Judge: Virginia Keeny, Case: 23STCV30835, Date: 2025-01-28 Tentative Ruling
Case Number: 23STCV30835 Hearing Date: January 28, 2025 Dept: 45
EDMUND EDWARDS V. COUNTY OF LOS
ANGELES SUPERIOR COURT, ET AL.
special Motion to strike under CCP § 425.16
Date of Hearing: January 28, 2025 Trial Date: None set.
Department: 45 Case
No.: 23STCV30835
Moving
Party: Defendant Dennis Block
Responding
Party: None
BACKGROUND
This case arose out of alleged wrongful actions in
connection with a probate action and an unlawful detainer action. Plaintiff
Edmund Edwards (“Plaintiff”) alleges that he “initiates the instant action
against the Defendants by way of fraud on the court as well as other relevant
and pertinent causes of action.” (Compl., ¶ 1.) Plaintiff alleges that he was
misled by an attorney concerning a petition to open probate. (Compl., ¶ 2.)
Plaintiff alleges that numerous attorneys colluded with one another, and such
collusion hurt his interests in the probate action. (Compl., ¶ 15.) Plaintiff
alleges that Defendant Dennis Block was retained by Plaintiff for assistance
with an unlawful detainer related to the probate action. (Compl., ¶ 31.)
Defendant Dennis Block petitioned the wrong judge after being informed by
Plaintiff to petition Judge Bogdannof pursuant to Plaintiff’s instructions and
therefore committed legal malpractice resulting in damages. (Compl., ¶ 32.) The
instant complaint is brought against the Defendants for fraud on the court.
(Compl., ¶ 33.)
On December 19, 2023, Plaintiff (who is in pro per)
filed a complaint against Defendants County of Los Angeles Superior Court,
Charrise Edwards, Krista Edwards, Arlene Parkinson, Jeffrey D. Calvin, Jack
Esensten, Jonathan Udewitz, Dennis Block, Monica Mihell, Naren Hunter, Larry
Llewellyn, James Payne, and John Does 1-10 (collectively, “Defendants”),
alleging a sole cause of action for fraud on the court.
On February 15, 2024, Defendant Jeffrey D. Cavin
(erroneously sued as Jeffrey D. Calvin) filed an answer to the complaint.
On March 13, 2024, Defendant Dennis Block (“Block”) filed
and served a special motion to strike Plaintiff’s complaint pursuant to Code
Civ. Proc. § 425.16 and for an award of attorney’s fees and expenses associated
with the motion. The motion is made on the grounds that “the claims against . .
. [Defendant Block] arise out of a right to petition and fall within the
parameters of C.C.P., Section 425.16 . . . .” (Not. of Mot. at p. 2:8-10.) The
motion was served on Defendant Cavin and Plaintiff via overnight mail service.
On December 26, 2024, this case was reassigned from the
Honorable Mel Red Recana to the Honorable Virginia Keeny sitting in Department
45 at Stanley Mosk Courthouse effective January 3, 2025.
As of January 21, 2025, the special motion to strike is
unopposed. Any opposition was required to have been filed and served at least
nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) The
opposition was required to have been filed and served no later than January 14,
2025.
[Tentative] Ruling
Defendant Dennis Block’s Special Motion to Strike Complaint
Pursuant to Code Civ. Proc. § 425.16 is GRANTED.
LEGAL
STANDARD
“A special motion to strike under section 425.16—the
so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a
lawsuit that qualifies as a SLAPP.” (Nygard,
Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)
“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 the 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).)
In analyzing an anti-SLAPP motion, a court engages in a
two-step process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) “First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from
protected activity. (Ibid.) In making its determination of whether a
cause of action arises from protected activity, a court considers “the
pleadings, and supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (Code Civ. Proc. § 425.16, subd. (b)(2).)
“If the court finds such a showing has been made, it then must consider whether
the plaintiff has demonstrated a probability of prevailing on the claim.” (Kronemyer v. Internet Movie Database Inc.
(2007) 150 Cal.App.4th 941, 946, internal quotations omitted, citation
omitted.) In assessing whether a
complaint arises from protected activity, a court disregards the labeling of
the claim. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th
1264, 1272.) A court instead “examine[s] the principal thrust or gravamen of
a plaintiff’s cause of action to determine whether the anti-SLAPP statute
applies.” (Ibid., emphasis in
original.)
“[A] prevailing defendant on a special motion to strike
shall be entitled to recover that defendant’s attorney’s fees and costs.” (Code
Civ. Proc., § 425.16, subd. (c)(1).)
