Judge: Lynette Gridiron Winston, Case: 22PSCV00153, Date: 2023-11-27 Tentative Ruling
Case Number: 22PSCV00153 Hearing Date: November 27, 2023 Dept: 6
Cortez et al. v. Freedom Mortgage et al.
Cross-Defendants Dolores Cortes, Vanessa Garcia, Stephanie Valeria Garcia, and Albert Garcia’s Special Motion to Strike Defendant’s Second Amended Cross-Complaint
TENTATIVE RULING
Cross-Defendants Dolores Cortes, Vanessa Garcia, Stephanie Valeria Garcia, and Albert Garcia’s Special Motion to Strike Defendant’s Second Amended Cross-Complaint is DENIED.
BACKGROUND
This is an action to quiet title. On February 15, 2022, Dolores Cortes, Vanessa Garcia, and Stephanie Valeria Garcia (collectively, Plaintiffs) filed a complaint against Jose Garcia (Defendant or Jose), Freedom Mortgage, and Does 1-100, alleging the following causes of action: (1) quiet title, (2) partition, (3) fraud, (4) intentional infliction of emotional distress, and (5) constructive trust.
On April 12, 2022, Plaintiffs filed a First Amended Complaint (FAC) against the same defendants and Rocket Mortgage, alleging the following causes of action: (1) quiet title, (2) partition, (3) fraud, (4) establishment of identity theft, (5) intentional infliction of emotional distress, (6) interference with economic relationship, (7) negligence, and (8) constructive trust.
On June 21, 2022, Defendant filed a cross-complaint against Plaintiffs, Albert Garcia, and Roes 1-5 (collectively, Cross-Defendants), alleging the following causes of action: (1) quiet title, (2) intentional infliction of emotional distress, (3) trespassing, (4) interference with economic relationship, and (5) quantum meruit.
On September 2, 2022, Defendant filed a First Amended Cross-Complaint (FACC) against the same Cross-Defendants alleging the same causes of action.
On October 21, 2022, Cross-Defendants filed a Motion to Strike portions of Defendant’s FACC.
On February 2, 2023, Defendant filed a Second Amended Cross-Complaint (SACC) against Cross-Defendants alleging the same causes of action.
On March 7, 2023, Cross-Defendants filed a Special Motion to Strike Defendant’s SACC under CCP Section 425.16 (Anti-SLAPP). On November 9, 2023, Defendant filed an Opposition. On November 16, 2023, Cross-Defendants filed their Reply.
LEGAL STANDARD
Code of Civil Procedure section 425.16 provides that “[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 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.” (Code Civ. Proc., § 425.16(b).)
Such a motion involves a two-step analysis, in which the court must first determine whether a movant “has made a threshold showing that the challenged cause of action is one arising from protected activity ...” (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus, supra, 40 Cal.4th at p. 712.) In determining whether the respondent has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
UNTIMELINESS
Defendant contends the Court should deny the Motion as untimely. (Code Civ. Proc., § 425.16(f); Opp. pp. 7:1-8:11.) Section 425.16, subdivision (f), provides as relevant: “The 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.” (Code Civ. Proc., § 425.16(f).) “{S}ection 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion).” Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018).
Here, the Court finds that Cross-Defendants could have brought the Anti-SLAPP motion when the initial Cross-Complaint was filed on June 21, 2022 since such cross-complaint contains the same allegations alleged in the SACC upon which Cross-Defendants base this Anti-SLAPP motion. Cross-Defendants challenged the very allegations upon which the motion is brought, particularly regarding the Cease and Desist Letter and the Notice of Lis Pendens, in a motion to strike portions of the First Amended Cross-Complaint (FACC) in October 2022, but failed to raise or file an Anti-SLAPP motion. Thus, the Court finds that the Anti-SLAPP motion is untimely. The Court will not exercise its discretion to consider the late-filed motion since Cross-Defendants offer no justification as to why they did not file the motion sooner as to the initial Cross-Complaint or the FACC. The fact that Cross-Defendants undertook significant efforts to meet and confer with Defendant before filing the Anti-SLAPP motion as to the SACC does not explain why no such motion was filed as to the Cross-Complaint or FACC.
Accordingly, Cross-Defendant’s Special Motion to Strike Defendant’s SACC is DENIED as untimely. However, even if the Court were to consider the late-filed motion, the Court would deny the motion on substantive grounds as set forth below.
