Judge: Mark A. Young, Case: 24SMCV06107, Date: 2025-06-12 Tentative Ruling
Case Number: 24SMCV06107 Hearing Date: June 12, 2025 Dept: M
CASE NO.: 24SMCV06107
MOTION: Special
Motion to Strike
HEARING DATE: 6/12/2025
Legal
Standard
Code of Civil Procedure (CCP) 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
Plaintiff/Cross-Defendant Josh
Flagg moves to strike the second through fifth causes of action in the Cross-Complaint
(CC) filed by Defendant/Cross-Complainant Behrouze Berookhim.
First Prong
Flagg meets his prong 1 burden demonstrating
that the second through fifth causes of action arise from protected activity. CCP
section 425.16(e) defines protected acts as, in relevant part: (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.
The second cause of action alleges
that Flagg appeared on the Bravo network show Million Dollar Listing Los
Angeles. (CC ¶ 17.) On the show, Flagg repeatedly made negative comments
about Berookhim and ridiculed the condition and value of his house. (Id.) Flagg
made these comments to set up Berookhim as the foil or villain in the episodes.
(Id.) Flagg publicly disclosed information or material that showed Berookhim in
a false light. (CC ¶ 18.) Flagg knew that the disclosures would create a false
impression about Berookhuim. (CC ¶ 20.)
The third through fifth causes of
action provide similar allegations regarding Flagg’s negative comments about
Berookhim and the condition of the house. (CC ¶¶ 26-50.) The Million Dollar
Listing Los Angeles episodes aired while Berookhim was re-listing and
attempting to sell the property. (CC ¶¶ 27, 36, 45.) Flagg’s negative comments
during those episodes disrupted the economic relationship between Berookhim and
potential purchasers and caused Berookhim severe emotional distress. (CC ¶¶ 28-33,
37-42, 46-50.)
Flagg reasons that his alleged
statements regarding the high-end Beverly Hills property were expressions of
opinion related to his expertise as a real estate agent and cast member of a
show broadcast to a wide audience. Flagg notes that there is widespread
interest in the Los Angeles luxury real estate market depicted on the Program.
(Hart Decl., ¶¶ 4-12, Exs. 3-11.) The Program itself has aired fifteen seasons
over 19 years. (Id.) The Program thus falls into the broad scope of the “public
interest” requirement. The Los Angeles real estate market could fairly be
considered a matter of public interest. Berookhim does not dispute that to the
second through fifth causes of action of the Cross-Complaint arise from
protected conduct. (Opp., at 2:26-27.) Thus, there is no dispute that the statements
made on the Program are protected under section 425.16(e)(4).
Second Prong – Release & Negligence
In the moving affidavits, Flagg
presented a Release Agreement, which he contends covers the second through
fifth causes of action. For an express release of liability to be enforceable
against a plaintiff, (1) the release agreement “must be clear, unambiguous and
explicit in expressing the intent of the parties (citation omitted);” (2) the
injury-producing act “must be reasonably related to the object or purpose for
which the release is given; and (3) the release cannot contravene public
policy.” (Sweat v. Big Time Auto Racing, Inc. (2004) 117
Cal.App.4th 1301, 1304-5, citations omitted.) The applicability of an
exculpatory clause “ ‘ “turns primarily on contractual interpretation, and it
is the intent of the parties as expressed in the agreement that should control.
When the parties knowingly bargain for the protection at issue, the protection
should be afforded. This requires an inquiry into the circumstances of the
damage or injury and the language of the contract; of necessity, each case will
turn on its own facts.” ’ ” (Frittelli, Inc. v. 350 North Canon Drive, LP
(2011) 202 Cal.App.4th 35, 43-44 [exculpatory clause regarding ordinary
negligence in commercial lease does not generally violate public policy].) “Where
. . . no conflicting parol evidence is introduced concerning the interpretation
of the document, ‘construction of the instrument is a question of law, and the
. . . court will independently construe the writing.’” (YMCA of
Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 26.)
