Judge Robert S. Draper, Case 22STCV36546 2023-05-18 Tentative Ruling

Judge: Robert S. Draper, Case: 22STCV36546, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV36546 Hearing Date: May 18, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

JOHN BROSNAN,

Plaintiff,

vs.

RHS INC, et al.,

Defendants. Case No.: 22STCV36546

Hearing Date: May 18, 2023

[TENTATIVE] RULING RE:

DEFENDANT SALIMA SURANI’S ANTI-SLAPP MOTION TO STRIKE; DEFENDANTS RHS SURANI INC. AND SALIMA SURANI’S DEMURRER TO THE COMPLAINT.

Plaintiff’s First Amended Complaint, filed on March 13, 2023, is STRICKEN.

Defendant Salima Surani’s Anti-SLAPP Motion to Strike is GRANTED as to the Second Cause of Action.

Defendants RHS Surani Inc. and Salima Surani’s Demurrer to the First Cause of Action is SUSTAINED. Plaintiff is granted thirty days leave to amend.

Defendants RHS Surani Inc. and Salima Surani’s Demurrer to the Third Cause of Action is SUSTAINED without leave to amend.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

The Complaint alleges as follows.

Plaintiff John Brosnan (“Plaintiff”) and defendants RHS Surani Inc. (“RHS”) and Salima Surani (“Surani” and together, “Defendants”) rent commercial space in neighboring properties. (Compl. ¶ 13.) On May 26, 2019, Plaintiff parked his trailer in a neighboring parking lot within view of Defendants’ security cameras. (Compl. ¶ 14.) Surani called a contractor doing work on the Property and informed him that she was uncomfortable with the trailer in the property’s parking lot. (Compl. ¶ 14.) The contractor informed Surani that the trailer was not parked in her property’s lot. (Ibid.) Surani entered the trailer and began moving things around. (Ibid.) While rummaging in the trailer, Surani caused the trailer to be moved to her property’s parking lot. (Ibid.) Surani then had the trailer towed. (Ibid.) When Plaintiff went to recover the trailer, he discovered that its contents were gone. (Compl. ¶ 16.)

Plaintiff alleges that the vehicle was towed in violation of California Vehicle Code § 22658(2). (Compl. ¶ 18.)

PROCEDURAL HISTORY

On November 17, 2022, Plaintiff filed the Complaint asserting three causes of action:

1. Conversion;

2. Fraud; and

3. Tort of Another.

On January 23, 2023, the case was reassigned to the instant Department 78.

On January 25, 2023, Defendants filed the instant Anti-SLAPP Motion to Strike.

Also on January 25, 2023, Defendants filed the instant Demurrer to the Complaint.

On March 3, 2023, Plaintiff filed an Opposition to the Demurrer. As that Opposition was untimely, the Court did not consider it before hearing.

On March 6, 2023, the Court held a hearing on Defendants’ Demurrer. Pursuant to Plaintiff’s request, the Court continued the hearing until March 23, 2023, so that the Court could consider Plaintiff’s Opposition.

On March 13, 2023, Plaintiff filed a second Opposition to the Demurrer and a First Amended Complaint. However, as Defendants rightly note, this First Amended Complaint was not filed in accordance with Code of Civil Procedure section 472, and therefore it is stricken.

On March 14, 2023, Defendants filed a Reply in support of the Demurrer.

On March 16, 2023, Defendants filed a Reply in support of the Anti-SLAPP motion.

DISCUSSION

I. ANTI-SLAPP MOTION TO STRIKE

Defendant Salima Surani moves to strike the Second Cause of Action for Fraud pursuant to Code of Civil Procedure section 425.16.

In assessing a defendant’s section 425.16 special motion to strike, the court must engage in a twostep process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Id.) This burden may be met by showing the act which forms the basis for the plaintiff's cause of action was an act that falls within one of the four categories of conduct set forth in 425.16(e). If the defendant meets his initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim—i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Id. at 15051.)

In making its determination of the anti-SLAPP motion, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc., § 425.16(b)(2).) However, the court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)

A. Protected Activity

Surani contends that the Second Cause of Action for Fraud is predicated entirely on conduct protected under Code of Civil Procedure section 425.16(e),

“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) “‘[T] 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.’” (Id. at 1063 (quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78) (emphasis in original).) “‘[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.’” (Id. (quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89) (alteration in original).) “Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Id. (quoting Navellier, supra, 29 Cal.4th at 92) (alteration in original).) “‘The only means specified in section 425.16 by which a moving defendant can satisfy that [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’” (Id. (quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66) (emphasis in original).) “In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id.)

Here, Surani contends that Plaintiff’s Second Cause of Action is predicated entirely on statements Surani allegedly made to the Los Angeles Police Department regarding Plaintiff’s trailer.

As Surani notes, communications to the police fall within SLAPP protections. (Comstock v. Aber (2012) 212 Cal.App.4th 931.)

The Complaint alleges that Surani “told the LAPD that the Trailer rolled into the PPL when she entered the trailer” and that Surani “lied to the LAPD when she informed the LAPD that the Trailer rolled into the PPL when [Surani] entered the trailer.” (Compl. ¶¶ 29, 31.)

