Judge Margaret L. Oldendorf, Case EC059570 2023-03-01 Tentative Ruling

This is an anti-SLAPP motion with an unusual procedural posture. This action was filed in November 2012, but it has been stayed for much of the time since then. The operative First Amended Complaint was filed July 6, 2021. The special motion to strike was filed January 11, 2023, many days beyond the 60-day limit. However, the anti-SLAPP motion was set pursuant to the Court’s discretion, in part due to the long and unusual history of the case. A review of some of that history is pertinent to the motion:

This is an action by an employee against her former employers to collect unpaid wages. Plaintiff Iris Manuel (Manuel) was formerly employed by Defendants Vardoui Madatian (Vardoui),[1] Robert Madatian (Robert), and their businesses Rose Home Health Agency, Inc. and Glendale Home Healthcare, Inc. Each of the Defendants is alleged to be the alter ego and agent of the others. FAC, ¶¶ 1-2.

Manuel alleges she was employed from November 2011 to March 2012, the last month of which she was on vacation. When she returned from vacation, she was told her services were no longer needed. FAC, ¶¶ 13, 15, 16. Manuel alleges she was not paid all wages owed to her. FAC, ¶17. Manuel alleges failure to pay for all days worked and failure to pay overtime, for which she also seeks waiting time penalties, failure to provide accurate itemized wage statements, and related claims.

Defendants filed a joint answer. In January 2014, that answer was stricken for failure to comply with discovery orders. Default was entered in February 2014 against all Defendants. Default judgment in the amount of $99,086.78 was entered April 18, 2014, against all Defendants. Thereafter, Manuel began efforts to enforce the judgment. Those efforts included an application for sale of real property in Van Nuys owned by Vardoui. Vardoui filed for Chapter 11 bankruptcy in January 2016; it was converted to a Chapter 7 bankruptcy in February 2018.

In March 2018, Robert and Vardoui filed a lawsuit against Manuel and her attorney Gary Hugh Green (LASC Case No. LC106940). The complaint alleged that a fraudulent judgment lien had been placed on real property they owned (the Van Nuys property). Robert and Vardoui alleged claims for slander of title, quiet title, and declaratory relief. Manuel calls this a “Fraudulent Suit.” The Madatians refer to it as the “2018 Suit.” It is referred to herein as the “Slander of Title Action.”

In the Slander of Title Action, the Madatians alleged that the judgment against Vardoui had been set aside and that the Van Nuys property was in a trust, in which Robert had an interest. Defaults were entered against Manuel and Green. Before default judgment was entered, Manuel and Green learned of the suit and successfully moved for relief from default. They then propounded discovery, which the Madatians failed to answer. Motions to compel and to deem matters admitted followed, and were granted. When those orders were not complied with, Manuel and Green’s unopposed motion for terminating sanctions was granted.

The default and default judgment against Vardoui in this action (LASC Case No. EC059570) were set aside January 25, 2019.

On July 6, 2021, Manuel filed her operative First Amended Complaint in this action. In addition to the wage and hour claims, she added 7^th cause of action for abuse of process stemming from the events surrounding the Slander of Title Action.

Defendants filed a motion to dismiss this lawsuit for failure to bring the matter to trial within five years. That motion was heard and denied on January 5, 2023. On that same day, Defendants brought an ex parte application for leave to file a late anti-SLAPP motion. That request was granted -- which brings us to the current motion to strike filed by the Madatians.[2]

The Madatians seek to strike the 7^th cause of action of the First Amended Complaint. They argue they are being sued for engaging in protected activity, and that Manuel cannot establish a probability of prevailing on the merits because the litigation privilege set forth in California Civil Code Section 47(b) precludes any liability.

Manuel opposes the motion on three grounds. First, she argues the motion violates the rule that special motions to strike must be heard within 30 days of filing. That argument fails because the Court in its discretion set the hearing date beyond that time. Second, Manuel argues that the conduct alleged in the 7^th cause of action falls outside the protection of Section 425.16. However, the type of conduct found to be undeserving of the statute’s protection (such as the crime of extortion) is not at issue in this case. Finally, Manuel argues that the 7^th cause of action may be read to include a claim for malicious prosecution (seeming to concede as to abuse of process). While it is true the First Amended Complaint contains allegations that might involve malicious prosecution, Manuel has not established the probable validity of such a claim. Consequently, the motion must be granted.

