Judge Randolph M. Hammock, Case Number: 23STCV21542, Date: 2024-06-18 Tentative Ruling

Plaintiffs are former residents of a rental property owned or managed by Defendants Shahriar Rad, Olivia Awadalla, Steve Awadalla, and Mazal Trinity Holdings, LLC. Plainiffs initially rented the units from Defendants’ predecessors. Upon purchasing the property, Plaintiffs allege Defendants failed to remedy dangerous or defective conditions at the property, and harassed Plaintiffs to force them to vacate, resulting in Plaintiffs’ constructive evictions.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

To satisfy the first prong of the two-prong test, a movant defendant must 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 as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].) Section 425.16 expressly “defines the types of claims that are subject to the anti-SLAPP procedures…as these terms are defined in subdivision (e)(1)-(4) of the statute.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75–76.)

Defendant argues the conduct here is protected under each of the First, Second, and Fourth categories in subdivision (e), as “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” ((e)(1)), “(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” ((e)(2)), 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.” ((e)(4).)

In a so-called “mixed cause of action”—one containing allegations of both protected and unprotected activities—a court must focus its analysis on the protected conduct. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal. 5th 995, 1010.) It follows that courts may strike improper allegations under the statute even though doing so might not completely dispose of a cause of action.

The challenged claims arise out of Defendants’ protected acts as a landlord: Posting notes on Plaintiffs’ cars which were blocking the single-lane driveway (Only point of access for vehicular ingress and egress) and/or which were parked in unauthorized parking spaces, sending text messages to Plaintiffs regarding rent, serving Plaintiffs with a notice to “pay or quit”, notice to perform or quit, accusing PLAINTIFFS of inappropriate behavior, notice terminating tenancy, etc., all of which are protected acts which led to the actual filing of various unlawful detainer actions against each of the Plaintiffs respectively.

Complaint ¶ 26: “PLAINTIFFS were subjected to continuous harassment and hostile behavior from DEFENDANTS. These harassing acts included, inter alia, (1) placing aggressive notes on PLAINTIFFS’ car,…(4) sending aggressive text messages about rent payments…(6) accusing PLAINTIFFS of inappropriate behavior.” (See Compl. ¶ 26; see also D’s Mtn. at 9:23-26.)

Leaving “aggressive notes” on Plaintiffs’ cars is not protected activity. There is no indication from the Complaint what purpose these notes served. Defendant’s declaration states that Plaintiffs cars were “blocking the single-lane driveway” or were “parked in unauthorized parking spaces.” (Shahriar Rad Decl. ¶ 5.) Presumably, then, Defendant placed the notes to warn against that behavior. But Defendant provides no authority suggesting that leaving notes on the cars to enforce vehicle restrictions is protected by the anti-SLAPP statute. Defendant appears to assert that these notes were anticipation of litigation. However, the court sees no rational evidence in the moving papers to support that contention.

The same is true of sending text messages to Plaintiffs about rent payments. Defendant Rad states in declaration that “sending text messages to Plaintiffs regarding rent” was “due to litigation conduct.” (Rad Decl. ¶ 5.) Defendant has not provided the text messages or any indication of when they were sent. Standing alone, the assertion that the text messages related to anticipated litigation is insufficient to meet Defendant’s burden.

The California Supreme Court has explained that, “[i]n deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [quoting § 425.16, subd. (b)(2), italics added].) This court does not mean to suggest that a moving defendant must always submit evidence in support of prong one. (See Bel Air Internet, LLC v. Morales (2018) 20 Cal. App. 5th 924, 935 [stating “if the complaint itself shows that a claim arises from protected conduct…a moving party may rely on the plaintiff's allegations alone in making the showing necessary under prong one without submitting supporting evidence”].) But here, the protected conduct is not apparent on the face of the Complaint, and therefore, further context is necessary. Without it, Defendant cannot meet his burden.

Courts have adopted an “expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255, 1268 (2008). Statements made in preparation for litigation or in anticipation of bringing an action fall within the protected categories. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal. App. 5th 413, 425) “[S]tatements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)

While these allegations could seemingly invoke protected conduct, there is no evidence that the action “arises from” these allegations. The anti-SLAPP statute is available only if the “defendant's conduct underlying the plaintiff's cause of action” was “itself” an “act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Id. [emphasis added].) “[A] claim may be struck [as a SLAPP] 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. [Citation].” (Wong v. Wong (2019) 43 Cal. App. 5th 358, 364.) “Thus, in evaluating anti-SLAPP motions, ‘courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” [Citation.] (Id.) The fact “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78 [emphasis added].) It is the “[t]he ‘principal thrust or gravamen’ of the plaintiff's claim [which] determines whether section 425.16 applies. [Citations.]” (Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 394-395.)

