Judge Theresa M. Traber, Case 22STCP03518 2023-05-05 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCP03518, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCP03518 Hearing Date: May 5, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: May 5, 2023 TRIAL DATE: NOT SET

CASE: Myung Hye Kim v. David Okju An et al.

CASE NO.: 22STCP03518

SPECIAL MOTION TO STRIKE (CCP § 425.16)

MOVING PARTY: Plaintiff/Cross-Defendant Myung Hye Kim

RESPONDING PARTY(S): Defendant/Cross-Complainant David Okju An

CASE HISTORY:

· 09/28/22: Complaint filed.

· 12/22/22: First Amended Complaint filed.

· 03/03/23: Cross-Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for fraud, breach of fiduciary duty, and elder abuse arising from a series of agreements that Defendants would perform construction work for Plaintiff.

Plaintiff/Cross-Defendant specially moves to strike the ninth cause of action in the Cross-Complaint for malicious prosecution pursuant to Code of Civil Procedure section 425.16. Cross-Defendant also moves for attorney’s fees in connection with this motion.

TENTATIVE RULING:

Cross-Defendant’s Special Motion to Strike is GRANTED.

Cross-Defendant is awarded attorney’s fees and costs against in the amount of $6,467.91 as the prevailing party on this motion. Payment is to be made to Cross-Defendant’s counsel within 30 days of this order.

DISCUSSION:

Legal Standard

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (Code Civ. Proc. § 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc. § 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations, the trial court is to 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); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

To satisfy the first prong of the two-prong test, the defendant’s acts underlying the cause of action must themselves have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16(e): (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e); City of Cotati, supra, 29 Cal.4th at 78; Equilon Enterprises, supra, 29 Cal.4th at 67.)

In determining whether a cause of action is based on protected activity, we “examine the¿principal thrust¿or¿gravamen¿of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP¿(2017) 18 Cal.App.5th 95, 110, citation omitted.) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing¿conduct¿... that provides the foundation for the claim.’” (Id. at 111, bold emphasis added, citation omitted.) In other words, section 425.16 does not apply if Defendant’s constitutionally protected activity is “merely incidental” or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”¿(Ibid.)

Cross-Complainant’s Evidentiary Objection

Cross-Complainant objects to the Declaration of Myung Hye Kim submitted in support of Cross-Defendant’s reply to the opposition as improperly submitting evidence in reply, rather than in the moving papers. Cross-Complainant’s authority in support, San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A., does not stand for the proposition that evidence submitted in reply papers can never be considered. That authority strictly concerns the extent of the court’s discretion to consider evidence not included in a separate statement in connection with a summary judgment motion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A (2002) 102 Cal.App.4th 308, 316.) As Cross-Complainant has not stated a valid legal basis for this objection, Cross-Complainant’s objection is OVERRULED.

Protected Activity

As Cross-Defendant rightly argues, the ninth cause of action for malicious prosecution arises from protected activity on its face. “[T]he statutory phrase ‘cause of action . . . arising from means simply that the [cross-]defendant’s act underlying the [cross-complainant’s] cause of action must itself have been an act in furtherance of the right of petition or free speech. In the anti-SLAPP context, the critical point is whether the [cross-complainant’s] cause of action itself was based on an act in furtherance of the [cross-]defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [internal citations omitted].) Here, the ninth cause of action alleges that Cross-Defendant engaged in malicious prosecution by filing a police report with the City of Bell Gardens Police Department accusing Cross-Complainant of elder abuse and false claims of money for construction, which caused a criminal investigation to commence. (Cross-Complaint ¶ 49.) Communications to the police are expressly protected activity. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) Cross-Complainant does not challenge this conclusion in his opposition. The Court therefore finds that Cross-Defendant has shown that this cause of action arises out of protected activity. The burden now shifts to Cross-Complainant to demonstrate a probability of success on the merits.

Probability of Success

Cross-Complainant contends that there is a probability of success on the merits with respect to this cause of action.

