Judge Upinder S. Kalra, Case Number: 24STCV08540, Date: 2024-08-28 Tentative Ruling

MOVING PARTY: Cross-Defendants Rafael Raz and Shlomo Sherf; Joinder by Cross-Defendant Hooman Moshe Gideon

1. An Order Striking the following portions of the First Amended Cross-Complaint:

a. Paragraph 48, 12:14-15 and Exhibit 21 (“At that point, Mr. Raz with the support of some of his allies began to propagate a baseless claim of ‘election fraud.’”)

b. Paragraph 51, 12:26-13:2 (“Despite what Mr. Raz falsely claims, on January 29, 2024 Mr. Raz along with the other board members, signed the board minutes agreeing to events that occurred during the board meeting on January 3, 2024.”)

l. Paragraph 89, Page 21-22, lines 20-206 [sic] in their entirety, sub paragraph (I) lines 27-3 in their entirety, and sub paragraph (iii) lines 6-7 in their entirety

r. Paragraph 161, Page 36:6-7 (“and are attempting to overturn a lawful and legitimate election in contravention to the BDEC bylaws in an attempt to damage BDEC.”)

t. Paragraph 187, Page 40:12-13 (“and attempting to overturn a fair and legitimate election, crippling BDEC’s ability to function and advance its interests.”)

v. Paragraph 194, Page 41:18-19 (“and attempting to overturn a fair and legitimate election, crippling BDEC’s ability to function and advance its interests.”)

y. Paragraph 209, Page 44:1-3 (“Cross-Complainants have suffered and continue to suffer, substantial damages as a result of Cross-Defendants’ interference with the Election results and continuing operation of BDEC, in an amount to be proven at trial.”)

On April 4, 2024, Plaintiffs Rafael Raz, Fariba Yamini, Khosro Yamini, Orit Nazarian, Shlomo Sherf, Javid S. Rad, Mike Noor, Ken Pezeshki, David Dardashti, and Mitra Pezeshki (Plaintiffs) filed a Verified Petition for an Order Voiding Purported Election of Non-Profit Corporation and Ordering a New Properly Supervised Election and Verified Complaint for Injunctive Relief against Defendants Beith David Education Center (Beith David) and Fahrim Farivar (Farivar) (collectively, Defendants).

Plaintiffs allege that Beith David is governed by Cal. Corp. Code § 7510 et seq., not Cal. Corp. Code § 9130. Plaintiffs further allege that the purported Election of Directors on December 3, 2023 was invalid and corrupt.

On April 5, 2024, Plaintiffs filed an ex parte application Order to Show Cause re: Preliminary Injunction and Temporary Restraining Order which the court DENIED.

On April 22, 2024, Beith David and Farivar filed a Cross-Complaint (Cross-Complaint) against Rafael Raz, Hooman Moshe Gideon a/k/a Moshe Hooman Gideon, Shlomo Sherf, and Ken Pezeshki (Cross-Defendants) with twenty-one (21) causes of action for: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4) Fraud; (5) Conspiracy to Commit Fraud; (6) Conversion; (7) Removal of Director from Non-Profit Corporation for Malfeasance Pursuant to Cal. Corp. Code § 7223(a); (8) Open Book Account; (9) Books and Records; (10) Aiding Abetting; (11) Express Indemnity; (12) Implied Indemnity; (13) Specific Performance; (14) Intentional Interference with Prospective Economic Interests; (15) Intentional Interference with Current Business Advantage; (16) Intentional Infliction of Emotional Distress; (17) Civil Harassment; (18) Defamation; (19) Trade Libel; (20) Ejectment; and (21) Declaratory Relief.

According to the Cross-Complaint, the election was legitimate. The Cross-Complaint further alleges that Cross-Defendants acted against Beith David’s interests, bullied members, and owed Beith David a significant amount of money.

On May 13, 2024, Beith David filed an ex parte application for Writ of Possession and Temporary Restraining Order which the court GRANTED in part.

On May 15, 2024, Beith David filed a request for dismissal of Farivar as a Cross-Complainant which was rejected by the Clerk.

On May 15, 2024, Plaintiffs filed a motion to disqualify the Farivar Law Firm, APC and Farivar as counsel.

On May 16, 2024, Beith David filed a First Amended Cross-Complaint that was rejected by the Clerk.

On May 16, 2024, Beith David filed a Notice of Hearing Pursuant to CCP § 425.15 for Permission to file a Cross-Complaint against Individuals Purportedly Acting as Directors of a Non-Profit Organization to the Extent Necessary.

On May 16, 2024, Cross-Defendants Rafael Raz and Shlomo Sherf filed a Special Motion to Strike (Anti-SLAPP).

On May 16, 2024, Cross-Defendant Hooman Moshe Gideon filed a General Denial to the Cross-Complaint.

On May 20, 2024, Plaintiffs filed a request for dismissal of the second cause of action and as to Plaintiff Ken Pezeshki.

On May 23, 2024, Plaintiffs filed a request for dismissal as to Defendant Fahim Farivar as to all causes of action.

On May 24, 2024, Cross-Defendants Rafael Raz and Shlomo Sherf filed a Special Motion to Strike (Anti-SLAPP).

On May 28, 2024, Plaintiffs and Cross-Defendants Rafael Raz and Shlomo Sherf filed an Opposition to Petition Pursuant to CCP § 425.15.

