Judge Stephen P. Pfahler, Case 22CHCV01276 2023-03-01 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22CHCV01276, Date: 2023-03-01 Tentative Ruling

Case Number: 22CHCV01276 Hearing Date: March 1, 2023 Dept: F49

Dept. F-49

Date: 3-1-23

Case #22CHCV01276

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendant, Barbara Medovoy

RESPONDING PARTY: Unopposed/Plaintiff, Prince Marboubian

RELIEF REQUESTED

Special Motion to Strike the Complaint

SUMMARY OF ACTION

On December 1, 2022, plaintiff Prince Marboubian filed a complaint against defendant Barbara Medovoy for breach of contract alleging said breach as a result of a “wrongful eviction.”

RULING: Granted.

Request for Judicial Notice: Granted as to the existence of the pleadings, default judgment, writ, and notice of enforcement, but not as to the truth of the matter asserted in any and all of the documents.

Defendant Barbara Medovoy moves for a special motion to strike the complaint on grounds that the subject action arises entirely from a prior unlawful detainer action (22VEUD00824). The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Code Civ. Proc. § 425.16, subd. (b). Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution 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.)

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman, supra, 160 Cal.App.4th at p. 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th at pp. 281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.) The underlying complaint indisputably arises from the initiation of the unlawful detainer action. [Comp., ¶ 8.] The court finds that Defendant therefore presents a valid special motion to strike.

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] 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.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4^th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4^th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff submits no opposition. Defendant presents multiple arguments precluding any potential defense, including the litigation privilege, and collateral estoppel. “The litigation privilege in section 47 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 have some connection or logical relation to the action. [Citations.]’ [Citation.]” (n (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 286.)

The complaint squarely arises from the prior unlawful detainer action. Even if Plaintiff submitted evidence in opposition, the court finds no basis of exemption from the litigation privilege. The court finds no need to consider the collateral estoppel argument. The special motion to strike is granted.

The court declines to consider any request for attorney fees. Defendants may proceed with any motion for the recovery of attorney fees pursuant to statutory guidelines. Upon either the hearing on the motion for attorney fees or lapse of time, the court will accept a proposed judgment from Defendant.

Defendant to give notice.