Code Civ. Proc. §425.16, the anti-SLAPP statute, provides for a special motion to strike. “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” Baral v. Schnitt (2016) 1 Cal.5th 376, 384, italics in original.

The anti-SLAPP statute applies where a party is being sued for an act in furtherance of the person’s right of petition or free speech, including “(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.” Section 425.16(e).

In Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon), the California Supreme Court stated:

“[W]e may summarize a court’s task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’”

Analysis of an anti-SLAPP motion requires consideration of three basic questions:

(2) has the defendant shown he or she is being sued for engaging in activity that is protected by the statute?

(3) if so, has the plaintiff shown a probability of prevailing on the merits of that claim?

As the statute and cases make clear, the anti-SLAPP statute is intended to weed out meritless claims at an early stage. To that end, there are timing requirements. Section 425.16(f) requires that a special motion to strike “be filed within 60 days of service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” And it requires the motion to be “scheduled by the clerk of the court for hearing not more than 30 days after service of the motion unless docket conditions of the court require a later hearing.”

From a review of the docket for this case it appears that a proposed FAC was lodged on July 2, 2021. At a status conference on July 6, 2021, an order was made that it be “deemed filed” as of that date. The pleading bears a July 6, 2021 date stamp. The proof of service attached to the pleading indicates it was served by mail on July 2, 2021. Counting from either July 2 or 6, 2021, the time for filing an anti-SLAPP motion expired in 2021.

On January 5, 2023, the Court heard and granted Defendants’ ex parte application to extend the time for filing this motion. The ex parte application indicated that a March 1, 2023 date had been reserved, and it requested that the Madatians be given until February 1, 2023, to file their motion. The February 1 to March 1 stretch of days would comply with the 30 day hearing rule.

Manuel opposed the ex parte application in part because there were earlier hearing dates available before March 1. However, this cannot be the only consideration. The work of managing a law and motion calendar is complex and must take into account unseen tasks. It is the clerk of the court who is tasked with scheduling hearings on anti-SLAPP motions. For that reason, “[A] trial court may not properly deny an anti-SLAPP motion on the grounds that the hearing was not scheduled within 30 days after service of the motion.” Karnazes v. Ares (2016) 244 Cal.App.4th 344, 352.

Defendants filed their motion on January 11, 2023, many days prior to the February 1, 2023 deadline for filing. This had the effect of giving Manuel more time to prepare her opposition. But it does not demonstrate that the motion was untimely, since the Court authorized the specially set hearing date.

Defendants bear the burden of making a threshold showing of protected activity, and to do so by way of the pleadings and affidavits. Equilon, supra, 29 Cal.4th at 67. When the complaint itself shows protected activity a moving party may rely on the pleadings alone, even if they deny engaging in the conduct alleged. Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 929 and 936. Defendants here rely on the pleadings alone.

The Madatians are sued under the 7^th cause of action for filing the Slander of Title Action, and for filing allegedly false proofs of service and wrongly pursuing defaults against Manuel and her attorney, Gary Hugh Green. The Madatians argue “It is clear from the face of the FAC that the only conceivable grounds for the abuse of process claim are acts taken and statements made by the Madatians in connection with that lawsuit (specifically, the filing of allegedly false proofs of service supposedly to obtain a default judgment against Plaintiff).” Memorandum of Points and Authorities at 6:6-8.

Manuel opposes by arguing, inter alia, that the allegations would support a claim for malicious prosecution. Opposition at 13:18, fn. 4. In determining whether a cause of action arises from protected activity trial courts are instructed to focus on the defendants’ alleged acts, not on the labels placed on such acts. Contreras v. Dowling (2016) 5 Cal.App.5th 394, 410-411 [“Looking at the allegedly wrongful conduct itself and disregarding ‘the form of action within which it has been framed’ is required].

