Judge: Teresa A. Beaudet, Case: 21STCV38972, Date: 2022-08-03 Tentative Ruling
Case Number: 21STCV38972 Hearing Date: August 3, 2022 Dept: 50
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JANE’S MANAGEMENT SYSTEMS, LLC, et al., Plaintiffs, vs. online edugo, INC., et al., Defendants. |
Case No.: |
21STCV38972 [r/w 21STCV38823] |
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Hearing Date: |
August 3, 2022 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: SPECIAL MOTION TO STRIKE
UNDER CCP Sec. 425.16 |
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Background
On October 21, 2021, Plaintiffs
Jane’s Management Systems, LLC (“JMS”) and John Ko (“Ko”) (jointly,
“Plaintiffs”) filed this action against Defendants Online Edugo, Inc.
(“Edugo”), Andrew Kim (“Kim”) and Law Office of Andrew Kim, APC (the “Law
Office”) (collectively, “Defendants”). The Complaint asserts one cause of
action for malicious prosecution.
On February 2, 2022, the
Honorable Gregory Keosian of Department 61 issued an Order granting a prior
anti-SLAPP motion brought by Kim and the Law Office in this action as to Kim
only. The motion was denied as to the Law Office, which remained in default as
of the February 2, 2022 Order. On April 12, 2022, Department 61 issued an Order
granting the Law Office’s motion for relief from default.
On April 12, 2022, Department 50 issued a
minute order finding that the instant case and Case No. 21STCV38823 are related
within the meaning of California Rules of Court, rule
3.300(a). Said cases were assigned to Department 50.
The Law Office now moves
to strike the Complaint pursuant to Code of Civil Procedure
section 425.16. Plaintiffs oppose.
Evidence
The Court grants the Law
Office’s request for judicial notice as to Exhibits 1-3. The Court also grants
Plaintiffs’ request for judicial notice. The Court rules on Plaintiffs’
evidentiary objections to the Declaration of Andrew Kim as follows:
Objections 1-4: overruled
except as to the reference to “henchmen” in paragraph 7.
Discussion
The anti-SLAPP statute is
“a mechanism through which complaints that arise from the exercise of
free speech rights can be evaluated at an early stage of the litigation process
and resolved expeditiously.” (
A. Prong One – Arising from Protected Activity
“[T]he only thing the
defendant needs to establish to invoke the protection of the SLAPP statute is
that the challenged lawsuit arose from an act on the part of the defendant in
furtherance of her right of petition or free speech.” (
An act in furtherance of
a person’s right of petition or free speech includes the following:
(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made
in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law, (3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest.
(Code
Civ. Proc., § 425.16, subd. (e).)
In determining whether a
cause of action arises from protected conduct, the court focuses on “the
allegedly wrongful and injury-producing conduct that provides the foundation
for the claims.” (
Allegations of the Complaint
In the Complaint, Plaintiffs allege that Edugo entered into a commercial
lease agreement (“Lease”) with 800 E. Pico
Blvd., LLC (“Pico LLC”) for 810 E. Pico Blvd., Unit 311, Los Angeles, CA 90021, and
that the Lease provided for one assigned parking space. (Compl., ¶ 13.) Edugo
is a computerized testing center that proctors exams for licensing, such as for
teaching, counseling, nursing, and other professions. (Compl., ¶ 12.) Plaintiffs were not a party to the Lease. (Compl., ¶ 14.) JMS was
the property manager for the premises and Ko is its member. (Compl., ¶ 14.)
On or about March 15, 2020, Edugo closed its
business due to Los Angeles County’s order to close non-essential businesses to
mitigate the COVID-19 pandemic, and during this time, Edugo did not pay rent to
Pico LLC. (Compl., ¶ 15.) At some point in October 2020, Edugo and Pico LLC agreed
to resolve the delinquent rent by a lump sum payment of $10,000, and agreed
that thereafter rent would be reduced to $1,800 per month. (Compl., ¶¶ 17, 26,
Ex. 1.) Edugo then had to close again on December 1, 2020 due to a second pandemic-related
closure order. (Compl., ¶¶ 17, 26, Ex. 1.)
On April 14, 2021, Edugo filed an action against JMS, Ko, Pico LLC, Xiang Hao Cui
(owner and member of Pico LLC), Win Security and its owners Jenny Cho and Moon
Hee Cho, and Metro Parking, Inc. and its owner Gab Jea Cho. (Compl., ¶¶ 19, Law
Office’s RJN, Ex. 1.) Edugo’s lawsuit, Online
Edugo, Inc. v. 800 E. Pico Blvd., LLC, et al., Case No. 21STCV14159,
alleged causes of action for breach of contract, breach of
the implied covenant of good faith and fair dealing, retaliatory wrongful
eviction, and preliminary and permanent injunction (the “Lease Action”). (Compl.,
¶ 24; Law Office’s RJN, Ex. 1.) Kim and the Law
Office represented Edugo in the Lease Action. (Law Office’s RJN, Ex. 1.)