The undisputed record shows that prior
to agreeing to appear on the Program and have his home featured, Berookhim signed
an Appearance Release, Voluntary Participation and Arbitration Agreement (collectively,
the “Release Agreement”) in which he agreed not to assert any claims arising from
the creation or exhibition of the Program:
8. RELEASE, AGREEMENT NTO TO SUE
& INDEMNITY. To the maximum extent permitted by law, I (on behalf of myself
and my heirs, executors, agents, successors or assigns) agree to release from
liability, never sue, and bring no proceedings of any kind against Producer,
Network, and/or any of their parents, subsidiaries, assignees, licensees,
affiliates or anyone associated with the Program (the “Released Parties”)
for any claims, actions, damages, losses, costs, expenses or cause of action
whatsoever that in any way relate to this Agreement, my participation
in activities related to the Program, or the creation, use, or exhibition
of the Materials or the Program, on any legal theory (including failure to
adequately compensate me, infliction of emotional distress, illness, personal
injury, rights of privacy and publicity, defamation, or false light),
regardless of whether caused by the negligence or willful misconduct of the
Released Parties (collectively, the “Released Claims”)…
(Hart Decl., ¶¶ 13-14, Ex. 13, emphasis added.)
Flagg demonstrates that he is an
express third-party beneficiary to the Release. To establish this status, Flagg
must demonstrate that the contracting parties intended to benefit him under the
express terms of the contract at issue and any other relevant circumstances
under which the contract was made, including: (1) the third party would in fact
benefit from the contract; (2) a motivating purpose of the contracting parties
was to provide a benefit to the third party; and (3) permitting the third party
to enforce the contract “is consistent with the objectives of the contract and
the reasonable expectations of the contracting parties.” (Goonewardene v.
ADP, LLC (2019) 6 Cal.5th 817, 830; Civ. Code § 1559.) Here, the Release’s
terms demonstrate an intent to benefit Flagg as a third-party beneficiary. The
Release intended to affect the “Producer, Network, and/or any of their parents,
subsidiaries, assignees, licensees, affiliates or anyone associated with the
Program.” It is undisputed that Flagg is “associated” with the Program. Flagg
shows he is a longtime star and lead real estate sales agent featured on the
Program. Berookhim does not present evidence or sufficient argument which
disputes the applicability of the presented Release agreement. At best,
Berookhim contends that the Release does not apply to claims against Flagg
because he is not a direct party, However, Flagg may enforce the release as a
third party according to the Release’s own terms. Accordingly, the Release may
apply to Berookhim’s claims against Flagg.
However, the Release would not
apply to the pled and supported intentional torts. Civil Code section 1668
provides “All contracts which have for their object, directly or indirectly, to
exempt any one
from responsibility for his own fraud, or willful injury to the person or
property of another, or violation of law, whether willful or negligent, are
against the policy of the law.” Courts have regularly held that this section prohibits
contracts that exempt someone from liability for future intentional
wrongs and gross negligence. (Spencer S. Busby, APLC v. BACTES Imaging
Solutions, LLC (2022) 74 Cal.App.5th 71.) More recently, the California
Supreme Court in New England Country Foods, LLC v. VanLaw Food Products,
Inc., (2025) 17 Cal. 5th 703, 895, expanded section 1668 by finding that limitations
on damages for willful injury to the person or property of another are also prohibited
by section 1668.
As to negligence-based causes of
action, the California Supreme Court in Tunkl v. The Regents of the University
of California, (1963) 60 Cal. 2d 92, formulated a six-part test to determine
whether section 1668 invalidated the release.
The six criteria are used by the court to identify the types of
agreements in which an exculpatory clause would be invalid as contrary to
public policy, including: “(1) It
concerns a business of a type generally thought suitable for public regulation.
(2) The party seeking exculpation is engaged in performing a service of great
importance to the public, which is often a matter of practical necessity for
some members of the public. (3) The party holds himself out as willing to
perform this service for any member of the public who seeks it, or at least any
member coming within certain established standards. (4) As a result of the
essential nature of the service, in the economic setting of the transaction,
the party invoking exculpation possesses a decisive advantage of bargaining
strength against any member of the public who seeks his services. (5) In
exercising a superior bargaining power the party confronts the public with a
standardized adhesion contract of exculpation, and makes no provision whereby a
purchaser may pay additional fees and obtain protection against negligence. (6)
Finally, as a result of the transaction, the person or property of the
purchaser is placed under the control of the seller, subject to the risk of
carelessness by the seller or his agents.” (Id., at pp. 98-101.)
Reviewing these factors, the Court concludes that section
1668 would not invalidate the Release as to the fourth cause of action for
negligent interference with prospective economic relations. As such, the motion is granted as to the
fourth cause of action. The Release, however, would violate public policy to
the extent that it purports to exculpate liability for the Second, Third and
Fifth causes of action. As noted below, Berookhim presents evidence that Flagg intentionally
presented Berookhim in a false light, intended to cause emotional
distress, and intended to disrupt Berookhim’s sale to prospective buyers.