Accordingly, the Court finds that Plaintiff’s Second Cause of Action is predicated entirely upon Surani’s allegedly misleading communication with the LAPD, an activity which is protected under CCP section 425.16(e).

Given Surani has met her burden of showing that the Second Cause of Action is based on protected activity, the burden now shifts to Plaintiff to establish a probability of succeeding on the merits. (See Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

B. Probability of Succeeding on the Merits

Once a defendant has established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., §425.16(b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 [internal quotations omitted].) The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1444; see also Evans v. Unkow (1995) 38 Cal.App.4th 1490, 149798 (proof cannot be made by declaration based on information and belief); Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 123638 (documents submitted without proper foundation could not be considered in determining plaintiff’s probability of prevailing on its claim).)

Here, as Plaintiff failed to submit an Opposition or any admissible evidence demonstrating his probability of succeeding on the merits, Plaintiff fails to meet his burden.

Accordingly, Surani’s Anti-SLAPP Motion to Strike Plaintiff’s Second Cause of Action is GRANTED.

If the moving party seeks attorney’s fees, moving party should file a motion in that regard.

II. DEMURRER

Next, Defendants demur to all causes of action in the Complaint. As Surani’s Anti-SLAPP Motion to Strike as to the Second Cause of Action was granted, and as RHS is not named in that cause of action, the Court need not consider the Second Cause of Action here.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A. First Cause of Action – Conversion

Defendants demur to the First Cause of Action for Conversion.

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

“‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’” (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 747 (quoting Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1329).) “‘It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’” (Id.)

Here, Defendants contend that Plaintiff fails to distinguish whether it was RHS, Surani, or the towing company that improperly disposed of Plaintiff’s personal property. Additionally, Defendants argue that the Complaint fails to describe the property in question or assert Plaintiff’s ownership of it.

In Opposition, Plaintiff contends that Defendants fail to deny on Demurrer that Defendants illegally caused the tow of the Trailer. (Opposition at p. 2.) Of course, on Demurrer, it would be improper of Defendants to deny the allegations of the Complaint.

Additionally, Plaintiff argues that Defendants caused the towing of Plaintiff’s trailer in violation of California Vehicle Code section 22658. However, Plaintiff does not cite any authority stating that violation of California Vehicle Code section 22658 supports a cause of action for conversion.

Finally, in his Opposition, Plaintiff argues that the Complaint alleges that the Defendants took personal items from Plaintiff’s trailer. The Complaint does allege that “Defendants illegally converted the Contents to their own personal use. Defendants have not returned the Contents. Defendants have a duty to return the Contents and refuse to do so.” (Compl. ¶ 23.)

The Court finds that this allegation is insufficient to state a cause of action for conversion, as the Complaint does not state which Defendant is charged with removing Plaintiff’s property from the trailer, and does not clarify what property was taken sufficient to provide Defendants notice of what they are accused.

Accordingly, Defendants’ Demurrer to the First Cause of Action for Conversion is SUSTAINED. However, as the Court finds that the Complaint could be reasonably amended to successfully state a cause of action for conversion, Plaintiff is granted thirty days leave to amend.

B. Third Cause of Action – Tort of Another

Next, Defendants demur to the Third Cause of Action for Tort of Another.

“The tort of another doctrine holds that ‘[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.’” (Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1337 (quoting Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620).) “The tort of another doctrine is not really an exception to the American rule, but simply ‘an application of the usual measure of tort damages.’” (Id. (quoting Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310).) “The tort of another doctrine does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 80.) This doctrine “does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants.” (Id. (citing Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 57).) “[A] party seeking to recover attorney fees and costs as tort damages ordinarily should plead and prove them to the fact-finder . . . .” (Id. at 79.)

Here, Defendants argue that Plaintiff’s Third Cause of Action is nonsensical, as the Complaint does not address any third party.

In Opposition, Plaintiff argues only that “[w]hen Defendants illegally towed the Trailer they violated the law becoming tortfeasors. Defendants do not deny that Defendants illegally caused the Trailer to be towed.” (Opposition at p. 5.) This appears to simply be a restatement of Plaintiff’s justification for his First Cause of Action for Conversion, and does not address Defendants’ arguments as to the Third Cause of Action for Tort of Another.

As Plaintiff makes no argument as to how he could successfully amend the Complaint to allege facts demonstrating the tort of another, Defendants’ Demurrer to the Third Cause of Action for Tort of Another is SUSTAINED without leave to amend.

C. UNCERTAINTY

Next, Defendants argue that the Complaint is uncertain as to RHS.

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (See Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, Defendants argue that the Complaint is too uncertain for RHS to be able to respond. Defendants note that the Complaint refers to Defendants collectively without describing which Defendant was responsible for which action. Additionally, Defendants note that the Complaint does not contain any allegations as to RHS other than that it exists.

While Defendants’ Demurrer has already been sustained due to failure to allege sufficient facts, the Court notes that the Complaint is also uncertain as to RHS.

Accordingly, Defendants’ Demurrer is SUSTAINED as to RHS on this ground. Plaintiff is granted thirty days leave to amend.

DATED: May 18, 2023

__________________________

Hon. Jill T. Feeney

Judge of the Superior Court