Judge: Mark A. Young, Case: 23SMCV02275, Date: 2024-05-01 Tentative Ruling
Case Number: 23SMCV02275 Hearing Date: May 1, 2024 Dept: M
CASE NAME: Regency
Holt, LLC, v. Fox, et al.
CASE NO.: 23SMCV02275
MOTION: Special
Motion to Strike
HEARING DATE: 5/1/2024
Legal
Standard
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].)
Analysis
Cross-Defendant
Regency Holt LLC moves to strike the entire Cross-Complaint filed by
Cross-Complainants Avroham Fox, Dahlia Fox and Yosef Fox. To prevail, Holt must show that the cross-complaint’s
claims each arise from activity protected by section Code of Civil Procedure 425.16.
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.
For a cause of action to “arise
from” protected activity, “the defendant’s act underlying the plaintiff’s cause
of action must itself have been an act in furtherance of the right of petition
or free speech.” (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78.)
“The anti-SLAPP statute’s definitional focus is not the form of the
plaintiff’s cause of action but, rather, the defendant’s activity that gives
rise to his or her asserted liability-and whether that activity constitutes
protected speech or petitioning.” (Navellier, supra, 29 Cal.4th at 92.) “[T]he critical
consideration is whether the cause of action is¿based on¿the defendant’s
protected free speech or petitioning activity.” (Id. at 89.) CCP
§ 425.16 applies to any claim arising from protected conduct, regardless of its
label. (Id. at 92; see Martinez v. Metabolife Intern., Inc.
(2003) 113 Cal.App.4th 181, 188 [the “principal thrust or gravamen of the
plaintiff’s cause of action” determines whether the anti-SLAPP statute
applies].)
Holt claims
that the cross-complaint implicates Holt’s rights of petition and free speech
embodied by Code of Civil Procedure section
425.16(e)(2). On November 14, 2022, Holt commenced an
unlawful detainer action against Cross-Complainants due to Cross-Complainants’
failure to pay the rent due and owing related to Cross-Complainants’ tenancy at
the real property located at 1237 S. Holt Ave., Unit 306, Los Angeles, CA 90035
(the “Property”). This was converted to a regular civil matter in April 2023, after
Avroham Fox, Aka Avi Fox and Dahlia Fox vacated the Premises. On August 16,
2023, Cross-Complainants filed the subject cross-complaint against Holt for: 1)
unlawful eviction procedures; 2) retaliatory harassment; 3) breach of lease –
right to quiet enjoyment; 4) intentional infliction of emotional distress; and
5) negligent infliction of emotional distress. Holt contends that it was apparently
sued on account of it exercising its right to petition. Holt argues that it
cannot be held liable for bringing a unlawful detainer action. They further
argue that the claims cannot succeed on the merits because such actions were
protected under Civ. Code section 47(b).
The filing of an
unlawful detainer action is undoubtably a protected activity under the
anti-SLAPP statute. (Winslett v. 1811 27th Avenue, LLC (2018) 26
Cal.App.5th 239, 248; Newport Harbor Offices & Marina, LLC v. Morris
Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45; Feldman v. 1100
Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1479.) An unlawful
detainer action, and communications attendant to such an action, necessarily fall
within the scope of Code of Civil Procedure section 425.16. That said, case law
distinguishes complaints based on the decision to terminate or other conduct in
connection with the termination, and not on the termination of the tenancy
itself. (See Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154,
157–158, 160 [complaint was triggered by the filing and service of notices but
sought declaratory relief about parties rights under the Ellis Act].) For
instance, in Marlin, the court found that “the filing and service of the
notices may have triggered plaintiffs' complaint and the notices may be
evidence in support of plaintiffs' complaint, but they were not the cause of
plaintiffs' complaint. Clearly, the cause of plaintiffs' complaint was defendants'
allegedly wrongful reliance on the Ellis Act as their authority for terminating
plaintiffs' tenancy. Terminating a tenancy or removing a property from the
rental market are not activities taken in furtherance of the constitutional
rights of petition or free speech.” (Id.; see also Department of Fair
Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154
Cal.App.4th 1273, 1287 [complaint triggered by filing and serving paperwork to
remove units from rental market and evict tenant but was based on disability
discrimination]; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286–1287
[complaint was based on violation of rent control laws and not on landlord's unlawful
detainer action].)
