Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV05814, Date: 2025-01-23 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV05814, Date: 2025-01-23 Tentative Ruling

Defendants G&L 436 Bedford LLC, Michael Weiss, and Leonard Lerner (“Defendants”) move the Court for an order striking Plaintiff Kim Slobom (“Plaintiff”)’s complaint against them pursuant to Code of Civil Procedure section 425.16 on the ground that the claims arise from protected activity, the litigation privilege bars the entire action, and Plaintiff cannot prevail on any claim set forth in his complaint.

Plaintiff alleges he was a tenant at 436 Bedford in Beverly Hills, which was owned by Defendant G&L 436 Bedford, LLC but later purchased by Defendant Welltower. (Compl. ¶ 9.) Plaintiff alleges he learned during his tenancy that Defendants were engaged in human trafficking and money laundering, and he began to investigate and intended to expose the conduct. (Compl. ¶ 11.) However, Defendants learned of Plaintiff’s efforts to expose the conduct and began to engage in unlawful acts intended to quell the investigation, including using racial epithets against Plaintiff and threatening to cause physical injury to Plaintiff. (Compl. ¶¶ 12-13.) Plaintiff alleges that Defendants made false statements to law enforcement on December 14, 2021 to forcibly remove Plaintiff from the property, and his belongings were removed from the property without notice. (Compl. ¶¶ 14-16.) Plaintiff brings claims for assault and battery, unfair and unlawful business practices, conversion, race discrimination, false imprisonment, and intentional infliction of emotional distress.

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) Code of Civil Procedure section 425.16, subdivision (b)(1), provides:

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.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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, subd. (e).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

Code of Civil Procedure section 425.16, subdivision (e)(1), states that “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” is considered protected activity under the anti-SLAPP statute. “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.)

Defendants argue that each claim arises from protected activity because the conduct alleged in each claim arose from Defendants’ commencement of an unlawful detainer action and the subsequent removal of Plaintiff from the premises. While this is not apparent on the face of the pleading, it is axiomatic that “[i]n making its determination” as to whether the claims arise from protected activity, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) Defendants provide evidence that in June 2019, Defendant G&L 436 Bedford LLC (“G&L”) gave Susan Evans, M.D., the tenant at 436 Bedford Drive in Beverly Hills, a 30-day notice to terminate her tenancy, but she did not vacate the premises, resulting in G&L commencing an unlawful detainer action against her, and Defendants Weiss and Lerner represented G&L in that action. (Mot., O’Connor Decl. ¶¶ 4-8.) A stipulation in the action required Evans to vacate the premises on October 31, 2019, but she did not vacate, so a judgment was entered in G&L’s favor, and after a motion to set aside the judgment and an appeal were denied and dismissed, respectively, in G&L’s favor, G&L obtained a writ of possession against Evans. (Mot., O’Connor Decl. ¶¶ 9-10; Mot., Weiss Decl. ¶¶ 10-11.) The sheriff’s deputies could not complete the lockout because Christopher VonSchlobohm, Plaintiff’s son, claimed to have a sublease in the premises, and it was ultimately determined that VonSchlobohm had no right to possession. (Mot., Weiss Decl. ¶¶ 13-20.)

On December 12, 2021, G&L granted Evans and VonSchlobohm access to the property to remove their personal property, and Plaintiff arrived at the property on that date, proceeding to tell Weiss that he “worked for a criminal organization,” among other allegations, then barricading himself in the premises. (Mot., Weiss Decl. ¶¶ 25-32.) When Lerner arrived later, Plaintiff shouted slurs at Lerner, referenced the legal action against Plaintiff’s family, and said that Defendants were corrupt. (Mot., Lerner Decl. ¶¶ 6-8.) Weiss and Lerner state that they have only interacted with Plaintiff on that date. (Mot., Weiss Decl. ¶¶ 41-43; Lerner Decl. ¶¶ 15-17.) Weiss requested that Plaintiff be removed from the premises on that date, and law enforcement entered the premises and arrested Plaintiff. (Mot., Weiss Decl. ¶¶ 33-34; Lerner Decl. ¶¶ 9-10.) Plaintiff returned to the premises on December 17, 2021, engaged in similar conduct, and Lerner instructed security guards to not engage with Plaintiff. (Mot., Lerner Decl. ¶¶ 13-14.)

Again, while it is not clear from the pleading itself, the evidence provided with the motion establishes that each claim arises from protected activity, specifically Defendants’ conduct in litigating an unlawful detainer action and ultimately removing Plaintiff from the subject property as part of the removal process against Plaintiff’s son. G&L and its attorneys, Weiss and Lerner, engaged in conduct as part of a judicial proceeding. Therefore, the Court finds that Defendants have satisfied the first prong of the anti-SLAPP statute as to Plaintiff’s claims, as Plaintiff’s claim arises from protected activity.

If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, citation, quotation marks, and brackets omitted.) To do so, “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 if the evidence submitted by the plaintiff is credited.” (Ibid., quotation marks omitted.) In considering whether a plaintiff’s claim has merit, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant,” and while “the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Ibid., emphasis in original.)

Civil Code section 47, subdivision (b), makes privileged any statements made during judicial proceedings, which “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Such communications are protected by the litigation privilege for “all torts except malicious prosecution.” (Ibid.) As stated above, the complaint makes clear that Plaintiff takes issue with conduct relating to an unlawful detainer action, specifically the removal thereafter, despite the fact that neither Plaintiff nor his son were parties to that unlawful detainer action. Defendants evidence that all communication alleged occurred in the course of the unlawful detainer removal process, Defendants Lerner and Weiss were counsel of record for G&L in the unlawful detainer action, and the conduct at issue occurred as part of the enforcement of the judgment in G&L’s favor in the unlawful detainer action. It follows that the claims are barred by the litigation privilege, and the Court need not determine whether the claims against Defendants Lerner and Weiss are barred by the statute of limitations. Accordingly, Defendants G&L 436 Bedford LLC, Michael Weiss, and Leonard Lerner’s Special Motion to Strike the Complaint Pursuant to C.C.P. § 425.16 is GRANTED. Defendants G&L 436 Bedford LLC, Michael Weiss, and Leonard Lerner shall prepare, serve, and submit a proposed judgment as per statute.

Code of Civil Procedure section 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Under section 425.16, an award of fees and costs is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) In that Defendants are the prevailing parties, they are entitled to their reasonable attorney fees and costs, the amount of which shall be determined upon Defendants filing a noticed motion for attorney fees and memorandum of costs.