Judge Thomas D. Long, Case Number: 22STCV40063, Date: 2023-11-21 Tentative Ruling

On March 7, 2023, Defendant filed a special motion to strike under Code of Civil Procedure section 425.16 (“anti-SLAPP motion”).

The request for judicial notice of Exhibits E-I is also denied. These orders are unpublished and nonprecedential. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 [“a written trial court ruling has no precedential value”].)

“A cause of action against a person 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 California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“A court’s consideration of an anti-SLAPP motion involves a two-step process. ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate 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,” as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] In the second step, the plaintiff must only bring forward sufficient evidence to make out a viable prima facie case at trial, a burden that ‘is not particularly high.’ [Citation.]” (O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 565-566.)

As summarized by Defendant, Plaintiff’s claims against it are based “on the recording of a tax lien against a property that Ridec subsequently acquired through foreclosure sale. This lien was recorded as a necessary part of a Property Assessed Clean Energy (‘PACE’) financing program.” (Motion at p. 8.) Plaintiff seeks cancellation of instrument (fourth cause of action), quiet title (sixth cause of action), and declaratory relief (seventh cause of action) in its claims against Defendant.

Plaintiff alleges that Beatrice Maldonado entered into a voluntary assessment contract with Defendant, and a Notice of Special Tax Lien was recorded on the property. (Complaint ¶¶ 24-25.) Plaintiff seeks to cancel that lien and quiet title. (Complaint ¶¶ 65-68, 78, 80-82, 85-88.)

Defendant argues that this is protected activity because a recorded lien is the first step in the foreclosure process, making it a communication made in connection with a judicial proceeding. (Motion at pp. 13-14.) A communication is protected by the litigation privilege if it is made in connection with any judicial proceeding. (Civ. Code, § 47, subd. (b).) “[T]he litigation privilege attaches to the publication of an assessment lien even if the [lienholder] has not decided, at the point the lien is filed, that it will pursue a judicial foreclosure, and even if the lien is ultimately enforced by a private sale.” (Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565, 570.)

Accordingly, the Court finds that the conduct at issue—the recording of an assessment lien—satisfies the first prong of the analysis.

“To satisfy the second prong—the probability of prevailing—the plaintiff must demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to support a favorable judgment if the evidence submitted by the plaintiff is accepted. The trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. Although ‘“‘the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” [Citation.]’ [Citation.]” (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 962-963.)

“An anti-SLAPP motion is an evidentiary motion. Once the court reaches the second prong of the analysis, it must rely on admissible evidence, not merely allegations in the complaint or conclusory statements by counsel.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213.) Because Plaintiff did not file an opposition, it did not demonstrate a probability of prevailing on the merits.

The anti-SLAPP motion is GRANTED, and the fourth, sixth, and seventh causes of action against Defendant are stricken. Defendant is DISMISSED from this action.

Defendant is awarded its attorney fees and costs incurred for this motion, subject to the filing of a motion for attorney fees. (See Code Civ. Proc., § 425.16, subd. (c).)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court