Judge: Robert B. Broadbelt, Case: 21STCV37974, Date: 2022-09-12 Tentative Ruling
Case Number: 21STCV37974 Hearing Date: September 12, 2022 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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21STCV37974 |
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September
12, 2022 |
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[Tentative]
Order RE: (1)
special
motion to strike cross-complaint; (2)
special
motion to strike cross-complaint; (3)
motion
for lift of discovery stay |
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MOVING PARTIES:
Cross-Defendants Kanon
Ventures, LLC, Mark Beskind, Jeff Stauffer, and Ara Tavitian
RESPONDING PARTIES: Cross-Complainants
Swing House Stages, Inc., and Genoveva Winsen
(1)
Special
Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section
425.16
MOVING PARTY: Cross-Defendant Avedis Tavitian
RESPONDING PARTIES: Cross-Complainants
Swing House Stages, Inc., and Genoveva Winsen
(2)
Special
Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section
425.16
MOVING PARTY: Defendant
and Cross-Complainant Swing House Stages, Inc.
RESPONDING PARTIES: Cross-Defendants
Kanon Ventures, LLC, Ara Tavitian, Avedis Tavitian, Mark Beskind, and Jeff
Stauffer
(3)
Motion for Lift of Discovery Stay
The court
considered the moving, opposition, and reply papers filed in connection with each
motion.
BACKGROUND
Plaintiff West Casitas, LLC (“West Casitas”) filed its Complaint
against defendant Swing House Stages, Inc. on October 14, 2021, asserting one
cause of action for breach of lease.
On March 28, 2022, Swing House Stages, Inc. (“Swing House”) and
Genoveva Winsen (“Winsen”) (collectively, “Cross-Complainants”) filed a
Cross-Complaint against West Casitas, Kanon Ventures, LLC, Mark Beskind, Jeff Stauffer,
Avedis Tavitian, and Ara Tavitian. The
Cross-Complaint alleges eleven causes of action for (1) breach of contract; (2)
breach of the implied covenant of good faith and fair dealing; (3)
fraud—intentional misrepresentation; (4) fraud—negligent misrepresentation; (5)
concealment; (6) discrimination in violation of Civil Code section 51; (7)
sexual harassment in violation of Civil Code section 51.9; (8) violation of
Business and Professions Code section 17200 et seq.; (9) declaratory relief;
(10) violation of Civil Code section 3273.10; and (11) a claim for recovery of
penalties for intentional violation of the Los Angeles County eviction
moratorium.
Three motions are currently pending before the court: two special motions
to strike the Cross-Complaint (“anti-SLAPP motions”) filed by two sets of cross-defendants,
and a motion to lift the stay on discovery.
First, cross-defendants Kanon Ventures, LLC, Mark Beskind, Jeff
Stauffer, and Ara Tavitian (together, the “Kanon Parties”) move to strike the
Cross-Complaint pursuant to Code of Civil Procedure section 425.16. Second, cross-defendant Avedis Tavitian
(“Tavitian”) moves to strike the Cross-Complaint pursuant to Code of Civil
Procedure section 425.16. Third, defendant
and cross-complainant Swing House moves the court for an order providing a
limited lift on the discovery stay automatically imposed upon the filing of the
pending anti-SLAPP motions.
The court notes that Swing House moves the court for an order (1)
lifting the discovery stay, and (2) continuing the hearings on the anti-SLAPP
motions until the parties have completed such limited discovery. The court has the authority, on noticed
motion and for good cause shown, to order that specified discovery be conducted
while an anti-SLAPP motion is pending.
(Code Civ. Proc., § 425.16, subd. (g).)
However, courts have been instructed to consider the need for discovery
“in the context of the issues raised in the SLAPP motion. If, for example, the defendant contends the plaintiff
cannot establish a probability of success on the merits because its complaint
is legally deficient, no amount of discovery will cure that defect.” (The Garment Workers Center v. Superior
Court (2004) 117 Cal.App.4th 1156, 1162.)
Thus, “if evidence already available to a plaintiff, without need for
further discovery, demonstrates a [] claim is without merit…there is no point
to ordering discovery on other issues.”
(Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 779.)
Accordingly, the court first considers the merits of the anti-SLAPP
motions filed by the Kanon Parties and Tavitian to determine whether the motions
raise, and prove, that the Cross-Complaint is legally deficient, such that “no
amount of discovery” could cure those defects.
REQUEST FOR JUDICIAL NOTICE
The court grants Swing House’s request for judicial notice as to
exhibits 1 through 9 and 15 through 17, filed on July 25, 2022 in support of
its motion to lift stay on discovery.
(Evid. Code, § 452, subds. (c), (d).)
