Judge Robert B. Broadbelt, Case Number: 24STCV07612, Date: 2025-01-09 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 24STCV07612, Date: 2025-01-09 Tentative Ruling

MOVING PARTIES: Defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust)

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court grants defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust)’s request for judicial notice. (Evid. Code, § 452, subd. (d).)

The court exercises its discretion to consider and grant the request for judicial notice filed by plaintiff Matthew Arnold on January 6, 2025, as to Exhibits 2 and 10, because the parties have referenced the filing of the actions and content of the complaints filed therein in their moving and opposition papers. (Evid. Code, § 452, subd. (d); Mot., p. 3:22-25, 4:1-3; Opp., pp. 2:7-8, 9:1-3.)

The court sustains defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust)’s objection to the remaining exhibits set forth in plaintiff Matthew Arnold’s request for judicial notice, filed on January 6, 2025 and served on January 5, 2025, and therefore denies the request for judicial notice as to those exhibits because the request was not filed and served at least nine court days before the hearing on this motion. (Code Civ. Proc., § 1005, subd. (b); Pl. Req. for Judicial Notice, p. 186 [proof of service on January 5, 2025].)

Plaintiff Matthew Arnold (“Plaintiff”) filed the operative First Amended Complaint in this action on September 30, 2024 against defendants Brent Zacky, d/b/a Zacky Family Partnership, Hayden A. Zacky, d/b/a Zacky Family Partnership, and Hayden A. Zacky, as trustee of the H and B Zacky Deed Trust.

Defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust) (“Defendants”) now move the court for an order striking Plaintiff’s eighth cause of action for malicious prosecution and any references to the prior unlawful detainer actions, as set forth in paragraphs 32-51 and 94, subdivision (d) and (e) of the First Amended Complaint, pursuant to Code of 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].)¿

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 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 moving defendant will meet this burden by demonstrating that the plaintiff’s claim fits one of the categories outlined in Code of Civil Procedure section 425.16, subdivision (e).¿ (Ibid.)¿¿¿

The protected acts in furtherance of a defendant’s right of petition or free speech include:¿¿

First, the court finds that Defendants have not shown that the allegations set forth in paragraphs 45 and 52, which request punitive damages (FAC ¶ 45) and prejudgment interest (FAC ¶ 52), arise from Defendants’ protected activity since those allegations do not describe Defendants’ conduct and instead pray for relief.

Second, the court finds that Defendants have shown that the following claims and allegations arise from Defendants’ protected activity in making statements before a judicial proceeding: (1) the allegations set forth in paragraphs 32-37, 46-49, and 94, subdivisions (d) and (e), which allege (i) facts relating to the filing of the first unlawful detainer action filed on October 25, 2022 (Case No. 22SMUD01624) (the “First Unlawful Detainer Action”) and that (ii) Defendants knew that the First Unlawful Detainer Action lacked probable cause, prosecuted the Unlawful Detainer Action for an improper purpose, maliciously prosecuted the Unlawful Detainer Action, and demonstrated malice during the Unlawful Detainer Action by committing certain specified conduct, (2) the allegations set forth in paragraphs 38-40, 43-44, 50-51, and 94, subdivisions (d) and (e), which allege (i) facts relating to the filing of the subsequent unlawful detainer action (Case No. 24STUD02832) (the “Second Unlawful Detainer Action”), and (ii) that Defendants demonstrated malice as to the filing of the Second Unlawful Detainer Action, and (3) the eighth cause of action for malicious prosecution, which alleges that Defendants maliciously prosecuted both the First Unlawful Detainer Action (FAC ¶ 99) and Second Unlawful Detainer Action (FAC ¶ 100) (collectively, the “Unlawful Detainer Actions”). (Code Civ. Proc., § 425.16, subd. (e); Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248 [“The filing of an unlawful detainer complaint is anti-SLAPP protected activity, as is service of a notice of termination preceding an unlawful detainer complaint”]; Maleti v. Wickers (2022) 82 Cal.App.5th 181, 200 [“‘[S]ection 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.]’”].)

