Judge: Virginia Keeny, Case: 22VECV01318, Date: 2023-03-14 Tentative Ruling

Case Number: 22VECV01318    Hearing Date: March 14, 2023    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:        March 14, 2023                                 Trial Date:       None set.

Department:              W                                                        Case No.:        22VECV01318

 

Moving Party:            Defendant Klass Enterprises, LP

Responding Party:     Plaintiff Charlotte Flaherty  

 

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.

 

REQUEST FOR JUDICIAL NOTICE

 

Defendant requests this court take judicial notice of two separate minute orders from actions arising between Plaintiff and another tenant and a Civil Harassment Restraining Order. Defendant also requests, in reply, this court take judicial notice of the Register of action in Klass Enterprises, P. v. Flaherty, Los Angeles (22VESC01485). Defendant’s request is GRANTED.

 

Plaintiff Flaherty, in opposition, requests this court take judicial notice of the unlawful detainer action, Los Angeles Municipal Code §49.99 et. seq., and the Los Angeles County Resolution.

 

The court grants Plaintiff’s request.

 

EVIDENTIARY OBJECTION

 

In reply, Defendant submits evidentiary objections to the declaration of Plaintiff Charlotte Flaherty submitted in opposition to Defendant’s Special Motion to Strike Plaintiff Charlotte Flaherty’s Complaint.

 

The court overrules the objections.

 

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.) Defendant further claims 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.

 

In opposition, Plaintiff argues violations of the local eviction moratoria are not protected activity. Specifically, Plaintiff contends Civil Code section 47 does not protect illegal conduct and cites to Flatley v. Mauro (2006) 39 Cal.4th 299 to support her contention. The court in Flatley found that a defendant was precluded from using the anti-SLAPP statute if the underlying protected speech or petition activity was illegal as a matter of law. However, as Defendants note, “to lose the anti-SLAPP statute's protection a defendant's conduct must be criminal, not merely a civil wrong.” (Collier v. Harris (2015) 240 Cal.App.4th 41, 57.) Plaintiff has failed to demonstrate violation of the COVID moratoria is criminal or that Defendant actually violated them.

 

Accordingly, the court finds Defendant has made a threshold showing that the challenged causes of action arise from protected activity. The conduct as alleged – 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.) 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.)

 

Plaintiff, in opposition, argues the motion to quash and demurrer both challenged the eviction. However, Plaintiff has not presented any evidence that this caused Plaintiff’s action to be terminated in Plaintiff’s favor. 

 

Moreover, Plaintiff cannot show the underlying actions were 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.)

 

Plaintiff contends feeding cats is not a nuisance. Plaintiff does not dispute or present evidence that the food left out for the feral cats attracted rats and other rodents. Instead, Plaintiff claims Defendant was willing to give it a try. However, Plaintiff does not point to where Defendant were willing to use food to attract feral cats to keep rats away. Plaintiff also claims Defendant did not have probable cause to evict Plaintiff under the COVID Moratoria. However, 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.

 

Here, none of Defendant’s allegations are regarding nuisances or pets whose presence is necessitated by or related to the COVID-19 emergency. 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.

 

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.) Plaintiff contends Defendant acted improperly in the prior action by ignoring discovery and Plaintiff’s warning about the lack of cause in the motion to quash and demurrer. Plaintiff also contends Defendant acted with malice because it sued Plaintiff for unpaid rent in small claims court “which did not exist due to the terminated tenancy.” However, none of this demonstrates an improper motive. Rather, the evidence presented shows that because Plaintiff was feeding feral cats, while it may have been her intention to get rid of the rats, she actually attracted rats and raccoons. Plaintiff was also late on paying rent. “In the context of the tort of malicious prosecution, malice ‘refers to an improper motive for bringing the prior action.’ [Citation.] ‘[T]he cases speak of malice as being present when a suit is actuated by hostility[,] ... ill will, or for some purpose other than to secure relief’ or where a plaintiff ‘asserts a claim with knowledge of its falsity.’ [Citation.] Lack of probable cause, while not sufficient by itself to prove malice, supports an inference of malice. [Citation.]” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 877.)

 

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.

 

In particular, Plaintiff argues retaliation is not subject to an anti-SLAPP motion. Plaintiff claims because eviction is one of the ways a landlord was prohibited from retaliating against a tenant pursuant to Civil Code section 1942.5, retaliatory evictions are inherently excluded from anti-SLAPP motions. Plaintiff cites to Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323 for support. In Banuelos, the court held Civil Code section 1942.5 created an exception to the litigation privilege. (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 332.) However, Banuelos did not deal with the anti-SLAPP statute. Moreover, Defendant is not raising litigation privilege. As noted above, Defendant’s claim arises from protected activity. Plaintiff has not demonstrated her claim has minimal merit.

 

Additionally, 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, seeking unpaid rent, and raising 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.  If it chooses, Defendant may request that its previously filed motion for attorney’s fees be treated as the pending motion and set for hearing.