Judge: Mark C. Kim, Case: 21LBCV00615, Date: 2022-11-22 Tentative Ruling

Case Number: 21LBCV00615    Hearing Date: November 22, 2022    Dept: S27

1.     Background Facts

Plaintiff, Arthur James Tisdale III filed this action against Defendant, Tony Habib on 11/19/21.  Plaintiff’s original complaint was a judicial council form complaint for breach of contract, and included several exhibits.  On 2/02/22, Plaintiff filed his First Amended Complaint, which was also a judicial council form complaint, but contains no exhibits.  On 7/19/22, the Court sustained Defendant’s demurrer to the FAC with leave to amend.  On 8/08/22, Plaintiff filed his operative Second Amended Complaint.

2.     Special Motion to Strike

a.     Standard on Special Motion to Strike

The Legislature has authorized a special motion to strike that may be filed against “SLAPP” suits (Strategic Lawsuits Against Public Participation). The anti-SLAPP motion is a procedural remedy, designed to quickly identify and dispose of lawsuits brought to chill the valid exercise of a party's constitutional right of petition or free speech.  CCP § 425.16(a)); see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056, holding that an anti-SLAPP motion is a “quick and inexpensive method for unmasking and dismissing such suits.”

Courts use a two-step process for determining whether an action or a claim is a SLAPP suit subject to a special motion to strike. Plaintiff's claim must (1) arise out of defendant's protected speech or petitioning; and (2) lack even minimal merit.  Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009. 

b.     Defendant’s Moving Burden

Defendant, when filing a special motion to strike, has the initial burden to show the operative complaint implicates protected activity.  Defendant shows that, pursuant to Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4^th 1467, service of a pre-filing unlawful detainer notice to quit is a protected activity for purposes of an anti-SLAPP motion.  Defendant shows that Plaintiff’s SAC is predicated on Plaintiff’s allegation that Defendant wrongfully served such a notice.  Defendant has therefore met his moving burden to show the anti-SLAPP protection applies, such that the burden shifts to Plaintiff to show minimal merit to his claims. 

c.     Plaintiff’s Opposing Burden

Any opposition to this motion was due on or before 11/08/22.  To date, Plaintiff has not filed any opposition to this motion.  Plaintiff has therefore necessarily failed to meet his burden to show the claim has minimal merit.  The special motion to strike is granted, and the case is dismissed.

d.     Attorneys’ Fees

A defendant who prevails in connection with an anti-SLAPP motion is entitled to recover his attorneys’ fees and costs incurred in connection with the motion.  Defendant’s attorney declares he billed Defendant a total of $2822.50 in connection with the motion.  The Court finds the amount both reasonable and fully supported by the declaration, with one exception.  Defense Counsel estimates he will spend two hours, billed at the rate of $425/hour, preparing and filing the reply.  Because no opposition was filed, no reply was necessary.  The Court therefore reduces the sanctions award by $850. 

Plaintiff is ordered to pay sanctions to Defendant, by and through his attorney of record, in the total amount of $1972.50, within twenty days. 

Defendant is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.