Judge: Mark A. Young, Case: 20SMUD00935, Date: 2022-08-25 Tentative Ruling

Case Number: 20SMUD00935    Hearing Date: August 25, 2022    Dept: M

CASE NAME:           1169 Palms LLC, v. Campos, et al.

CASE NO.:                20SMUD00935

MOTION:                  Cross-Defendants Special Motion to Strike

HEARING DATE:   8/25/2022

BACKGROUND

On December 24, 2020, Plaintiff filed the instant unlawful detainer action against Defendant for possession of the Premises, 1809 Penmar Ave., Venice, and for outstanding rent. The operative First Amended Complaint (FAC) alleges breach of lease. Possession is no longer at issue.

On March 16, 2022, Defendant/Cross-Complainant filed a cross-complaint against Plaintiff, Penmar/Palms LLC, and Steven H. Schwartz. Generally, the cross-complaint alleges that Cross-Defendants conspired to unlawfully displace Campos from his rent-stabilized apartment at the Premises using a THP and unlawful notices to quit. The Cross-Complaint alleges fifteen causes of action for: (1) Violation of California Fair Employment and Housing Act, Cal. Gov. Code § 12955(a); (2) Violation of Los Angeles City Eviction Moratorium; (3) Wrongful Eviction; (4) Abuse of Process; (5) Violation of Los Angeles Tenant Anti-Harassment Ordinance; (6) Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional Distress; (8) Violation of the Ellis Act; (9) Quiet Title; (10) Specific Performance;  (11) Declaratory Relief; (12) Breach of the Implied Covenant of Quiet Enjoyment; (13) Civil Conspiracy; (14) Violation of Tenant Habitability Program; and (15) Retaliation.

On May 13, 2022, Cross-Defendants filed the instant special motion to strike. On July 28, 2022, Cross-Defendants filed a notice of non-opposition.  On August 1, 2022, Cross-Complainant filed an ex parte seeking relief from his failure to file an opposition. The Court granted this request, and continued the hearing to August 25, 2022.

On August 9, 2022, Cross-Complainant filed a 38-page opposition. On August 15, 2022, Campos filed an untimely request for judicial notice.

California Rules of Court Rule 3.1113(d) explicitly states that “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” Rule 3.1113(e) required Plaintiff to “apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum.” Plaintiff failed to request this relief in his initial ex parte or in an subsequent applications.

Rule 3.1113(g) requires that “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”  “A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)  Considering the procedural posture, including that Cross-Complainant sought ex parte relief for failing to file any opposition, the Court does not find good cause for this oversized, and therefore untimely submission. Accordingly, the Court strikes the opposition on its own motion.

Legal Standard

            California Code of Civil Procedure section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.  “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “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.” (Id. at 384.)

            “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

EVIDENTIARY ISSUES

Cross-Defendants request for judicial notice is GRANTED.

Analysis

Cross-Defendants move to strike the first, second, third, fourth, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth causes of action.

            Code of Civil Procedure section 425.16(e) defines protected acts as the following: 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.

            “[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) A claim is subject to an anti-SLAPP motion only if the conduct constituting the protected activity “itself is the wrong complained of.” (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) In other words, “[a] claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Id. at 1062.) “‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’” (Navellier, supra, 29 Cal.4th at 89.)  “Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Id. at 92.)  “‘The only means specified in section 425.16 by which a moving defendant can satisfy that [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)…” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) “In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id.) 

            The first cause of action for Violation of California Fair Employment and Housing Act, Cal. Gov. Code § 12955(a) is premised on protected conduct. Cross-Defendants allegedly engaged in discrimination and harassment based on disability, race, and age when Palm/Schwartz applied for the Tenant Habitability Plan (“THP”) to avoid the Ellis Act relocation fee and the one-year option to remain in the unit. (CC ¶ 103(b)-(c); see ¶¶ 49-66.) The thirteenth cause of action alleges a conspiracy based on these facts. (Id., ¶ 163.) As such, liability for those causes of action are premised on a written statement by Cross-Defendants, i.e., the application. This was in furtherance of Cross-Defendants’ right to petition the City for a THP. Thus, the application was made in connection with an issue under consideration by an official proceeding authorized by law. Accordingly, the first prong is met as to these causes.