“There is no question that the prosecution of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16.” (Clark v. Mazgani (2009) 170 Cal. App. 4th 1281, 1286.) However, “[t]erminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (Id. at 1286-87.) “ ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ ” [Citation]. The pivotal question “ ‘is whether the cause of action is based on the defendant's protected free speech or petitioning activity.’ ” (Id.)

Therefore, while this court would agree that the serving of notices related to an unlawful detainer proceeding constitutes free speech or petitioning activity, Defendant has failed to demonstrate that the action here arises from any protected activity. Defendant has failed to discuss with meaningful analysis how these allegations support any particular cause of action in the Complaint.

Plaintiffs’ action is not based on Defendant’s filing or service of the notices and is not based on the fact that Defendant prosecuted an unlawful detainer action against them—although that certainly may add context to the allegations. In other words, the allegations are not themselves, “claims” supporting any particular cause of action, and are therefore not subject to a special motion to strike. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal. 5th at 394.) Instead, Plaintiffs’ action is based on Defendants’ alleged failure to maintain the premises in a habitable condition along with alleged harassing conduct to force Plaintiffs to vacate the premises.

Complaint ¶ 29: “DEFENDANTS falsely accused PLAINTIFFS of attacking them, leading to MS. SCHULMAN’S arrest and being charged with a misdemeanor.” (See Compl. ¶ 29; see also D’s Mtn. at 10: 6-8.)

Defendant argues that reporting Plaintiff Schulman to the police was protected activity. Generally, statements to law enforcement invoke the right to petition the government, and thus have been deemed protected activity under the anti-SLAPP law. (See Chabak v. Monroy (2007) 154 Cal. App. 4th 1502, 1512; Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is “made in connection with an official proceeding authorized by law”]; Comstock v. Aber (2012) 212 Cal. App. 4th 931, 941–42 [“The law is that communications to the police are within SLAPP”].)

Once again, however, Defendant has failed to demonstrate that the action here arises from any protected activity. Defendant has not addressed the elements of any particular cause of action. The allegations regarding police complaints are not themselves, “claims” supporting a cause of action, and are therefore not subject to a special motion to strike. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal. 5th at 394.)

Therefore, Defendant has not met his moving burden under prong one for any of the categories raised. For that reason, the burden need not shift to Plaintiff to establish a probability of prevailing.

The Court will note that even if Defendant met its burden at the First Prong and Plaintiff failed to meet its burden at the Second Prong resulting in the allegations being stricken so that they could not be used as a basis for liability, those same facts could nonetheless still be used as evidentiary support for the remaining causes of action. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal. 5th 995, 1019 [“That does not mean the underlying factual allegations may not be mentioned in the course of any ensuing proceedings; to the extent Bonni does consider these allegations to be probative of defendants’ motives or relevant to any other claims that survive, statements made in the course of peer review proceedings remain as admissible as any others. As our discussion in Park of the relevant precedent illustrates, communicative activities often may supply evidence of illicit animus even if they do not in themselves supply a basis for liability.”].)

In a somewhat ironic twist, and to put it bluntly: This personal attack by Defendant’s counsel (STANLEY D. BOWMAN) was unprofessional, and moreover, unnecessary. It was not a valid legal argument or relevant fact in the context of this motion. It was an unwarranted personal attack against the opponent’s attorney in a feeble and ill-conceived to unduly prejudice this Court against the Plaintiff. It did not work.

Be that as it may, the parties and their counsel are reminded that these personal attacks are not only uncivil and unnecessary, but also “sand in the gears” that “increase[s] the friction, extent, and cost of litigation.” (Masimo Corp. v. Vanderpool L. Firm, Inc., No. G061829, 2024 WL 1926197, at *5 (Cal. Ct. App. May 2, 2024), certified for publication.)

Judge of the Superior Court

FN 1 - Under Rule 3.1113(d), a responding memorandum may not exceed 15 pages. (Cal. Rules of Court, Rule 3.1113(d).) Not including the cover page, Plaintiff’s opposition runs 22-pages. Plaintiffs did not seek leave to file an opposition exceeding the page limits. For sake of completeness and given that a special motion to strike is an extreme remedy, the court will consider the opposition in full. The parties are admonished to comply with all page limitations going forward.

FN 2- Defendant also raised Paragraph 35 of the Complaint. This paragraph, however, is only a general prayer for punitive damages. It does not identify or allege any specific conduct, much less any protected under prong 1 of the anti-SLAPP statute. The court therefore disregards this paragraph in its analysis.

FN 3 - Moreover, given Mr. Bowman’s own personal State Bar disciplinary record (albeit many decades ago) he might want to re-think whether to continue to throw stones in glass houses.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.