Judge: Melvin D. Sandvig, Case: 22CHCV00362, Date: 2023-02-09 Tentative Ruling
Case Number: 22CHCV00362 Hearing Date: February 9, 2023 Dept: F47
Dept. F47
Date: 2/9/23
Case #22CHCV00362
SPECIAL MOTION
TO STRIKE
Motion filed on 6/30/22.
MOVING PARTY: Defendants Stephen
Burns, Judith A. Burns and Stephen Burns, Judith A. Burns Trustees of the Burns
Family Trust dated September 16, 2011
RESPONDING PARTY: Plaintiffs Granada Hills
Center, LLC; Beverly Hills Investors, Inc.; Levi Estates, LLC; and Eli
Levi
NOTICE: ok
Defendants also request an award of attorney fees and
costs in the amount of $8,630.00 against Plaintiffs.
RULING: The request to strike all of the causes of
action in Plaintiffs’ complaint is granted.
Based on the granting of the motion as to all of the causes of action
therein, Defendants’ alternative request
to strike certain allegations in the complaint is moot. Defendants’ request for attorneys’ fees and
costs is granted.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a landlord-tenant relationship
between Defendants Stephen Burns, Judith A. Burns and Stephen Burns, Judith A.
Burns Trustees of the Burns Family Trust dated September 16, 2011 (Defendants)
and Plaintiff Granada Hills Center, LLC (GHC) for commercial property located
at 10690 Balboa Boulevard, Granada Hills, California 91344.
On 2/25/21, Defendants filed an action (LASC Case No.
21CHCV00135/Prior Lawsuit) against GHC for breach of contract based on unpaid
rent accruing after March 2020 (the onset of the Covid Pandemic). (RJN, Ex.2).
On 1/27/22, Department F49 sustained GHC’s demurrer to the First Amended
Complaint in the Prior Lawsuit without leave to amend on the ground that Defendants
(plaintiffs in the prior action) could “not state a claim for a breach of the
lease based on past due rent or property taxes given the language in the
moratorium barring any collection of revenue associated with the provision of
real property for an agreed upon fee.”
(RJN, Ex.4; 1/27/22 Minute Order, p.3, in 22CHCV00135). On 3/24/22, the Court entered a judgment of
dismissal in the Prior Lawsuit. (RJN,
Ex.5).
On 5/24/22, Plaintiffs GHC; Beverly Hills Investors, Inc.
(BHI); Levi Estates, LLC (Levi Estates); and Eli Levi (Levi) (collectively,
Plaintiffs) filed the instant action against Defendants for: (1) Violation of
Local Statutory Eviction and Collection Moratoriums; (2) Breach of Warranty of
Quiet Enjoyment; (3) Intentional Interference With Contractual Relations; (4)
Intentional Interference With Prospective Economic Relations; (5) Negligence;
(6) Violation of Unfair Business Practices Act and (7) Intentional Infliction
of Emotional Distress. GHC, BHI and Levi
Estates are all “business activities” of Levi.
(See Opposition, p.4:11-p.5:1; Levi Decl. ¶¶6-7; Complaint
¶21). On 5/25/22, Plaintiff filed a
Notice of Related Case indicating that the instant case is related to the Prior
Lawsuit for breach of contract case (21CHCV00135) filed by Defendants. (See 5/25/22 Notice of Related
Case). No action was taken by this Court
because Department F49 had the earlier filed case.
On 6/30/22, Defendants filed the instant Special Motion
to Strike seeking an order pursuant to CCP 425.16 striking all of the causes of
action (1st – 7th) in Plaintiffs’ Complaint. Additionally, Defendants request that various
allegations of protected activity be stricken from the Complaint in addition to
the causes of action, or as an alternative to striking the causes of
action. (See Notice of Motion,
p.2:24-p.10:27 for specific allegations sought to be stricken). The motion was originally scheduled for
hearing on 10/18/22. On 10/5/22,
Plaintiffs filed an opposition to the motion and on 10/11/22 Defendants filed a
reply.