The second cause of action is for a violation of Los Angeles City Eviction Moratorium, Ordinance Nos. 186585 and 186606. (CC, ¶105.) Cross-Defendants allegedly violated the eviction moratorium by attempting to evict Campos for no-fault and attempted withdrawal the property pursuant to the Ellis Act. (CC, ¶ 106.) Thus, liability is again premised on Cross-Defendants’ petitioning activity under the Ellis Act and THP. The first prong is therefore met as to this cause of action.

In the third cause of action for Wrongful Eviction, Campos premises liability on Defendants unlawful detainer and default judgment on Campos’s writ while Plaintiff’s appeal was still pending. (CC ¶¶ 109-111.) Thus, liability is again premised on Cross-Defendants’ petitioning activity, and written statements before a judicial proceeding. Similarly, the fifteenth cause of action for retaliatory eviction alleges that Defendants unlawfully retaliated against Campos by evicting him. (CC ¶¶ 169-171.) Thus, this cause naturally arises from Cross-Defendants’ petitioning activity—the attempts to evict Campos.

The fourth Abuse of Process cause of action is based on Defendants’ attempt to use legal processes to harm Campos. (CC ¶ 114.) Specifically, Defendants obtained a default judgment against Plaintiff on June 8, 2021, despite Plaintiff’s filing of a notice of appeal and stay. (CC ¶¶ 115-116.) “Defendants have misused the power of the Court for the purposes of perpetuating an injustice against Plaintiff, in this case seeking default judgment while Plaintiff has appealed its own Motion to Quash.” (CC ¶ 117.) “Defendants have intentionally used the legal system to harm the Plaintiff, and as a direct and proximate result of Defendants’ wrongful conduct”. (CC ¶ 118.) Based on these allegations, there is no reasonable dispute that the abuse of process cause of action arises from petitioning activity and statements made during a judicial procedure.

The eighth cause of action for Violation of the Ellis Act (Gov. Code § 7060.4) alleges that Plaintiff was not given a one-year notice of eviction under the Act. (CC ¶ 145.) Thus, this cause of action is facially based on Cross-Defendants’ petitioning activity, to wit, their attempt to evict Plaintiff. (CC ¶ 146.) Similarly, the fourteenth cause of action alleges a violation of the THP. Specifically, Defendants failed to do certain things required under the THP, including relocation assistance, failure to provide temporary replacement housing, failure to obtain city approval before filing the unlawful detainer, and failing to serve tenant with required notice under THP.  (CC ¶ 166.) Based on these allegations, the causes arise out of Cross-Defendants’ attempts to evict Plaintiff, and thus petitioning activity.

            The eleventh cause of action for declaratory relief request that this court issue an order determining that: (a) Plaintiff is considered elderly for the purposes of Ellis Act protection; (b) Plaintiff is considered disabled and/or handicapped for the purposes of Ellis Act protection; (c) that the Defendants’ 3-day notice to vacate was defective on face; (d) that the Defendants’ unlawfully filed an unlawful detainer against Plaintiff; (e) that the Defendants’ attempted eviction of Plaintiff is unlawful; (f) that the Defendants have violated federal, state, and city eviction moratoriums, (g) that the state court lacked jurisdiction to enter default judgment while appeal of tenant habituality plan stayed the implementation pending appeal, and (h) that Defendants have provided no basis for lawful eviction. (CC ¶ 156.) This cause of action reflects, and is somewhat duplicative of, the other causes of action. Thus, for the same reasons discussed above, this cause of action also arises from protected activity.

            The twelfth cause of action for breach of implied covenant of quiet enjoyment is based on Cross-Defendants attempts to evict Plaintiff. (CC ¶ 158.) These attempts have disrupted Campos’s quiet enjoyment of the apartment. Thus, this cause also arises from protected petitioning activity.

Second Prong

As the opposition was stricken, Cross-Complainant fails to submit sufficient evidence to meet his burden.