Prong 2 – False Light and Intentional Infliction of Emotional
Distress
Berookhim
presents prima facie evidence sufficiently supporting his claims in the second
and fifth causes of action.
“One who gives publicity to a
matter concerning another that places the other before the public in a false
light is subject to liability to the other for invasion of his privacy, if (a)
the false light in which the other was placed would be highly offensive to a
reasonable person, and (b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light in
which the other would be placed.” (Daniel v. Wayans (2017) 8
Cal.App.5th 367, 397.)
“The elements of a prima facie case
for the tort of intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” (Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
In 2023, Berookhim and his wife (at
the time) owned a single-family residence at 455 Castle Place in the Trousdale
Estates of Beverly Hills. (Berookhim Decl. ¶ 2.) Berookhim and his wife were
going through a divorce and desired to sell the Property. (Id., ¶ 3.) In June
2023, Berookhim and his wife met with Flagg, at Flagg’s office. (Id., ¶ 4.)
Prior to the meeting, Flagg had his associate come to the Property and video
tape the Property, so Flagg would have a video of the interior and exterior of the
house, along with the views. (Id., ¶ 4.) At the meeting, Flagg told Berookhim
that Flagg was very familiar with the Trousdale Estate properties and had
conducted research as to the specific property. (Id., ¶ 5.) They discussed when
the house was built, when Berookhim purchased the Property and for how much,
and when the house was renovated. (Id.) Flagg informed Berookhim that based on
his research the property was worth about $18 million. (Id.) On June 12, 2023,
Flagg sent Berookhim an email reiterating that he “believe[s] the price should
be in the $18-$19M range . . ..” (¶ 6, Ex. 2.) Flagg was well appraised of the
features of the property. (Id.)
On June 25, 2023, Flagg, along with
the Million Dollar Listings Los Angeles crew, visited the Property and conducted
an extensive inspection of both the interior and exterior. (Id., ¶8.) Off
camera, Flagg instructed Berookhim to respond when asked that he believed the
listing price should be $18 million. (Id., ¶ 9.) Flagg never mentioned that he
believed that the Property was really worth anything less. (Id.) Flagg never
stated to Berookhim that the fact the Property had a canyon view and not a city
view would reduce the price by millions. (Id.) Berookhim would have rethought
entering the listing agreement if Flagg told him he thought the property was
worth $13 million. (Berookhim Decl. ¶ 9.) When asked on camera what Berookhim
believed the listing price should be, Berookhim responded in the manner that
Flagg instructed him and said $18 million. (Id., ¶10.) Flagg did not say that
the price was too high or in any way unreasonable. (Ibid.) Flagg said he would
have his office send the listing agreement prepared for $17.995 million
dollars. (Id., ¶ 11, Ex. 3.)
During the listing period, it
became apparent to Berookhim that Flagg lacked the knowledge, desire, or market
plan to sell the Property. (Id., ¶13.) After acquiring sole title, Berookhim
made upgrades to the Property. (Id., ¶¶ 14-17.)
On August 1, 2024, Berookhim re-listed the property for sale for $18.5
million with Scott Moore as the listing agent. (Id., ¶ 18.) The day before the
listing was to begin, the first episode of Million Dollar Listings Los
Angeles featuring the Property aired. (Id., ¶19.) During the episode, Flagg
repeatedly stated that the Property was not worth $18 million and should never
have been listed at $18 million. (Id.) In fact, Flagg based his comments, in
part, on the fact that an $18 million property in Trousdale has a city view,
and the Property has a canyon view making it worth potentially $2.5 million
dollars less. (Id., Ex. 1, 1:14-15.) On the first airdate of July 31, 2024,
Flagg stated the Property was worth $16 million (Ex 1, 2:16-18); $15.5 million
(Ex 1, 1:14); and as low as $14 million (Ex 1, 3:3-4). He also referred to the
house as being grossly overpriced. (Id., Ex 1, 3:10.) By the next week’s airing
on August 7, 2024, Flagg stated that the Property was worth $13 million, not
$18 million. (Ex 1, 4:8-17). Flagg falsely stated on the Program, “Behrouze
firstly, I never said the property was worth $18 million . . ..” (Id., Ex 1:
3:12.)