On 10/18/22, this Court continued the hearing on this
motion so that a Notice of Related Case could be filed in the Prior Lawsuit (as
such notice had not been previously filed in that action) and ruled upon by
Department F49 before a ruling was made on the merits of this motion. (See 10/18/22 Minute Order; 10/28/22
Notice/Order of Continue of Hearing). On
1/25/23, Department F49 issued a Minute Order finding that the earlier filed
case (21CHCV00135) and the instant case (22CHCV00362) are not related within
the meaning of CRC 3.300(a). (See
1/25/23 Minute Order in 21CHCV00135).
ANALYSIS
Plaintiffs’ Request for Judicial Notice (RJN) is
granted.
In ruling on a Special Motion to Strike, the Court must
undertake a two-step analysis. First,
the Court must determine whether the Defendants have made a prima facie showing
that the Plaintiffs’ cause(s) of action arise out of Defendants’ protected
activity. CCP 425.16(b)(1); See also
Bonni (2021) 11 C5th 995, 1009; Navellier (2002) 29 C4th 82,
88-89. Protected activity means an ‘“act
in furtherance of a person's right of petition or free speech under the United
States or California Constitution in connection with a public issue’ [which]
includes: (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).
In making its determination of whether a cause of action
is subject to a special motion to strike, the Court must consider the pleadings
and supporting and opposing affidavits stating the facts on which the liability
or defense is based. CCP 425.16(b)(2); City
of Cotati (2002) 29 C4th 69, 78.
If Defendants meet their initial burden, the Court must
then determine whether Plaintiffs have established that there is a probability
that the Plaintiffs will prevail on their claim(s). CCP 425.16(b)(1); Bonni, supra;
Navellier, supra; City of Cotati, supra. In order to meet this burden, Plaintiffs must
present evidence admissible at trial. Contreras
(2016) 4 CA5th 394, 405.
The filing and prosecution of a lawsuit constitutes
protected activity under CCP 425.16(e)(1), (2); Soukup (2006) 39 C4th
260, 291; Sheley (2017) 9 CA5th 1147, 1165; Feldman (2008) 160
CA4th 1467, 1479-1480. Statements that
are preliminary to an official proceeding are protected activities under CCP
425.16 (the anti-SLAPP statute). See
Briggs (1999) 19 C4th 1106, 1115; Feldman, supra.
The acts of Defendants complained of by Plaintiffs which
constitute protected activity include: (1) the filing of the prior
lawsuit (Complaint ¶¶ 17, 19, 20, 22, 31, 32, 33, 34, 37, 39, 40, 57, 58, 70,
71, and 72), (2) service of default notices and/or legal documents
(Complaint ¶¶ 18, 19, 22, 23, 24, 25, 26, 28, 31, 32, 33, 34, 37, 38, 39, 40,
44, 45, 51, 52, 57, 58, 61, 62, 63, 64, 65, 66, 67, 70, 71, 72), and (3)
communications during the course of the pending litigation (Complaint ¶¶ 17,
18, 19, 22, 23, 24, 25, 26, 28, 31, 32, 33, 34, 37, 38, 44, 45, 51, 52, 57, 58,
61, 62, 63, 64, 65, 66, 67, 70, 71, 72).
See CCP 425.16(e)(1), (2).
Plaintiffs’ argument that the actual “wrong complained of
is [Defendants’] decision to use the complaint naming GHC to attempt to force a
non-party, Lender, to pay [Defendants] on behalf of GHC” is without merit. (See Opposition, p.8:14-15; Complaint
¶18). The ground lease which governs the
relationship between Defendants and GHC requires Defendants to inform the
third-party Lender of any default and give the Lender an opportunity to cure
the default. (Almaraz Reply Decl., Ex.A
¶20.3). As such, Defendants’ “communications”
with the Lender (i.e., providing a copy of the Prior Lawsuit and the notice of
default to the Lender) were a “written or oral statement or writing made in
connection with an issue under consideration or review by a…judicial
body.” CCP 425.16(e)(2). Plaintiffs’ contention, raised for the first
time in the opposition, that their complaint is based on “the charging of
illegal rents” is also without merit. (See
Opposition, p.9:6-10). The complaint
does not allege that Defendants “charged illegal rents.” Rather, it alleges that Defendants “sought to
collect rent due” in disregard of the Moratoriums. (Complaint ¶¶31, 37). However, it was by the filing of the Prior
Lawsuit that Defendants sought to collect the rents in disregard of the Moratoriums
which is protected activity.