The court denies Swing House’s request for judicial notice as to
exhibits 10 through 14. (Lockley v.
Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882 [“Courts may not take judicial notice of allegations in
affidavits, declarations and probation reports in court records because such
matters are reasonably subject to dispute and therefore require formal
proof”].)
The court grants Swing House’s request for judicial notice, filed on
August 4, 2022, in support of its opposition to Cross-Defendants’ anti-SLAPP
motions. (Evid. Code, § 452, subds.
(c), (d).)
EVIDENTIARY
OBJECTIONS
The court rules on Cross-Defendants’ objections to the declaration of
Genoveva Winsen, filed on August 10, 2022, as follows:
Objection Nos. 1, and 3-10 are overruled.
Objection No. 2 is sustained.
The court overrules Cross-Defendants’ August 10, 2022 objection to the
declaration of Ashley Morris.
The court overrules Cross-Defendants’ August 10, 2022 objections to
Swing House’s request for judicial notice.
The court overrules Kanon Parties’ August 11, 2022 objections to Swing
House’s reply to its motion for lift of discovery stay as moot.
LEGAL STANDARD
Cross-defendants Kanon Parties and Tavitian have filed special motions
to strike the Cross-Complaint filed by Swing House and Winsen under Code Civil Procedure section 425.16, also known as the
anti-SLAPP (“strategic lawsuit against public participation”) statute.
“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 p. 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.” (Ibid. [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 pp. 384-385 [citations omitted].)
MOTION TO STRIKE FILED BY KANON PARTIES
A.
First Prong: Arising From Protected Activity
Courts
analyze special motions to strike under a two-step approach. “Initially, the moving defendant bears the
burden of establishing that the challenged allegations or claims ‘aris[e] from’
protected activity in which the defendant has engaged.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1061.) “[T]he statutory phrase ‘cause of action…arising
from’ means simply that the defendant’s act underlying the plaintiff’s cause of
action must itself have been an act in furtherance of the right of
petition or free speech.
[Citation.] In 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.” (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78.)
The
protected acts in furtherance of a defendant’s right of petition or free speech
include:
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 free
speech in connection with a public issue or an issue of public interest.
(Code Civ. Proc., §
425.16, subd. (e).)
Kanon Parties argue that each cause
of action asserted in the Cross-Complaint is based on two protected sets of
allegations: (1) the allegations that Kanon Parties engaged in a campaign to
harass, retaliate, and discriminate against Cross-Complainants, culminating in
the filing of the underlying Complaint in this action, and (2) the allegations
relating to the parties’ attempts to negotiate the repayment of rent.
The court finds that Kanon Parties
have met their burden of establishing that the eleventh cause of action arises,
in part, from protected activity in which Kanon Parties engaged. (Code Civ. Proc., § 425.16, subd.
(b)(1); Park, supra, 2 Cal.5th at p. 1061.) Specifically, Kanon Parties have met their
burden by establishing that this cause of action arises, in part, from Kanon
Parties’ protected rights of petition in filing the underlying Complaint. (Chavez v. Mendoza (2001) 94
Cal.App.4th 1083, 1087 [“filing a lawsuit is an exercise of a party’s
constitutional right of petition”]; Cross-Compl., ¶¶ 47, 132.)
The
court finds that Kanon Parties have not met their burden of establishing that (1)
the remaining causes of action alleged against it arise from protected activity
relating to the filing of the Complaint, and (2) the claims related to the parties’
attempts to negotiate the amendment of the lease and repayment of rent constitute
protected activity.
“[U]nder
Baral, an anti-SLAPP motion may be directed to specific allegations of
protected activity which constitute claims for relief but do not constitute an
entire cause of action as pleaded.” (Newport
Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018)
23 Cal.App.5th 28, 48.) Thus,
“[a]nalysis 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 System
(2021) 11 Cal.5th 995, 1010.) Courts,
therefore, will “strike just the allegations of protected activity and the
‘claims’ arising from them.” (Newport
Harbor Offices & Marina, LLC, supra, 23 Cal.App.5th at p. 48.)
First,
the court finds that (1) Kanon Parties have met their burden of identifying
allegations of protected activity as it relates to the filing of the Complaint,
but that (2) Kanon Parties have not met their burden of establishing that each
of the causes of action asserted against it in the Cross-Complaint is based on
this activity, except as to the eleventh cause of action.
Cross-Complainants
allege that plaintiff West Casitas filed its Complaint against Swing House for
the collection of rent accrued during the pandemic, and that Cross-Defendants
filed this lawsuit prior to the accrual of any damages as an intimidation
tactic. (Cross-Compl., ¶ 47.) The court agrees that the filing of a
complaint consists of protected activity.
