Judge: Theodore R. Howard, Case: 22-1275175, Date: 2023-08-17 Tentative Ruling
The Special Motion to Strike filed by Defendants Bear Summit Cabin LLC and Aditya Oza is GRANTED.
In ruling on a special motion to strike made under CCP§ 425.16, the trial court engages in a two-step process. “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] 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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, 1 Cal.5th at 396.) The Court “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.” (Baral, 1 Cal.5th at 385.)
“The anti-SLAPP statute is ‘designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim “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 the California Constitution in connection with a public issue.” [Citation.]’ [Citation.]” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1008-1009 (Bonni).)
Here, the Defendants assert that as the alleged actions of each Defendant solely arise out of a Los Angeles County Superior Court Order for the appointment of the partition Referee and the Court Ordered sale of the subject real property, their actions are all protected by Anti-SLAPP and litigation privilege. Defendants cite Silberg v. Anderson (1990) 50 Cal.3rd 205, 212 for the idea that the litigation privilege applies to any communication and any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation. Here, all that is alleged is that Defendants committed unfair and deceptive business practices against Plaintiff in regard to the Subject Property (FAC ¶ 29), and that Defendants “claim to have and held themselves out as having, a fee simple ownership interest in the Subject Property as a result of a recent purported sale of same.” (FAC ¶ 40.) The FAC also alleges that Defendants conspired to fraudulently convey the Subject Property. (FAC ¶ 46.) As such, all Plaintiff alleges against Defendants Bear Summit and Oza is that they have participated in the sale and held themselves out as the owners of the property, which are both communications permitted by law to achieve the objects of the litigation, as the sale was confirmed by court order in the Los Angeles court case. As such, Defendants have shown that the claims arise out of protected activity under the litigation privilege.
If the court finds Prong 1 has been met, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon, supra, 29 Cal.4th 53, 67; C.C.P. § 425.16(b)(1).)
To establish a probability of prevailing under C.C.P. § 425.16(b)(1), the 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. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Here, the Defendants assert that as the alleged actions of each Defendant solely arise out of a Los Angeles County Superior Court Order for the appointment of the partition Referee and the Court Ordered sale of the subject real property, their actions are all protected by Anti-SLAPP and litigation privilege. Defendants cite Silberg v. Anderson (1990) 50 Cal.3rd 205, 212 for the idea that the litigation privilege applies to any communication and any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation. Here, all that is alleged is that Defendants “committed unfair and deceptive business practices against Plaintiff pertaining to the SUBJECT PROPERTY.” (FAC ¶ 29.) As such, all Plaintiff alleges against Defendants is that they have participated in the sale in some manner which constitutes communications permitted by law to achieve the objects of the litigation, as the sale was confirmed by court order in the Los Angeles court case. As such, Defendants have shown that the claims arise out of protected activity under the litigation privilege.
The motion is therefore GRANTED.
The Special Motion to Strike filed by Defendants Joyce Caplan, Lenny Ross, Julie Mistos, Chris Mistos, and Jan Caplan is GRANTED.
Here, all that is alleged is that Defendants “committed unfair and deceptive business practices against Plaintiff pertaining to the SUBJECT PROPERTY.” (FAC ¶ 29.) As such, all Plaintiff alleges against Defendants is that they have participated in the sale in some manner which constitutes communications permitted by law to achieve the objects of the litigation, as the sale was confirmed by court order in the Los Angeles court case. As such, Defendants have shown that the claims arise out of protected activity under the litigation privilege.
As to the second prong as discussed in the motion above, Plaintiff’s opposition does not address a probability of prevailing on any of his causes of action against these Defendants, and only alleges vaguely that they have “stolen and conspired to steal monies from the Estate and community assets properly belonging to him” though no allegations beyond the sale of the property are made in the FAC. As such, Plaintiff has failed to demonstrate that the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.
The motion is therefore GRANTED.
Moving parties to give notice.