Judge: Randy Rhodes, Case: 22CHCV00451, Date: 2022-12-22 Tentative Ruling
Case Number: 22CHCV00451 Hearing Date: December 22, 2022 Dept: F51
Dept. F-51
Date: 12/22/22
Case #22CHCV00451
SPECIAL MOTION TO STRIKE (ANTI-SLAPP)
Motion Filed: 10/31/22
MOVING PARTY: Defendant Roshanak Nasiri, an
individual dba Granada Hills Market, in pro per (“Defendant”)
RESPONDING PARTY: Plaintiff GH-Balboa 1998 L.P.
(“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: An order striking Plaintiff’s complaint
for violation of Code of Civil Procedure section 425.16 (the “anti-SLAPP
statute”).
TENTATIVE RULING: The motion is denied. Plaintiff is awarded
$1,000.00 in
attorney fees.
EVIDENTIARY OBJECTIONS: Defendant’s evidentiary
objections, numbered 2, 4, and 5, to the Declaration of Jeffrey B. Endler, are
sustained.
The parties are reminded to review the 5/3/19 First Amended
General Order Re Mandatory Electronic Filing for Civil. When e-filing
documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set
forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First
Amended General Order Re Mandatory Electronic Filing for Civil (particularly
bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply
with these requirements in the future may result in papers being rejected,
matters being placed off calendar, matters being continued so documents can be
resubmitted in compliance with these requirements, documents not being
considered and/or the imposition of sanctions.
BACKGROUND
Plaintiff, the owner of certain
real property located at 11116 Balboa Blvd., Granada Hills, CA 91344, brings this
unlawful detainer action against Defendant, the tenant, to recover possession
of the property. Plaintiff alleges that Defendant’s lease was intended to
expire on 6/30/20 without renewal, of which Plaintiff was given notice. (Compl.
¶¶ 17b, 17d.) However, Defendant remained in possession of the premises under City
and County eviction moratoria created in response to the COVID-19 pandemic,
without paying rent or common area maintenance fees. (Id. at ¶¶ 17b.,
17e.) On 5/13/22, after the County moratorium was lifted, Plaintiff served a
30-day notice to quit on Defendant. (Id. at ¶ 17c.) Nevertheless,
Defendant has since remained in possession of the property. (Id. at ¶ 3a.)
On 6/20/22, Plaintiff filed its
complaint against Defendant, alleging a sole cause of action for unlawful
detainer, and requesting forfeiture of the lease agreement, damages, and
reasonable attorney fees. On 7/12/22, Defendant filed a motion to quash service
of summons, which the Court denied on 9/22/22. On 9/27/22, Defendant filed a
motion to strike portions of Plaintiff’s complaint, which the Court denied on
10/21/22.
On 10/31/22, Defendant filed the
instant special motion to strike the entirety of Plaintiff’s complaint. On
11/29/22, Plaintiff filed its opposition and request for attorney fees. On
12/15/22, Defendant filed her reply and evidentiary objections.
ANALYSIS
Legal Standard for Special Anti-SLAPP Motion to
Strike
A special
motion to strike strategic lawsuits against public participation (“SLAPP”
actions) provides a procedural remedy to dismiss at an early stage
nonmeritorious litigation meant to chill the valid exercise of the
constitutional rights to petition or engage in free speech. (Code Civ. Proc. §
425.16; Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism
(2018) 4 Cal.5th 637, 642; Dziubla v. Piazza (2020) 59 Cal.App.5th 140,
148.) The anti-SLAPP statute is intended to “encourage continued
participation in matters of public significance;” therefore, it is to be
“construed broadly.” (Code Civ. Proc. § 425.16, subd. (a).)
The anti-SLAPP statute sets forth a
two-step procedure for determining whether a cause of action is a SLAPP action. (Code
Civ. Proc. § 425.16, subd. (b); Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009.) First, the court must determine whether the defendant
has made a prima facie showing that the defendant’s acts of which plaintiff complains
were taken in furtherance of the defendant’s constitutional rights of petition
or free speech in connection with a public issue. (Code Civ. Proc. §
435.16, subd. (b)(1).) If the court finds that the defendant has met its
threshold burden, the burden then shifts to the plaintiff to show that there is
a probability that the plaintiff will prevail on the claim. (Ibid.;
Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th
449, 456.)
