Judge Olivia Rosales, Case 19NWCV00327 2022-09-08 Tentative Ruling

Judge: Olivia Rosales, Case: 19NWCV00327, Date: 2022-09-08 Tentative Ruling

Case Number: 19NWCV00327 Hearing Date: September 8, 2022 Dept: C

AGUILAR v. NICK M. GUHO, INC.

CASE NO.: 19NWCV00327

HEARING: 09/08/22

TENTATIVE ORDER

Defendants NICK M. GUHO, INC., and BRETT BLAZICEK’s unopposed Special Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED in part. The Fourth Cause of action is STRICKEN. The Motion is DENIED in part as to the Request for Attorney’s Fees in the Fifth Cause of Action.

Moving Party to give Notice

This action was filed by Plaintiff PAUL AGUILAR on April 16, 2019. On June 6, 2022, the operative First Amended Complaint (“FAC”) was filed. Plaintiff seeks to recover a commission with the sale and purchase of certain real property located at 8331 Atlantic Boulevard (“Property”) by Ministerios Una Voz Profetica en Las Naciones, Inc. (the “Church”) from seller Defendant GUHO, INC. (“Guho”) pursuant to an installment sale contract. (FAC ¶¶10-12.) “BLAZICEK intentionally misled [sic] AGUILAR in stating that the Lease was ‘NOT honored’ when in actually the Church and GUHO merely provided and new format for the previous lease agreement but omitting AGUILA[R] as broker. Defendants falsely represented this lease as a ‘new’ agreement, but the terms for the deposit of $17,000 was carried over from the original Lease. This ‘new’ lease also contained the same 5-year rental term and premium monthly rent of $17,000, which AGUILAR had negotiated with BLAZICEK for the Lease terms as consideration for the Option.” (FAC ¶17.)

“On April 28, 2015, AGUILAR filed a small claims action in Downey Courthouse against BLAZICEK and GUHO, Case 15D03433, for breach of the Commission Agreement in failing to pay AGUILAR the agreed 3% leasing commission for the value of the first year and second year of the Lease for the Property.” (FAC ¶18.) “Defendants had already acknowledged the April 21, 2014 agreement was an amendment of the same original Lease. However, unknown to AGUILAR, on or around February 2, 2015 GUHO had entered into an agreement with the Church, which exercised its Option to purchase the Property for $5,000,000. Escrow closed for the sale of the Property to the Church on April 21, 2015.” (FAC ¶19.) “BLAZICEK did not inform AGUILAR that the Property had been sold, which would have been an affirmative defense to the allegation that commission was owed to AGUILAR for the second year of the Lease. Rather, BLAZICEK falsely represented to both AGUILAR and the Court that the Property was still being leased, but AGUILAR was not owed a commission because the original Lease was not honored and replaced by the April 21, 2014 lease.” (FAC ¶20.) “After trial for the small claims action…the Court entered judgment in favor of AGUILAR and awarded AGUILAR the commission fee thought to be owed to him plus costs.” (FAC ¶21.)

“On June 6, 2016, after Defendants refused to pay commission for what was believed to be a third year of the Lease, AGUILAR again filed a small claims action in the Downey Courthouse against Defendants, Case 16DWSC00407, for breach of the Commission Agreement by failing to pay AGUILAR a 3% leasing commission for the third year of the Church’s Lease.” (FAC ¶23.) Judgment in Aguilar’s favor was entered on December 27, 2016. (FAC ¶24.)

“Rather than seek a leasing commission which was not owed, AGUILAR made a written demand to BLAZICEK and GUHO for the payment of the 2% sales commission AGUILAR was owed pursuant to the Commission Agreement. After receiving AGUILAR’s demand, Defendants have been and currently still are adamant in their refusal to pay AGUILAR the commission owed to him.” (FAC ¶26.)

The FAC asserts the following causes of action: (1) Breach of Contract; (2) Quantum Meruit; (3) Conversion; (4) Fraud by Concealment; (5) Unfair Business Practices (6) Unjust Enrichment; and (7) Declaratory Relief.

The instant anti-SLAPP Motion is directed towards the fourth cause of action for fraud by concealment and the request for attorney’s fees contained in the fifth cause of action of unlawful business practices. Defendants argue that the allegations contained in ¶24 and ¶50 of the FAC, which support Plaintiff’s claim for fraud and the request for attorney’s fees under the unlawful business practices claim, are subject to the litigation privilege. The following are the statements at issue:

· “During this second small claims action, BLAZICEK did not disclose that the Property had been sold, which would have been an affirmative defense to AGUILAR’s allegation that he was owed a leasing commission for the third year of the Lease by the Church. Rather, BLAZICEK concealed the sale of the Property from both AGUILAR and the Court by fraudulently asserting that the emails making up the ‘Commission Agreement’ were falsified. The small claims Court was not persuaded by this contention and against entered judgment in AGUILAR’s favor on December 27, 2016.” (FAC ¶24.)

