Judge: Teresa A. Beaudet, Case: 23STCV15649, Date: 2024-05-16 Tentative Ruling

Case Number: 23STCV15649    Hearing Date: May 16, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On July 6, 2023, Plaintiffs Lucie Noon, Hugo Batres, Haroldo Batres, Rigoberto Mena, and Tolentino Sales (collectively, “Plaintiffs”) filed this action against Defendants Fermin M. Fuentes and Jeanette De Angel (jointly, “Defendants”)

On September 25, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) wrongful eviction, (2) breach of covenant of quiet enjoyment (tort), (3) breach of covenant of quiet enjoyment (statute), (4) intentional infliction of emotional distress, (5) violation of Welfare and Institutions Code section 15610.30, (6) forcible entry,

(7) forcible detainer, (8) violation of Civil Code section 1950.5, (9) fraud, (10) violation of Civil Code section 789.3, and (11) violation of Unfair Competition Law.

Fermin Fuentes (“Fuentes”) now moves pursuant to Code of Civil Procedure section 425.16 for an order striking each of the causes of action of the FAC. Plaintiffs oppose.

Requests for Judicial Notice

The Court grants Fuentes’s request for judicial notice. The Court also grants Plaintiffs’ request for judicial notice.

Discussion

A.    Allegations of the FAC

In the FAC, Plaintiffs allege that Defendants owned a property located at 1201 S. Magnolia Street, Los Angeles, California, 90006 (herein, the “Subject Property”). (FAC, ¶ 11.) “The Subject Property was a large single family home that Defendants subdivided into individual units. Defendants rented the individual units or rooms to different individuals.” (FAC, ¶ 11.)

“Defendants had been the owners and or managers of the Subject Property during Plaintiffs’ tenancy at the Subject Property…” (FAC, ¶ 12.) “Plaintiff NOON was a resident and tenant at the Subject Property from on or around 1999, until July 6, 2022…” (FAC, ¶ 13.) “Plaintiff HUGO was a resident and tenant at the Subject Property from on or around 2000, until July 6, 2022…” (FAC, ¶ 14.) “Plaintiff HAROLDO was a resident and tenant at the Subject Property from on or around 2005, until July 6, 2022…” (FAC, ¶ 15.) “Plaintiff MENA was a resident and tenant at the Subject Property from on or around 2016, until July 6, 2022…” (FAC, ¶ 16.) “Plaintiff SALES was a resident and tenant at the Subject Property from on or around 2019, until July 6, 2022…” (FAC, ¶ 17.)

“On or about September, 2021, Defendant FUENTES informed all tenants at the Subject Property, including Plaintiffs, that he was selling the Subject Property, that it was in escrow and that they, the tenants, would have to vacate within 60 days.” (FAC, ¶ 21.)

“Other tenants rented from Defendants and resided in other units at the Subject Property, including Celia Roxana Moreno and her partner Jorge Allan Aldana, who together rented, and lived in, unit 7.” (FAC, ¶ 18.) “On or around November 29, 2021, Defendant FUENTES filed an unlawful detainer against Celia Roxana Moreno, who had previously resided in Unit 7, but who, at the time the unlawful detainer was filed no longer lived at the SUBJECT PROPERTY.” (FAC, ¶ 25.) “The unlawful detainer was filed in the Los Angeles Superior Court, LASC Case No. 21STUD03199, and listed the property subject to the unlawful detainer as the Subject Property address, instead of Unit 7, the unit Defendant FUENTES rented to Celia Roxana Morena.” (FAC, ¶ 28.) “Around the same time, Defendant FUENTES went around the Subject Property and removed the unit numbers from each unit.” (FAC, ¶ 29.)

“On or around December 7, 2021, Defendant FUENTES caused a ‘Maria Lopez’ to be served on behalf of Celia Roxana Moreno, claiming Maria Lopez was a co-occupant of Celia Roxana Lopez…there was no occupant of the Subject Property named ‘Maria Lopez.’” (FAC, ¶ 30.) In addition, “[n]one of the Plaintiffs were served with the unlawful detainer…” (FAC, ¶ 32.)

