Judge Lee W. Tsao, Case Number: 23NWCV03216, Date: 2024-08-07 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03216, Date: 2024-08-07 Tentative Ruling

Case Number: 23NWCV03216 Hearing Date: August 7, 2024 Dept: C

JOSEPH v. HOLGUIN, et al.

CASE NO.: 23NWCV03216

HEARING: 8/7/24 @ 10:30 A.M.

TENTATIVE RULING

Defendants’ motion to strike is GRANTED in part and DENIED in part.

Moving party to give notice.

This motion is unopposed as of August 5, 2024.

On September 19, 2023, Defendant Anthony Holguin prevailed in an unlawful detainer action against Plaintiff Kristen Michelle Lee Joseph regarding possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712.

Plaintiff sues defendants Anthony Holguin, Claudia Holguin, and Louis Corrado for the following: (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) breach of covenant of quiet enjoyment; (4) trespass; (5) nuisance; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) negligence; (9) wrongful eviction; (10) constructive eviction; (11) uncured building violations; (12) fraud; and (13) malicious prosecution regarding her possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712.

Defendants move to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action pursuant to Code of Civil Procedure section 425.16. They also move to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and “the retaliatory unlawful detainer action and lawsuit” on page 10.

Requests for Judicial Notice

Defendants request judicial notice of the following: (1) complaint in case number 23NWCV03216; (2) complaint in case number 23NWUD00203; (3) September 19, 2023, minute order in case number 23NWUD00203; (4) notice of entry of judgment filed September 19, 2023 in case number 23NWUD00203; and (5) judgment in unlawful detainer filed on September 19, 2023 in case number 23NWUD00203.

A court may take judicial notice that certain documents were filed in prior litigation, or that certain factual findings were made, but generally may not take judicial notice of the contents of those filings, or of the factual findings themselves. (See, e.g., Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App.4th 471, 483-484.)

Thus, the Court grants the requests.

Timeliness

Code of Civil Procedure section 425.16 provides that a special motion to strike 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.”

Here, the motion was filed on October 30, 2023, while the complaint was filed on October 10, 2023. Thus, Defendants are timely.

Defendants’ Burden of Proof

The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

A defendant may meet this burden by showing that the act which forms the basis for the plaintiff’s suit was (1) any written or oral statement made before a legislative, executive or judicial proceeding; (2) a 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 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 an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e); Equilon Enterprises, supra, 29 Cal.4th at 66.)

Whether the anti-SLAPP statute applies is determined by the “principal thrust or gravamen” of Plaintiff’s claim. It cannot be invoked where allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 187.)

Here, Defendants argue that all aspects of an unlawful detainer action arise from the right to petition and are therefore subject to the anti-SLAPP statute. (Mot., pg. 9.) Defendants also argue that the malicious prosecution action predicates on the service of notice and institution of the unlawful detainer action. (Mot., pg. 11.) The Court agrees. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 282; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.) A landlord’s service of notice to terminate tenancy of tenants is an act in furtherance of the landlord’s free speech or petitioning rights under Code of Civil Procedure section 425.16. (Birkner v. Lam, supra, 156 Cal.App.4th at pg. 282.) An action for malicious prosecution based on a party’s statements or writings in an earlier judicial proceeding is subject to being stricken as a SLAPP suit. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pgs. 734-735.)

The Court determines that Defendants have made a prima facie showing that the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action arise from the right to petition.

Defendants also do not argue why the other portions of the complaint should be stricken. A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate … that which … [a party] has left unspoken.'" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)

Plaintiff’s Burden of Proof

Plaintiff now has the burden of proof to establish a probability that he will prevail on whatever claims are asserted against Defendants. (Code Civ. Proc., § 425.16, subd. (b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 4464, 476.)

Plaintiff has not opposed the motion.

Thus, the motion to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action is GRANTED. The motion to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and “the retaliatory unlawful detainer action and lawsuit” on page 10 is DENIED.

Request for Attorney’s Fees

As a prevailing defendant in this motion to strike, defendant is entitled to attorney’s fees. (CCP § 425.16, subd. (c)(2).) Defendant requests attorney’s fees in the amount of $3660.00. Because the motion is unopposed and non-complex compared to other anti-SLAPP motions, the Court awards attorney’s fees in the amount of $1860.00.