Judge: Lynne M. Hobbs, Case: 24STCV10161, Date: 2024-10-15 Tentative Ruling

Case Number: 24STCV10161    Hearing Date: October 15, 2024    Dept: 61

SHAWNT DINGIZIAN, AN INDIVIDUAL, et al. vs ROBERT CRUZ, AN INDIVIDUAL

TENTATIVE

Plaintiffs and Cross-Defendants Shawn Dingizian and Gassia Dingizian’s Special Motion to Strike (anti-SLAPP) the Cross-Complaint of Defendant Robert Cruz is GRANTED as to the allegations identified in the motion. Fees and costs are awarded against Defendant in the amount of $12,900.00.

Plaintiffs and Cross-Defendants to provide notice.

DISCUSSION

I. OBJECTIONS

Defendant Robert Cruz submits objections to the evidence submitted by Plaintiffs in support of their anti-SLAPP motion. Objection No. 3 to the surveyor’s report is SUSTAINED as to the facts contained in the report, on grounds of hearsay. Objection No. 5 is SUSTAINED on grounds of foundation and the best evidence rule, as Plaintiff Shawnt Dingizian testifies to the contents of photos and videos without presenting them. (Evid. Code § 1520.) Objections No. 12, 14, 16, 18, and 20 are also SUSTAINED as to the truth of the contents of the letters identified, based on the hearsay rule, but not as to the fact of the letters’ existence and delivery. The remaining objections are OVERRULED.

II. SPECIAL MOTION TO STRIKE

In 1992 the Legislature enacted Code of Civil Procedure section 425.16 as a remedy for the “disturbing increase in lawsuits brought primarily 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); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as “SLAPP” lawsuits, an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any cause of action “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 . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).)

In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure at any early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendants must show that the acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States of California Constitution in connection with a public issue.” (Code Civ. Proc., §425.16 subd. (b)(1).) Next, if the defendant carries that burden, the burden shift to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16 subd. (b)(3).)

In making both determinations 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, subd. (b)(2); Equilon Enterprises, supra, 29 Cal.4th at p. 67.)

A. PROTECTED ACTIVITY

The anti-SLAPP statute defines protected activities as:

(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).)

Protected activity thus encompasses statements made before a “judicial proceeding.” (Ibid.) Courts “have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) “Correspondence made in anticipation of litigation “contemplated in good faith and under serious consideration can be a petitioning activity protected by the anti-SLAPP statute.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 472.)

Plaintiffs and Cross-Defendants Shawnt Dingizian and Gassia Dingizian (Plaintiffs) move to strike portions of the Cross-Complaint of Defendant Robert Cruz (Defendant) pertaining to Plaintiffs’ filing of the instant lawsuit and negotiations related thereto. (Motion at pp. 2–3.) The targeted allegations contained in the “General Facts” section of the Cross-Complaint (or XC) are as follows:

· “Demand for Easement Agreement: The Plaintiffs’ attorneys communicated with the Defendant, demanding that the Defendant enter into an easement agreement favoring the Plaintiffs under the threat of filing a frivolous lawsuit for nonexistent damages” (XC ¶ 11);

· “Lawsuit for Breach of Easement: The Plaintiffs had their attorneys file a Superior Court case, accusing the Defendant of breaching the easement.” (XC ¶ 15);

The following targeted allegations are included under the headings for the first, second, fourth, and sixth causes of action:

· “Good Faith and Fair Dealing: Failure to Negotiate in Good Faith: Plaintiffs’ refusal to negotiate the removal of obstructions, coupled with the threat of frivolous litigation, demonstrates a lack of good faith and fair dealing. Plaintiffs’ actions were intended to coerce the Defendant into an unfavorable easement agreement, thereby abusing legal processes.” (XC ¶¶ 26–27);

· “Conclusion: Plaintiffs’ actions constitute a clear and ongoing violation of the Defendant’s easement rights, local codes, and principles of good faith and fair dealing.” (XC ¶ 30, emphasis indicates language to be stricken);

· “Plaintiffs’ Intentional Actions: Plaintiffs’ intentional installation of obstructions and threats of frivolous litigation were designed to coerce the Defendant and interfere with his property rights, including the sale of the property.” (XC ¶ 37, emphasis indicates language to be stricken);