“On February 15, 2022, Defendant FUENTES caused a default to be entered in the unlawful detainer action against all unnamed occupants…none of the Plaintiffs was served with the Request for Default. Because Defendant FUENTES never listed Celia Roxana Moreno’s unit number, the default was against all unnamed occupants at the Subject Property.” (FAC, ¶ 33.) “On May 9, 2022, Defendant FUENTES obtained a Judgment on the unlawful detainer. The Judgment was against Celia Roxana Moreno and unnamed occupants, and listed the Subject Property address the address [sic] from which Celia Roxana Moreno would be evicted.” (FAC, ¶ 36.) “On or about May 12, 2022, Defendant FUENTES applied for, and obtained, a Writ of Execution for possession…because Defendant FUENTES failed to list Celia Roxana Moreno’s unit, Unit 7, the writ was to be executed on the Subject Property as a whole, not on Celia Roxana Moreno’s former unit, Unit 7.” (FAC, ¶ 37.)

            “On or about July 6, 2022, the Los Angeles Sheriff’s Department executed the writ. They go to the Subject Property in the early morning of July 6, 2022, and meet Defendant FUENTES at the Subject Property. With Defendant FUENTES by their side, the Sheriff’s Deputies knocked on each of the unit, which are now without numbers, and order Plaintiffs to vacate.” (FAC, ¶ 38.) “Plaintiffs did not know, at the time of the eviction, why they were being evicted.” (FAC, ¶ 43.)

“Plaintiffs were unable to retrieve most of the personal property, were never refunded their security deposit and some had already paid their rent for the month of July, 2022, the month they were forced out.” (FAC, ¶ 44.)

            In the first cause of action for wrongful eviction, Plaintiffs allege, inter alia, that “[o]n or about July 6, 2022, Defendants wrongfully evicted Plaintiffs from their homes using what Plaintiffs believe was a fraudulent unlawful detainer against another tenant.” (FAC, ¶ 49.) Plaintiffs allege that “Plaintiffs’ units were subject to the Los Angeles Rent Stabilization Ordinance. Defendants could not evict Plaintiffs without proper notice, as required under California Civil Code 1161, alleging one of the 14 reasons for eviction permitted under L.A.M.C. section 151.09.” (FAC, ¶ 50.)

            In the second cause of action for breach of covenant of covenant enjoyment (tort), Plaintiffs allege, inter alia, that “Defendants have a duty to abide by the implied covenant of quiet enjoyment. Defendants breached this duty and the implied covenant by their conduct, their acts and their failure to act as described above, including, but not limited to, locking Plaintiffs out of their home and wrongfully evicting them.” (FAC, ¶ 56.)

            In the third cause of action for breach of covenant of quiet enjoyment (statute), Plaintiffs allege, inter alia, that “Defendants have a duty to abide by the implied covenant of quiet enjoyment. Defendants breached this duty and the implied covenant by their conduct, their acts and their failure to act as described above, including, but not limited to, locking Plaintiffs out of their home and wrongfully evicting them.” (FAC, ¶ 62.)

            In the fourth cause of action for intentional infliction of emotional distress, Plaintiffs allege, inter alia, that “[a]t all times herein Defendants’ conduct was intentional and malicious and done for the purpose of causing Plaintiffs humiliation, mental anguish and emotional and physical distress, including shock, anxiety, nervousness, sleeplessness, worry, disappointment, depression and other emotions.” (FAC, ¶ 67.)

            The fifth cause of action for violation of Welfare and Institutions Code section 15610.30 alleges, inter alia, that “Plaintiff MENA alleges that Defendants violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of him.” (FAC, ¶ 71.) “Plaintiff was 75 years of age or older at the time of Defendants’ conduct.” (FAC, ¶ 72.) “The Defendants took, appropriated, obtained or retained and/or assisted in taking, appropriating, obtaining or retaining Plaintiff’s property for a wrongful use and with the intent to defraud Plaintiff.” (FAC, ¶ 73.)

            In the sixth cause of action for forcible entry, Plaintiffs allege, inter alia, that “Plaintiffs were in actual, peaceful and lawful possession of the Subject Unit when on or about July 6, 2022, Defendants entered the Subject Unit by forcible entry and without Plaintiffs’ permission…Defendants did so under the pretext of evicting another tenant, Celia Roxana Moreno, without any notice to Plaintiffs and without filing an unlawful detainer against Plaintiffs…Defendants thereafter unlawfully withheld the Subject Unit, despite Plaintiffs’ demands to gain access to their respective units.” (FAC, ¶¶ 78-80.)

