Judge Michael P. Linfield, Case Number: 23STCV26327, Date: 2024-04-11 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV26327, Date: 2024-04-11 Tentative Ruling

SUBJECT: Special Motion to Strike Complaint [and] Request for Attorneys Fees and Costs

Plaintiff is GRANTED fifteen (15) days leave to file a motion for attorney’s fees and costs.

On October 27, 2023, Plaintiffs Vrezh Hovhanissyan and Leo Gonzalez filed their Complaint against Defendants Soraya Moazaam, Faro Optometry Inc., and Faro Management, LLC. The causes of action arise from an alleged business relationship gone awry.

On December 14, 2023, the First Amended Complaint (FAC) was filed, which omitted Leo Gonzalez as a plaintiff and added a cause of action.

On December 21, 2023, Plaintiff Vrezh Hovhanissyan (“Plaintiff”) filed Notice of Errata Re First Amended Complaint.

On February 29, 2024, Defendants Soraya Moazaam and Faro Optometry Inc. (“Defendants”) filed their Special Motion to Strike [and] Request for Attorneys Fees and Costs (“anti-SLAPP Motion”). In support of their anti-SLAPP Motion, Defendants concurrently filed: (1) Appendix of Exhibits; and (2) Request for Judicial Notice.

On March 14, 2024, Plaintiff filed his Opposition to the anti-SLAPP Motion. The Opposition includes a request for attorney’s fees. In support of his Opposition, Plaintiff concurrently filed: (1) Declaration of Vrezh Hovhanissyan; (2) Declaration of Luke Manzo; (3) Request for Judicial Notice; (4) Objections to Defendants’ Exhibits; (5) Proposed Order on Objections; and (6) Omnibus Proof of Service.

On March 19, 2024, Defendants filed their Reply in support of the anti-SLAPP Motion. Defendants concurrently filed: (1) Evidentiary Objections; and (2) Response to Plaintiff’s Objections.

On March 27, 2024, by request of Plaintiff, the Clerk’s Office entered default on Defendant Faro Management, LLC.

Plaintiff filed evidentiary objections to Defendants’ evidence. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6	SUSTAINED
7	SUSTAINED
8	SUSTAINED
9	SUSTAINED
10	SUSTAINED
11		OVERRULED
11A	SUSTAINED
12	SUSTAINED
13	SUSTAINED
14	SUSTAINED
15	SUSTAINED
16		OVERRULED
17	SUSTAINED
18	SUSTAINED
19	SUSTAINED
20	SUSTAINED
21	SUSTAINED
22	SUSTAINED
23		OVERRULED
24	SUSTAINED
25	SUSTAINED
26	SUSTAINED
27	SUSTAINED
28	SUSTAINED
29	SUSTAINED
30	SUSTAINED

Although some of the hearsay objections are valid, the Court finds frivolous Plaintiff’s repeated citation to Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537 for the proposition that a statement that “fails to defeat Plaintiff’s cause of action as a matter of law” is objectionable.

The Court notes that Plaintiff's attorney who filed these objections has only been an attorney for three years. “We sometimes ‘hear’ that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to ‘do the objections,’ which was apparently done here. Perhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 257, fn. 6.)

Defendants filed evidentiary objections to Plaintiff’s evidence. The following are the Court’s rulings on these objections.

Objection
1	SUSTAINED
2	SUSTAINED
3	SUSTAINED
4	SUSTAINED
5	SUSTAINED
6	SUSTAINED
7	SUSTAINED
8	SUSTAINED
9	SUSTAINED
10	SUSTAINED
11	SUSTAINED
12	SUSTAINED
13	SUSTAINED
14	SUSTAINED
15	SUSTAINED
16	SUSTAINED

“We recognize that it is very common for [counsel] to include argument in their declarations . . . but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30.)