(Chavez, supra, 94 Cal.App.4th at p. 1087.) The court notes that Cross-Complainants argue,
in opposition, that Kanon Parties did not file the Complaint, and therefore may
not rely on this claim. However, the
Cross-Complaint itself refers to West Casitas and Kanon Parties
interchangeably, alleging both that West Casitas filed the Complaint and also
that Cross-Defendants filed this lawsuit, admitted their violations of certain
ordinances in the Complaint, and prayed for damages in order to discriminate,
harass, and intimidate Cross-Complainants.
(Cross-Compl., ¶¶ 47-48, 50.)
“[I]f the complaint itself alleges acts included within section 425.16,
subdivision (e), there is no reason to go beyond the scope of those allegations
to determine whether a plaintiff’s claims arise from protected conduct.” (Bel Air Internet, LLC v. Morales (2018)
20 Cal.App.5th 924, 937.) Because the
Cross-Complaint itself implicates all cross-defendants, including Kanon
Parties, in the filing of the underlying lawsuit, the court does not go beyond
the scope of those allegations in making this finding on the first prong.
Thus,
the court finds that the allegation that Kanon Parties filed this lawsuit
implicates protected activity. To the
extent that Kanon Parties establish that each cause of action is based, at
least in part, on this allegation, the court will proceed to the analysis on
the second prong and the burden will shift to Cross-Complainants to establish
that the challenged claims have minimal merit.
(Park, supra, 2 Cal.5th at p. 1061.)
Here,
Kanon Parties move the court for an order striking each cause of action asserted
against them, on the ground that Cross-Complainants “incorporate [these]
allegations into every cause of action….”
(Motion, p. 14:20-22.) Under the
anti-SLAPP statute, a “cause of action” means “allegations of protected
activity that are asserted as grounds for relief. The targeted claim must amount to a ‘cause of
action’ in the sense that it is alleged to justify a remedy.” (Baral, supra, 1 Cal.5th at p.
395 [emphasis in original].) It is Kanon
Parties’ burden “to identify what acts each alleged claim rests on and to show
how those acts are protected under a statutorily defined category of protected
activity.” (Bonni, supra,
11 Cal.5th at p. 1009.) Thus, because
Kanon Parties seek to strike each cause of action asserted against them, Kanon
Parties have the burden of establishing that each cause of action is “based
on” this protected conduct. (City
of Cotati, supra, 29 Cal.4th at p. 78.)
The
court finds that Kanon Parties have met their burden of establishing that the
eleventh cause of action arises from their protected acts of filing the lawsuit. Kanon Parties have demonstrated that this
cause of action arises, in part, from their petitioning conduct by explaining
that Cross-Complainants base their claim on the allegation that Kanon Parties
began harassing Cross-Complainants by “filing a lawsuit for collection
of rent prior to incurring any damages and prior to the passing of deadlines
related to payment of past-due rent in violation of the applicable moratorium.” (Cross-Compl., ¶ 132 [emphasis added].)
However,
the court finds that Kanon Parties have not met their burden of establishing
that the other causes of action alleged against it arise from the protected act
of filing a lawsuit. Aside from the
reference to paragraph 132, alleged in connection with Cross-Complainants’ eleventh
cause of action, Kanon Parties have not cited any other claims alleged in the
Cross-Complaint that establish that Cross-Complainants’ remaining causes of
action are “based on” this protected conduct.
(Bonni, supra, 11 Cal.5th at p. 1010.)
Kanon
Parties have also not provided the court with analysis as to how the allegation
that Kanon Parties filed a Complaint is asserted as grounds for relief as to
each cause of action beyond stating that, generally, all the factual
allegations in the Cross-Complaint were incorporated into each cause of
action. Kanon Parties cite GeneThera,
Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901,
909, to argue that a cause of action arises from protected activity when it
incorporates allegations of protected conduct.
(Motion, p. 14:23-25.) Although
the GeneThera, Inc. Court noted that the second cause of action in that
case incorporated all the prior allegations, the Court also explained the
specific assertions further alleged in connection with that cause of action in
order to determine that it was based on protected activity. (GeneThera, Inc. v. Troy & Gould
Professional Corp. (2009) 171 Cal.App.4th 901, 908.) Here, Kanon Parties have not identified any
allegations beyond the Cross-Complaint’s incorporation of its previous
allegations.
The
court finds that Kanon Parties’ reliance on the allegations of incorporation by
reference are insufficient to meet their burden of establishing that each of
Cross-Complainants’ causes of action is based on Cross-Defendants’ petitioning
activity. It is common practice to
incorporate prior allegations into subsequent causes of action. (Kajima Engineering & Construction,
Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-932.) “Because of this general practice, to strike
an entire complaint based simply on the incorporation of prior allegations
would unnecessarily expand the anti-SLAPP statute beyond acts taken in
furtherance of the right of petition or free speech.” (Id. at p. 932.)