· “Threats of Frivolous Litigation: Plaintiffs’ legal threats to coerce the Defendant into an unfavorable easement agreement under the threat of a frivolous lawsuit further exemplify Plaintiffs’ malicious intent and outrageous conduct.” (XC ¶ 64);

· “Mental and Emotional Impact: Plaintiffs’ actions have caused significant mental and emotional distress to the Defendant. The continued obstruction of the easement, destruction of property, and ongoing legal threats have created a pervasive sense of anxiety and helplessness for the Defendant.” (XC ¶ 66, emphasis indicates language to be stricken);

· “Direct Result of Plaintiffs’ Actions: The emotional distress suffered by the Defendant is a direct result of the Plaintiffs’ intentional and malicious actions. The ongoing obstruction, destruction of property, and threats have created a continuous and pervasive impact on the Defendant’s mental well-being.” (XC ¶ 69, emphasis indicates language to be stricken);

· “Conclusion: Plaintiffs’ actions constitute a clear and intentional infliction of emotional distress upon the Defendant. The deliberate obstruction of the easement, destruction of property, and threats of frivolous litigation have caused significant emotional and psychological harm.” (XC ¶ 73, emphasis indicates language to be stricken);

· “Legal Threats and Coercion: Plaintiffs’ threats of frivolous litigation were designed to intimidate Defendant and force an unfavorable easement agreement, further interfering with Defendant’s quiet enjoyment.” (XC ¶ 102);

· “Conclusion: Plaintiffs’ actions constitute a clear breach of the covenant of quiet enjoyment. The unauthorized installation of obstructions, destruction of property, and legal threats have significantly interfered with Defendant’s lawful use and enjoyment of the Defendant’s Property.” (XC ¶ 106.)

Plaintiffs note that the above allegations repeatedly cite Plaintiffs’ “legal threats” or “threats of frivolous litigation” as wrongful conduct for which Defendant seeks relief. (Motion at pp. 6–8.) Such conduct may constitute protected activity under the anti-SLAPP statute:

We deal here with a claim arising out of settlement negotiations preceding the filing of any suit. But we nevertheless conclude such negotiations, no less than post-filing settlement negotiations or communications in anticipation of filing, are protected activity for anti-SLAPP purposes. In determining what constitutes protected petitioning activity, we must give adequate breathing space to the right of petition.

The right to petition means more than simply the right to communicate directly with the government. It necessarily includes those activities reasonably and normally attendant to effective petitioning. Recognized petitioning activities thus include not only the conduct of litigation but also acts and communications reasonably incident to litigation, including prelitigation settlement negotiations. Consistent with this view, those Courts of Appeal to consider the question have concluded the anti-SLAPP statute protects prelawsuit settlement negotiations, whether emanating from the would-be plaintiff or the would-be defendant. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1024–1025, internal citations and quotation marks omitted.)

The motion includes the declaration of Plaintiff Shawnt Dingizian, who states that the alleged “threats” took place in 2021 between the parties through their counsel, and in late 2023, through Plaintiffs’ counsel and an unrepresented Defendant. (Dingizian Decl. ¶¶ 5–7.) Specifically, Plaintiffs argue that in late 2023, they offered to dissolve the easement in exchange for a waiver of all claims against Defendant. (Dingizian Decl. ¶¶ 6–7; Koo Decl. Exh. E.)

Based on this evidence Plaintiffs have demonstrated that Defendant alleges claims arising from protected activity. This is true even though Defendant asserts other, non-protected conduct forming the basis for his claims, because “courts may rule on plaintiffs' specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) Thus the court may address Defendant’s claims for relief based on Plaintiffs’ threats of litigation, even if alleged in the same counts alongside allegations of unprotected obstruction of easement areas.

Defendant argues that “[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Opposition at pp. 4–8, quoting Baral, supra, 1 Cal.5th at p. 394.) But the allegations at issue cannot reasonably be interpreted as mere context. Defendant alleges that Plaintiff’s prelitigation negotiations constituted a violation of the covenant of good faith and fair dealing, outrageous conduct for the purposes of inflicting severe emotional distress, acts designed to interfere with Defendant’s sale of the property, and violations of the covenant of quiet enjoyment. (XC ¶¶ 26–27, 30, 37, 64, 66, 69, 73, 102, 106.) Defendant’s Cross-Complaint evidences a clear intent to impose liability upon Plaintiffs for, among other things, their litigation-related conduct. Thus these allegations assert claims arising from activity protected by the anti-SLAPP statute.