(1) The docket of case LACBA514505, The People of the State of California v. Hovhannisyan, Vrezh, filed in the Superior Court of California, County of Los Angeles;

(4) The Complaint filed by Leo Manuel Gonzalez against Rosita Khadivi and Faro Optometry Inc. in case WC-CM-870496, filed with the State of California Department of Industrial Relations Labor Commissioner’s Office; and

The Court GRANTS judicial notice of items 1, 4, and 5. Of course, “while courts may notice official acts and public records, we do not take judicial notice of the truth of all matters stated therein.” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063–1064 [cleaned up], overruled on other grounds by Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525 and In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

The Court DENIES as superfluous judicial notice of items 2 and 3. Any party that wishes to draw the Court’s attention to an item filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

(2) The Petition filed in case 22STPB12611, filed in the Superior Court of California, County of Los Angeles;

(3) The First Amended Petition filed in case 22STPB12611, filed in the Superior Court of California, County of Los Angeles;

(4) The Second Amended Petition filed in case 22STPB12611, filed in the Superior Court of California, County of Los Angeles; and

(5) The Third Amended Petition filed in case 22STPB12611, filed in the Superior Court of California, County of Los Angeles.

The Court GRANTS judicial notice of items 2 through 5. “ While courts may notice official acts and public records, we do not take judicial notice of the truth of all matters stated therein.” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063–1064 [cleaned up], overruled on other grounds by Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525 and In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

The Court DENIES as superfluous judicial notice of item 1. Any party that wishes to draw the Court’s attention to an item filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

“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 making its determination, the court shall consider 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).)

“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)

“In light of the foregoing, we may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate 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. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“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, 88–89, emphases in original.)

Defendants move the Court to strike the entire FAC and award Defendants attorney’s fees in bringing the anti-SLAPP Motion. (Anti-SLAPP Motion, p. 18:14–16.)

Defendants argue: (1) that police reports are protected activity; and (2) that Code of Civil Procedure section 366.2 bars every cause of action in the FAC. (Anti-SLAPP Motion, pp. 16:3, 17:11.)

Plaintiff disagrees, arguing: (1) that Plaintiff did not allege any protected activity, including any police report; (2) that none of Defendants’ conduct is privileged or protected; (3) that Plaintiff demonstrates minimal merit; (4) that Plaintiff’s causes of action are within the statute of limitations; (5) that Plaintiff will succeed on each of his causes of action; (6) that Defendants’ other arguments are factually incorrect and irrelevant; and (7) that the Court should sanction Defendants for bringing a frivolous anti-SLAPP motion. (Opposition, pp. 2:22–24, 3:24, 5:3, 4:16–17, 6:19–20, 7:18–19, 8:7–8, 7:15, 9:23, 10:21–22, 11:11, 12:15–16, 13:1, 13:14–15, 14:5–6, 14:16–18, 14:20–22.)

In their Reply, Defendants argue: (1) that Plaintiff admits this action was only filed after a police report led to his arrest; (2) that Plaintiff cannot meet his burden to show his claims have any merit; and (3) that Defendants have been sued only on the liability of a decedent, which bars all claims due to the statute of limitations in Code of Civil Procedure section 366.2. (Reply, p. 4:5–6, 6:13, 7:1, 9:3–4.)

“The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. To determine whether a claim arises from protected activity, courts must consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of acts protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [cleaned up], emphasis in original.)

“As used in this section, ‘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’ 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.” (Code Civ. Proc., § 425.16, subd. (e).)

“An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” (Tamkin v. CBS Broad., Inc. (2011) 193 Cal.App.4th 133, 143, citation omitted.)

There is “a two-step inquiry for deciding whether the activity from which a lawsuit arises falls within section 425.16(e)(4)'s protection: first, we ask what public issue or issues the challenged activity implicates, and second, we ask whether the challenged activity contributes to public discussion of any such issue. If the answer to the second question is yes, then the protections of the anti-SLAPP statute are triggered, and the plaintiff in the underlying lawsuit must establish ‘a probability’ of prevailing before the action may proceed.” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243, citing FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150; Code Civ. Proc., § 425.16, subd. (b).)

“At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff's claims is statutorily protected, not whether it has shown its acts are ultimately lawful. . . . Consistent with this understanding, at the first step of the anti-SLAPP analysis, we routinely have examined the conduct of defendants without relying on whatever improper motive the plaintiff alleged.” (Wilson, supra, 7 Cal.5th at p. 888, citations omitted.)