Under the statute, an “‘act in
furtherance of a person's right of petition or free speech’ 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).)
Here, Defendant brings the instant
motion under the anti-SLAPP statute to strike Plaintiff’s complaint for seeking
to violate Defendant’s rights to enjoy the protections of the eviction
moratoria implemented by the City and County of Los Angeles as a result of the
COVID-19 pandemic. (Def.’s Mot., 1:6–8.)
Timeliness
Plaintiff argues that Defendant’s
instant motion was not timely filed within 60 days of service of the complaint,
as required under Code of Civil Procedure section 425.16, subdivision (f). “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.” (Code
Civ. Proc. § 426.16, subd. (f).) Here, Plaintiff misinterprets the statute to
require Defendant to seek leave of court before filing the instant motion
beyond 60 days following the service of the complaint. However, the statute
imposes no such requirement.
Here, as Defendant observes in
reply, the service of the complaint was disputed and was thereafter adjudicated
via motion to quash. The Court also notes that Defendant subsequently
unsuccessfully moved for a motion to strike portions of Plaintiff’s complaint.
Therefore, the Court exercises its discretion under the anti-SLAPP statute to
excuse the untimeliness of the instant motion.
Protected Speech Activity
Defendant has the initial burden to
show that Plaintiff’s cause of action for unlawful detainer arises from
Defendant’s protected activity as defined by the anti-SLAPP statute. (Code Civ.
Proc. § 425.16, subd. (b)(1).) Here, Defendant argues that “exercising rights
pursuant to legal protections provided to tenants during the pandemic is
protected under” the anti-SLAPP statute. (Def.’s Mot., 2:13–15.) Specifically,
Defendant’s alleged protected acts “included informing the landlord that
Defendant was entitled to more time to pay her rent, to be free from a no-fault
eviction such as the mere expiration of the lease, and to not being subject to
eviction merely because she was unable to pay her rent due to COVID-19 mandated
closures.” (Id. at 3:22–25.)
Defendant makes no allegation that
these private communications with Plaintiff relating to her rights and
inability to pay rent were “made before a legislative, executive, or judicial
proceeding,” nor made in a public forum, nor an exercise of her constitutional
right to free speech. In fact, Defendant offers no showing or allegation that
these acts fall under any of the enumerated categories set forth by Code of
Civil Procedure section 425.16, subdivision (e).
Defendant’s only argument regarding
protected speech is her assertion that telephone calls to the police are
statements made before official proceedings under California law. (Id. at
3:10–19.) The Court need not address the merits of this argument because neither
Plaintiff nor Defendant make any factual allegation whatsoever involving any such
calls made to the police, thus rendering this argument irrelevant to the facts
of this case.
Even so, Plaintiff argues in
opposition that it brought this action for unlawful detainer against Defendant
solely because Defendant’s fixed-term commercial tenancy ended on 6/30/20, and
the subsequent 30-day notice to quit served on Defendant expired on 6/12/22.
(Pl.’s Opp., 2:12–16; Compl. ¶¶ 17b, 17c.) Nowhere in the complaint does
Plaintiff allege that the unlawful detainer action is based on any of
Defendant’s speech activities that would qualify for protection under the
anti-SLAPP statute.
Accordingly, Defendant has failed
to meet her initial burden of showing that (1) any of her conduct qualified as
protected speech activity under the anti-SLAPP statute, and (2) Plaintiff’s
action against her arises from any such protected activity.
Probability of Plaintiff
Prevailing
Notwithstanding the above
finding, Defendant’s motion also fails because Plaintiff has shown a
probability that it will prevail on its unlawful detainer action against
Defendant. (Code Civ. Proc. § 425.16, subd. (b)(1); Bonni, 11
Cal.5th at 1009.) The essential elements of an unlawful detainer
action based on the expiration of a fixed-term tenancy are: (1) Plaintiff owns
the property; (2) Plaintiff leased the property to Defendant until the stated
end date; (3) Plaintiff did not give Defendant permission to continue occupying
the property after the expiration of the lease agreement; and (4) Defendant is
still occupying the property. (Judicial Council of California Civil Jury
Instruction 4301 (2022).)