Here, without amendment, the 7^th cause of action appears to allege acts constituting both abuse of process and malicious prosecution. All of the necessary elements of a malicious prosecution cause of action are contained in that cause of action: (1) commencement of litigation that was pursued to a legal termination favorable to plaintiff; (2) the litigation lacked probable cause; (3) the litigation was initiated with malice. Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872-873; Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 453, fn. 6. See FAC at ¶¶ 22, 56, 59-64, 74, 176, 182-187. The elements of abuse of process are also alleged: (1) the defendant contemplated an ulterior motive in using the process of the court and (2) defendant committed a willful act in the use of process not proper in the regular conduct of the proceedings. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rusheen). See FAC at ¶¶57, 58, 177-179, 183-185.

Whether considered as a claim for abuse of process (as it is labeled) or a claim for malicious prosecution, it is clear from the First Amended Complaint that the Madatians are being sued for engaging in litigation activity, namely: filing the Slander of Title Action; filing allegedly false proofs of service; and requesting and obtaining defaults against Manuel and Green based on the allegedly false proofs of service. All of these are written statements made in a judicial proceeding, and/or made in connection with an issue under consideration or review by a judicial body. Section 425.16(e)(1)(2). Abuse of process and malicious prosecution are thus both subject to the anti-SLAPP statute. Chavez v. Mendoza (2001) 94 Cal.App.4th 1083; Rusheen, supra. 37 Cal.4th 1048.

Manuel urges that the activity the Madatians allegedly engaged in is not protected by the anti-SLAPP statute because they have admitted to committing fraud and perjury. Whether or not that is true, Manuel’s argument is insufficient.

Case law has carved out from Section 425.16’s protection conduct that is illegal per se. Flatley v. Mauro (2006) 39 Cal.App.4th 299 concerned an attorney’s prelitigation demand letter and related activities, conduct which amounted to the crime of extortion and therefore did not fall within the statute. In Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, trespassing, vandalism, publication of employees’ private information, bombings, and threats of violence were found not to be protected activities. No similar conduct is alleged here.

“We conclude, therefore, that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” Flatley, supra, 39 Cal.App.4th at 320.

Manuel (wisely) stops short of directly arguing that Defendants’ was “illegal as a matter of law.” That is because post-Flatley cases have held that the Flatley exception applies only to criminal conduct. Bergstein v. Stroock & Stroock & Lavan (2015) 236 Cal.App.4th 793, 805.

In short, the activity at issue here falls under Section 425.16(e) and is not carved out by Flatley.

“[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564 (Briggs), quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal).) ‘Put another way, 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.’ ” ’ (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, 123 Cal.Rptr.2d 19, 50 P.3d 733, quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880.)” Nevellier v. Sletten (2002) 29 Cal.4th 82, 88-89.

A plaintiff’s burden on step two has been compared to that of a party opposing summary judgment. Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180, 192.

“In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must ‘ “ ‘state ... and substantiate[ ] a legally sufficient claim.’ ” ’ [Citations.] Put another way, 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.” ’ [Citations.]” (Citation.)

“In determining whether a plaintiff has shown a probability of prevailing on the merits, we employ a standard “ ‘similar to that employed in determining nonsuit, directed verdict or summary judgment motions. [Citation.]’ ” (Citation.) However, “ ‘[a] motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment [citation]. In resisting such a motion, the plaintiff need not produce evidence that he or she can recover on every possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny the special motion to strike and allow the case to go forward.’ ” (Citation.)” Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062.

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 459, p. 547; see also Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463, 246 Cal.Rptr. 815.) It has been ‘interpreted broadly to encompass the entire range of “procedures” incident to litigation.’ (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 104, 101 Cal.Rptr. 745, 496 P.2d 817, fn. 4 (Barquis).)” Rusheen, supra, 37 Cal.4th at 1056-1057.

Conduct such as filing false proofs of service and obtaining defaults based upon them falls under the tort of abuse of process. As to this claim, the Madatians argue that Manuel cannot meet her burden because the litigation privilege precludes liability. Defendants cite, among other cases, Flatley, which notes that the litigation privilege bars all tort causes of action except malicious prosecution. Flatley, supra, 39 Cal.4th at 322. Rusheen holds that the litigation privilege bars abuse of process claims that are based on “publications and communications,” and notes that the “pleadings and process” in a case are generally viewed as privileged communications. Rusheen, supra, 37 Cal.4th at 1057-1058.