In Ulkarim,
a commercial tenant claimed breach of contract and declaratory relief against a
landlord. (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266.) The tenant
alleged that landlord, who had filed unlawful detainer complaint, breached the lease
agreement by terminating the lease in bad faith with no valid grounds for
termination and despite holdover tenancy, rendering ineffective the notice of
termination. (Id. at 1281-1282.) The Court found that the gravamen of
the action was neither an attack on the service of the notice of termination nor
the filing of the unlawful detainer complaint, but rather the underlying
decision to terminate the tenancy. (Id.) “Courts distinguish a cause of
action based on the service of a notice in connection with the termination of a
tenancy or filing of an unlawful detainer complaint from a cause of action
based on the decision to terminate or other conduct in connection with the
termination.” (Id., at 1276.) The question is whether the
subject cause of action “arises from… service of the notice of termination or
filing of the unlawful detainer complaint.” (Id.)
Holt argues
that all of the cross-complaint’s causes of action are the direct result of
Holt having commenced the unlawful detainer action in order to regain
possession of the Premises from Avroham Fox, Aka Avi Fox, and Dahlia Fox. Indeed,
Holt cites express language in the cross-complaint which states: “Cross-Complainants
were wrongfully evicted based on Cross Defendants’ malicious actions and
Cross-Defendants violating the Statutory Violation of City of Los Angeles
ordinances. The Cross-Defendant demonstrated these actions by filing an
Unlawful Detainer Action against Cross-Complainants.” (CC, ¶ 45, emphasis
added.) Holt reasons that this language shows the entire cross-complaint seeks
liability on the unlawful detainer action.
This
allegation does not clearly show the wrongful eviction cause of action
arises from Holt’s filing of the unlawful detainer action. First, the
underlined allegation is not a model of clarity. The Court is uncertain what
“demonstrated” would mean in this context. Second, in context, the cross-complaint
does not seek to hold Holt liable for filing the underlying unlawful detainer
action. The cross-complaint goes on to allege that “Cross Defendant’s actions
in violation of the statute ordinances was a substantial factor in causing
harm to Cross Complainants’” without claiming damages stemming from the unlawful
detainer action. (CC ¶ 46, emphasis added.) Thus, the Cross-Complaint does not
allege that liability arises from Cross-Defendant’s filing of the unlawful
detainer action, but rather other “statutory violations” such as City of
Los Angeles Ordinances, 186585, 186606 and 186607, L.A. Municipal Code sections
49.99, 49.99.2, 49.99.6, 49.99.7, 49.99.8, 49.99.9 and Section 151.32. (CC ¶¶
44, 45.) “Cross-Defendants clearly violated these ordinances by demanding and
collecting rents during the Covid moratorium from Cross Complainants.” (CC ¶
44.) A close reading of the cross-complaint shows that any allegations
concerning the unlawful detainer actions are simply relevant background facts
in support of their harassment and statutory violation claims. (See CC ¶¶20-23,
31, 35, 39, 42.)
Critically, Holt does not show that the entire
Cross-Complaint (i.e., each cause of action) arises from Holt’s
commencement of the unlawful detainer Action. For instance, Holt cites no other
specific language which would tend to show that the entire
cross-complaint or any other specific cause of action arises from protected
activity. Holt only cites language from a single cause of action for wrongful
eviction. (CC ¶ 45.) However, the second cause of action
for retaliatory harassment is expressly premised only on Holt’s alleged
harassment, intimidation, demanding excess rents, and refusal to accept rents.
(CC ¶¶48-49.) Each cause of action therefore does not arise solely
from protected activity.
On this
record, the Court cannot find that the entire cross-complaint arises from
protected activity. The gravamen of the cross-complainant seeks liability based
on statutory violations based on Holt’s alleged harassment, intimidation,
demanding excess rents, and refusal to accept rents. Simply because the cross-complaint
generally mentions or discusses the underlying unlawful detainer actions does
not mean the cross-complaint seeks liability for those actions, or that the
gravamen of each cause arises from such protected activity. At best, some of
the causes of action might partially arise from protected activity.
However, Holt has failed to notice any specific allegations to be stricken. As the moving
party, Holt has the burden to identify the specific allegations of protected
activity and the claims arising from it. (Baral, supra, 1 Cal.5th
at 391 [recognizing that an anti-SLAPP motion may be used to strike
allegations of protected activity even without defeating an entire cause of
action or primary right]; see Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1012 [“If a cause of action contains multiple claims and
a moving party fails to identify how the speech or conduct underlying some of
those claims is protected activity, it will not carry its first-step burden as
to those claims.”].) Holt did not identify any language to be stricken, beyond
the “entire” cross-complaint. Since the entire cross-complaint cannot be
stricken, the motion cannot be granted as noticed.
Holt
therefore fails to meet its prong 1 burden. The Court therefore does not reach
prong 2. Accordingly, the motion is DENIED.