According to the Cross-Complaint, Flagg
made Berookhim out to be the villain of the show by suggesting the listing
price was Berookhim’s decision alone. (Ex 1, 3:3-6.) Flagg insinuated that
Berookhim was a difficult and uncooperative client, even though Berookhim only
followed Flagg’s representations. (Id., ¶¶ 22-23, 27.) Flagg told future buyers
that his own listing of $18 million was “grossly overpriced,” knowingly
interfering with prospective purchasers of the re-listed house. (Id., ¶ 26.) From
the context, a reasonable fact finder could infer that the purpose and intent
of Flagg’s false comments on the Program were intended to harm, humiliate,
vilify, and impact other’s perception of Berookhim. (¶ 24.) As a result of
these false statements, Berookhim suffered humiliation, embarrassment, and
ridicule. (¶ 25.) He had difficulty sleeping and focusing because, following
the divorce, he owed equalization payments that he was to make from the funds
from selling the property, and now could no longer sell the property. (Id.)
Flagg presents no authority which
would hold that his false statements could never fairly be considered
outrageous as a matter of law. Therefore, Berookhim meets his burden as to the
Second and Fifth causes of action.
Second Prong – Intentional Interference with Prospective
Economic Advantage
Berookhim fails to present prima
facie evidence in support of the third cause of action for intentional
interference with prospective economic advantage.
The elements of a claim for
intentional interference with prospective economic advantage include “(1) an
economic relationship between the plaintiff and some third party, with the
probability of future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional or negligent acts on the part of
the defendant designed to disrupt the relationship; (4) actual disruption of
the relationship; and (5) economic harm to the plaintiff proximately caused by
the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014)
223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.)
Further, “the alleged interference must have been wrongful by some measure
beyond the fact of the interference itself. For an act to be sufficiently
independently wrongful, it must be unlawful, that is, it is proscribed by some
constitutional, statutory, regulatory, common law, or other determinable legal
standard.” (Id.)
“[T]he interference tort applies to
interference with¿existing¿noncontractual relations which hold the
promise of future economic advantage. In other words, it protects the
expectation that the relationship eventually will yield the desired benefit,
not necessarily the more speculative expectation that a potentially beneficial
relationship will eventually arise.” (Westside Center Associates v. Safeway
Stores 23, Inc.¿(1996) 42 Cal.App.4th 507, 524.)
“ ‘To subject the actor to
liability under this rule, his conduct must be intended to affect the contract
of a specific person. It is not enough that one has been prevented from
obtaining performance of a contract as a result of the actor's conduct.... Only
when the actor's conduct is intended to affect a specific person is the actor
subject to liability under this rule. …The rule does not require, however, that
the person who loses the performance of the contract as a result of the conduct
of the actor should be specifically mentioned by name. It is sufficient that he
is identified in some manner....’ ” (See Ramona Manor Convalescent Hosp. v.
Care Enterprises (1986) 177 Cal.App.3d 1120, 1132-1133 [discussing
interference with contract and prospective relationship; held that a holdover
tenant was liable for interference when acting with knowledge that holding over
would frustrate legitimate contractual expectations of known new lessee,
even though defendant was ignorant of who the new lessee would specifically be];
citing Rest.2d Torts § 766, comm. p.)
In addition to the above evidence,
Plaintiff presents evidence that on January 29, 2024, Moore was at a meeting at
Flagg’s house. (Moore Decl. ¶ 6.) While
at the meeting, Moore had several opportunities to speak with Flagg. (Id., ¶
7.) Moore informed Flagg that he was going to be retained by Berookhim to
re-list the Property after Flagg’ agreement expired. (Id.) Moore also informed
Flagg that before the Property was going to be re-listed, Berookhim intended to
upgrade and update the Property. (Id.) Flagg was aware that the house was going
to be re-listed. (Id.) Due to the known delay between filming and airing the
episode, Flagg knew his statements would coincide with the re-listing and would
disrupt and interfere with potential buyers. Moore explains that he was
approached by potential buyers regarding the comments on the show made by
Flagg. (Id., ¶ 11.) The potential buyers were concerned that the Property was
being listed at $18,500,000 even though Flagg empathetically stated that it was
worth $13,000,000. (Id.) Moore believes that Flagg’s comments directly resulted
in the loss of potential purchasers at or near the listing price. (Id. ¶ 12.)
The above evidence does not show an¿existing¿relationship
between a known buyer and Berookhim. The evidence does not suggest Flagg
knew of any particular prospective buyer. Berookhim likewise cannot show the
disruption of that relationship. Thus, Flagg cannot be liable for Intentional
Interference as a matter of law.
Conclusion
For these reasons, the motion is
GRANTED as to the third and fourth causes of action and DENIED as to the second
and fifth causes of action.