Here, the lease agreement, which
Plaintiff has attached to its complaint, shows that (1) Plaintiff was the owner
of the property, and (2) leased it to Defendant for an initial five-year term
starting in 2005, with two five-year options to extend, which were both
exercised by Defendant, thus the end date of the agreement was 2020. (Ex. 1 to
Compl.) Plaintiff alleges that it served a “courtesy notice/letter” to
Defendant on 6/4/20 stating that it “did not intend to renew the commercial
lease upon its expiration after 6/30/20.” (Compl., ¶ 17d.) Lastly, Plaintiff
alleges that Defendant is still in possession of the property. (Id., ¶
3a.) Defendant does not dispute any of these factual allegations. Therefore,
the Court finds that Plaintiff has met its responsive burden to show a probability
that it will prevail against Defendant.
The core of Defendant’s
argument is that “Plaintiff is not seeking to evict the Defendant for
non-payment of rent or other breach of the lease; Plaintiff is evicting because
Defendant exercised her rights under the moratorium regarding the inability to
pay rent.” (Def.’s Mot. 4:13–16.) The parties dispute any eviction moratorium
is still in place for commercial tenants. (Pl.’s Opp., 6:19–7:20; Def.’s Reply,
5:16–6:21.) However, given the above finding that Plaintiff has met its
responsive burden under the anti-SLAPP statute, the Court need not address
these arguments, as the eviction sought is based on the expiration of a
fixed-term tenancy. Furthermore, the Court notes that neither party has
proffered any documentation of the orders, either by way of attachment to their
declarations or by request for judicial notice. Therefore, the Court declines
to rule on whether the eviction moratorium is still in place as it pertains to
the instant case.
Defendant further argues that Plaintiff is unable to
prevail on its action because “Defendant has shown that the action was
brought with a retaliatory motive.” (Def.’s Reply, 6:22–23.) However, as
Plaintiff observes, Defendant makes no factual showing to support this argument.
(Pl.’s Opp., 3:10–15.) Therefore, Defendant’s argument as to retaliation lacks
merit.
Accordingly,
Plaintiff has met its responsive burden under the
anti-SLAPP statute to show a probability that it will prevail in this unlawful
detainer action against Defendant.
As Defendant has failed to successfully show that Plaintiff’s
action qualifies as a strategic lawsuit against public participation under Code
of Civil Procedure section 425.16, her special motion to strike Plaintiff’s
complaint is denied.
Attorney Fees
“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).) “’Frivolous’ means totally and completely
without merit or for the sole purpose of harassing an opposing party.” (Code
Civ. Proc. § 128.5, subd. (b)(2).)
Plaintiff argues that this motion was frivolously
brought, with intention to cause unnecessary delay, based on its counsel’s
prior telephone conversations with Defendant’s former counsel, and his belief
that Defendant’s former counsel substituted out of the case in bad faith.
(Decl. of Jeffrey Endler, ¶¶ 6–8.) Defendant objects to these allegations to
the extent that they are hearsay not within any applicable exception, which the
Court sustains. (Evid. Code § 1200 et seq.)
Nevertheless, as set forth
above, the Court finds that there is no merit to Defendant’s claims arguing the
applicability of the anti-SLAPP statute to the instant case. Defendant fails to
allege that any of its conduct was protected speech as defined under the
statute, nor that Plaintiff’s action arises from any such conduct. Moreover,
Plaintiff has shown a probability that it will prevail in this action, which
Defendant has failed to disprove. Therefore, the Court finds that the instant
motion is frivolous, and Plaintiff is entitled to costs and reasonable attorney
fees. (Code Civ. Proc. § 425.16, subd. (c)(1).)
Here, Plaintiff’s counsel requests attorney fees in
the total sum of $4,000.00, which includes (1) seven hours drafting Plaintiff’s
opposition to the motion, and (2) an anticipated three additional hours reading
Defendant’s reply papers and appearing for this hearing, at his hourly rate of
$400.00 per hour. (Endler Decl. ¶¶ 10–12.) The Court finds it reasonable to
award Plaintiff attorney fees in the amount of $1,000.00.
CONCLUSION
The special motion to strike is denied. Plaintiff is awarded
$1,000.00 in
attorney fees.