Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

On August 7, 2024, in pro per plaintiff Tameka Renee Crosland (“Plaintiff”) filed this action against defendants Quality Loan Service Corporation, Matt Podmenik, Theresa M. Traber, and Does 1 through 100 related to Plaintiff’s alleged claim over surplus funds from a foreclosure sale. The complaint sets forth a single merged cause of action for conversion and theft. 

On September 16, 2024, defendants Quality Loan Service Corporation (“Quality”) and Matthew E. Podmenik, erroneously named as Matt Podmenik, (collectively, “Defendants”) filed the instant special motion to strike under Code of Civil Procedure section 425.16 (“anti-SLAPP motion”) seeking to strike the entirety of Plaintiff’s complaint. 

On September 26, 2024, Plaintiff filed an opposition. 

 

II. LEGAL STANDARD 

In ruling on a special motion to strike pursuant to California Code of Civil Procedure section 425.16 (“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.” (Ibid.) Moving parties can satisfy this burden by showing (1) statements made before legislative, executive or judicial proceedings, or made in connection with matters being considered in such proceedings, or (2) statements made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (Code Civ. Proc., § 425.16, subd. (e); Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) 

The court then moves to the second prong, in which the burden shifts to Plaintiff to demonstrate a probability of prevailing on the merits of the complaint. (Equilon, supra, 29 Cal.4th at 66.) “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.) 

 

III. REQUEST FOR JUDICIAL NOTICE 

Defendants request the Court take judicial notice of (1) Deed of Trust recorded with the Los Angeles County Recorder’s Office on April 20, 2011 as Instrument Number 20110567995, (2) Assignment of Deed of Trust recorded with the Los Angeles County Recorder’s Office on October 7, 2020 as Instrument Number 20201243483, (3) Substitution of Trustee recorded with the Los Angeles County Recorder’s Office on October 20, 2022 as Instrument Number 20221006216, (4) Notice of Default and Election to Sell Under Deed of Trust recorded with the Los Angeles County Recorder’s Office on January 17, 2023 as Instrument Number 20230033607, (5) Notice of Trustee’s Sale recorded with the Los Angeles County Recorder’s Office on April 21, 2023 as Instrument Number 20230257295, and (6) Petition and Declaration Regarding Unresolved Claims and Deposit of Undistributed Surplus Proceeds of Trustee’s Sale file with the Los Angeles County Superior Court on May 3, 2024 as Case Number 24STCP01422. 

Plaintiff’s objections to the requests are overruled.  

Defendants’ requests are GRANTED. (Cal. Evid. Code § 452(d), (h).) The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language….¿ From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939.) 

 

IV. DISCUSSION 

The complaint alleges that on December 14, 2023, Defendants conducted a foreclosure sale on the property known as 428 3rd Ave., Los Angeles, California (“the Property”) for the sale amount of $601,000.00. (Compl. ¶¶ 10-11.) The unpaid debt was $195,233.60. (Id ¶ 11.) As a result of the foreclosure sale, there was a surplus of $405,661.40. (Id. ¶ 12.) On March 20, 2024, Plaintiff submitted a claim on the surplus to Defendants, and Defendants have not turned over the surplus funds owed to Plaintiff. (Id ¶¶ 14-15.) The complaint thus sets forth a merged single cause of action for conversion/theft. 

Here, the gravamen of Plaintiff’s cause of action is that Plaintiff has the right to the entirety of the surplus funds resulting from the foreclosure sale, and that Defendants did not distribute the surplus funds to her. The question then is whether the lack of distribution of the surplus funds was done in furtherance of the exercise of the constitutional right of petition or speech, and whether it was in connection with a public issue or an issue of public interest. Defendants contend that because distribution could not be reasonably determined, Quality retained McCarthy & Holthus, LLP and sought to deposit the surplus funds with the Clerk of the Court pursuant to California Civil Code Section 2924j(c) by filing a Petition and Declaration Regarding Unresolved Claims and Deposit of Undistributed Surplus Proceeds of Trustee’s Sale (the “Petition”) with the Los Angeles County Superior Court on May 3, 2024 as Case Number 24STCP01422. (Learned Decl. ¶10; Exh. 1.) Defendants argue that Plaintiff’s claim over the surplus funds arises from Defendants’ right to petition the court and discharge Quality from liability regarding the disbursement of the funds. 

Defendants have demonstrated that the underlying dispute regarding the ownership of the funds is indeed subject to a separate Petition, and that Defendants have not “turned over the surplus funds owed to Plaintiff” because distribution has yet to be resolved in the separate matter pending before the Hon. Theresa M. Traber (notably, Plaintiff named Judge Traber as a defendant to this action under the same allegations). The Court finds that Defendants’ conduct of the alleged failure to distribute the surplus funds to Plaintiff was in furtherance of their constitutional right to petition the court for redress of grievances, and an action filed with the court is a matter of public issue. (See CCP §425.16(e), act in furtherance of right of petition or free speech in connection with a public issue includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law”.) 

Defendants have therefore satisfied the first prong. Under the second prong of the anti-SLAPP analysis, Plaintiff has the burden of establishing a probability of prevailing on her claims that she is entitled to the full surplus. 

Plaintiff, in opposition, argues that Defendants’ statements do not fall within the anti-SLAPP statute because Defendants made misrepresentations to Judge Traber. However, nowhere in the complaint were any misrepresentations or the propriety of the foreclosure sale contemplated. Rather, the complaint simply alleges that Defendants deprived Plaintiff of possession of the surplus funds by not distributing the funds to Plaintiff. Defendants have already demonstrated that the lack of distribution of funds is related to the Petition filed prior to the commencement of the instant action. Plaintiff argues she can establish a probability of prevailing on her claims, yet notably offers no evidence in support of this contention. ““[T]he trial court evaluates the merits of the plaintiff's claim using a summary-judgment-like procedure at an early stage of the litigation.” [Citation]." (Contreras v. Dowling (2016) 5 Cal. App. 5th 394, 404; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821 [“Put another way, the 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.” [Citations].”].) Here, Plaintiff fails to provide any prima facie evidence that she has a probability of prevailing on her claim over the distribution of the surplus funds. An Affidavit of Claim For Surplus Funds only demonstrates Plaintiff’s demand for the funds, but is not evidence that Plaintiff is entitled to it. Further, possession of the subject funds is currently pending in Case Number 24STCP01422, and the instant action appears is a duplicative action by the same claimant to those same funds. Because both prongs of the anti-SLAPP statute have been satisfied, Plaintiff’s complaint will therefore be stricken. 

Lastly, a prevailing defendant on a special motion to strike is entitled to recover attorney fees and costs. (CCP § 425.16(c)(1).) Defendants seek an award of attorney fees and costs in the amount of $2,979.00, which includes $495.00 for filing fees and costs. The Court finds it appropriate to reduce the amount of attorney time sought. Defendants are awarded 2 hours for the motion, 1 hour to review Plaintiff’s opposition, and one hour to appear at the hearing for a total of 4 hours of attorney time at the requested rate of $270.00 per hour for a total of $1,080.00 as attorney fees. The request for $495.00 in fees and costs is granted. 

 

V. CONCLUSION 

Based on the foregoing, Defendants’ special motion to strike Plaintiff’s complaint is GRANTED. Defendants’ request for attorney’s fees pursuant to CCP § 452(c)(1) is GRANTED in the reduced amount $1,575.00. 

 

Moving Party is ordered to give notice. 

 

DATED: October 25, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.