Judge: Virginia Keeny, Case: 22VECV01318, Date: 2022-12-12 Tentative Ruling
Case Number: 22VECV01318 Hearing Date: December 12, 2022 Dept: W
CHARLOTTE
FLAHERTY v. KLASS ENTERPRISES, LP
defendant klass enterprise, lp’s
special motion to strike plaintiff charlotte flaherty’s complaint
Date of Hearing: December 12, 2022 Trial Date: None
set.
Department: W Case No.: 22VECV01318
Moving Party: Defendant
Klass Enterprises, LP
Responding Party: No
opposition.
BACKGROUND
On September 8, 2022, Plaintiff
Charlotte Flaherty filed a complaint against Defendant Klass Enterprises, LP
asserting causes of action for malicious prosecution, retaliation, and
violation of the Los Angeles COVID Moratorium. Plaintiff alleges they were a
tenant of Defendant but when Plaintiff complained to Defendant of their
upstairs neighbors, Defendant filed an unlawful detainer action against
Plaintiff in violation of the City of Los Angeles COVID moratorium and the Los
Angeles County COVID moratorium.
On September 21, 2022, the instant
matter was related to Defendant’s unlawful detainer against Plaintiff.
[Tentative] Ruling
Defendant
Klass Enterprises, LP’s Special Motion to Strike Plaintiff’s Complaint is
GRANTED.
DISCUSSION
Defendant Klass Enterprise, LP moves pursuant to Code of Civil
Procedure §425.16 for an order striking Plaintiff’s complaint and for an order awarding
cross defendant’s attorney fees as the prevailing party pursuant to Code of
Civil Procedure §425.16(c) and (e).
On a special motion to strike pursuant to Code of Civil Procedure
section 425.16, also known as an anti-SLAPP motion, moving parties have the
initial burden to demonstrate that a cause of action is subject to a special
motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113
Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001)
89 Cal.App.4th 294, 304.) First, the court must determine whether moving
parties have made a prima facie showing that the attacked claims arise from a
protected activity, including defendants’ right of petition, or free speech,
under a constitution, in connection with issues of public interest. (Healy
v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1,
5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278;
CCP § 425.16(e).)
If the court finds this showing has been made, it must dismiss the
cause of action unless the plaintiff meets its burden to demonstrate a
probability of prevailing on the claim. (CCP §425.16(b)(1); Balzaga v. Fox
News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.) This means that the
plaintiff must state a legally sufficient claim and must then present evidence
that substantiates or sustains the claim. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 61; see also Wilson v. Parker, Covert
& Chidester (2002) 28 Cal.4th 811, 821 [plaintiff “must demonstrate
that the complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited”].)
I.
Defendant’s Burden
An act in furtherance of a person's right to petition or free
speech under the United States Constitution or California Constitution 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, (2) any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any written or
oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.” (CCP §425.16(e).)
In the instant matter, the conduct Plaintiff complains thereof is the
unlawful detainer and small claims action for outstanding rent Defendant filed
against Plaintiff. Plaintiff alleges Defendant wrongfully filed an unlawful
detainer and small claims action for outstanding rent in retaliation for
complaining about their upstairs neighbor and feeding feral cats as well as in
violation of the COVID-19 Moratorium.
Defendant argues “‘[b]y definition, a malicious prosecution suit
alleges that the defendant committed a tort by filing a lawsuit,’ and such a cause
of action necessarily falls within the scope of [the anti-SLAPP statute (§
425.16)].” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,
1734-735.) Since plaintiff’s other causes of action are also based on
defendant’s filing the unlawful detainer action and the small claims action, they
fall under the Anti-SLAPP as well.
The court finds Defendant has made a threshold showing that the challenged causes
of action arise from protected activity. The conduct as allege – i.e., the
filing of the unlawful detainer and smalls claim action – is an act in
furtherance of the exercise of their constitutional right of petition. (See Winslett
v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239.)
The burden now shifts to the Plaintiff to establish a likelihood
of prevailing on the complaint as to those specific allegations.
II.
Plaintiff’s Burden
On the second component of the analysis, courts employ a
“summary-judgment-like” procedure, “accepting as true the evidence favorable to
the plaintiff and evaluating the defendant’s evidence only to determine whether
the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein,
LLP (2011) 193 Cal.App.4th 435, 444.) In other words, the court does not
assess credibility, and the plaintiff is not required to meet the preponderance
of the evidence standard. The court
accepts as true the evidence favorable to the plaintiff, who need only
establish that his or her claim has “minimal merit” to avoid being stricken as
a SLAPP. (Soukup, supra, 39 Cal.4th
at 291.)