A cause of action arises out of protected activity if it
is based on an act in furtherance of Defendants’ right of petition or free
speech. See City of Cotati,
supra at 72-73, 78; Park (2017) 2 C5th 1057, 1060, 1062-1063. Each of Plaintiffs’ causes of action arise
out of Defendants’ protected activity. For
example, the first cause of action for Violation of Local Statutory Eviction
and Collection Moratoriums is based on
Defendants’ filing a lawsuit for a breach of the Ground Lease. (Complaint ¶¶ 29-34). Plaintiffs allege that Defendants’ protected
activity in seeking the back-owed rent by filing a lawsuit constitutes the
violation. Similarly, the second and
seventh causes of action are based on
allegations of Defendants’ Prior Lawsuit. (Complaint ¶¶ 37-40, 70-72). Plaintiffs also allege that the service of
legal documents, including default notices, is the basis for all of the causes
of action in the complaint. (Complaint
¶¶ 29-34, 37-40, 44-45, 51-52, 57-58, 61-67, 70-72). Plaintiffs also allege that communications
made in the course of litigation were in furtherance of the improper
collections of back owed rent, and the basis for the second, third, fourth,
fifth, sixth, and seventh causes of action. (Complaint ¶¶ 37-40, 44-45, 51-52, 57-58, 61-67,
70-72). As noted above, Plaintiffs’
argument in the opposition that their causes of action are actually based on
Defendants “informing the Lender that GHC was in default” still falls under
protected activity because such conduct was required by the Ground Lease on
which the Prior Lawsuit was based. (See
Opposition, p.10-7-9). Similarly,
Plaintiffs’ argument that certain of their causes of action (first, second,
sixth) are based on Defendants’ charging rents in violation of the law of the
moratorium does not save their claims.
The complaint does not allege that the rent should not, or could not,
have been charged because the moratoriums provide that rent continues to
accrue. As such, Plaintiffs’ complaint
is not for the improper or illegal charging of rent. Rather, it is for the alleged improper filing
of the Prior Lawsuit to collect that rent and actions related to that Prior
Lawsuit.
Based on the foregoing, all of Plaintiffs’ causes of
action are based on and arise out of Defendants’ protected activities which Plaintiffs’
allege caused them damage. Therefore, the
burden shifted to Plaintiffs to establish a probability that they will prevail
on their claims. CCP 425.16(b)(1). Plaintiffs have failed to meet their
burden.
Civil Code 47 sets forth the litigation privilege and
provides in relevant part:
“A privileged publication or
broadcast is one made:
.
. .
(b) In any (1) legislative
proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to Chapter 2 (commencing with Section
1084) of Title 1 of Part 3 of the Code of Civil Procedure…”
The litigation privilege is absolute. Home Insurance Co. (2002) 96 CA4th 17,
23. The litigation privilege normally
applies “to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.” Silberg
(1990) 50 C3d 205, 212. The privilege
applies “even though the publication is made outside the courtroom and no
function of the court or its officers is involved.” Id.
The privilege even applies if there is no active litigation if “the statement
is made with a good faith belief in a legally viable claim and in serious contemplation
of litigation.” See Blanchard
(2004) 123 CA4th 903, 919.
Here, regardless of Plaintiffs’ categorization of
Defendants’ conduct as “intimidation of the Lender,” every cause of action
alleged in Plaintiffs’ complaint is based on conduct of Defendants related to
the Prior Lawsuit (i.e., attempts to collect rent and notifying the Lender of
such pursuant to the Ground Lease).
