Judge: Peter A. Hernandez, Case: 23STCV19315, Date: 2024-09-03 Tentative Ruling
Case Number: 23STCV19315 Hearing Date: September 3, 2024 Dept: 34
Santopietro v. Harden, et al. (23STCV19315)
The Anti-SLAPP Motion is DENIED.
Background
On
August 14, 2023, George Santopietro filed his Complaint against James Harden
and Lia Vasdekis on various causes of action arising from a contract and
alleged use of real property.
On
January 2, 2024, by request of George Santopietro, the Clerk’s Office dismissed
without prejudice James Harden from the Complaint.
On
February 8, 2024, George Santopietro filed his First Amended Complaint (FAC).
On
February 20, 2024, the Court found related cases 19STCV32597 and 23STCV19315,
and designated 19STCV32597 as the lead case.
On
March 1, 2024, Lia Vasdekis filed her Cross-Complaint against George
Santopietro, North Beverly Park Homeowners Association, Inc., and V.M. Rosich.
On
March 1, 2024, Lia Vasdekis filed her Answer to the FAC.
On
April 8, 2024, George Santopietro filed his Special Motion to Strike the
Cross-Complaint (“Anti-SLAPP Motion”). George Santopietro concurrently filed
his Proposed Order.
On
April 17, 2024, by request of Lia Vasdekis, the Clerk’s Office dismissed with
prejudice V.M. Rosich from the Cross-Complaint.
On
April 29, 2024, Lia Vasdekis filed her Opposition to the Anti-SLAPP Motion
(“Opposition”).
On
April 29, 2024, George Santopietro filed his Answer to the Cross-Complaint.
On
May 8, 2024, by request of Lia Vasdekis, the Clerk’s Office dismissed with
prejudice the fifth cause of action in the Cross-Complaint for contract
liability or indemnity.
On
May 23, 2024, North Beverly Park Homeowner’s Association, Inc. filed its Answer
to the Cross-Complaint.
On
May 28, 2024, Lia Vasdekis filed Attorney Declaration by Attorney Bekeris
(“Bekeris Declaration”) in support of her Opposition.
On
May 29, 2024, Lia Vasdekis filed Notice of Errata regarding her Opposition.
On
June 3, 2024, George Santopietro filed his Reply in support of the Anti-SLAPP
Motion (“Reply”). George Santopietro concurrently filed Declaration of Robert
H. Bisno.
Legal Standard
“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, 1055–1056, 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.)
Discussion
A.
The
Parties’ Arguments
George Santopietro moves the Court to strike each of
the causes of action in the Cross-Complaint as a strategic lawsuit against
public participation (SLAPP). (Anti-SLAPP Motion, p. 12:3–8.)
George Santopietro argues: (1) that the first prong
of the anti-SLAPP statute is satisfied because the Cross-Complaint is an
attempt to chill George Santopietro’s right to seek redress in court; and (2)
that the second prong of the anti-SLAPP statute is satisfied for multiple
reasons, including that Lia Vasdekis does not have standing, has not suffered
damages, has not pleaded with specificity the fraud cause of action, filed her
Cross-Complaint after the applicable statutes of limitations, and is barred
from bringing these claims due to the litigation privilege. (Anti-SLAPP Motion,
pp. 6–11.)
Lia Vasdekis disagrees, addressing various arguments
made by George Santopietro. (Opp’n, pp. 4–9.)
In a separate filing, Lia Vasdekis’s Counsel files a declaration regarding the period in which the Anti-SLAPP Motion was supposed to be heard pursuant to statute.
In his Reply, George Santopietro: (1) briefly discusses the merits of the Anti-SLAPP Motion; and (2) disagrees with the argument regarding the procedural issue of when the Anti-SLAPP Motion was supposed to be heard. (Reply, pp. 1–5.)
B.
Timing
1.
Legal
Standard
“The special motion may
be filed within 60 days of the service of the complaint or, in the court’s
discretion, at any later time upon terms it deems proper. The motion shall be
scheduled by the clerk of the court for a hearing not more than 30 days after
the service of the motion unless the docket conditions of the court require a
later hearing.” (Code Civ. Proc., § 425.16, subd (f).)
“However, a trial court may not
properly deny an anti-SLAPP motion on the grounds that the hearing was not
scheduled within 30 days after service of the motion. Instead, section 425.16,
subdivision (f) ‘requires the court clerk to schedule a special motion to
strike for a hearing no more than 30 days after the motion is served if such a
hearing date is available on the court's docket, but does not require the
moving party to ensure that the hearing is so scheduled and does not justify
the denial of a special motion to strike solely because the motion was not
scheduled for a hearing within 30 days after the motion was served.’ The
trial court was not permitted to deny the motion on the ground that the hearing
was not scheduled within 30 days of service of the motion—nor may we reverse on
this ground.” (Karnazes v. Ares (2016) 244 Cal.App.4th 344, 352, quoting
Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)
2.