Cross-Complainant has the burden on the second prong of a SLAPP analysis to establish that there is a probability he will prevail on his claims. (Code Civ. Proc. § 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the [cross-complainant] has established that there is a probability that the [cross-complainant] will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that [cross-complainant] will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court's responsibility is to accept as true the evidence favorable to the [cross-complainant] … .’ [Citation.] ‘[T]he [cross-]defendant's evidence is considered with a view toward whether it defeats the [cross-complainant]'s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].)

(Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-909.)

“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the [cross-complainant] and assess the [cross-]defendant's evidence only to determine if it defeats the [cross-complainant]'s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700 [61 Cal. Rptr. 3d 29].) [¶] That is the setting in which we determine whether [cross-complainant] has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, [cross-complainant] needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5 [97 Cal. Rptr. 2d 179, 2 P.3d 27].) In the words of other courts, [cross-complainant] needs to show only a case of ‘minimal merit.’ . . .”

(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469).

To prevail on a claim for malicious prosecution, a plaintiff or cross-complainant must prove that the underlying action was (1) terminated in the plaintiff or cross-complainant’s favor; (2) prosecuted without probable cause; and (3) initiated with malice. (Franklin Mint Co. v. Manatt, Phelps Phillips, LLP (2010) 184 Cal.App.4th 313, 333.)

Here, although Cross-Complainant makes much of Cross-Defendant’s purported malice and lack of probable cause, Cross-Complainant almost entirely neglects the first element of a malicious prosecution claim: that the action was terminated in the Cross-Complainant’s favor. Cross-Complainant’s only argument with respect to this element is grounded on the fact that the criminal investigation alleged in the Cross-Complaint was “dropped or dismissed” on February 16, 2023. (Opposition p. 8:14-16.) This contention, supported only by a single statement in a declaration from Cross-Complainant that is identical to the opposition papers (Declaration of David Okju An ISO Opp. ¶¶ 25-26) is not sufficient to carry Cross-Complainant’s burden on this element. “Simply establishing that an action was dismissed is insufficient to support a malicious prosecution claim.” (Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) “The key is whether the termination reflects on the underlying defendant’s innocence.” (Id.) “A termination is favorable when it reflects ‘the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of defendant.’” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 881.) Cross-Complainant offers no evidence that shows the reasoning behind the detective’s decision to drop the criminal investigation, only the improper conclusion in Cross-Complainant’s declaration that the action must have lacked merit because it was dropped. Such a conclusion is not a proper basis for an action for malicious prosecution. Cross-Complainant has therefore failed to show a probability of success on this cause of action.

Accordingly, Cross-Defendant is entitled to an order striking this cause of action pursuant to Code of Civil Procedure section 425.16.

Attorney’s Fees

Cross-Defendant moves for an award of attorney’s fees and costs in the amount of $7,660.17 as the prevailing party on this motion. Cross-Complainant also requests attorney’s fees, but as Cross-Complainant is not the prevailing party, Cross-Complainant is not entitled to a fee award.

Code of Civil Procedure section 425.16(c) expressly authorizes a prevailing defendant to recover attorney’s fees and costs, barring certain exceptions not relevant here. (Code Civ. Proc. § 425.16(c)(1).) Here, Cross-Defendant requests fees and costs in the amount of $7,660.17, reflecting 16.2 hours of attorney time actually billed at $395 per hour plus 3 anticipated hours at the same rate, plus $68.91 in costs actually incurred plus $7.26 in anticipated costs. (Declaration of John A. S. Baik ISO Mot. ¶ 7.) Cross-Complainant opposes this fee request based on a conclusory assertion that it is unreasonably inflated because the motion did not “involve any in-depth time-consuming legal research,” and “is not accompanied by the declaration of any witnesses.” (Opp. p. 12:12-13.) The Court is not persuaded. Cross-Defendant provided an itemized tally of the hours billed by Cross-Defendant’s counsel and what tasks those hours were spent upon. (Baik Decl. ¶ 7.) These hours appear reasonable to the Court with the exception of the anticipated hours costs. The Court will therefore exercise its discretion to reduce the award to eliminate the anticipated hours and costs and award Cross-Defendant fees and costs in the amount of $6,467.91, reflecting 16.2 hours of attorney time at $395 per hour, plus $68.91 in costs.

CONCLUSION:

Accordingly, Cross-Defendant’s Special Motion to Strike is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: May 5, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.