On May 29, 2024, Beith David filed a Motion for Order Requiring Undertaking Under Cal. Corp. Code § 5710 and Request for Any Necessary Relief Regarding the Filing Timeline.

On May 31, 2024, Plaintiffs filed a request for dismissal as to Plaintiff Mitra Pezeshki only.

On June 5, 2024, Beith David filed a motion to dismiss that they subsequently withdrew.

On June 6, 2024, Beith David filed a motion for judgment on the pleadings that they subsequently withdrew.

On June 18, 2024, Cross-Defendant Hooman Moshe Gideon filed a joinder to the Special Motion to Strike.

On June 21, 2024, Plaintiffs filed a Notice of Related Case which the court GRANTED.

On July 9, 2024, Beith David filed an opposition to the Special Motion to Strike. On July 5, 2024, Cross-Defendants filed a reply.

The court grants Beith David’s Request for Judicial Notice. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected¿conduct¿from the undue burden of frivolous litigation.”¿ (Baral v.¿Schnitt¿(2016) 1 Cal.5th 376, 393 (Baral).)¿ “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech.¿ It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”¿ (Id.¿at p. 384.)¿¿¿¿

“Resolution of an anti-SLAPP motion involves two steps.¿ First, the defendant must establish that the challenged claim arises from activity protected by¿section 425.16.¿ If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”¿ (Baral,¿supra, 1 Cal.5th at p. 384 [citation omitted].)¿ The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’¿ The court does not weigh evidence or resolve conflicting factual claims.¿ Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made¿a prima facie¿factual showing sufficient to sustain a favorable judgment.¿ It accepts the plaintiff’s evidence as¿true, and¿evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.¿ ‘[C]laims¿with the requisite minimal merit may proceed.’”¿ (Id.¿at pp. 384-385 [citations omitted].)¿¿

Cross-Defendants contend that the portions of the FACC identified above are subject to Special Motion to Strike under CCP § 425.16(e)(1) and (2) because they are wholly based on protected speech – namely, Cross-Defendants’ underlying Petition. Beith David argues the FACC is not based on the Petition.

CCP § 425.16(e) provides that an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; and (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body or other official proceeding authorized by law. (CCP § 425.16(e)(1) and (2).)

The first prong of the anti-SLAPP analysis requires the defendant to make “a threshold showing that the challenged cause of action is one arising from protected activity.”¿ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29¿Cal.4th 53, 67 (Equilon); § 425.16, subd. (b)(1).)¿ “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).)

Even if the complained of conduct qualified under one of the four protected categories, Defendants must still demonstrate that the claim arises from a protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Here, Cross-Defendants fail to make a threshold showing that the challenged claims arise from protected activity.

The court has reviewed the portions of the FACC Cross-Defendants seek to strike. The Court agrees that Cross-complainants’ specifically describe Cross-Defendant’s lawsuit—which is protected activity—in their complaint. (SEE paragraphs 75, 76, 77 am 91.) Participating in a judicial proceeding is the very thing most strongly and essentially protected by the litigation privilege. (Rubin v. Green (1992) 4 Cal.4th 1187, 1195-1196) Defendants contend that since all the causes of action incorporate by reference all the allegations in the complaint, they have sufficiently shown that Plaintiffs are relying on the speech to establish liability.

Not so because identifying protected activity in a cross-complaint alone does not satisfy Cross-Defendant’s Prong 1 burden. “[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) As such, it is incumbent on Cross-Defendants to demonstrate to the trial court how the protected activity provides the basis of Cross-Defendants’ liability, which requires Cross Defendant to analyze the elements of each cause of action and indicate how the protected activity is being utilized to satisfy an element of a claim. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).) Moreover, Cross-Defendants fail to appreciate that there is a difference between allegations that supply the elements of a claim and allegations of incidental background. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012.) Allegations of protected activity that are “ ‘merely incidental’ or ‘collateral’ ” or that “merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra,1 Cal.5th at p. 394.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (City of Cotati, at p. 79, quoting § 425.16, subd. (b).)

Cross-Defendants failed to articulate how the protected activity—filing a lawsuit—is being used by Cross-Complainants to satisfy any of the elements for the twenty-one causes of action.

“If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim's elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’ “ (Park v. Nazari (2023) 93 Cal. App. 5th 1099, 1109.)

1. The court DENIES Cross-Defendants Special Motion to Strike. Moving party is to give notice.

[1]As such, Court need not rule on Cross-Defendants’ objections to support its ruling.

[2]This motion was originally calendared for July 22, 2024. Due to Court wide network issues, the matter was rescheduled for August 28, 2024.

First Motion: Plaintiffs Rafael Raz, Fariba Yamini, Khosro Yamini, Orit Nazarian, Shlomo Sherf, Javid S. Rab, Mike Noor, and David Dardashti.

Second Motion: Plaintiffs Rafael Raz, Fariba Yamini, Khosro Yamini, Orit Nazarian, Shlomo Sherf, Javid S. Rab, Mike Noor, and David Dardashti.

1. An Order Disqualifying Mr. Farivar and Farivar Law as counsel for Beith David;

2. An Order Disqualifying Edwin Schreiber and Schreiber & Schreiber as counsel for Plaintiffs.