Judge: Theresa M. Traber, Case: 23STCV30527, Date: 2024-03-29 Tentative Ruling

Case Number: 23STCV30527    Hearing Date: March 29, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 29, 2024                      TRIAL DATE: NOT SET

CASE:                         John & Sheryl Associates d/b/a Discovery World Early Education Center v. CYP LLC

CASE NO.:                 23STCV30527           

SPECIAL MOTION TO STRIKE (CODE CIV. PROC. § 425.16)

MOVING PARTY:               Defendant CYP LLC

RESPONDING PARTY(S): Plaintiff John & Sheryl Associates d/b/a Discovery World Early Education Center.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract that was filed on December 14, 2023. Plaintiff alleges that Defendant, as the landlord of property leased by Plaintiff, refused to approve Plaintiff’s request to install new playground equipment without adequate justification.

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 specially moves to strike the Complaint in its entirety under Code of Civil Procedure section 425.16.

Defendant’s Evidentiary Objections

            Defendant objects to the Declaration of Liana Austin in support of Plaintiff’s Opposition. As this declaration is not material to the ruling on this motion, the Court declines to rule on Defendant’s objections.

Requests for Judicial Notice

            Defendant requests that the Court take judicial notice of (1) the First Amended Cross-Complaint filed in John & Sheryl Associates v. Equinox Fitness Palos Verdes Inc., et al., LASC Case No. 21TRCV000251 (mislabeled as the original Complaint in that action); (2) the First Amended Complaint in that same action; (3) the Doe Amendment in that action adding CYP, LLC as a Defendant; and (4) the register of actions and docket generally in that action.

            Defendant’s requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

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.)  

Protected Activity

Defendant contends that this entire lawsuit is based on protected activity.

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.)  

Plaintiff, doing business as Discovery World Early Education Center, is a tenant at a shopping mall located at 550 Deep Valley Drive, Rolling Hills Estates, CA 90274. (Complaint ¶ 6.) Defendant took ownership of the property in October 2002. (Id. ¶ 7.) In 2021, Plaintiff filed a lawsuit against the previous owner of the property and against Equinox Fitness Palos Verdes, Inc., a co-tenant renting the space above Plaintiff, alleging that Equinox’s barbell and free weight training activities are unbearably disruptive and have caused severe damage to Plaintiff’s space on the property and to the building as a whole. (See RJN Exh. B.) As the Equinox action was ongoing, Plaintiff sought approval from Defendant’s property manager, Courtney Medak, for renovations to install new outside playground equipment. (Complaint ¶ 9.) Defendant denied the request. (Complaint ¶ 23.) Defendant cited the health and safety claims in the Equinox action as the reason for denying the request. (Complaint ¶¶ 13, 15.)

Defendant argues that the Complaint arises out of protected activity in that it alleges wrongful conduct which is a written statement made in connection with an issue under consideration or review by a judicial body, pursuant to subdivision (e)(2) of Code of Civil Procedure section 425.16. As Defendant states, established precedent takes a “fairly expansive view” of what statements are considered “in connection” with litigation. (Kashian v. Harriman (2002) 98 Cal. App. 4th 892, 908.) “[F]iling, funding, and prosecution of a civil action” are protected communications. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Communications made in furtherance of an investigation preceding litigation are also protected. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 783-84.)

Although the Complaint describes statements that are facially connected to issues in a pending judicial proceeding, the Court does not share Defendant’s view that the gravamen of Plaintiff’s claims arises from those statements. The injury-producing conduct, as alleged in the Complaint, is Defendant’s refusal to approve Plaintiff’s planned construction. Because Defendant’s reasons for that denial are expressly grounded in a pending judicial proceeding, it is argued that both the statements giving those reasons and the denial itself might therefore be subject to the litigation privilege. (See Civ. Code. § 47.) The Court does not reach that issue, however, because the statements giving those reasons are not themselves the conduct from which Plaintiff claims injury. If Defendant had denied the request without stating its reasons, even if those reasons remain unchanged, the causes of action asserted in the Complaint would not be meaningfully affected. The statements described in paragraphs 13, 15, and 20 are therefore collateral to Plaintiff’s contract claims. (Baral, supra, 1 Cal.5th at 395.) Thus, the Court finds that the Complaint does not arise out of protected activity.

CONCLUSION:

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

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 29, 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 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.