ANALYSIS
Request
for Judicial Notice
Defendant
Block requests that the Court take judicial notice of the following documents:
(1) Complaint for Unlawful Detainer in California State Court Case Number
19STUD08524, filed on September 3, 2019 (Exhibit A); (2) Motion to be Relieved
as Counsel for Unlawful Detainer filed in California State Court Case Number
19STUD08524, filed on April 4, 2022 (Exhibit B); (3) Order Granting Defendant
Block’s Motion to be Relieved as Counsel—Civil in California State Court Case
Number 19STUD08524, entered May 18, 2022 (Exhibit C); (4) Plaintiff’s Complaint
in Case Number 2:23-CV-00552-FMO-PLA (Central District of California), filed on
January 24, 2023 (Exhibit D); (5) Defendant Block’s anti-SLAPP Motion to Strike
filed in Case Number 2:23-CV-00552-FMO-RAO, filed on March 14, 2023 (Exhibit E);
(6) Civil Minutes dated April 19, 2023 in Case Number 2:23-CV-00552-FMO-RAO
setting an Order to Show Cause why the Magistrate Judge should not recommend
that the Complaint be dismissed (Exhibit F); (7) Plaintiff’s First Amended Complaint
in Case Number 2:23-CV-00552-FMO-RAO (Central District of California), filed on
May 22, 2023 (Exhibit G); (8) Report and Recommendations of United States
Magistrate Judge dated June 6, 2023 in Case Number 2:23-CV-00552-FMO-RAO, to
dismiss Plaintiff’s First Amended Complaint (Exhibit H); (9) Order Accepting
Findings, Conclusions, and Recommendation of United States Magistrate Judge,
and Judgment of United States District Court Judge Fernando M. Olguin, issued
June 19, 2023, which dismissed Plaintiff’s Federal Action, Case Number
2:23-CV-00552-FMO-RAO (Exhibit I); and (10) Plaintiff’s Complaint in LASC Case
No. 23STCV30835, filed on December 19, 2023 (Exhibit J).
The
court takes judicial notice of the existence of the documents. (Joslin v.
H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) However, the “court
will not consider the truth of the document’s contents unless it is an order,
statement of decision, or judgment.” (Id. at p. 374-375.)
Pertinent
Allegations of the Complaint
Plaintiff
alleges that “[o]n February 2, 2018 (sic) petition to open probate by Mr.
Edmund Edwards, petitioner was mislead by Attorney Jeffrey D. Calvin, Mr.
Edwards stated to Mr. Calvin these individuals Charisse and Krista Edwards, are
not Plaintiff’s sisters, Mr. Calvin said yes they are, he was filling out
petition application and purposely had petitioner sign by affixing his
signature to the application without reading the document in its entirety.”
(Compl., ¶ 2.) Plaintiff alleges that he “trusted his attorney will listen to
him and do the right thing. Mr. Calvin intentionally deceived and mislead
[Plaintiff] into signing document (sic) [.]” (Compl., ¶ 2.) Plaintiff alleges
that this was not true, which constituted fraud and a violation of the professional
code of conduct. (Compl., ¶ 3.)
Approximately
six months later, Defendants Charisse and Krista Edwards, along with their
attorney Larry Llewellyn (“Llewellyn”), contested the will after showing “no
standing” with Judge Elizabeth Lippett. (Compl., ¶ 4.) Judge Lippett allegedly said
nothing and allowed the fraudulent activity to continue. (Compl., ¶ 4.) Judge
Lippett retired and a new judge was assigned to the probate case. (Compl., ¶
4.) Judge Lee R. Bogdanoff allowed defense attorney, Defendant Llewellyn, to
continue his fraudulent activity by not showing standing for his clients, DNA
results did not match Plaintiff’s, which proved that Defendants Charisse and
Krista Edwards were not his sisters. (Compl., ¶ 5.) Judge Bogdanoff said nothing
about this new finding with defense clients and allowed Defendant Llewellyn two
years to find any document that could be used to authenticate standing for his
clients. (Compl., ¶ 6.) Plaintiff alleges that “[a]fter finding a fifty year
document Stipulation for Child [S]upport that has not been subjected to any
type of genetic testing blood or DNA[,] Judge Bogdanoff allowed this document
to serve as proof for [s]tanding, never did he allow [Plaintiff’s] attorney to
object to document due to no genetic testing, the [j]udge said nothing and
moved on this [j]udge is bias and denying [Plaintiff] due process under the
[l]aw.” (Compl., ¶ 7.)