Defendant argues that negotiations do not constitute protected activity, neglecting that the authority cited refers to contract negotiations in which litigation is not seriously contemplated. (Opposition at p. 6, citing Haneline Pacific Properties, LLC v. May (2008) 167 Cal.App.4th 311, 319 [litigation privilege did not apply where “the overall tone of the communications is one of persuasion and a desire to cooperate to achieve mutual goals”].) Plaintiffs here present evidence that their negotiations with Defendant occurred in late 2023, after years of conflict, and expressly contemplated either the prosecution or waiver of legal claims. (Dingizian Decl. ¶¶ 6–7; Koo Decl. Exh. E.) Those claims are now before the court. Defendant’s attempt to cabin Plaintiffs’ evidence to negotiations that occurred in 2021, rather than 2023, takes ill account of the evidence. (Opposition at pp. 7–8.)

Accordingly, Plaintiffs have established that these allegations are claims which arise from protected activity, and thus the court shall proceed to the second prong of the anti-SLAPP analysis.

B. LIKELIHOOD OF PREVAILING

After a defendant meets their burden of showing that the gravamen of the complaint involves protected activity, the plaintiff must then “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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) A defendant can meet its burden if it can establish that the plaintiff cannot overcome an affirmative defense. (Birkner v. Lam (2007) 156 Cal.App.4th 275 at 285.)

“[A] plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480.)

“Legally sufficient” means that the cause of action would satisfy a demurrer. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421.) The evidentiary showing must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444.) Proof, however, cannot be made by declaration based on information and belief. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497–1498.) The question is whether the plaintiff has presented evidence in opposition to the defendant’s motion that, if believed by the trier of fact, is sufficient to support a judgment in the plaintiff’s favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)

Plaintiffs argue that Defendant’s first, second, fourth, and sixth causes of action based on the subject allegations are infirm, because they run afoul of the litigation privilege embodied in Civil Code § 47. (Motion at pp. 9–10.) “Under the ‘usual formulation,’ the litigation ‘privilege 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. This includes prelitigation communications involving the subject matter of the ultimate litigation.” (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1104, internal citations omitted.)

Defendant’s claims arising from the protected activity here are barred by the litigation privilege. Defendant’s allegations expressly assert Plaintiffs’ “legal threats” as a basis for seeking liability against them. Plaintiffs have presented evidence that these “threats” were efforts at prelitigation negotiation to resolve the easement dispute and potentially waive the claims now asserted in this matter. (Dingizian Decl. ¶¶ 6–7.) These claims were made in judicial proceedings, by litigants, to achieve the objects of the litigation, and were connected to the action. Once more, Defendant limits its arguments against the litigation privilege to the contention that these negotiations were limited to those that occurred in 2021. (Opposition at pp. 7–8.)

Defendant moreover fails to offer any evidence to substantiate any elements of his claims. Defendant instead cites the allegations of his Cross-Complaint and argues only that they are legally sufficient if re-interpreted according to established legal theories, or if new allegations are supplied by amendment. (Opposition at pp. 9–11.) This is insufficient. Because Plaintiffs have shown that Defendant’s assert claims arising from protected activity, it is Defendant’s burden to show the validity of his claims“ by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) Defendant must demonstrate there “is sufficient evidence to show [he] can satisfy each element of [his] claim.” (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.) No such attempt is made here.

The motion is GRANTED as to the allegations identified in Plaintiff’s motion.

C. ATTORNEY FEES

Code of Civil Procedure § 425.16, subd. (c)(1) states that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion, . . . or as part of a cost memorandum.” (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.) “[T]he fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (See id.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at p. 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (See id. at p. 624.)

Plaintiffs seek attorney fees in the amount of $12,900.00, representing 24 hours of attorney work at $535 per hour, plus a $60 filing fee. (Koo Decl. ¶¶ 10–11.) Defendant argues that these fees are excessive, but both the hours expended and the rate charged are reasonable for motions of this type, given the experience of Plaintiffs’ counsel. (Koo Decl. ¶¶ 10–11.)

Fees are therefore awarded in the amount of $12,900.00.