Judge: Malcolm Mackey, Case: 21STCV25379, Date: 2023-01-20 Tentative Ruling

Case Number: 21STCV25379    Hearing Date: January 20, 2023    Dept: 55

MGM-DGR v. AYALA                                                       21STCV25379

Hearing Date:  1/20/23,  Dept. 55

#9:   MOTION TO STRIKE (CODE OF CIVIL PROCEDURE   § 425.11), REQUEST FOR ATTORNEY FEES IN THE SUM OF $5,950.00.

 

Notice:  Okay

Opposition

 

MP:  Cross-Defendants M.C. EARL aka Bodine Michael C. Earle and JEFF BODIN.

RP:  Cross-Complainants RAMIRO AYALA and RAFAEL GUTIERREZ AYALA.

 

 

Summary

 

On 7/9/21, Plaintiff MGM-DGR LLC filed a Complaint against RAFAEL GUTIERREZ AYALA, and others.

On 4/26/22, Plaintiff filed a First Amended Complaint, alleging that it is the owner of 4907-4907 ½ Wadsworth Avenue, Los Angeles, because it acquired title to the Property from Defendant RAFAEL GUTIERREZ AYALA via Grant Deed, on or about January 21, 2021, as a bona fide purchaser without knowledge of AYALA’s allegations.

The causes of action are:

1. QUIET TITLE

2. EQUITABLE SUBROGATION (TO IMPRESS EQUITABLE LIEN)

3. PARTITION BY SALE OF REAL PROPERTY

4. BREACH OF WARRANTY UNDER CAL. CIVIL CODE § 1113.

 

On 7/19/22, RAMIRO AYALA and RAFAEL GUTIERREZ AYALA filed a First Amended Cross-Complaint, against Plaintiff, and others, alleging that Cross-Defendant M.C. EARL BAR filed a UD case against RAFAEL AYALA, wherein the process server filed a perjured proof of service stating the complaint had been personally served, and Defendant MGM DGR LLC holds no title to cross-complainants’ real property that had purportedly been transferred, since it was based on fraud and trickery of coconspirators in getting RAFAEL AYALA GUTIERREZ to sign a grant deed to transfer his property.

Cross-Complainants’ claims are:

1.      QUIET TITLE

2.      CANCELLATION OF AN INSTRUMENT

3.      BREACH OF FIDUCIARY DUTY

4.      ACTUAL FRAUD

5.      FRAUD BY CONCEALMENT

6.      ABUSE OF COURT PROCESS.

 

 

MP Positions

 

Moving parties requests an order granting a special motion to strike the Cross-Complaint, and awarding attorneys’ fees and costs, on grounds including the following:

 

·         The Cross-Complaint’s Sixth Cause of Action for Abuse of Process arises out of the filing of an Unlawful Detainer case, as well as the filing of an allegedly false proof of service.

·         An allegedly perjured proof of service was subject to the litigation privilege, and was properly the basis of an anti-SLAPP motion.  Rusheen v. Cohen (2006) 37 Cal.4th 1048.

 

RP Positions

 

Opposing parties advocate denying, and an award of $3450, for reasons including the following:

 

·         The Cross-Complaint is not based upon bringing the U.D. action.

·         Filing a perjurious proof of service is a crime and is expressly excluded from the scope of the anti-SLAPP law and is not covered by the litigation privilege.

·         Even if anti-SLAPP motions could be brought to dismiss crime of perjury, and aiding abetting it, cross complainants' can establish the likelihood of success on the merits of their claim of "abuse of process" against Cross Defendants Jeff Bodin and Michael C. Earl. Cross-defendants have no First-Amendment right to file a false proof of service and to refuse to withdraw it.

·         There is no evidence from moving parties to show the proof of service was not perjurious. 

·         Cross-Complainant requests sanctions against Cross Defendants pursuant to CCP section 425.16( c) and CCP section 128.5, for filing a frivolous motion intended solely to evade liability for their illegal acts and delay these proceedings.

 

 

Tentative Ruling

 

The motion is granted, as prayed.

The Court strikes with prejudice the Sixth Cause of Action for Abuse of Process from the First Amended Cross-Complaint.