            In the seventh cause of action for forcible detainer, Plaintiffs allege, inter alia, that “Plaintiffs were in actual, peaceful and lawful possession of the Subject Unit when on or about July 6, 2022, Defendants entered the Subject Unit by forcible entry and without Plaintiffs’ permission…Defendants did so under the pretext of evicting another tenant, Celia Roxana Moreno, without any notice to Plaintiffs and without filing an unlawful detainer against Plaintiffs…Defendants thereafter unlawfully withheld the Subject Unit, despite Plaintiffs’ demands to gain access to their respective units.” (FAC, ¶¶ 84-86.)

            In the eighth cause of action for violation of Civil Code section 1950.5, Plaintiffs allege, inter alia, that “Plaintiffs NOON, MENA and SALES each provided a security deposit to Defendant FUENTES…Defendants, pursuant to Civil Code 1950.5, were required to return to Plaintiffs their security deposit once they vacated the SUBJECT PROPERTY…Defendants, despite having Plaintiffs NOON, MENA and SALES removed from the property, failed to return their respective security deposits.” (FAC, ¶¶ 90-92.)

            In the ninth cause of action for fraud, Plaintiffs allege, inter alia, that “Defendant FUENTES filed an unlawful detainer against a tenant that no longer resided at the Subject Property and purported to serve a nonexistent tenant. Defendant FUENTES listed the property from which the ‘tenant’ was supposed to be evicted as the address of the Subject Property, failing to list the unit number of the ‘tenant’ being evicted…Defendant then removed the unit numbers to make the multi-tenant Subject Property appeared [sic] to be a single-family residence.” (FAC, ¶¶ 95-96.)

            In the tenth cause of action for violation of Civil Code section 789.3, Plaintiffs allege, inter alia, that “California Civil Code §789.3(b)(1) provides that a landlord shall not prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device…” (FAC, ¶ 101.) “Defendants prevented Plaintiffs from gaining access to their unit, wrongfully evicted them and proceeded to lock them out of their unit.” (FAC, ¶ 105.)

            In the eleventh cause of action for violation of Unfair Competition Law, Plaintiffs allege, inter alia, that “Defendants violated numerous housing laws, meant to protect tenants and ensure fairness in negotiations between landlord and tenant. The laws that Defendants violated include Civil Code sections 1927, and 1950.5 and Los Angeles Municipal Code sections 151.09 and 151.10 (as alleged above). By their continuous violation of said laws, Defendants engaged in a per se unlawful business practice constituting unfair competition in violation of California Business & Professions Code sections 17200 et seq.” (FAC, ¶ 109.)

B.    Legal Standard

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.” ((Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. ((Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

C.    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.” ((Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.) 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.” ((Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” ((Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (emphasis in original).) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.)

As set forth above, the FAC alleges that “[o]n or around November 29, 2021, Defendant FUENTES filed an unlawful detainer against Celia Roxana Moreno,” and that “[t]he unlawful detainer was filed in the Los Angeles Superior Court, LASC Case No. 21STUD03199…” (FAC, ¶¶ 25, 28.) In the instant motion, Fuentes asserts that “Plaintiffs’ First Amended Complaint relies on common allegations arising out of the UD Action which is protected activity.” (Mot. at p. 7:8-9.) Fuentes cites to Birkner v. Lam (2007) 156 Cal.App.4th 275, 281, where the Court of Appeal noted that “[t]he prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16. The constitutional right to petition…includes the basic act of filing litigation or otherwise seeking administrative action.” (Internal quotations and citations omitted.)

In the opposition, Plaintiffs assert that they “are not suing Defendants for filing an unlawful detainer against a tenant in another apartment, or the statements therein…Plaintiffs are suing Defendants for the fraud they perpetuated on them.” (Opp’n at p. 14:12-15.)

Plaintiffs cite to Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1051-1052, where the Court of Appeal noted that “[n]umerous anti-SLAPP cases have discussed a landlord’s unlawful detainer action that is followed by a tenant’s lawsuit. Unless the sole basis of liability asserted in the tenant’s complaint is the filing and prosecution of the unlawful detainer action, the tenant’s action will not be targeted at protected activity. Where, however, the action is predicated upon conduct distinct from the prosecution of unlawful detainer action—even though the complaint is based upon the unlawful detainer action or arises from it—the tenant’s action is not targeted at protected activity and thus does not meet the first prong of the anti-SLAPP analysis.” (Internal citation omitted.) Plaintiffs assert that “[i]n the present case, the unlawful detainer is not the sole basis of liability.” (Opp’n at p. 11:4-5.) The Court agrees.