(1) that Defendants did not provide Plaintiff with his final paycheck of $4,480.00 (FAC, ¶ 36);

(2) that Defendants did not provide Plaintiff with his final wages at the time of the termination of his employment (FAC, ¶ 39);

(3) that Defendants did not indemnify or reimburse Plaintiff for substantial necessary business expenses for which Plaintiff was not reimbursed, such as expenses for travel, cellular telephone services, and home internet usage (FAC, ¶¶ 45–47);

(4) that Defendants engaged in unlawful business practices by violating various sections of the Labor Code (FAC, ¶¶ 53–55);

(5) that Defendants did not deliver an edging machine to Plaintiff or permit him to take possession of it (FAC, ¶¶ 64, 68);

(6) that Defendants prevented Plaintiff from receiving funds that he is entitled to receive as a result of his 50% ownership of Faro Management, LLC (FAC, ¶ 71);

(7) that Defendants retained $33,000.00 Plaintiff sent to them while wrongfully retaining the edging machine at issue (FAC, ¶¶ 76–78);

(8) that Defendants orally misrepresented to Plaintiff that they would return the edging machine at issue when they received $33,000.00 (FAC, ¶ 81–82);

(9) that Defendants sold property partly owned by Plaintiff but retained all the income and/or profits (FAC, ¶¶ 87–89);

(10) that Defendants’ acts of misappropriation have caused an existing balance between Defendants and Plaintiff to become unknown (FAC, ¶¶ 93–94); and

(11) that Defendant Soraya Moazaam fraudulently misrepresented to the California Secretary of State that Defendant Faro Management, LLC is wound up by vote of all members (FAC, ¶ 101).

Nowhere in the FAC does Plaintiff mention the police, an alleged report to the police, and alleged police report, or an alleged arrest. The closest the pleading comes to referencing such items is when Plaintiff alleges: (1) that Defendant Soraya Moazaam “began behaving erratically [and] accused [Plaintiff] of fraud and theft . . .”; and (2) that Defendant Soraya Moazaam subsequently “contacted [Plaintiff] through counsel and accused him of stealing funds, frames and lenses, examination equipment, and of stealing the $33,000 for the edging machine.” (FAC, ¶¶ 20, 25; see also anti-SLAPP Motion, p. 5:12–18.) But Plaintiff does not allege that the police, police reports, or arrests are the conduct at issue for the causes of action that are pleaded in the FAC.

The Court agrees that issues involving the police, reports to and by the police, and arrests can implicate issues that would fall under the ambit of protected activity for the purposes of the anti-SLAPP statutes. Yet there is no basis to strike the pleading merely because these issues involving the police might have happened prior to Plaintiff filing the original Complaint or the FAC. Rather, the pleading itself must include “[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 . . . in connection with a public issue . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Here, Plaintiff did not sue Defendants for malicious prosecution, defamation, wrongful arrest, or any other cause of action based on conduct that might be protected activity.

Indeed, the vast majority of the conduct that is alleged does not even come close to protected conduct. The conduct involving wages, withholding funds, and selling property without dispersing amounts owed are not directly protected activity nor are they acts in furtherance of protected activity.

Two pieces of conduct do give the Court pause: (1) the alleged oral misrepresentation to Plaintiff that Defendants would return the edging machine at issue when they received $33,000.00; and (2) the alleged misrepresentation to the California Secretary of State that Defendant Faro Management, LLC was wound up by vote of all members. (FAC, ¶¶ 81–82, 101.)

As to the first issue above, an oral misrepresentation in creating a private contract is not free speech “in connection with a public issue or an issue of public interest.”

As to the second issue, Defendants have not made any arguments regarding alleged misrepresentations to the California Secretary of State. Indeed, no arguments are made at all about this alleged conduct in either the anti-SLAPP Motion or the Reply. Nor have Defendants provided the Court with any evidence regarding these allegations. Therefore, the Court does not consider further the allegations of misrepresentations to the California Secretary of State.

In summary, Defendants have not met their initial burden on the first prong to show that Plaintiff has pleaded any cause of action against Defendants that involves Defendants’ protected activity. The Court need not and does not reach the second prong.

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

“A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.” (Code Civ. Proc., § 128.5, subd. (a).)

“(1) ‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section.

“(2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.”

Defendants request fees in connection with their anti-SLAPP Motion. Because the anti-SLAPP Motion has been denied, there is no basis to award Defendants attorney’s fees. The Court DENIES Defendants’ Request for Fees.

Plaintiff requests fees and costs for having to defend against the frivolous anti-SLAPP Motion. (Code Civ. Proc., §§ 425.16, subd. (c)(1); 128.5, subd. (a).) The Court grants Plaintiff fifteen (15) days leave to file a motion for attorney’s fees and costs.

Plaintiff is GRANTED fifteen (15) days leave to file a motion for attorney’s fees and costs.