Finally, the court notes that, in reply, Kanon Parties reference
specific allegations in the Cross-Complaint as to various causes of action in
order to argue that the causes of action arise from this conduct. (Reply, p. 4:10-15.) However, as a matter of due process, Kanon
Parties were required to identify those allegations in their moving papers in
order to give Cross-Complainants notice and an opportunity to address whether
those allegations and claims for relief are based on protected activity.
The
court finds that Kanon Parties failed to meet their burden as to the remaining
causes of action by failing (1) to cite to allegations as to each of the
remaining causes of action establishing that they are “based on” the allegation
that Kanon Parties filed the Complaint in this action, and (2) to provide the
court with analysis explaining how each remaining cause of action is based on
this allegation. That the
Cross-Complaint includes a paragraph incorporating the prior allegations by
reference as to each cause of action is insufficient. (See Cross-Compl., ¶¶ 51, 57, 63, 72,
81, 89, 100, 112, 118, 123; City of Cotati, supra, 29 Cal.4th at
p. 78 [“the critical point is whether the plaintiff’s cause of action itself
was based on an act in furtherance” of the protected conduct].)
Second,
the court finds that Kanon Parties have not met their burden of establishing
that the allegations relating to the negotiation of the repayment of rent and
terms of the lease arise from protected activity.
Cross-Complainants allege the following
pertinent facts relating to their efforts to negotiate the repayment of rent
and amendments to the lease.
Cross-Complainants notified the property management company Elite
Property Management, LLC (“Elite”) of the impact COVID-19 had on Swing House,
and subsequently “began a series of verbal and written communications regarding
the payment of rent….” (Cross-Compl., ¶
29.) West Casitas, by and through its
agents at Elite, and cross-defendants Stauffer and Kanon Ventures, “began
negotiations for a timeline for Swing House to pay the rent accrued” during the
time that the executive orders and moratoriums related to COVID-19 were in
effect. (Cross-Compl., ¶ 32.) Winsen, on
behalf of Swing House, presented a proposal to West Casitas through
communications with Stauffer, Kanon Ventures, and Elite regarding “a timeline
under which Swing House would repay rent that fell into arrears during the
pandemic.” (Cross-Compl., ¶ 33.) Stauffer noted that, while the proposal was
“on the right track,” the parties would prefer an adjustment to the timeframe
of the proposed payments. (Cross-Compl.,
¶ 34.) Pursuant to Stauffer’s request,
Winsen provided a revised proposal.
(Cross-Compl., ¶ 39.) Thereafter,
Cross-Defendants (1) contended that Cross-Complainants’ terms were unacceptable,
(2) began to demand that Winsen provide personal guarantees to pay arrears, and
(3) “refused to modify the proffered terms of the lease amendment in any
meaningful way.” (Cross-Compl., ¶¶ 40,
42-43.)
As
set forth above, protected activity
under the anti-SLAPP statute includes written or oral statements or writings
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. (Code Civ. Proc., §
425.16, subd. (e)(1).) This description
can be read to refer to pending litigation, as well as “communications that are
‘“preparatory to or in anticipation of the bringing of an action or other
official proceeding….”’” (Bel Air
Internet, LLC, supra, 20 Cal.App.5th at p. 940.) Conduct that is preparatory to or in
anticipation of litigation can include communications made in connection with
encouraging others to sue; settlement negotiations, either while a lawsuit is
pending or prior to litigation; the satisfaction of statutory prerequisites,
such as serving a three-day notice to quit prior to filing an unlawful detainer
action; or the service of a demand letter.
(Ibid.; Bonni, supra, 11 Cal.5th at pp. 1024-1025; People
ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809,
824-825.) However, “when a cause of
action arises from conduct that is a ‘necessary prerequisite’ to litigation,
but will lead to litigation only if negotiations fail or contractual
commitments are not honored, future litigation is merely theoretical rather
than anticipated and the conduct is therefore not protected prelitigation
activity.” (Bel Air Internet, LLC,
supra, 20 Cal.App.5th at p. 941.)
For a prelitigation statement to fall within the
scope of section 425.16, it must (1) concern the subject of the dispute, and
(2) be made in anticipation of litigation “contemplated in good faith and under
serious consideration….” (People ex.
rel. Fire Ins. Exchange, supra, 211 Cal.App.4th at p. 824.) The “good faith and under serious
consideration requirement” does not involve an inquiry into malice, but rather
“focuses on whether the litigation was genuinely contemplated.” (Ibid.) This requirement “ensures that prelitigation
communications are actually connected to litigation and that their protection
therefore furthers the anti-SLAPP statute’s purpose of early dismissal of
meritless lawsuits that arise from protected petitioning activity.” (Bel Air Internet, LLC, supra,
20 Cal.App.5th at p. 941.)
While Cross-Complainants
allege that they and various individuals and entities comprising the Kanon
Parties engaged in negotiations regarding the amendment of the lease and
repayment of rent, the facts alleged do not fall within the scope of protected
prelitigation settlement negotiations.