· “BLAZICEK did not inform AGUILAR that the Church had exercise [sic] its option and purchased the Property. Even when BLAZICEK had sworn to testify truthfully under oath during a small claims trial, BLAZICEK withheld information on the fact of the sale, and instead committed the criminal act of perjury by testifying that the Commission Agreement was falsified.” (FAC ¶50.)

In ruling on a special motion to strike, the Court engages in a two-step process. First, the Court decides whether the moving defendant has made a threshold showing that the challenged claims arise from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which 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 by statute. If the court finds such a showing has been made, the burden then shifts to the plaintiff, who must demonstrate a probability of prevailing on the merits claim. (Equillion Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

A moving party can satisfy its burden by showing: (1) statements were made before legislative, executive, or judicial proceedings, or made in connection with matters being considered in such proceedings; or (2) statements were 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. (CCP §425.16(e); Equillon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) A plaintiff opposing a special motion to strike meets his or her burden by making a prima facie showing of facts which would support a judgment in plaintiff’s favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

In order to invoke the protection of CCP §425.16, a defendant need only demonstrate that a suit “arises from” defendant’s exercise of free speech or petition rights. (See CCP §425.16(b).) In opposing an anti-SLAPP, plaintiff must present admissible evidence and cannot rely on the allegations of the complaint. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 613-614.)

There is no question that the fourth cause of action arises from protected activity. Plaintiff’s fourth claim is clearly based on Defendant Blazicek’s purported “fraudulent assertions” made before the Court in a previous lawsuit. (See CCP § 425.16(e)(1), (2); Rusheen v. Cohen (2006) 37 Cal.4^th 1048.) The absolute litigation privilege bars a civil action for damages for communications made in any judicial proceeding. (Cal. Civ. Code § 47.) Statements made during or in connection with a judicial or official proceeding are privileged, whether or not the statements were made with malice, or other bad motive. (Silberg v. Anderson (1990) 50 Cal.3d 205.) Moreover, protected conduct does not lose its protected status merely because a plaintiff alleges that the conduct is unlawful or unethical. The exception to the anti-SLAPP statute for illegal conduct only applies if a defendant concedes, or the evidence conclusively establishes, that the assertedly protected activity was illegal as a matter of law (See Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 1017-1018.) Here, Plaintiff does not concede that its conduct was illegal, nor does the evidence conclusively establish that the statements identified are illegal (e.g., perjury).

Defendants have met the burden of demonstrating that the causes of action at issue arise from protected activity.

It is then Plaintiff’s burden of establishing a probability of prevailing on the merits of the fourth and fifth claims. (CCP §425.16(b).) Plaintiff has not demonstrated a probability of prevailing on the fourth claim in this lawsuit. As indicated, Plaintiff’s fourth claim arises out of Defendant Blazicek’s alleged statements in the earlier filed small claims action. These statements are protected under Cal. Civ. Code §47(b), the litigation privilege. “The litigation privilege is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) “The litigation privilege states simply that ‘A privileged publication or broadcast is one made… [i]n any… judicial proceeding….” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737.) “[C]ommunications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege. [Cite.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)

The Special Motion to Strike is GRANTED as to the fourth cause of action.

The Special Motion to Strike is DENIED as to the claim for attorney’s fees included in the fifth cause of action. An anti-SLAPP motion challenges an entire cause of action as drafted, rather than specific allegations supporting or contained in the cause of action. (CCP §425.16(b)(1).)

Defendants are entitled to reasonable attorney’s fees. (CCP §425.16(c)(1). “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. (Id.) “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, the award of attorney fees must be reasonable. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) [“We readily conclude section 425.16 similarly authorizes an award of reasonable attorney fees to the prevailing party…The right of prevailing defendants to recover their reasonable attorney fees under section 425.16 adequately compensates them for the expense of responding to a baseless lawsuit.”

Defendants’ Motion seeks to recover $7,500.00 for 15 hours of work based on Attorney Shapero’s hourly rate of $500.00/hr. The Court has reviewed the declaration of Attorney Steven J. Shapero, which provides a summary of the time spent litigating the instant anti-SLAPP motion. Given the mixed ruling, Defendants have only established an entitlement to $3,750.00 ($500/hr. x 7.5 hrs.).