The Ben-Shahar Court noted that in Clark v. Mazgani (2009) 170 Cal.App.4th 1281, “the landlord filed an unlawful detainer action to evict a tenant, ‘ostensibly to free the unit for occupancy by the landlord’s daughter.’…However, the daughter never moved in, and the evicted tenant subsequently sued for fraud, unlawful eviction, and failure to pay relocation expenses…Clark once again explained the tenant’s lawsuit ‘is not based on…filing or service of the notices of intent to evict, it is not based on anything [the landlord] said in court or a public proceeding, and it is not based on the fact that [the landlord] prosecuted an unlawful detainer action…The complaint is based on [the landlord’s] allegedly unlawful eviction, in that she fraudulently invoked the [rent ordinance] to evict [the tenant] from her rent-controlled apartment as a ruse to provide housing for her daughter, but never installed her daughter in the apartment as required by that ordinance, and also that she failed to pay [the tenant’s] relocation fee.” ((Ben-Shahar v. Pickart, supra, 231 Cal.App.4th at p. 1052.) Similarly here, Plaintiffs allege that “[o]n or about July 6, 2022, Defendants wrongfully evicted Plaintiffs from their homes using what Plaintiffs believe was a fraudulent unlawful detainer against another tenant.” (FAC, ¶ 49.)

As discussed, Plaintiffs allege that “[o]n or around November 29, 2021, Defendant FUENTES filed an unlawful detainer against Celia Roxana Moreno, who had previously resided in Unit 7, but who, at the time the unlawful detainer was filed no longer lived at the SUBJECT PROPERTY.” (FAC, ¶ 25.) “The unlawful detainer was filed in the Los Angeles Superior Court, LASC Case No. 21STUD03199, and listed the property subject to the unlawful detainer as the Subject Property address, instead of Unit 7, the unit Defendant FUENTES rented to Celia Roxana Morena.” (FAC, ¶ 28.) “Around the same time, Defendant FUENTES went around the Subject Property and removed the unit numbers from each unit.” (FAC, ¶ 29.) “On or about May 12, 2022, Defendant FUENTES applied for, and obtained, a Writ of Execution for possession…because Defendant FUENTES failed to list Celia Roxana Moreno’s unit, Unit 7, the writ was to be executed on the Subject Property as a whole, not on Celia Roxana Moreno’s former unit, Unit 7.” (FAC, ¶ 37.)

In the reply, Fuentes does not appear to address the Ben-Shahar or Clark cases. As discussed, “[w]here…the action is predicated upon conduct distinct from the prosecution of unlawful detainer action—even though the complaint is based upon the unlawful detainer action or arises from it—the tenant’s action is not targeted at protected activity and thus does not meet the first prong of the anti-SLAPP analysis.” (Ibid.) Here, the Court finds that the instant the action is predicated upon conduct distinct from the prosecution of subject unlawful detainer action.

Based on the foregoing, the Court does not find that Fuentes has satisfied his burden under the first prong of the anti-SLAPP analysis. Accordingly, the burden does not shift to Plaintiffs to establish that there is a probability of prevailing on the claims.¿¿   

D.    Attorney’s Fees

Pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), “[e]xcept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” 

In the motion, Fuentes states that “[i]n the event that Defendant prevails on this motion, pursuant to Section 425.16 of the Code of Civil Procedure, Defendants will file a noticed motion for their fees and costs.” (Mot. at p. 10:2-3.) In light of the foregoing, Fuentes is not the prevailing party on the instant motion.

In the opposition, Plaintiffs state that they “request the court deny Defendant’s motion and award Plaintiffs attorney’s fees pursuant to CCP 425.16(c)(1) for filing a frivolous motion.” (Opp’n at p. 15:23-24.) The Court does not find that Plaintiffs have demonstrated that the instant motion is frivolous.[1] Thus, Plaintiffs’ request for attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c)(1) is denied.   

Conclusion

Based on the foregoing, Fuentes’s motion to strike is denied.

Plaintiffs are ordered to provide notice of this Order. 

DATED:  May 16, 2024                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court