Cross-Complainants argue, in opposition, that the “parties were
discussing the amendment to a lease and were not ‘settling’ any claims or
threats of claims.” (Opp., 15:2-3.) The court agrees, and reads the allegations in
the Cross-Complaint to support this theory.
Cross-Complainants did not allege that any party threatened or
contemplated litigation; that an attorney for Kanon Parties or
Cross-Complainants served demand letters; or that the parties were fulfilling
any statutory prerequisite to filing this cross-complaint by engaging in
discussions relating to the amendment of the lease and repayment of rent.
Moreover, Cross-Complainants
could not be complaining of conduct that occurred during the pendency of this
action, as West Casitas filed its Complaint on October 14, 2021, and the
negotiations allegedly began in March of 2020 and concluded around May of 2021,
when Cross-Defendants “refused to modify the proffered terms of the lease
amendment in any meaningful way.”
(Cross-Compl., ¶¶ 29, 43.) Finally,
the evidence cited by Kanon Parties does not establish that the communications
between the parties constitute protected prelitigation settlements. The draft amendment to the lease, while
acknowledging that Swing House had not paid its rent when due, states that the
parties “desire[d]” to amend the lease “to cause the Past Due Amount to be paid
by [Swing House] and to extend the Term” as set forth in the draft amendment. (Def. COE Ex. 21, p. 1, §§ B, C.) The terms of the amendment do not indicate
that the parties were agreeing to settle a pending or contemplated action, and
Kanon Parties do not appear to contend otherwise. The September 2, 2021 email cited by Kanon
Parties is similarly insufficient. While
it does contain a statement from Stauffer stating that, if Cross-Complainants
did not pay rent within seven days, they would “have no choice but to pursue
any and all legal remedies available[,]” it was sent to Winsen following the negotiations
complained of, which occurred between March of 2020 and May of 2021. (Def. COE
Ex. 26; Cross-Compl., ¶¶ 35, 40, 43.)
Even if the court were to read
the Cross-Complaint and the cited exhibits as alleging that the negotiations
regarding the lease amendment and repayment of rent were a necessary
prerequisite to litigation, Kanon Parties do not point to either (1) allegations
establishing that either party had seriously considered litigation, or (2)
other evidence establishing that any of the parties had seriously, and in good
faith, considered litigation during the relevant timeframe. At most, such conduct could be considered to
“lead to litigation only if negotiations fail[,]” which would still render
future litigation “merely theoretical rather than anticipated and…therefore not
protected prelitigation activity.” (Bel Air Internet, LLC, supra, 20 Cal.App.5th at p. 941.)
For the reasons set forth above, the court finds that Kanon Parties
have not established that the allegations relating to the parties’ attempts to
renegotiate amendments to the lease and Cross-Complainants’ repayment of the
rent arise from protected activity.
Upon consideration of the
evidence and arguments presented by the parties, the court finds that Kanon
Parties have not met their burden to establish that Cross-Complainants’ 1st,
2nd, and 6th through 10th causes of action arise from protected activity and
therefore denies Kanon Parties’ motion to strike as to those causes of
action. (Code
Civ. Proc., § 425.16, subd. (b)(1); Park, supra, 2 Cal.5th
at p. 1061.)
B.
Second Prong:
Probability of Prevailing on the Merits
The second prong places the
burden on the plaintiff to establish that there is a probability the plaintiff will
prevail on the claim. (Code Civ. Proc. §
425.16, subd. (b).) The plaintiff, in establishing
this, must show that the complaint is both legally sufficient and supported by
a sufficient prima facie showing of facts to sustain a favorable judgment. (Matson v. Dvorak (1995) 40
Cal.App.4th 539, 548.) “This is a
‘summary-judgment-like procedure.’
[Citation.] The pleadings and
evidentiary submissions of both parties are considered (§ 425.16, subd.
(b)(2)), and the evidence favorable to plaintiffs is accepted as true. [Citation.]
Plaintiffs need only establish that their claim has ‘minimal merit’ to
avoid being stricken as a SLAPP.” (Olivares
v. Pineda (2019) 40 Cal.App.5th 343, 353.)