In the Lease Action, Edugo alleged that Pico LLC, by and through Cui, called Edugo
five to seven times per week about rent, and that the calls continued until the
end of March 2021, even though Edugo’s representative asked Cui to stop
calling. (Law Office’s RJN, Ex. 1.) The testing
center reopened on April 1, 2021, and on that date, Ko came to Edugo’s test
center and threatened Edugo to pay rent by 9 a.m., the same day. (Law Office’s RJN, Ex. 1.) Edugo also
alleged that when test-takers arrived to park, Metro Parking and Cho falsely
told them Edugo’s test center had been closed, and test takers were turned back
or forced out from the parking lot. (Law Office’s RJN, Ex. 1.)
On June 15, 2021, Plaintiffs filed a
demurrer and motion to strike the complaint in Edugo’s Lease Action. (Compl., ¶
26.) On September 13, 2021, the Honorable Stephen I. Goorvitch sustained Plaintiffs’
demurrer to each of the causes of action in the complaint without leave to
amend. (Compl., ¶ 26, Ex. 1.)
In the instant action, Plaintiffs allege
that Defendants initiated the Lease Action against Plaintiffs for an improper
purpose and with a malicious intent. (Compl., ¶ 33.) Plaintiffs assert that Defendants
sued them for two contract claims despite attaching a lease to its complaint
that Plaintiffs were not a party to. (Ibid.)
Plaintiffs also allege that Defendants had no foundation for their retaliatory
eviction claim, and that Defendants acknowledged that the Lease Action was
filed to get free rent and free parking. (Ibid.)
Plaintiffs assert that Kim pursued a temporary restraining order against
Plaintiffs knowing they were not parties to the lease and not responsible for
management of the parking lot. (Ibid.)
Statements in
Connection with Anticipated or Pending Official Proceedings
The Law Office contends that
Plaintiffs’ single cause of action for malicious prosecution arises from
statements protected under
B. Prong Two – Probability of Prevailing
On prong two of the anti-SLAPP analysis, 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.”
(
“A
plaintiff must plead and prove three elements to establish the tort of
malicious prosecution: a lawsuit (1) was commenced by or at the direction of
the defendant and was pursued to a legal termination favorable to the
plaintiff; (2) was brought without probable cause; and (3) was initiated with
malice.” (
As set forth in the February 2, 2022 Order
issued by Department 61, the issuance of a preliminary injunction “conclusively establishes probable cause for bringing
the underlying causes of action.” ((Fleishman v. Superior Court (2002)
102 Cal.App.4th 350, 357);
see also Fleishman v. Superior Court (2002)
102 Cal.App.4th 350, 355 [“If the denial of an anti-SLAPP motion based on the
action’s potential merit conclusively establishes probable cause for the
action, the issuance of a preliminary injunction must have the same effect.”].)
Here, Edugo sought and obtained a preliminary injunction in the
underlying Lease Action, which enjoins Plaintiffs from refusing to allow Edugo’s
patrons to park in the garage. (Law Office’s RJN, Exs. 2, 3.) Because the
issuance of a preliminary injunction against Plaintiffs conclusively
establishes that Defendants’ underlying Lease Action was brought with probable
cause, Plaintiffs here cannot demonstrate the probable validity of their cause
of action for malicious prosecution.
In their opposition, Plaintiffs note that the Court in the related
matter 800 E. Pico Blvd., LLC, et al. v. Online Edugo, Inc., et al.,
Case No. 21STCV38823 issued an Order on January 20, 2022 denying Kim and the
Law Office’s special motion to strike. The Court notes that Kim and the Law
Office’s motion filed on December 13, 2021 in Case No. 21STCV38823 (as well as the
reply in support of the motion filed on January
13, 2022) did not cite to Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, or otherwise cite to any legal authority indicating
that the issuance of a preliminary
injunction conclusively establishes probable
cause for bringing the underlying causes of action.
As Plaintiffs note, in Fleishman, the Court
of Appeal held that “where,
as here, all causes of action are reasonably related to the preliminary
injunction, the granting of injunctive relief conclusively establishes that
each cause of action was brought with probable cause.” (Fleishman v. Superior Court, supra,102
Cal.App.4th 350, 358.) Plaintiffs assert that the Law Office fails to explain
what claims in the underlying Lease Action fall under the preliminary
injunction, and that it is the Law Office’s burden to do so on this motion. Plaintiffs
cite to Bently Reserve LP v.
Papaliolios (2013) 218
Cal.App.4th 418, 434, where the Court of Appeal found that “[w]hen
evaluating an affirmative defense in connection with the second prong of the
analysis of an anti-SLAPP motion, the court, following the
summary-judgment-like rubric, generally should consider whether the defendant’s
evidence in support of an affirmative defense is sufficient, and if so, whether
the plaintiff has introduced contrary evidence, which, if accepted, would
negate the defense.” The Court notes that the
Law Office did not file an answer to the Complaint in this action, and thus
does not assert the preliminary injunction as an affirmative defense in any
answer. In any event, the
Law Office submitted the preliminary injunction issued in the underlying Lease
Action in connection with its request for judicial notice. In addition, as noted by Department 61 in its February 2, 2022 Order, the causes
of action in the Lease Action for breach of contract; breach of implied
covenant of good faith and fair dealing; retaliatory wrongful eviction; and
preliminary and permanent injunction are reasonably related to the parking
issue. These claims all arise from the denial of parking access and the request
for a preliminary injunction is framed in these terms.
Conclusion
Based on the foregoing, the Law Office’s special motion to strike
is granted. The Law Office is ordered to provide notice of this Order.
DATED:
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court