Judge: Theresa M. Traber, Case: 22STCV03806, Date: 2024-11-08 Tentative Ruling
Case Number: 22STCV03806 Hearing Date: November 8, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: November 8, 2024 TRIAL DATE:
January 14, 2025
CASE: Earl J. Washington et al. v. Wellington Yang, et al.
CASE NO.: 22STCV03806 
SPECIAL
MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
MOVING PARTY: Defendants Charlie Z. Stein and Davidovich Stein Law
Group, LLP
RESPONDING PARTY(S): Plaintiffs Earl J. Washington and Lola Mitsuk
CASE
HISTORY:
·
01/31/22: Complaint filed.
·
04/19/22: First Amended Complaint filed.
·
08/30/23: Second Amended Complaint filed.
·
03/15/24: Third Amended Complaint filed.
·
09/09/24: Fourth Amended Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a landlord-tenant dispute. Plaintiffs allege that
Defendants have engaged in an ongoing campaign of harassment against them.
Plaintiffs assert claims for harassment, invasion of privacy, breach of
contract, negligence, and intentional infliction of emotional distress.
TENTATIVE RULING:
Defendants’ Special Motion to
Strike is DENIED.
DISCUSSION:
Defendants Charlie Z. Stein and Davidovich Stein Law Group,
LLP specially move to strike all allegations and claims asserted against them
in the Fourth Amended Complaint pursuant to Code of Civil Procedure section
425.16.
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.)
Defendants’
Evidentiary Objections
Defendants object to portions of the
Declaration of Earl J. Washington in support of the opposition to this motion.
The Court rules on these objections as follows:
Objection No. 1: SUSTAINED
as lacking foundation. (Evid. Code §§ 403, 702.)
Objection No. 2: OVERRULED.
Opposing party statement. (Evid. Code § 1220.)
Protected
Activity
Defendants contend that all causes
of action asserted against them in the Fourth Amended Complaint arise out of communications
made by Defendants, as counsel for non-moving Defendants Nick Eliopouos and
Quantumprime Realty, in anticipation of pending litigation.
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 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.)
As alleged
in the operative Fourth Amended Complaint, Plaintiffs leased a rental unit in a
multifamily residential property from Defendants Wellington Yang and Shadi
Kashani in March of 2020. (4AC ¶¶ 15, 17.) Plaintiffs allege that they were
promised full access to pool, gym, and lounge facilities on the property, but
that shortly after signing the lease, Defendants Yang, Kashani, Avant
Apartments, Avant Dwellings, and Avant Development closed the facilities. (4AC
¶¶ 17, 20.) In November 2022, the property was sold to Defendants Kambiz,
Steven, and Alexander Hakim and their corporate entities, 3 Shadows, LLC and
Hakim Holdings, LLC. (4AC ¶ 20.) Defendants Eliopouos and Quantumprime Realty
were hired as property managers. (Id.) Plaintiffs allege that Defendant
Yang promised the new owners that they could permanently destroy the gym and
lounge to build new dwelling units, and the gym and lounge have remained closed
since the sale. (Id.)
Plaintiffs
allege that the new owners advertised units available to rent at the property
in November of 2023. (4AC ¶ 21.) Plaintiffs contacted Quantumprime via email to
express interest in viewing the new units. (Id.) When Plaintiffs
asserted that the refusal to show the units constituted unlawful housing
discrimination, Quantumprime referred Plaintiffs to their counsel, the moving
Defendants, who expressly informed Plaintiffs, over the course of two emails that
Plaintiffs would not be permitted to view or rent any of the new units. (Id.)
The full text of the first email reads, as presented in the pleadings:
Mr.
Washington,
They
are under no obligation to speak to you on this matter. With respect to any
other unit other than the one you are currently in, you are not a tenant and
therefore, they do not have to respond to you any further. In fact, neither do
I so my communication with you on any other unit is a courtesy. The
advertisements have no application to you and they are not required to respond
to you and I have advised them to not respond to your requests.
I
don’t owe you a source as to whether they will relocate you. If you choose to
do research into the applicable law, you can feel free to do so. Your litigious
nature is already a matter of public record given your current pending lawsuit,
i.e., it is supported by fact.
You
can make whatever complaint you want to LAHD. They will investigate and
determine that no such claim is supported by fact. My client will not grant you
a tour of another unit nor will they be accepting your application to move into
any other unit in your current property or any other property that they manage.
If you are not interested in another unit, then there is nothing further to
discuss. If you are, then we are making it abundantly clear than any such
request will not be granted. We find it best to remove any potential ambiguity
in these situations. If you would like to parse this email like you did the
last one, you can feel free to do so, but it won’t change the conclusion of
either of these messages so to be clear, since you attempted again to email my
client, they are not going to show you the property and they are not going to
discuss the matter any further with you.
With
Regards,
Charlie
Z. Stein, Esq.
(4AC ¶ 21.) The second email reads, in its entirety:
I have no interest in speaking to you any
further about your nonsense complaints. If you have an attorney, you can feel
free to provide my contact information to that party (your attempts to
differentiate yourself as an attorney and as a tenant are laughable, including
your signature line as “a tenant”). You can make any complaints that you feel
you need to and I will defend my clients. Should you decide to bring an action
against me or my client, we will countersue and bring appropriate action against
you. Everything that needs to be said about your request to see another unit
has been said so from my perspective, that issue has been resolved since no
such tour will be granted. We will you the best of luck on your housing search
for a unit elsewhere.
(4AC ¶ 21.) Based on these facts, Plaintiffs asserted claims against the
moving Defendants for Violation of the Tenant Protection Act, violation of the
Los Angeles Tenant Anti-Harassment Ordinance, intentional infliction of
emotional distress, negligence, violation of the Unruh Act and the Fair
Employment Act, and unfair competition. (See generally 4AC.)
Defendants contend that
all of Plaintiffs’ claims against them sound in protected activity and are
subject to the litigation privilege (see Civ. Code § 47), because they
originate from correspondence made in connection with a pending or anticipated judicial
proceeding. It is well-settled that Code of Civil Procedure section 425.16
applies to communications made in connection with or in preparation of
litigation. (Kolar v. Donahue McIntosh Hammerton (2006) 145
Cal.App.4th 1532, 1537.) However, the Court does not share Defendants’ view
that the gravamen of Plaintiffs’ claim arises from those statements. The
injury-producing conduct, as alleged, is Defendants’ refusal, as the agents of
the property managers and the new owners, to show another unit to Plaintiffs
for illegitimate reasons—i.e., retaliation and discrimination. Put differently,
it is the fact of the denial, not the message communicating that denial, which
is the injury producing conduct. (See
Park v. Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1068-1072.) If Defendants had responded
with nothing more than a flat statement that Plaintiffs’ requests to view the
units were denied, the causes of action asserted in the Fourth Amended
Complaint would not be meaningfully affected. The specific statements described
in paragraph 21 are therefore collateral to Plaintiffs’ claims. (Baral,
supra, 1 Cal.5th at 395.) The Court finds that the claims asserted against
these Defendants do not arise out of protected activity, without reaching the
issue of whether the statements quoted are subject to the litigation privilege.
CONCLUSION:
Accordingly, Defendants’ Special Motion
to Strike is DENIED.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: November 8,
2024 ___________________________________
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
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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.