary Objections to the Declaration of David B. Wasson:
Nos. 1-8. OVERRULED
Plaintiff’s
Evidenitary Objections to the Declaration of Jacques Assayag:
Nos. 1-3: OVERRULED
Defendants
Evidentiary Objections to the Declaration of James Cisneros:
OVERRULED
Defendants’ Requests for Judicial Notice:
A. DENIED
B. GRANTED
C. GRANTED
D. GRANTED
E. GRANTED
F. GRANTED
G. GRANTED
I. GRANTED
J. GRANTED
K. GRANTED
L. GRANTED