Judge: Maurice A. Leiter, Case: 22STCV12097, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV12097    Hearing Date: October 25, 2022    Dept: 54

Hearing Date: October 25, 2022

Department 54, Judge Maurice A. Leiter

(2) Anti-SLAPP Motions

Moving Party: Defendants Erin Barry, Kohr Group Realty, Inc., Julio Ayora, Naomi Kalkanoff and SFRE Beverly Hills, Inc.

Responding Party: Plaintiff Saul Larner

T/R:    DEFENDANTS’ ANTI-SLAPP MOTIONS ARE DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

On April 11, 2022, Plaintiff Saul Larner sued Defendants Erin Barry, Kohr Group Realty, Inc., Julio Ayora, Naomi Kalkanoff, and SFRE Beverly Hills, Inc., asserting eleven causes of action for defamation, negligence, tortious interference, intentional infliction of emotional distress, and UCL violations. Plaintiff alleges Defendants defamed him by making an ethics complaint against him to the Greater Los Angeles Realtors organization (GLAR).

ANALYSIS

In ruling on a special motion to strike pursuant to California Code of Civil Procedure section 425.16, an anti-SLAPP motion, the Court applies a two-pronged test. First, the Court determines whether the moving defendant has met his or her burden to establish that the “challenged cause of action is one arising from protected activity.” (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) The moving defendant meets this burden by demonstrating 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.” (Id.)

If moving defendant meets this burden the plaintiff has the burden of establishing the second prong: a probability of prevailing on the merits of the complaint. (Id.) “To establish such a probability, a 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

A. Defendants Naomi Kalkanoff and SFRE Beverly Hills, Inc.’s Anti-SLAPP Motion

“A cause of action. . . arising from any act of that person in furtherance of the person’s right of petition” is subject to the anti-SLAPP statute.  (CCP § 425.16(b)(1).)  Protected activities include: “(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.” (CCP § 425.16(e).)

            Defendants assert that complaints and related communications to GLAR are protected activity under CCP § 425.16(e)(1) as communications made “in any other official proceeding authorized by law.” Defendants represent that GLAR is trade association recognized by the Department of Real Estate that governs the ethical rules for realtors. Defendants argue this makes ethics complaints to GLAR “other official proceedings.”

            Private hearings by private entities may be “official proceedings” for purposes of the anti-SLAPP statute under certain circumstances. But there are no applicable circumstances here. This case is analogous to Kettler v. Gould (2018) 22 Cal.App.5th 593, where the children of deceased elderly parents, the Goulds, brought a complaint with the Certified Financial Planning Board against decedents’ financial planner, Kettler, for elder abuse. Kettler filed a cross-complaint against the Goulds for defamation arising from this complaint. The Goulds filed an anti-SLAPP, arguing that the complaint before the CFP Board was an “official proceeding” under subsection (e)(1).

            The Court of Appeal in Kettler distinguished its case from the Supreme Court’s decision in Kibler v. Northern Inyo County Local Hospital (2006) 39 Cal.4th 192. The Supreme Court found that a hospital’s peer review process, “by which a committee comprised of licensed medical personnel at a hospital ‘evaluate[s] physicians applying for staff privileges, establish[es] standards and procedures for patient care, assess[es] the performance of physicians currently on staff,’ and reviews other matters critical to the hospital's functioning,” qualified as an official proceeding under the anti-SLAPP statute. (Id. at 199.) The Court reasoned that the peer review process was required by statute (Bus. & Prof. Code § 805, et seq.) and the outcome of the process was subject to judicial review by administrative mandate. (Id. at 199-200.)

            The Kettler Court of Appeal found that, by contrast, “[t]he CFP Board, and its procedures for investigating complaints, possess none of the attributes of an ‘official proceeding authorized by law.’ The CFP Board is not a government entity; it is not related in any way to a government entity; its procedures are not required by law; and its decisions are not subject to judicial review by administrative mandate.” (Kettler, supra 22 Cal.App.5th at 604.) It concluded that the complaint to CFP was not protected activity under CCP § 425.16(e)(1).

            Here, GLAR represents itself as a trade association whose members agree to adopt and abide by the National Association of Realtors Code of Ethics. (Def. Exh. D.) The organization states that its members set themselves apart from other real estate licensees who are “outside of organized real estate.” (Id.) GLAR is not a government entity, nor does it appear that one must be a member of GLAR to be a licensed real estate professional. Defendants do not dispute this or present evidence to the contrary. Defendants have failed to establish the complaint arises from protected activity under subsection (e)(1).

            Defendants alternatively argue that the GLAR complaint and related communications are conduct made in connection with an issue of public interest under subsection (e)(4). Kettler rejected this argument as well, finding the complaint only affected the parties and not the public. (Kettler, supra 22 Cal.App.5th at 605.) There is no evidence that the GLAR complaint here affects the public or an issue of public interest.

            The facts that the Department of Real Estate is a government entity, and complaints made to it are likely “official proceedings,” are not relevant here.  The parties agree there was no actual complaint to the Department of Real Estate. Defendants requested that Plaintiff remove this allegation from the complaint before filing this motion. Plaintiff did not remove it, but Plaintiff concedes in opposition that this allegation in untrue.

            Defendants’ have failed to establish the complaint arises from their protected activity. The anti-SLAPP motion is DENIED.

B. Defendants Erin Barry, Kohr Group Realty, Inc. and Julio Ayora’s Anti-SLAPP Motion

Defendants assert that the complaint arises from their protected activity under CCP § 425.16(e)(1)-(4). Defendants do not provide analysis or explanation to support this assertion. For this reason, and the reasons discussed above, Defendants have failed to establish the complaint arises from protected activity.

            Defendants’ anti-SLAPP motion is DENIED.