Discussion
The Court considers whether there is a timing issue
with either the filing of the Anti-SLAPP Motion or the scheduling of the
hearing on the Anti-SLAPP Motion.
Lia Vasdekis filed her Cross-Complaint on March 1,
2024. The Court does not have a record of any proof of service associated with
the Cross-Complaint ever being filed with the Court. Thus, the Court is unaware
of when exactly George Santopietro was served with the Cross-Complaint.
However, George Santopietro did not move to quash service of the
Cross-Complaint, and on March 11, 2024, George Santopietro filed his Demurrer
to the Cross-Complaint. Thus, by March 11, 2024, George Santopietro appears to
have waived any service issues as to the Cross-Complaint.
Sixty days from March 11, 2024 was May 10, 2024. The
Anti-SLAPP Motion was filed on April 8, 2024. Thus, regardless of if George
Santopietro was actually served with the Cross-Complaint on March 11, 2024 or
approximately ten days earlier (when the Cross-Complaint was filed with the
Court), there is no timeliness issue with the filing of the Anti-SLAPP Motion.
The proof of service attached to the
Anti-SLAPP Motion declares that the motion was served on Counsel for Lia
Vasdekis (among others) on April 28, 2024. Thirty days from April 8, 2024 was
May 8, 2024. The Court is currently hearing this matter on August 7, 2024.
Thus, the hearing on the Anti-SLAPP Motion is later than the thirty days
contemplated by Code of Civil Procedure section 425.16, subdivision (f).
The Court notes the docket conditions of Department
34 during the relevant period, in case such conditions required a later
hearing. (Code Civ. Proc., § 425.16, subd. (f).) Although many cases (including
this one) could not be heard for some time in mid-2024 due to the recent
retirement of Department 34’s previous judicial officer, this period did not
start until May 21, 2024. From April 8, 2024 to May 8, 2024, the Court did not
have an issue with its docket conditions that would prevented the hearing of the
Anti-SLAPP Motion. Thus, a hearing was not required to occur later than May 8,
2024.
Even so, the Anti-SLAPP Motion cannot be denied on the basis of untimeliness of the hearing.
The thirty-day period for hearings on special motions to strike only pertains to the scheduling of such motions by clerks of court (or, as actually occurs in nearly all situations, by their designees), not to scheduling of such motions by counsel. (Code Civ. Proc., § 425.16, subd. (f); see also Karnazes, supra, 244 Cal.App.4th at p. 352.)
During this period, the
Standing Order of Department 34 provided that the parties’ counsel “may
schedule a motion . . . for any day you wish. The Court generally does not
limit the number of motions that may be heard on any given day. Therefore, as
long as you give the statutorily-required notice, you may schedule your motion
as expeditiously as you wish.” (Standing Order for Dept. 34, rule VI.A.) This
Standing Order was in full effect from April 8, 2024 to May 8, 2024—a period
during which the Court regularly heard motions in other cases where counsel
scheduled hearings in less than thirty days.
In this case, Counsel
for George Santopietro initially scheduled the hearing on the Anti-SLAPP Motion
for June 21, 2024. (Anti-SLAPP Motion, p. 2:1.) This was outside the thirty-day
period. The hearing on the Anti-SLAPP Motion was only continued by the Court on
June 13, 2024 to July 17, 2024 (and again on July 5, 2024 to August 7, 2024) because
Department 34 became dark for a period of months due to the aforementioned
retirement.
Special motions to
strike scheduled to be heard outside the thirty-day period, whether by counsel
or by the Court, cannot be denied as untimely on that basis by the Court. (Code Civ. Proc., § 425.16,
subd. (f); Karnazes, supra, 244
Cal.App.4th at p. 352.) Thus, the Court cannot deny the Anti-SLAPP Motion on
the basis of untimeliness of its hearing.
C.
The
First Prong
1.
Legal
Standard
“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.)
2.