California courts interpret the litigation privilege broadly. See Feldman, supra at
1485-1486. Such broad interpretation
covers all of Plaintiffs’ claims in this action.
Even if the litigation privilege did not apply to all of
Plaintiffs’ causes of action, which the Court finds it does, Plaintiffs have
not shown a probability of prevailing on certain of their claims. Plaintiffs’ contention that they have shown a
probability of prevailing on their first and second causes of action because
they are based on statute is without merit.
The first cause of action is based on the County
moratorium which states in Section X that for violations of the moratorium,
“Landlords shall be subject to civil penalties pursuant to Section 8.52.170 and
8.57.140 of the County Code.” Los
Angeles County Code section 8.52.170 provides:
“Any Tenant, or any other person or
entity acting on behalf of the Tenant who will fairly and adequately represent
the Tenant's interest, including the County, is authorized to bring a civil
action and/or proceeding in a court of competent jurisdiction for violation of
this Chapter, for civil penalties, injunctive, declaratory and other equitable
relief, restitution and reasonable attorneys' fees and costs and may take such
other steps as necessary to enforce this Chapter. The court may award
reasonable attorneys' fees and costs to a Landlord who prevails in any such
action if the court determines that the Tenant's action was frivolous.”
Under the foregoing statute, a “Tenant” is defined as “a
tenant, subtenant, lessee, sublessee, or any other person entitled under the
terms of a Rental Agreement to the use or occupancy of any Dwelling Unit.” Los Angeles County Code 8.52.030(U). A “Dwelling Unit” is defined as “a dwelling
unit, as defined under California Civil Code section 1940 subsection (c),
including joint living and work quarters, that is used or occupied in
consideration of payment of rent, and applies to any dwelling space that is
actually used for residential purposes, whether or not the residential use is
legally permitted, including live-work spaces, mobilehomes rented by the owner
to a Tenant, and any accessory dwelling unit in the unincorporated areas of the
County.” Id. Here, the underlying lease and property are
commercial in nature. As such, the
statute on which Plaintiffs rely for their first cause of action does not
apply.
The second cause of action is based on “violation[s] of
Civil Code sections 1940.2(a)(3)-(4) and 1954.”
(See Opposition, p.13:8-9).
Civil Code 1940(a) provides that “this chapter shall apply to all
persons who hire dwelling units located within this state including tenants,
lessees, boarders, lodgers, and others, however denominated.” Under Civil Code 1940(c), dwelling units are
defined as “a structure or the part of a structure that is used as a home,
residence, or sleeping place by one person who maintains a household or by two
or more persons who maintain a common household.” Again, the Prior Lawsuit involved commercial
property, not a dwelling unit.
The sixth cause of action is based on the purported
statutory violations alleged in the first and second causes of action which, as
noted above, fail. (See
Opposition, p.14:18-20).
Defendants who prevail on a special motion to strike are
entitled to recover their attorney’s fees and costs. CCP 425.16(c)(1). Here, Defendants request $8,630.00 in
attorneys’ fees and costs based on (16 hours of attorney time at $350/hour + 6
hours of attorney time at $495/hour + $60 filing fee). (See Almaraz Decl. ¶¶7-8). In response to the amount requested, without
further explanation or any authority, Plaintiffs merely state that “[t]he
amount of time for the motion is excessive considering the motion is based on
general authority.” (See
Opposition, p.15:8-9). The Court finds
that the amount of fees and costs requested by Defendants to be reasonable
under the circumstances. (See
Almaraz Decl. ¶¶5-8).
CONCLUSION
Based on the foregoing, Defendants’ request to strike all
of the causes of action in Plaintiffs’ complaint pursuant to CCP 425.16 is
granted. Additionally, as the prevailing
parties on this motion, Defendants are entitled to recover from Plaintiffs their
attorneys’ fees and costs in the amount of $8,630.00.