The plaintiff cannot rely solely on the allegations in the complaint,
but must provide the court with sufficient evidence to allow the court to
determine that the plaintiff has a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993, 1010.) The court
does not weigh the defendant’s evidence against the plaintiff’s in terms of
credibility or persuasiveness; “[r]ather, the defendant’s evidence is
considered with a view toward whether it defeats the plaintiff’s showing as a
matter of law, such as by establishing a defense or the absence of a necessary
element.” (1-800 Contacts, Inc. v.
Steinberg (2003) 107 Cal.App.4th 568, 585.)
As set forth above, the court
finds that Kanon Parties have met their burden to establish that
Cross-Complainants’ eleventh cause of action arises from, in part, Kanon
Parties’ constitutionally protected right to petition, to the extent that it is
based on the filing of the lawsuit.
(Code Civ. Proc., § 425.16, subd. (e)(1); Cross-Compl., ¶¶ 47,
132.) The court therefore proceeds to
its analysis under the second prong as to this claim.
1. Eleventh
Cause of Action for Recovery of Penalties for Intentional Violation of Los
Angeles County Eviction Moratorium
Kanon Parties contend that
Cross-Complainants’ claim that Kanon Parties harassed Cross-Complainants by
“filing a lawsuit for collection of rent prior to incurring any damages and
prior to the passing of deadlines related to payment of past-due rent in
violation of the applicable moratorium” is barred by the litigation privilege
set forth in Civil Code section 47.
(Cross-Compl., ¶ 132.)
Under Civil Code section 47, a
privileged publication is one that is made (1) in any legislative proceeding,
(2) in any judicial proceeding, (3) in any other official proceeding authorized
by law, or (4) in the initiation or course of any other proceeding authorized
by law and reviewable pursuant to Chapter 2 of Title 1 of Part 3 of the Code of
Civil Procedure. (Civ. Code, § 47,
subd. (b).) The privilege set forth in
Civil Code section 47, subdivision (b)(2) is commonly formulated as the
litigation privilege. “The litigation
privilege ‘“exists to protect citizens from the threat of litigation for
communications to government agencies whose function it is to investigate and
remedy wrongdoing. [Citation.]” [Citation.]’”
(Wang v. Heck (2012) 203 Cal.App.4th 677, 684.) “‘“The usual
formulation is that the privilege applies to any communication (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that
[has] some connection or logical relation to the action.”
[Citation.] The privilege “is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards.”’” (Falcon v. Long Beach Genetics, Inc. (2014) 224
Cal.App.4th 1263, 1272.) “To show that the litigation privilege does not
apply, the burden is on the plaintiff to demonstrate that an independent,
noncommunicative, wrongful act was the gravamen of the action.” (Mireskandari v. Gallagher (2020) 59
Cal.App.5th 346, 369 [internal quotations omitted].)
The court finds that
Cross-Complainants have not met their burden of establishing that there is a
probability that Cross-Complainants will prevail on their claim that
Cross-Defendants violated the Los Angeles County Eviction Moratorium based on
the allegation that Cross-Defendants filed a lawsuit for collection of rent,
since this claim is barred by the litigation privilege. (Code Civ. Proc., § 425.16, subd.
(b)(1); Park, supra, 2 Cal.5th at p. 1061.)
The allegation that
Cross-Defendants harassed Cross-Complainants in violation of the Moratorium is
barred by the litigation privilege because it concerns communications that (1)
were made in a judicial proceeding, since it is alleged that Cross-Defendants
attempted to recover rent by filing the Complaint in this action (Cross-Compl.,
¶¶ 47, 132); (2) were made by litigants or other authorized participants,
since—although West Casitas filed the Complaint—Cross-Complainants have alleged
that all Cross-Defendants filed this lawsuit and have admitted liability
within the Complaint (Cross-Compl., ¶¶ 47-48); (3) were made to achieve
the object of litigation, as the protected act constitutes the filing of the
Complaint; and (4) have a connection or logical relation to this action. The court notes that Cross-Complainants
contend that their Cross-Complaint is based solely on Kanon Parties’
discriminatory and harassing conduct. However,
as alleged, the court reads this cause of action to be based on—in part—the act
of filing the Complaint in this action. (Cross-Compl., ¶ 132, subd. (iv).)
The court therefore grants
Kanon Parties’ motion to strike in part.
As set forth above, the court
reviews only the claims that consist of “allegations of protected activity that
are asserted as grounds for relief.”
(Baral, supra, 1 Cal.5th at p. 395 [emphasis in original].) The eleventh cause of action is challenged
only to the extent that it is based on the separate claim and allegation that
Cross-Defendants violated the moratorium by filing a Complaint to recover rent
allegedly due and owing. The court
therefore cannot, and does not, strike the eleventh cause of action in its
entirety. (Id. at p. 382 [an
anti-SLAPP motion “does not reach claims based on unprotected activity”].) The court grants the motion to strike only the
claim that Kanon Parties violated the moratorium by filing the Complaint as
alleged in the eleventh cause of action.