To establish the probable validity of the abuse of process claim, Manuel must overcome the bar of the litigation privilege. She has been unable to do this. Manuel proffers evidence that the Madatians “never asked anyone to serve the [Slander of Title Action]” on Manuel or Green, and that the proofs of service filed in that action were false. Green Declaration,[3] ¶16 and Exhibits C and D thereto (Requests for Admission propounded on Vardoui and Robert in the Slander of Title Action) and Exhibit 6 to Request for Judicial Notice[4] (order deeming them admitted). While this evidence would generally support an abuse of process claim, it does not dispose of the privilege.

Manuel opposes the motion by asserting the viability of a malicious prosecution claim. Defendants strongly object to this, arguing that an anti-SLAPP motion is framed by the pleadings and a plaintiff cannot “subvert the purpose and reach of the anti-SLAPP law, or avoid a ruling on an anti-SLAPP motion, by purporting to amend the challenged pleadings.” Reply at 10:13-15. Defendants are correct that the motion is framed by the pleadings, but incorrect to the extent they argue that Manuel is seeking amendment.

“ ‘As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.’ (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672, 43 Cal.Rptr.3d 148 (Paulus); Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, 49 Cal.Rptr.2d 620 [the pleadings ‘ “frame the issues to be decided” ’].) Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations. (Baral, supra, 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475, 376 P.3d 604.)” Medical Marijuana, Inc. v. Project CBD.com (2020) 46 Cal.App.5th 869, 883, italics in original.

The 7^th cause of action contains malicious prosecution allegations, even if they are not labeled as such. Malicious prosecution involves three elements: “the underlying action was (1) initiated or maintained by, or at the direction of, the defendants, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (2) initiated or maintained without probable cause; and (3) initiated or maintained with malice.” Roche v. Hyde (2020) 51 Cal.App.5th 757, 787 (Roche).

a. Initiated or maintained by Defendants and pursued to a legal termination in favor of plaintiff

There is no dispute that the Madatians initiated the Slander of Title Action. RJN, Exhibit 1.

Cases hold that when a case is dismissed pursuant to a terminating sanction it is on the merits. “The unilateral dismissal of a cause of action (except on technical or procedural grounds) is presumed to be a favorable termination on the merits unless otherwise proved to a jury. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1400, 69 Cal.Rptr.3d 561.) ‘“[T]he circumstances surrounding the dismissal of an underlying case for discovery abuse may justify a conclusion that a favorable termination on the merits occurred.”’ (Daniels, supra, 182 Cal.App.4th at p. 217, 105 Cal.Rptr.3d 683 [dismissal entered as terminating sanction was a favorable termination for defendant]; see Ross v. Kish (2006) 145 Cal.App.4th 188, 192, 51 Cal.Rptr.3d 484 [dismissal for plaintiff’s refusal to be deposed was a favorable termination for defendant].)” Roche, supra, 51 Cal.5th at 789.

Based on the undisputed evidence here, the Slander of Title Action terminated in favor of Manuel and Green. RJN, Exhibit 7.

“ ‘[T]he probable cause element calls on the trial court to make an objective determination of the “‘reasonableness’” of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.’ (Sheldon Appel Co., supra, 47 Cal.3d at p. 878, 254 Cal.Rptr. 336, 765 P.2d 498.) A claim is unsupported by probable cause if any reasonable attorney would agree that it is totally and completely without merit. (Parrish, supra, 3 Cal.5th at p. 776, 221 Cal.Rptr.3d 432, 400 P.3d 1.)” Rocha, supra, 51 Cal.5th at 794.

On this point, Manuel argues that the Slander of Title action contains false allegations. Most pertinent is the allegation that the default judgment was vacated and declared void on November 17, 2017. Exhibit 1, Slander of Title Action at ¶9 (containing the obvious typo that this occurred November 17, 2018, a date that had not yet occurred). The 19-page order issued November 17, 2017 (RJN, Exhibit 2), concerns a motion for relief from default and default judgment by Robert. The “Ruling” appears on pages 1 and 2 of the order and it does indeed declare the default judgment to be void. The fact that Vardoui did not separately seek and obtain relief from the default and default judgment does not alter the fact that the judgment was declared void.