Plaintiff
then alleges that all of the attorneys involved were in collusion with one
another not to put up a fight against Defendant Llewellyn. (Compl., ¶ 15.) As
to Defendant Block, Plaintiff alleges that he engaged in “double dipping
charging the estate twice on the same case with two different invoice[]
number[s].” (Compl., ¶15.) Further, Plaintiff alleges that Defendant Block did
not file one motion, which is unethical behavior. (Compl., ¶ 15.)
Plaintiff
further alleges that Defendant Block was retained by Plaintiff for assistance
with the unlawful detainer related to the instant matter. (Compl., ¶ 31.)
Defendant Block petitioned the wrong judge after being informed by Plaintiff to
petition Judge Bogdanoff pursuant to the Plaintiff’s instructions and therefore
committed legal malpractice resulting in damages. (Compl., ¶ 32.)
Protected
Activity
The
anti-SLAPP statute is designed to protect “(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.” (Code Civ.
Proc., § 425.16, subd. (e).) A “public interest” must be demonstrated only with
respect to the activities described in subdivisions (e)(3) and (4). (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1117-1121.)
“[S]tatements,
writings, and pleadings in connection with civil litigation are covered by the
anti-SLAPP statute, and that statute does not require any showing that the
litigated matter concerns a matter of public interest.” (Neville v.
Chudacoff (2008) 160 Cal.App.4th 1255, 1261, citations omitted.) “[C]ourts
have adopted a fairly expansive view of what constitutes litigation-related
activities within the scope of section 425.16.” (Id. at p. 1268,
internal quotations omitted, citation omitted.)
“An
unlawful detainer action and service of notices legally required to file an
unlawful detainer action are protected activity within the meaning of Section
425.16.” (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World
Evangelism (2018) 23 Cal.App.5th 28, 45.) “The prosecution of an unlawful
detainer action indisputably is protected activity within the meaning of
Section 425.16.” (Feldman v. 1100 Park Lane Associates (2008) 160
Cal.App.4th 1467, 1480.) “The anti-SLAPP protection for petitioning activities
applies not only to the filing of lawsuits, but extends to conduct that relates
to such litigation, including statements made in connection with or in
preparation of litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006)
145 Cal.App.4th 1532, 1537 (Kolar).) “[A] party’s litigation-related
activities constitute act[s] in furtherance of a person’s right of petition or
free speech . . . .” (Ibid.) “To qualify for anti-SLAPP protection, the
moving party must demonstrate the claim arises from those activities. A claim
arises from when the act forms the basis for the plaintiff’s cause of action .
. . .” (Ibid., internal quotations omitted.)
The
Court references its recitation of the allegations of the complaint from above
and incorporates them herein. Defendant Block declares the following: he
represented Plaintiff in an unlawful detainer action, LASC Case No.
19STUD08524, but was eventually substituted out by a motion to be relieved as
counsel. (Block Decl., ¶ 3.) Defendant Block did not personally know Plaintiff
and the unlawful detainer action was prosecuted with probable cause. (Block
Decl., ¶ 3.) Defendant Block does not have, and has never had, any other
relationship of any kind to Plaintiff and Defendant Block was not involved in
any will contest. (Block Decl., ¶ 3.) Defendant Block states that “[a]t no time
did [he], or anyone on [his] behalf, make any misrepresentation of any kind to
the court in said unlawful detainer action, or in fact, at all.” (Block Decl.,
¶ 3.)
Defendant
Block argues that the complaint arises out of a right to petition. (Memo. of Ps
and As at p. 8:1-10:27.) The Court agrees with Defendant Block. Here, as to
Defendant Block, the gravamen of the complaint is that Defendant Block
committed fraud upon the court by petitioning the wrong judge in an unlawful
detainer action. (Compl., ¶¶ 31-32.) The cause of action against Defendant
Block is related to his alleged conduct in an underlying unlawful detainer
action. Conduct related to litigation is protected pursuant to Kolar, supra,
145 Cal.App.4th 1532, 1537. Defendant Block has shown that the complaint arises
from protected activity.
Therefore,
the burden shifts to Plaintiff to show a probability of prevailing on the
merits.
Probability
of Prevailing on the Merits
Plaintiff has failed to oppose
Defendant Block’s special motion to strike. As such, Plaintiff has not shown a probability
of prevailing on the merits. Also, given that Plaintiff has failed to oppose
the motion, there is an inference that the motion has merit. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) “Contentions are
waived when a party fails to support them with reasoned argument and citations
to authority.” (Moulton
Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1215.) Plaintiff has failed to meet his burden “to state and
substantiate a legally sufficient claim.” (Baral v. Schnitt (2016) 1
Cal.5th 376, 390.)