ANALYSIS
Cross-Defendants move to specially strike all of Defendant’s SACC on the grounds that each cause of action arises entirely from the protected petitioning activity of the initial complaint; that Defendant has failed to provide evidence showing that his claims have any merit; and that Defendant cannot demonstrate a probability of prevailing on any of his causes of action. For the following reasons, the court DENIES Cross-Defendants’ Anti-SLAPP motion.
Protected Activity
An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes “(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(e).)
Cross-Defendants’ argue that each and every cause of action contained in Defendant’s SACC is based on Cross-Defendants’ protected activity in filing their initial Complaint, and on the actions of Cross-Defendants’ counsel done in the course of representing Cross-Defendants in the present litigation, which necessarily implicates Code of Civil Procedure Section 425.16(e)(1)-(e)(2) as expressly defined above. The Court disagrees.
Cross-Defendants contend that the entire SACC is based on Plaintiffs protected activity in filing their Complaint and on the actions of Plaintiff’s counsel in sending a cease and desist letter and serving a Notice of Lis Pendens during the course of this litigation. (Mtn., p. 8:3-5.) More specifically, Cross-Defendants state the following:
Defendant’s first cause of action for Quiet Title alleges that “The claim of al Cross-Defendants herein named, and each of them, claim some estate, right, title, lien or interest in or to the property adverse to Cross-Complainant’s title, and these claims constitute a cloud on Cross-Complainant’s title to the Residence.” (SACC, ¶ 30; Mtn., p. 6:6-9.)
Defendant’s second cause of action for Intentional Infliction of Emotional Distress alleges that “Jose received a ‘Cease-and-Desist’ letter from the Cross-Defendants attorney” and alleges “The purpose of this letter was to further bully and harass Jose and his Family.” (Mtn., p. 6:14-17.) Cross-Defendants also contend that Defendant alleges that the service of a Notice of Lis Pendens was done “for the purpose of bullying and harassing Jose.” (Mtn. p. 6:17-18.)
Defendant’s third, fourth, and fifth causes of action against Cross-Defendants are premised on Cross-Defendants’ assertion of their ownership right to the subject property and the resulting effect on Defendant’s challenged title. (SACC, ¶¶ 47-57; Mtn., p. 6:21-26.)
Cross-Defendants’ cite several cases to support their contention that Code of Civil Procedure Section 425.16 applies to statements/communications in court or in connection with judicial proceedings of the initial complaint that is under consideration or review by the court.
In Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, the Second District Court of Appeal held that “The constitutional right to petition…includes the basic act of filing litigation or otherwise seeking administrative action.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.)
In Neville v. Chudacoff, the Second District Court of Appeal held that “a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
In Summerfield v. Randolf, the Second District Court of Appeal noted that “section 425.16, subdivision (e)(2), ‘has been held to protect statements to persons who are not parties or potential parties to litigation, provided such statements are made ‘in connection with’ pending or anticipated litigation.” (Summerfield v. Randolf (2011) 201 Cal.App.4th 127, 136.)
In Rusheen v. Cohen, the Supreme Court of California held that “A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) This includes the filing of a lawsuit and any qualifying acts committed by attorneys in representing clients in the litigation. (Id.)
Cross-Defendants’ reliance on such cases is unavailing. Cross-Defendants have not made the threshold showing that the challenged causes of action arise from protected activities. Cross-Defendants seem to contend that because Defendant challenges or mentions the filing of this lawsuit his claims arise out of Cross-Defendants’ protected activity in filing the complaint. However, such contention is wrong and would render any cross-complaint subject to Anti-SLAPP. “The mere fact that a plaintiff has filed an action after a defendant has engaged in some protected activity does not mean that the plaintiff's action arose from that activity. The anti-SLAPP statute cannot be read to mean that any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights." Gallimore v. State Farm Fire & Casualty Ins. Co. (2002), 102 Cal.App.4th 1388, 1398 (internal citations and quotations omitted).) As discussed below, Defendant’s claims do not arise out of the filing of the complaint. They arise out of the same controversy on which the complaint is based and the actions of Cross-Defendants.
Cross-Defendants cite a few allegations from the SACC that concern statements, communications, and actions taken by Cross-Defendants’ and their counsel in furtherance of the present litigation. Cross-Defendants focus on the allegations that the “Cease and Desist Letter from Cross-Defendants’ attorney and the attorney’s service of the Lis Pendens directly on Jose were done to harass and bully Jose to show that the SACC and its claims are based on protected activity. (Mtn., p. 6:14-20; SACC, ¶¶ 18, 19, 38, 39, Ex. 1.) However, Cross-Defendants seemingly ignore the numerous allegations that actually form the basis of the challenged causes of action. The Court finds that the allegations relied on by Cross-Defendants are merely incidental to the unprotected conduct. See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 (“where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”); Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414 (“if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.”) The mention of these two actions by the attorney are only incidental to the allegations of misconduct by Cross-Defendants which form the basis for the claims in the SACC.