Manuel and Green point to the very end of the order, which contains the Court’s ponderings about how to deal with the fact that the default remains in place and what the plaintiff may want to consider as next steps. Manuel and Green interpret the words, “However, the default judgment as to the other defendants would remain in place” as an order that the default judgment does remain in place. The sentence is susceptible to that meaning but also to the opposite. The use of “would” renders it uncertain.

On this record, Manuel has not established that the Madatians lacked probable cause for the allegation they made in the Slander of Title Action regarding the November 17, 2017 order. This is a colorable argument because the November 17, 2017 order could be interpreted that way.

The other allegation Manuel claims is false concerns ownership of the real property. Green declares that as of the date the Slander of Title Action was filed, title was held in Vardoui’s name alone and it was not in a trust. Green Declaration at ¶5 and Exhibit A thereto.

Taken together, while Vardoui and Robert did not have good cause for alleging that the real property was in a trust, it cannot be said that they lacked good cause for alleging that the default judgment had been set aside, and on that basis, alleging that Manuel should be required to release her judgment lien.

“As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874, 254 Cal.Rptr. 336, 765 P.2d 498 [referring to ‘the defendant’s motivation’ and ‘the subjective intent or purpose with which the defendant acted in initiating the prior action’].) As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. (See Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407, 69 Cal.Rptr.3d 561; Albertson v. Raboff (1956) 46 Cal.2d 375, 383, 295 P.2d 405; Richter v. Neilson (1936) 11 Cal.App.2d 503, 507, 54 P.2d 54.) It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’ (Albertson v. Raboff, supra, 46 Cal.2d at p. 383, 295 P.2d 405.) A lack of probable cause will therefore support an inference of malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292, 46 Cal.Rptr.3d 638, 139 P.3d 30; cf. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 675, 43 Cal.Rptr.3d 148 [lack of probable cause not sufficient by itself].)” Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 451-452, italics in original.

In support of the malice element Manuel relies on the fact that the Madatians filed allegedly false proofs of service in order to obtain defaults. What is needed is evidence that the Madatians were knowingly pursuing false claims, not that they abused court processes in doing so. As the November 17, 2017 order could be interpreted to say the default judgment is void, Manuel has not shown that the Madatians were asserting claims they knew were false.

In sum, Manuel has not met her burden of showing a probability of prevailing on a malicious prosecution theory.

The motion by Vardoui and Robert Madatian to strike the 7^th cause of action from the First Amended Complaint is granted. The Madatians have established that they are being sued for activity that falls under the protection of Code Civ. Proc. §425.16. Manuel has not established the probable validity of her abuse of process claim. Even if the 7^th cause of action is analyzed as a claim for malicious prosecution, it fails as Manuel has not established the probable validity of such a claim.

[1] Because two parties share a last name their first names are used to avoid confusion. No disrespect is intended.

[2] According to the Notice, Vardoui and Rose Home Health are the moving parties. Based on the body of the motion, however, it is clear that the moving parties are Vardoui and Robert Madatian.

[3] All objections to the Green Declaration are sustained, except that as to #4 the objection is overruled as to the intentional failure to serve the summons and complaint. The cited evidence is not objected to.

[4] Manuel’s request for judicial notice is granted pursuant to Evid. Code §452(d). The documents judicially noticed are as follows: Exhibit 1 – The Slander of Title Action; Exhibit 2 – Nov. 17, 2017 Minute Order from this action; Exhibit 3 – Order converting case to Chapter 7; Exhibit 4 – Declaration of Iris Manuel in support of motion to set aside default in Slander of Title Action; Exhibit 5 – Declaration of Gary Hugh Green in support of motion to set aside default in Slander of Title Action; Exhibit 6 – March 25, 2019 Notice of Ruling in Slander of Title Action (granting unopposed discovery motions including requests for admission); Exhibit 7 – Notice of Ruling in Slander of Title Action (granting motion for terminating sanction).