Due to Plaintiff’s lack of opposition and Plaintiff’s
failure to present any evidence in opposition to the motion, the Court finds
that Plaintiff has not shown a probability of prevailing on the merits.
Given the lack of opposition to the motion, the Court need
not address Defendant Block’s arguments that: (1) the litigation privilege bars
Plaintiff’s claim; and (2) Plaintiff cannot prove the probable validity of his
claim because of the collateral estoppel and res judicata arising out of his
prior federal lawsuit which was dismissed by an anti-SLAPP motion to strike.
(Memo. of Ps and As at pp. 11-13.)
The Court, however, will briefly address Defendant Block’s
argument that Plaintiff cannot establish the elements of fraud. (Memo. of Ps
and As at p. 13:23-14:10.) “The elements of fraud are
(a) a misrepresentation (false representation, concealment, or nondisclosure);
(b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d)
justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)
The facts constituting the alleged fraud must be alleged factually and
specifically as to every element of fraud, as the policy of “liberal
construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.)
The Court finds that Plaintiff has failed to state a legally
sufficient cause of action for fraud as Plaintiff has not alleged facts
constituting each and every element of his cause of action for fraud on the
court. (Compl., ¶¶ 34-53.) For instance, Plaintiff has failed to set forth when
Defendant Block petitioned the wrong judge and has failed to allege justifiable
reliance. (Compl., ¶¶ 34-53.)
In sum, Plaintiff has not shown a probability of prevailing
on the merits.
Attorney’s Fees and Expenses
“[A] prevailing defendant on a special motion to strike
shall be entitled to recover his or her attorney’s fees and costs.” (City of
Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627.) “The
award of attorney fees to the party bringing a successful special motion to
strike under section 425.16 is mandatory.” (Ibid.)
It is
well established that the determination of what constitutes reasonable attorney
fees is committed to the discretion of the trial court, whose decision cannot
be reversed in the absence of an abuse of discretion. (Melnyk v. Robledo
(1976) 64 Cal.App.3d 618, 623.) “The fee setting inquiry in California
ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours
reasonably expended multiplied by the reasonable hourly rate.” (Graciano v.
Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The reasonable
hourly rate is that prevailing in the community for similar work. (Margolin
v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.)
A
computation of time spent on a case and the reasonable value of that time is
fundamental to a determination of an appropriate attorneys’ fee award. (Margolin
v. Regional Planning Com., supra, 134 Cal.App.3d 999, 1004.)
The lodestar figure may then be adjusted, based on consideration of factors
specific to the case, in order to fix the fee at the fair market value for the
legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)
Such an approach anchors the trial court’s analysis to an objective
determination of the value of the attorney’s services, ensuring that the amount
awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered
in determining the modification of the lodestar include (1) the novelty and
difficulty of the questions involved, (2) the skill displayed in presenting
them, (3) the extent to which the nature of the litigation precluded other
employment by the attorneys, and (4) the contingent nature of the fee award. (Mountjoy
v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.)¿The burden is on the party
seeking attorney fees to prove that the fees it seeks are reasonable. (Gorman
v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) An award of
attorney fees may be based on counsel’s declarations, without production of
detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175
Cal.App.4th 1363, 1365.)
Counsel for Defendant Block, H.G. Long (“Long”), declares
that counsel has practiced law for 36 years and sets forth counsel’s hourly
rate of $500.00 per hour. (Long Decl., ¶ 3.) Counsel attests that the motion
took eight (8) hours to prepare and, if opposed, an additional three (3) hours
is anticipated drafting a reply. (Long Decl., ¶ 3.) A filing fee of $60.00 was
incurred. (Long Decl., ¶ 3.) Counsel anticipates that the hearing on the
motion, including preparation time, will require an additional 1.5 hours. (Long
Decl., ¶ 3.) Defendant Block is requesting attorneys’ fees and expenses in the
sum of $6,310.00, which represents 12.5 hours of work. (Long Decl., ¶ 3.)
The Court finds that Defendant Block is the prevailing party
on the special motion to strike and is entitled to attorney’s fees and costs.
The fees sought are reasonable and based on hourly rates commensurate with
those prevailing in the community.
The Court therefore grants Defendant Block’s request for
attorney’s fees and expenses in connection with the instant motion.
CONCLUSION
Based on the foregoing, the Court GRANTS Defendant Dennis
Block’s Special Motion to Strike Pursuant to Code Civ. Proc. § 425.16. Block is entitled to an award of fees and costs in the amount of
$6310.