As to Plaintiff’s malicious prosecution claim, Plaintiff has not
shown the claim has minimal merit. “In an action for malicious prosecution, the
plaintiff must establish that the prior underlying action (1) was commenced by
or at the direction of the defendant, or the defendant continued to prosecute
it after discovering it lacked probable cause, and it was pursued to a legal
termination in plaintiff's favor; (2) was brought without probable cause; and
(3) was initiated with malice.” (MS Capital, Inc. v. Lawyers Title Co.
(2004) 118 Cal.App.4th 204, 213.) Here, Defendant voluntarily dismissed the
underlying unlawful detainer action without prejudice. Although the dismissal is
presumed to be a favorable termination on the merits, “[t]he dismissal of an
action does not necessarily mean that there has been a favorable termination
for purposes of a malicious prosecution action.” (JSJ Limited Partnership v.
Mehrban (2012) 205 Cal.App.4th 1512, 1524.)
Here, Defendant has demonstrated otherwise. Upon Plaintiff’s
counsel stating in open court in the unlawful detainer action that Plaintiff
had stopped feeding the feral cats and leaving food out, Defendants had
essentially achieved their goal and voluntarily dismissed the action.
(Birnbaumin Decl. Exh. R.) Moreover, Plaintiff has not obtained a favorable
termination of the small claims action either since it is still pending.
(Birnbaumin Decl. ¶34.)
Plaintiffs also cannot show the underlying action was brought
without probable cause. “Probable cause is present unless any reasonable
attorney would agree that the action is totally and completely without
merit. This permissive standard for bringing suits and corresponding high
threshold for malicious prosecution claims assures that litigants with
potentially valid claims won’t be deterred by threat of liability for malicious
prosecution.” (Roberts v. Sentry Life Ins. (1999) 76 Cal.App.4th
375, 382.) Here, the unlawful detainer was filed because Plaintiff was
allegedly creating a nuisance by leaving food in the garage and the common
areas, which attracted feral cats and vermin. (Birnbaumin Decl. ¶¶7-15.)
Moreover, the court finds an unlawful detainer or small claims action brought
during COVID is not completely without merit. Based on the City of Los Angeles
and County of Los Angeles COVID-19 Moratoriums, Defendant did not improperly
bring an unlawful detainer or small claims action for nuisance and failure to
pay rent.
VI. Eviction Protections.
Temporary protections from evictions of Tenants impacted by the COVID-19 crisis
are imposed as follows:
A. Evictions. No Landlord shall
evict a Tenant as follows:
B. …
4. Nuisance or Unauthorized
Occupants or Pets. A Residential Tenant shall not be evicted for nuisance or
for unauthorized occupants or pets whose presence is necessitated by or related
to the COVID-19 emergency.
6. Notwithstanding (1) through
(5), above, or any other provision of this Resolution, these Protections shall
not apply where the eviction is necessary to maintain compliance with the requirements
of Civil Code section 1941.1, Health and Safety Code sections 17920.3 or 17920.10,
or any other applicable law or government order concerning the safety or habitability
of rental units or where the Tenant's occupancy is otherwise a threat to the
public health or safety as determined by a court of law.
Moreover, the COVID moratoria does not relieve tenants from their
ultimate obligations to pay rent. As a result, landlords can bring breach of
contract claims and seek damages. Under the moratorium, landlords cannot evict
tenants for lack of payment.
Lastly, Plaintiff has not demonstrated the proceedings were
instituted primarily for an improper purpose. (George F. Hillenbrand, Inc.
v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 814.) As
discussed above, Defendant’s decision to file an unlawful detainer and small
claims action for unpaid rent was not brought for an improper motive.
Similarly, the court finds Plaintiff has failed to meet her burden
of showing that there is a probability that she will prevail on any of her
claims of retaliation, violation of the Los
Angeles City COVID Moratorium, or violation of the Los Angeles County COVID
Moratorium. Plaintiff has not provided any evidence Defendant started the
unlawful detainer and/or small claims proceedings or raised her rent due to her
request that Defendant observe its implied covenants of quiet enjoyment and of good
faith and fair dealing or feeding the feral cats. (Civ. Code §1942.5(g).) As
discussed above, Defendant has provided a good faith reason for eviction, seek
unpaid rent, and raise Plaintiff’s rent.
Accordingly, Defendant’s
Special Motion to Strike Pursuant to Code of Civil Procedure section 425.16 is
GRANTED.
III.
Attorney Fees
Defendant seeks attorney fees pursuant
to Code of Civil Procedure section 425.16(c)(1). Section 425.16(c)(1) provides that
“a prevailing defendant on a special motion to strike shall be entitled to recover
his or her attorney’s fees and costs.”
Defendant is ordered to file a separate
motion for attorney fees.