Discussion
The following is the conduct that Lia Vasdekis
alleges George Santopietro engaged in:
·
Pretending to rent real property (Cross-Complaint, ¶ 13);
·
Secretly planning to add charges of $150,000.00 by tacking on a hidden
“event charge” when more than fifteen people were on the real property
(Cross-Complaint, ¶ 13);
·
Monitoring a resident-controlled access system (Cross-Complaint, ¶ 13);
·
Not saying anything (Cross-Complaint, ¶ 13);
·
Counting fifteen non-residents as they registered through the gate
leading to the real property (Cross-Complaint, ¶ 13);
·
Adding a charge of $150,000.00 to a bill (Cross-Complaint, ¶ 13);
·
Adding a second charge of $150,000.00 to a bill on a second night after
another fifteen non-residents arrived on the real property (Cross-Complaint, ¶
13);
·
Fabricating support for hidden billing charges (Cross-Complaint, ¶ 14);
·
Sending emails to realtors that helped rent the real property, in which
he (1) stated that this was not what he agreed to, (2) named some of his
neighbors, and (3) requested a security person to send him an email to document
the events (Cross-Complaint, ¶ 14);
·
Previously renting out the property through Lia Vasdekis under different
terms than the terms of the contract at issue (Cross-Complaint, ¶ 15);
·
Creating a new contract that did not say anything about an event charge
of $150,000.00 (Cross-Complaint, ¶ 17);
·
Keeping a $20,000.00 deposit without identifying in writing why he kept
it (Cross-Complaint, ¶ 17);
·
Planning to divide money (Cross-Complaint, ¶ 20);
·
Knowing certain, specific things that were hidden and unexplained until
the end of the rental agreement (Cross-Complaint, ¶ 21);
·
Not agreeing to mediate prior to suing Lia Vasdekis (Cross-Complaint, ¶
24);
·
Violating duties to Lia Vasdekis (Cross-Complaint, ¶ 25);
·
Intentionally deceiving Lia Vasdekis (Cross-Complaint, ¶ 26); and
·
Acting in concert with other conspirators, including approving and
ratifying their actions (Cross-Complaint, ¶ 27).
“Analysis
of an anti-SLAPP motion is not confined to evaluating whether an entire cause
of action, as pleaded by the plaintiff, arises from protected activity or has
merit. Instead, courts should analyze each claim for relief—each act or set of
acts supplying a basis for relief, of which there may be several in a single
pleaded cause of action—to determine whether the acts are protected and, if so,
whether the claim they give rise to has the requisite degree of merit to
survive the motion.” (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th
995, 1010, citation omitted.)
On
the first step, “the moving defendant must
identify the acts alleged in the complaint that it asserts are protected and
what claims for relief are predicated on them. In turn, a court should examine
whether those acts are protected and supply the basis for any claims. It does
not matter that other unprotected acts may also have been alleged within what
has been labeled a single cause of action; these are disregarded at this stage.
So long as a court determines that relief is sought based on allegations
arising from activity protected by the statute, the second step is
reached with respect to these claims.”
(Bonni, supra, at p. 1010, quotation and internal quotation marks
omitted.)
“If a cause of action
contains multiple claims and a moving party fails to identify how the speech or
conduct underlying some of those claims is protected activity, it will not
carry its first-step burden as to those claims. The nonmovant is not faced with
the burden of having to make the
moving party's case for it.” (Bonni, supra, at p. 1011.)
Here,
none of the alleged conduct implicates activities that are “in furtherance of
[George Santopietro’s] right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue.”
(Code Civ. Proc., § 425.16, subd. (b)(1).)
Rather,
the conduct alleged involves: (1) a choice to not engage in a certain type of
litigation (such as not engaging in mediation); (2) purely private activity
(such as creating contracts, sending private emails, and making
misrepresentations to an individual); and (3) omissions (such as not saying
anything, keeping items hidden, and keeping a deposit without explaining why) that
are either (a) private activity completely unrelated to the rights of petition
or free speech, or (b) tantamount to no conduct at all.
Notably,
the Cross-Complaint lists causes of action of breach of contract, aiding and
abetting breach of contract, fraud, conspiracy to commit fraud, unfair business
practices, negligence, and contract liability. (The fifth cause of action in
the Cross-Complaint for contract liability has since been voluntarily
dismissed.) All of these causes of action are based on the alleged conduct
discussed above; none of these causes of action are based on George Santopietro
filing his Complaint in this case or on any other alleged conduct in
furtherance of his rights to petition or free speech.
In
short, there does not appear to be any basis for George Santopietro’s claims
that “Vasdekis is clearly seeking to chill Santopietro’s rights” or that
“Vasdekis is seeking to protect Harden, by attempting to chill Santopietro’s
rights to address Harden’s transgressions in Court.” (Anti-SLAPP Motion, pp.
7:2–4; 8:1–2.) The Court has not been presented with a reason why the
litigation privilege set forth in Civil Code section 47, subdivision (b) would
not protect the filing of George Santopietro’s Complaint in this matter—but the
Court also has not been presented with a cogent argument as to the relevance of
that filing to the conduct alleged in the Cross-Complaint.
George
Santopietro does not meet his burden on the first prong.
The
Court need not and does not reach the second prong.
The Anti-SLAPP Motion is DENIED.