The court also finds that, to the extent that paragraphs 41 and 42 are alleged to support the eighth cause of action for malicious prosecution, the conduct described therein arises from Defendants’ conduct in furtherance of their right to file the Second Unlawful Detainer Action. (FAC ¶¶ 41 [alleging that Plaintiff sent a check for $12,903.03 in rent], 42 [alleging that Defendants’ attorney demanded Plaintiff provide proof that the check was mailed prior to the expiration of the three-day notice], 100 [alleging that Defendants are liable for the malicious prosecution of the Second Unlawful Detainer Action because, inter alia, Defendants “acted with full knowledge that they had received the full amount of rent demanded in the 3-Day Notice via check mailed from” Plaintiff].) However, those allegations may also support Plaintiff’s allegation that he performed his legal obligations and therefore “was not in default of rental obligations” alleged in support of his ninth cause of action for breach of contract. (FAC ¶ 104.) Thus, if the court determines that Plaintiff has not demonstrated that his malicious prosecution claim has merit, the court will strike these paragraphs only to the extent that they are alleged in support of that claim.

Third, the court notes that Plaintiff has argued that “retaliatory eviction is exempt from SLAPP[,]” citing Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 335. (Opp., p. 3:14-15.) To the extent that Plaintiff is arguing that Defendants cannot meet their burden on the first prong on the ground that Banuelos provides that claims alleging retaliatory eviction do not fall within the scope of the anti-SLAPP statute, the court disagrees. The Banuelos Court concluded that the litigation privilege does not bar a tenant from suing a landlord under Civil Code section 1942.5, and did not hold that such claims are not subject to the anti-SLAPP statute. (Banuelos, supra, 219 Cal.App.4th at pp. 333, 335.)

The court therefore evaluates whether Plaintiff has met his burden to demonstrate that his claims for malicious prosecution based on Defendants’ filing the Unlawful Detainer Actions have minimal merit.

The second prong places the burden on the plaintiff to establish that there is a probability of prevailing on the challenged claim. (Code Civ. Proc., § 425.16, subd. (b)(1).) To satisfy this burden, the plaintiff must show that the challenged claim is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment. (Oliveras v. Pineda (2019) 40 Cal.App.5th 343, 353.) “This is a ‘ “summary-judgment-like procedure.” ’ [Citation.] The pleadings and evidentiary submissions of both parties are considered [citation], 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.” (Ibid. [internal citations omitted].)

“To establish a cause of action for malicious prosecution, the malicious prosecution plaintiff must demonstrate that the prior action was ‘(i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice.’” (Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 453, n. 6 [internal italics omitted].) “If the plaintiff seeks to recovery monetary relief [on a claim for malicious prosecution], she [or he] ‘must also prove [(4)] damages.’” (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537.)

The court finds, and Defendants do not appear to dispute, that Plaintiff has met his burden to make a prima facie showing that the Unlawful Detainer Actions were each pursued to legal termination in favor of Plaintiff. (Kinsella, supra, 45 Cal.App.5th at p. 453, n. 6; Arnold Decl., p. 15:6-7 [“The jury found [in] my favor [on the First Unlawful Detainer Action] determining that the breaches were unsubstantial and immaterial”]; Arnold Decl., Ex. T, April 17, 2024 Order in Case No. 24STUD02832, p. 1 [“Ruling on Defendant’s [i.e., Plaintiff’s] Demurrer [¶] The demurrer is sustained without leave to amend.”].)

For the reasons set forth below, the court finds that Plaintiff has not met his burden to make a prima facie showing that Defendants initiated or maintained the Unlawful Detainer Actions without probable cause. (Kinsella, supra, 45 Cal.App.5th at p. 453, n. 6.)

Plaintiff contends that Defendants initiated and maintained the First Unlawful Detainer Action without probable cause “because Defendants knew or should have known about the agreement between Matt Zacky and [Plaintiff]” and because Defendants knew that the alleged breaches of the lease were immaterial. (Opp., p. 9:1-4; Arnold Decl., p. 15:9-13 [the First Unlawful Detainer Action lacked probable cause because Defendants knew Plaintiff had an agreement in place with Matt Zacky and because Defendants knew the breaches were immaterial].)