Here, the SACC sets forth the general allegations on which it is based, namely that Defendant Jose and Gelacio Alberto Garcia (“Gelacio”) put their money together for a down payment to purchase the subject property in August 2018 and in September 2018 Gelacio added Jose to the title as joint tenants. (SACC, ¶¶ 7, 8.) The SACC alleges that Jose gave Gelacio his share of the mortgage every month and in December 2018, Jose and his family moved into the subject property with Gelacio and Cross-Defendants started bullying and harassing Jose and his family once they moved in. (SACC, ¶¶ 9, 10.) The SACC alleges that Cross-Defendants told a pharmacy that Jose did not live at the subject property, had the delivery of Jose’s son’s medicine canceled, and turned people away that were looking for Jose to give him job opportunities. (SACC, ¶10.) The SACC further alleges that after Gelacio passed away from Covid-19, Cross-Defendants falsely claim that they have legal title to the subject property and that he does not, and that they continued to bully, harass, and cause Jose and his family problems at the subject property, including issues with dogs, the garage, construction, threats of physical violence, missing checks, loud music, sprinklers, and video recordings. (SACC, ¶¶ 12, 11-14, 16, 17, 20, 21.) The SACC alleges that Cross-Defendants have continued to bully and harass Jose and his family and that they cannot enjoy their residence in peace because of Cross-Defendants’ actions and being in fear for their life. (SACC, ¶22.) These allegations are incorporated by reference into each of the causes of action in the SACC, and many of them are also repeated directly in such causes of action.
The first cause of action for Quiet Title incorporates the above-described general allegations (at ¶ 23) and is based on allegations that Gelacio and Jose purchased the subject property together, held title as joint tenants, shared in paying the mortgage, and now Cross-Defendants claim an interest and estate in the property adverse to Jose, with no right, estate, title, lien or interest in the subject property. (SACC, ¶¶ 23-31.) The Quiet Title claim does not arise out of protected speech or activity.
The second cause of action for Intentional Infliction of Emotional Distress also incorporates the above-described general allegations (at ¶ 32) and is based on the allegations regarding the pharmacy, medication delivery, dogs, garage, threats of physical violence, missing mail and checks, loud music, sprinklers, and video recordings (SACC, ¶¶ 33-37, 40-46.) This claim does not arise out of protected speech or activity and the allegations regarding the letter and notice sent by the attorney are only incidental to the allegations of misconduct by Cross-Defendants which form the basis for the claims in the SACC.
The third cause of action for Trespassing also incorporates the above-described general allegations (at ¶ 47) and is based on allegations that Cross-Defendant’s intentionally, recklessly, willfully, negligently entered the subject property without Jose’s permission and caused damage to the property and to Jose. This claim does not arise out of protected speech or activity.
The fourth cause of action for Interference with Economic Relationship incorporates the above-described general allegations (at ¶ 53) and is based on allegations that such intentional conduct by Cross-Defendants deprived Jose of his share of the subject property. The SACC alleges that Cross-Defendants turned away people looking for Jose at the property to give him job opportunities. (SACC, ¶¶ 10, 53.) This claim does not arise out of protected speech or activity.
The fifth cause of action for Quantum Meruit also incorporates the above-described general allegations (at ¶ 55) and is based on allegations that Cross-Defendants are indebted to Jose for the reasonable value of the subject property that has been damaged and/or not returned to Jose. This claim does not arise out of protected speech or activity.
Based on the foregoing, the Court finds that Cross-Defendants fail to make a prima facie showing that the claims in the SACC arise from protected speech or activity. Therefore, the Anti-SLAPP statute does not apply and there is no need to decide whether Defendant has a reasonable probability of prevailing on the claims in the SACC.
Accordingly, the Court DENIES Cross-Defendants’ special motion to strike Defendant’s SACC.
Attorney Fees and Costs
Code of Civil Procedure section 425.16(c) provides in pertinent part: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16(c)(1).)
Defendant Jose requests an award of attorney fees and costs pursuant to Code of Civil Procedure Section 425.16(c)(1). However, the Court does not find that Cross-Defendants’ Anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay.
Therefore, the Court denies Defendant’s request for attorney’s fees and costs.
CONCLUSION