As for step 1 of the SLAPP analysis, the pleading alleges a claim based both on filing an unlawful detainer action and perjured proof of service of the complaint  (e.g., First Amended Cross-Complaint, ¶ 82  (“The wrongful action and omissions of these two cross defendants combined is cause and cause in fact of Cross- Complainants' damages.”)).

Specifically, the prosecution of the underlying unlawful detainer action is covered by the SLAPP statute. 

Further, the allegedly perjured proof of service falls within the SLAPP statute, because moving parties did not admit perjury, and opposing parties did not file conclusive evidence that there was a false representation of personal service, including because opposing counsel’s declaration referencing filings downloaded from the underlying case, are incompetent hearsay without personal knowledge.  Additionally, the motion only admits allegations of a perjured proof of service  (e.g., motion, 7:17  (“Sixth Cause of Action arises out of the filing on allegedly perjured proof of service signed by Jeff Bodine and used in the filing of the unlawful detainer action.”)).

With regard to step 2 of the analysis, cross-complainants do not show any merit, because of mostly incompetent evidence that also must be conclusive in showing perjury, and since the claim of abuse of process cannot be based upon filing an action, and perjury in a case directly causing the alleged damages is subject to the litigation privilege.

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.”  Birkner v. Lam  (2007) 156 CalApp.4th  275, 281 (including pre-suite notice to terminate tenancy).  Accord  1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.  For the SLAPP statute to apply to a contemplated unlawful detainer action by a landlord, it must be the basis the lawsuit, as distinguished from merely preceding it.  Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 136-40.  “[A] notice of eviction or termination of a tenancy is protected activity [under SLAPP] where… it is a legal prerequisite for bringing the unlawful detainer action.”  Wallace v. McCubbin (2011) 196 Cal. App. 4th 1169, 1183, disapproved on other grounds by Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.

The SLAPP statute has been applied to a cause of action for abuse of process, arising from legal representation in litigation.  See  Gerbosi v. Gaims, Weil, West & Epstein, LLP  (2011) 193 Cal.App.4th 435, 446.  “Numerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity.”  Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154.

“[T]he fact that a defendant's conduct was alleged to be illegal, or that there was some evidence to support a finding of illegality, does not preclude protection under the anti-SLAPP law.”  Wallace v. McCubbin  (2011) 196 Cal.App.4th 1169, 1188, disapproved on other grounds by Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.   The SLAPP statute is inapposite to illegal speech, which means that the moving party concedes that its conduct was criminal, or that the evidence conclusively establishes it.  Mendoza v. ADP Screening and Selection Services, Inc.  (2010) 182 Cal.App.4th 1644, 1655.

If moving parties successfully have shifted the burden, then opposing parties must demonstrate a probability of prevailing on the merits of the complaint.  Equilon Ent., LLC v. Consumer Cause, Inc. (2002)  29 Cal.4th 53,  67;   Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548;  §425.16(b)(1).  In opposing SLAPP motions, complainants cannot rely on the complaint, but must produce admissible evidence.  Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 630.  As to anti-SLAPP motions, “declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” Gilbert v. Sykes  (2007) 147 Cal.App.4th 13, 26.  For purposes of motions, as distinguished from trials, courts consider former statements that equate with affidavits and declarations made under oath or penalty of perjury in California, without requiring compliance with Ev. C. §1292.  Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 945.

In showing that a plaintiff’s case is defeated as a matter of law, a defendant generally bears the burden of proving affirmative defenses.  Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP  (2005) 133 Cal.App.4th 658, 676.  “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.”  Digerati Holdings, LLC v. Young Money Entertainment, LLC  (2011) 194 Cal.App.4th 873, 888.  See also  Scalzo v. Amer. Express Co. (2010) 185 Cal.App.4th 91, 100 (litigation privilege "does not protect illegal conduct that results in damages unrelated to the use of the fruits of that conduct in litigation.");  Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 959 ("a communication is privileged even if a specific communication might not be permitted by law because, for example, it was … perjurious….").

Finally, a prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs.  Ketchum v. Moses  (2001) 24 Cal.4th 1122, 1141 -1142;  CCP §425.16(c).