Plaintiff has alleged that the First Unlawful Detainer Action “alleged that [Plaintiff] failed to remove his air conditioning unit after being served with a 3-day notice to abate nuisance or quit.” (FAC ¶ 32.) To establish lack of probable cause, Plaintiff has asserted that he and Matt Zacky (“Zacky”), the previous manager of the premises, “made a verbal agreement to install a window air conditioning unit in the bedroom[,]” such that Defendants lacked probable cause to seek unlawful detainer against him based on his alleged failure to remove the air conditioning unit. (Arnold Decl., p. 12:20-21; Opp., pp. 7:14-15, 9:1-4.)

In support of this assertion, Plaintiff has submitted a copy of the October 20, 2022 “Hearing Examiner’s Decision on Rent Decrease Application D-4686,” in which the Hearing Officer for the Rent Stabilization Division of West Hollywood concluded—five days before the First Unlawful Detainer Action was filed—that (1) Plaintiff and Zacky “agreed that [Plaintiff] could install a second air conditioning appliance in his bedroom at [Plaintiff’s] expense, and that it would be an internally mounted window unit to avoid having to cut new holes in the apartment wall[,]” and (2) because the landlord agreed to allow Plaintiff to purchase and install the second air conditioning appliance, such installation and use thereof was a housing service provided to Plaintiff. (Arnold Decl., Ex. O, pp. 23, 25; FAC ¶ 32 [the First Unlawful Detainer Action was filed on October 25, 2022].) The Hearing Officer further stated “that reinstallation [of the air conditioning unit] must be done safely by a licensed contractor at [Plaintiff’s] expense” and that Plaintiff “may restore this housing service by retaining a licensed contractor to reinstall the bedroom AC appliance.” (Arnold Decl., Ex. O, p. 25.) The court also notes that Plaintiff has stated, in his declaration, that he informed Defendants of this verbal agreement, but that they refused to acknowledge the agreement and thereafter issued the three-day notice to abate nuisance or quit. (Arnold Decl., p. 14:13-15.)

The court finds that this evidence is insufficient to make a prima facie showing that the First Unlawful Detainer Action lacked probable cause.

First, the court acknowledges that Plaintiff has presented evidence that (1) he had a verbal agreement with Zacky permitting him to install the air conditioning unit, and (2) he informed Defendants of that agreement. (Arnold Decl., p. 14:13-15.) However, even accepting these assertions as true, the court finds that this evidence does not show that Defendants, in initiating and maintaining the First Unlawful Detainer Action, relied upon facts which they had no reasonable cause to believe to be true or sought recovery upon a legal theory that is untenable under the facts known to him. (Olivares, supra, 40 Cal.App.5th at p. 353 [on the second prong of the anti-SLAPP analysis, “the evidence favorable to plaintiffs is accepted as true”]; Kinsella, supra, 45 Cal.App.5th at p. 455 [“A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him”] [internal quotation marks and citations omitted].)

The Complaint filed in the First Unlawful Detainer Action alleged that Plaintiff “again installed an air conditioning unit, but did so without [Defendants’] prior written consent/approval[,]” and was in breach of the parties’ lease by, inter alia, “installing an air conditioner without [Defendants’] permission and without using a licensed, insured professional[.]” (Pl. RJN Ex. 2, First Unlawful Detainer Action Compl., Attachment No. 17, ¶¶ c, e.) The First Unlawful Detainer Action was therefore based on Plaintiff’s alleged breach of the lease by installing an air conditioning unit (1) without obtaining Defendants’ written consent, and (2) without using a licensed professional. (Ibid.) Thus, Plaintiff has not shown that Defendants’ knowledge of Plaintiff’s verbal prior agreement with Zacky is sufficient to make a prima facie showing that Defendants based the First Unlawful Detainer Action on facts which they had no reasonable cause to believe to be true, since the First Unlawful Detainer Action was based on allegations that were not inconsistent with their knowledge of such verbal agreement (i.e., because the First Amended Complaint was based on allegations that Plaintiff breached the lease by failing to obtain written, rather than verbal, consent, and failing to install the air conditioner with a licensed professional).

