Judge Theresa M. Traber, Case 22STCV10036 2023-03-03 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV10036, Date: 2023-03-03 Tentative Ruling

Case Number: 22STCV10036 Hearing Date: March 3, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 3, 2023 TRIAL DATE: NOT SET

CASE: Bruce Dwain Copeland v. Amy Pham

CASE NO.: 22STCV10036

SPECIAL MOTION TO STRIKE (CCP § 425.16)

MOVING PARTY: Defendant Amy Pham

RESPONDING PARTY(S): No response on eCourt as of 2/28/23

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for quiet title and injunctive relief that was filed on March 23, 2022. Plaintiff contends that Defendant is fraudulently claiming ownership of the property in which Plaintiff resides and which he contends that he owns.

Defendant specially moves to strike the complaint in its entirety under Code of Civil Procedure section 425.16

TENTATIVE RULING:

Defendant’s Special Motion to Strike is DENIED.

DISCUSSION:

Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of (1) a Grant Deed transferring the subject property from the Bankruptcy Estate of Plaintiff to Kim Copeland in 2007; (2) the Trustee’s Deed Upon Sale; and (3) the deed transferring ownership to Defendant. As these documents are not relevant to the Court’s ruling on this motion, Defendant’s request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

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.)

Analysis

Defendant moves to strike the entirety of Plaintiff’s Complaint on the grounds that the action is based on Defendant’s privileged conduct in filing an unlawful detainer action. Any publication or broadcast in a judicial proceeding, including an unlawful detainer action, is expressly privileged. (Civ. Code § 47(b).) However, a review of the Complaint reveals only three allegations pertaining to another judicial proceeding: first, that Defendant filed an unlawful detainer action, Case No. 21IWUD00252; second, that Plaintiff filed a suit in the federal court system for cancellation of the warranty deed at issue; and third, that the Court in the unlawful detainer action rejected the Grant Deed and Warranty Deed attached to the Complaint. (Complaint ¶¶ 18-19, 29.) The bulk of the allegations in the Complaint do not concern any judicial proceedings, but instead concern a deed of trust which was allegedly never funded, and a series of invalid or otherwise allegedly unlawful title transfers, ending in transfer to Defendant. (Complaint ¶¶ 12-15, 20-23.)

It is apparent to the Court that the other judicial proceedings identified in the Complaint are incidental to the action, and the actual, injury producing conduct alleged is the claimed invalid title transfers, which Plaintiff contends are fraudulent. Specifically, Plaintiff alleges Defendant purchased the property at issue “through an unfiled ‘warranty deed’ from Bank National” and that “the alleged transfer of title from Bank National to Defendant Phan is fraud,” as is “the unfiled Grant Deed or Warranty Deed.” (Complaint, ¶¶ 17, 20, 21 [Emphasis in original].) Plaintiff contends that Defendant “is attempting to gain possession with fraud and “unfiled” Grant Deed and Warranty Deed.” (Id., ¶ 23 [Emphasis in original]; see also ¶¶ 25-29.) Thus, the gravamen of the Complaint is that Defendant has sought to secure ownership of the property through fraud through an unrecorded deed, not that Defendant engaged in wrongful conduct in a pending lawsuit. The mere fact that judicial proceedings are mentioned in the Complaint is not sufficient for Defendant to carry her burden to establish that this action is based on protected activity. As Defendant cites no other basis for this motion, the Court finds that Defendant has not satisfied her burden of showing that this action is principally based on protected activity. The burden of proof therefore does not shift to Plaintiff to demonstrate a probability of prevailing on his claims.

Therefore, for the reasons stated above, Defendant is not entitled to an order striking Plaintiff’s complaint.

CONCLUSION:

Accordingly, Defendant’s Special Motion to Strike is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 3, 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.