The court orders that the
following claims are stricken from the Cross-Complaint: (1) paragraph 47 in its
entirety because it alleges the facts of the protected conduct complained of,
and (2) the claim “iv) filing a lawsuit for collection of rent prior to
incurring any damages and prior to the passing of deadlines related to payment
of past-due rent in violation of the applicable moratorium” which is alleged in
paragraph 132 of the Cross-Complaint.
MOTION TO STRIKE FILED BY TAVITIAN
A.
First Prong: Arising From Protected Activity
As
set forth above, courts analyze special motions to strike under a two-step
approach. “Initially, the moving
defendant bears the burden of establishing that the challenged allegations or
claims ‘aris[e] from’ protected activity in which the defendant has engaged.” (Park, supra, 2 Cal.5th at p.
1061.)
The
protected acts in furtherance of a defendant’s right of petition or free speech
include:
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 free
speech in connection with a public issue or an issue of public interest.
(Code Civ. Proc., §
425.16, subd. (e).)
Tavitian
moves the court for an order striking each cause of action alleged in the
Cross-Complaint, and presents arguments substantially similar to the arguments
advanced by Kanon Parties’ special motion to strike. Specifically, Tavitian argues that the
Cross-Complaint arises from the following protected conduct: (1) the filing of
the underlying lawsuit, and (2) prelitigation settlement negotiations.
The
court finds that Tavitian has met his burden of establishing that the eleventh
cause of action arises from protected activity in which Tavitian has engaged
because this cause of action arises, in part, from the alleged filing of the
Complaint in this action. (Code Civ.
Proc., § 425.16, subd. (b)(1); Park, supra, 2 Cal.5th at p.
1061.)
As
set forth above in connection with the ruling on the Kanon Parties’ motion to
strike, the court finds that Tavitian has not met his burden of establishing
(1) that the remaining causes of action alleged against him arise from
protected activity relating to the filing of the Complaint, and (2) that the
claims related to the parties’ attempts to negotiate the amendment of the lease
and repayment of rent are protected activity.
First,
Tavitian fails to explain how—aside from the eleventh cause of action—each
cause of action arises from the filing of the Complaint. Instead, Tavitian argues that, because the
Cross-Complaint incorporates the protected allegations by reference, the causes
of action are “based on” this protected activity. For the reasons set forth above, the court
finds that the incorporation allegations are insufficient to establish that
each cause of action is based on the protected act of filing the
Complaint. (See Cross-Compl.,
¶¶ 51, 57, 63, 72, 81, 89, 100, 107, 112, 118, 123; Kajima Engineering
& Construction, Inc., supra, 95 Cal.App.4th at pp. 931-932.)
Second,
Tavitian fails to point to allegations or evidence establishing that the
negotiations engaged in by the parties were made in anticipation of litigation
that was “contemplated in good faith
and under serious consideration….” (People
ex. rel. Fire Ins. Exchange, supra, 211 Cal.App.4th at p. 824.)
The court therefore finds that
Tavitian has not met his burden to establish that Cross-Complainants’ 1st
through 10th causes of action arise from protected activity and therefore
denies Tavitian’s motion to strike as to those causes of action. (Code Civ. Proc.,
§ 425.16, subd. (b)(1); Park, supra, 2 Cal.5th at p. 1061.)
B.
Second Prong:
Probability of Prevailing on the Merits
The second prong places the
burden on the plaintiff to establish that there is a probability the plaintiff will
prevail on the claim. (Code Civ. Proc. §
425.16, subd. (b).) The plaintiff, in establishing
this, must show that the complaint is both legally sufficient and supported by
a sufficient prima facie showing of facts to sustain a favorable judgment. (Matson, supra, 40 Cal.App.4th at
p. 548.)
As set forth above, the court
finds that Tavitian has met his burden of establishing that Cross-Complainants’
eleventh cause of action arises, in part, from Tavitian’s constitutionally
protected right to petition, to the extent that it is based on the filing of
the lawsuit. (Code Civ. Proc.,
§ 425.16, subd. (e)(1); Cross-Compl., ¶¶ 47, 132.) The court therefore proceeds to the second
prong as to this claim.
1. Eleventh
Cause of Action for Recovery of Penalties for Intentional Violation of Los
Angeles County Eviction Moratorium
Like Kanon Parties, Tavitian
contends that Cross-Complainants’ claim that Tavitian harassed
Cross-Complainants by “filing a lawsuit for collection of rent prior to
incurring any damages and prior to the passing of deadlines related to payment
of past-due rent in violation of the applicable moratorium” is barred by the
litigation privilege set forth in Civil Code section 47. (Cross-Compl., ¶ 132.)