Second, the court acknowledges that, as set forth above, Plaintiff submitted evidence showing that the Hearing Officer concluded that Plaintiff and Zacky agreed that Plaintiff could install an air conditioning unit, and that such installation must be completed by a licensed contractor. (Arnold Decl., Ex. O, p. 25.) However, Plaintiff did not (1) present argument or authority establishing that the findings by the Hearing Officer had preclusive effect on Defendants or otherwise prevented them from filing the First Unlawful Detainer Action, such that Plaintiff has not made a prima facie showing that Defendants sought recovery upon a legal theory untenable under the facts known to them, and (2) show that Defendants’ knowledge of the Hearing Officer’s decision and findings is sufficient to make a prima facie showing that Defendants initiated and maintained the First Unlawful Detainer Action based on facts which they had no reasonable cause to believe to be true since the First Unlawful Detainer Action was based on allegations that (i) Plaintiff did not have written consent to install the air conditioner, which is not inconsistent with this decision, and (ii) the air conditioning unit was not installed by a licensed contractor as required, which is not inconsistent with this decision. (Kinsella, supra, 45 Cal.App.5th at p. 455; Pl. RJN Ex. 2, First Unlawful Detainer Action Compl., Attachment No. 17, ¶¶ c, e.)

Third, Plaintiff has not made a prima facie showing that Defendants knew that the alleged breaches of lease were immaterial, such that Defendants lacked probable cause to initiate and maintain the First Unlawful Detainer Action. Although Plaintiff has stated that fact in his declaration, Plaintiff did not lay a foundation for that fact and does not have personal knowledge thereof. (Arnold Decl., p. 15:10-11.)

Thus, for the reasons set forth above, the court finds that Plaintiff has not met his burden to make a prima facie showing that Defendants initiated and/or maintained the First Unlawful Detainer Action without probable cause.

Plaintiff contends that Defendants initiated the Second Unlawful Detainer Action without probable cause because (1) Plaintiff paid the due rent by sending a check, by mail, to the address that was in the three-day notice, and (2) the three-day notice was defective. The court finds that Plaintiff has not shown that the Second Unlawful Detainer Action lacked probable cause on those grounds.

First, the court finds that Plaintiff did not support his assertion that he paid the owed rental monies due within three days of Defendants’ issuance of the three-day notice to pay rent or quit.

Defendants issued a “Three-day Notice to Pay Rent or Quit [¶]] (Nonpayment of Rent)” to Plaintiff on February 6, 2024, demanding that Plaintiff pay the amount due within three days (excluding Saturdays, Sundays, and other judicial holidays).[1] (Arnold Decl., Ex. Q, pp. 1, 2.) Plaintiff asserts that he sent the owed rent via a check, but did not state the date on which he mailed the check in his declaration. (Arnold Decl., p. 15:22-24.) Plaintiff has also attached a copy of an email, dated February 9, 2024, in which Plaintiff stated he was “letting [Defendants] know that the check was sent yesterday.” (Arnold Decl., Ex. R, p. 1.) However, the attached page, entitled “This payment is processing[,]” states that “[p]ayment check was sent to Zacky Family Partnership on Feb 15, 2024 for estimated delivery on Feb 15, 2024.” (Arnold Decl., Ex. R, p. 2 [emphasis added].) Plaintiff did not address this discrepancy in his opposition.

Thus, Plaintiff’s own evidence appears to show that he did not pay the owed rent within three days after issuance of the three-day notice to pay rent or quit, and instead shows that he paid the owed rent on February 15, 2024, which is more than three days (excluding holidays and weekends) after issuance of the February 6, 2024 notice to pay rent or quit. The court therefore finds that Plaintiff has not made a prima facie showing that the Second Unlawful Detainer Action was based on facts that Defendants had no reasonable cause to believe to be true or was legally untenable. (Kinsella, supra, 45 Cal.App.5th 422, 455.)

Second, the court finds that Plaintiff has not shown that Defendants’ initiating the Second Unlawful Detainer Action lacked probable cause on the ground that the underlying court found that the notice was defective. Plaintiff did not submit evidence establishing that Defendants knew or should have known that the notice was defective, such that Plaintiff has not shown that they initiated or maintained the Second Unlawful Detainer Action without probable cause. (Kinsella, supra, 45 Cal.App.5th at p. 455.) The court further notes that “[a] prior action was not initiated without probable cause merely because it was ultimately found to lack merit . . . .”[2] (Gruber, supra, 48 Cal.App.5th at pp. 537-538.)

Thus, for the reasons set forth above, the court finds that Plaintiff has not met his burden to make a prima facie showing that Defendants initiated and/or maintained the Second Unlawful Detainer Action without probable cause.

