Judge: Mel Red Recana, Case: 23STCV08356, Date: 2024-04-16 Tentative Ruling
Case Number: 23STCV08356 Hearing Date: April 16, 2024 Dept: 45
Hearing date: April 16, 2024
Moving Party: Defendant Ada R. Cordero-Sacks dba
Law Offices of Ada R. Cordero-Sacks (“Defendant”)
Responding Party:
Unopposed
Motion to Strike Portions of Plaintiff’s Complaint
Pursuant to CCP § 425.16
The Court has
considered the moving papers. No opposition papers were filed.
The motion is
GRANTED.
Background
This
action arises from the filing of an unlawful detainer action, LASC Case No.
22STUD06657 (the “UD Action”), against Plaintiff Derrick Lamont Beverly
(“Plaintiff”) by Fox Normandie Apartments, LP. (Complaint at p. 1:18-28.) On
April 14, 2023, Plaintiff filed a Complaint against Defendants Ada R.
Cordero-Sacks, Esq. and Law Offices of Ada R. Cordero-Sacks (“Defendants”). The
Complaint is set forth on pleading paper and is handwritten. The Court notes
that some of Plaintiff’s penmanship is illegible.
Plaintiff
alleges that Defendants were retained in the UD Action to draft the complaint
in the UD Action and carry out the UD Action. (Complaint at p. 2:1-12.)
Plaintiff indicates that the instant action is directly related to the filing
of the UD Action. (Complaint at p. 1:18-22.)
On
July 27, 2023, Defendant Ada R. Cordero-Sacks dba Law Offices of Ada R.
Cordero-Sacks (“Defendant”) filed and served the instant Special Motion to
Strike pursuant to CCP § 425.16. Defendant’s motion is unopposed. Any
opposition to the motion was required to have been filed and served at least
nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)
Plaintiff’s failure to oppose the motion “creates an inference that the motion
is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403,
1410.)
Legal
Standard
“A
special motion to strike under section 425.16—the so-called anti-SLAPP
statute—allows a defendant to seek early dismissal of a lawsuit that qualifies
as a SLAPP.” (Nygard, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)
“A cause
of action against a person arising from any act of that person in furtherance
of the person's right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd.
(b)(1).)
In
analyzing an anti-SLAPP motion, a court engages in a two-step process. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “First, the
court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. (Ibid.)
“In making its determination of whether a cause of action arises from protected
activity, a court considers “the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.”
(Code Civ. Proc. § 425.16, subd. (b)(2).) “If the court finds such a showing
has been made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (Kronemyer
v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 946, internal
quotations omitted, citation omitted.)
Judicial Notice
The Court DENIES
Defendant’s request for judicial notice as it is procedurally improper. “Any
request for judicial notice must be made in a separate document listing the
specific items for which notice is requested.” (Cal. Rules of Court, Rule
3.1113(l).) Here, Defendant did not request judicial notice in a separate
document and requested judicial notice in the declaration in support of the
motion.
Discussion
Step One: Whether the Complaint
Arises from Protected Activity
The anti-SLAPP statute is designed
to protect “(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.” (Code Civ. Proc., § 425.16, subd. (e).)
A “public interest” must be demonstrated only with respect to the activities
described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1117-1121.) “[A] statement is
made ‘in connection with’ litigation under section 425.16, subdivision (e)(2)
if it relates to the substantive issues in the litigation and is directed to
persons having some interest in the litigation.” (Greco v. Greco (2016)
2 Cal.App.5th 810, 825.) “[S]tatements, writings, and pleadings in connection
with civil litigation are covered by the anti-SLAPP statute, and that statute
does not require any showing that the litigated matter concerns a matter of
public interest.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,
1261, citations omitted.) “[C]ourts have adopted a fairly expansive view of
what constitutes litigation-related activities within the scope of section
425.16.” (Id. at p. 1268, internal quotations omitted, citation
omitted.)
“The anti-SLAPP protection for petitioning activities applies not only
to the filing of lawsuits, but extends to conduct that relates to such
litigation, including statements made in connection with or in preparation of
litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145
Cal.App.4th 1532, 1537.) “The constitutional right of petition encompasses the
basic act of filing litigation.” (Navellier v. Sletten (2002) 29 Cal.4th
82, 90.) In assessing whether a complaint arises from protected activity, a court
disregards the labeling of the claim. (Hylton v. Frank E. Rogozienski, Inc. (2009)
177 Cal.App.4th 1264, 1272.) A court instead “examine[s] the principal
thrust or gravamen of a plaintiff’s cause of action to
determine whether the anti-SLAPP statute applies.” (Ibid., emphasis in original.) “If the core injury-producing
conduct upon which the plaintiff’s claim is premised does not rest on protected
speech or petitioning activity, collateral or incidental allusions to protected
activity will not trigger application of the anti-SLAPP statute.” (Ibid.)
“[T]he critical point is whether the plaintiff’s cause of action itself was based
on an act in furtherance of the defendant’s right of petition or free
speech.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 74,
citations omitted.)
Here, the Complaint states that it
is directly related to the filing of the UD Action, in which Defendant provided
legal representation in such action. Thus, the gravamen of the Complaint is the
filing of the UD Action, which is a legal proceeding. Any conduct of Defendant
in preparation for or in connection with such a proceeding is protected
activity. In support of the motion, Defendant Ada R. Cordero-Stacks declares
that the UD Action was filed by her office on October 13, 2022, and that Plaintiff’s
tenancy was being terminated for intentionally damaging the premises and
nuisance. (Cordero-Stacks Decl., ¶¶ 9-10.) Judgment was granted against
Plaintiff in the UD Action, and he was evicted. (Cordero-Stacks Decl., ¶ 12.)
Thus, Defendant has shown that the
Complaint arises from protected activity. The Court will now proceed with the
second step of the anti-SLAPP analysis (i.e., whether plaintiff has established
a probability of prevailing).
Step
Two: Plaintiff’s Probability of Prevailing
Plaintiff has failed to oppose
Defendant’s special motion to strike. As such, Plaintiff has not shown a
probability of prevailing on the merits. Also, given that Plaintiff has failed
to oppose the motion, there is an inference that the motion has merit. (Sexton, supra, 58 Cal.App.4th 1403, 1410.) “Contentions are
waived when a party fails to support them with reasoned argument and citations
to authority.” (Moulton
Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)
Accordingly, the special motion to
strike filed by Defendant Ada R. Cordero-Sacks dba Law Offices of Ada R.
Cordero-Sacks is GRANTED.
It is so
ordered.
Dated:
April 16, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court