As set forth above, the court
finds that Cross-Complainants have not met their burden of establishing that there
is a probability that Cross-Complainants will prevail on their claim that
Cross-Defendants, and specifically, Tavitian, violated the Los Angeles County
Eviction Moratorium based on the allegation that Cross-Defendants filed a
lawsuit for collection of rent, since this claim is barred by the litigation
privilege. (Code Civ. Proc.,
§ 425.16, subd. (b)(1); Park, supra, 2 Cal.5th at p. 1061.)
The court finds that the
challenged claim is barred because it concerns communications and statements
made in the underlying Complaint that (1) were made in a judicial proceeding,
since it is alleged that Cross-Defendants attempted to recover rent by filing
the Complaint in this action (Cross-Compl., ¶¶ 47, 132); (2) were made by
litigants or other authorized persons, since Cross-Complainants have alleged
that all Cross-Defendants filed this lawsuit (Cross-Compl., ¶ 47);
(3) were made to achieve the object of litigation, as the protected act
constitutes the filing of the Complaint; and (4) have a connection or logical relation
to this action.
The court therefore grants Tavitian’s
motion to strike in part. The court
grants the motion to strike the claim that Tavitian violated the moratorium by
filing the Complaint as alleged in the eleventh cause of action.
The court orders that the
following claims are stricken from the Cross-Complaint as alleged against
defendant Tavitian: (1) paragraph 47 in its entirety because it alleges the
facts of the protected conduct complained of, and (2) the claim “iv) filing a
lawsuit for collection of rent prior to incurring any damages and prior to the
passing of deadlines related to payment of past-due rent in violation of the
applicable moratorium” which is alleged in paragraph 132 of the
Cross-Complaint.
MOTION FOR LIMITED LIFT
ON DISCOVERY STAY
Defendant and
cross-complainant Swing House moves the court for an order (1) lifting the stay
on discovery and (2) continuing the hearing on the anti-SLAPP motions pending
the completion of such discovery.
Based on the court’s
rulings on the two anti-SLAPP motions set forth above, the court finds that Swing
House has not shown good cause for the court to order that specified discovery
be conducted before ruling on the anti-SLAPP motions or to continue the hearing
on the anti-SLAPP motions pending the completion of such discovery. The court therefore denies Swing House’s
motion requesting that relief. (Code
Civ. Proc., § 425.16, subd. (g).)
ORDER
The court grants in part and denies in part the special motion to
strike the Cross-Complaint filed by cross-defendants Kanon Ventures, LLC, Mark
Beskind, Jeff Stauffer, and Ara Tavitian (Code Civ. Proc., § 425.16, subd.
(b)(1).) The court grants the motion to
strike the claim that Kanon Parties violated the moratorium by filing the
Complaint in this action.
The court orders that the following claims are stricken from the
Cross-Complaint as alleged against cross-defendants Kanon Ventures, LLC, Mark
Beskind, Jeff Stauffer, and Ara Tavitian: (1) paragraph 47 in its entirety
because it alleges the facts of the protected conduct complained of, and (2)
the claim “iv) filing a lawsuit for collection of rent prior to incurring any
damages and prior to the passing of deadlines related to payment of past-due
rent in violation of the applicable moratorium” which is alleged in paragraph
132 of the Cross-Complaint.
The court denies cross-defendants Kanon Ventures, LLC, Mark Beskind,
Jeff Stauffer, and Ara Tavitian’s special motion to strike other claims in the
Cross-Complaint.
The court grants in part and denies in part the special motion to
strike the Cross-Complaint filed by defendant Avedis Tavitian. (Code Civ. Proc., § 425.16, subd.
(b)(1).) The court grants the motion to
strike the claim that Tavitian violated the moratorium by filing the Complaint
in this action.
The court orders that the following claims are stricken from the
Cross-Complaint as alleged against defendant Avedis Tavitian: (1) paragraph 47
in its entirety because it alleges the facts of the protected conduct
complained of, and (2) the claim “iv) filing a lawsuit for collection of rent
prior to incurring any damages and prior to the passing of deadlines related to
payment of past-due rent in violation of the applicable moratorium” which is
alleged in paragraph 132 of the Cross-Complaint.
The court denies defendant Avedis Tavitian’s special motion to strike other
claims in the Cross-Complaint.
The court denies defendant and cross-complainant Swing House Stages,
Inc.’s motion for limited lift on discovery stay.
The court orders cross-defendants Kanon Ventures, LLC, Mark Beskind,
Jeff Stauffer, and Ara Tavitian to give notice of this order.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court