Based on the findings set forth above, the court finds that (1) Defendants have met their burden to show that (i) the allegations set forth in paragraphs 32-40, 43-44, 46-49, 50-51, and 94, subdivisions (d) and (e), (ii) the allegations set forth in paragraphs 41 and 42 (to the extent that they are alleged in support of the malicious prosecution cause of action), and (iii) the eighth cause of action for malicious prosecution arise from Defendants’ protected activity, and (2) Plaintiff has not met his burden to show that there is a probability that Plaintiff will prevail on those claims.

The court therefore grants Defendants’ special motion to strike and orders that those claims are stricken. (Code Civ. Proc., § 425.16, subd. (b)(1).)

Defendants request that the court award attorney’s fees in their favor and against Plaintiff in the amount of $2,460. The court grants Defendants’ request. (Code Civ. Proc., § 425.16, subd. (c)(1).)

“[A] prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1); RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 447 [“A defendant that prevails on an anti-SLAPP motion to strike is generally entitled to recover attorney’s fees and costs”].) “It is well established that ‘[t]he amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar “lodestar” method. [Citation.] Under that method, the court “tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonably hourly rate prevailing in the community for similar work. [Citations.]” ’” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432.)

The court finds that Defendants have shown that (1) a reasonable hourly rate for Defendants’ counsel is $200 per hour, and (2) Defendants’ counsel reasonably expended 12 hours to prepare the pending motion, review the opposition and prepare a reply, and to appear at the hearing on this motion. (Tetzlaff Decl., ¶ 3.) Thus, the court finds that Defendants have established a lodestar amount of $2,400. (Ibid.) The court further finds that Defendants have shown that they incurred $60 in costs to file this motion. (Ibid.) The court therefore grants Defendants’ request for attorney’s fees and costs in the total amount of $2,460.

The court denies Plaintiff’s request for attorney’s fees against Defendants because Plaintiff did not prevail on the special motion to strike. (Code Civ. Proc., § 425.16, subd. (c)(1).)

The court grants defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust)’s special motion to strike and request for attorney’s fees as follows.

Pursuant to Code of Civil Procedure section 425.16, the court orders that the following is stricken from plaintiff Matthew Arnold’s First Amended Complaint: (1) paragraphs 32-40, 43-44, 46-49, 50-51, and 94, subdivisions (d) and (e), (2) paragraphs 41 and 42 (to the extent that they are alleged in support of the malicious prosecution cause of action), and (3) the eighth cause of action for malicious prosecution.

The court orders that defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky, as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust) shall recover from plaintiff Matthew Arnold attorney’s fees and costs in the amount of $2,460 pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1).

The court orders defendants Zacky Family Partnership (erroneously sued and served as Brent Zacky d/b/a Zacky Family Partnership, and Hayden A. Zacky, d/b/a Zacky Family Partnership), and Brent Zacky as trustee of the Ronald A. and Sandra L. Zacky Family Trust (erroneously sued and served as Hayden A. Zacky as trustee of the H and B Zacky Deed Trust) to give notice of this ruling.

[1] February 6, 2024 was a Wednesday.

[2] The court notes that it appears that the court in the Second Unlawful Detainer Action might have sustained Plaintiff’s demurrer on the ground that the notice was defective since it did not identify a natural person. (Arnold Decl., Ex. S [stating that “[t]his is similar to the situation presented in Boy Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th 428[,]” in which that court concluded that the Legislature “included the language ‘any person’ and ‘any person or entity in separate subdivisions of CCP § 340.1(a) meant that the legislature intended for some of these subdivisions to apply only to natural persons[,]” such that the Legislature intended section Code of Civil Procedure section 1161 to indicate that a notice must identify a natural person].) However, other cases have held that a “‘person’ as used in section 1161(2) incudes a corporation as well as a natural person . . . .” (City of Alameda v. Sheehan (2024) 105 Cal.App.5th 68, 80.)

matthew arnold ; Plaintiff, vs. brent zacky, d/b/a zacky family partnership , et al.; Defendants.	Case No.:	24STCV07612

	Hearing Date:	January 9, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: defendants’ special motion to strike and request for attorney’s fees