Judge: Virginia Keeny, Case: 24STCV31250, Date: 2025-06-11 Tentative Ruling

Case Number: 24STCV31250    Hearing Date: June 11, 2025    Dept: 45

DAVID DO KANG vs SUNG MOSES CHOI, et al.

SPECIAL MOTION TO STRIKE

Date of Hearing:        June 11, 2025                        Trial Date:   None

Department:               45                                           Case No.:    24STCV31250

Moving Party:            Defendant Mijoo Peace Church of Los Angeles County

Responding Party:     No opposition

BACKGROUND

On November 26, 2024, Plaintiff David Do Kang filed a complaint against Defendants Sung Moses Choi and Mijoo Peace Church of Los Angeles County (“MJPC”) for (1) Breach of Contract; (2) Fraud; (3) Negligence; (4) Spoliation of Evidence; and (5) Unjust Enrichment.

Plaintiff alleges on August 10, 2022, Plaintiff and Defendant Sung Moses Choi entered into an agreement to establish a business venture, Art Center Nabi Studio, operating on the premises owned by Defendant MJPC. Plaintiff alleges the parties agreed Plaintiff would provide substantial funding, including an initial payment and Defendant Choi committed to paying 50% of the monthly rent. However, Defendant Choi failed to meet this obligation. Consequently, unpaid rent accrued and Defendant MJPC issued a Three-Day Notice to Pay Rent or Quit. Plaintiff alleges that Defendants Choi and MJPC are acting in concert to evict him, thereby unjustly benefiting from the substantial improvements and investments Plaintiff made to the premises without providing reimbursement or compensation.

[Tentative] Ruling

Defendant’s Special Motion to Strike is GRANTED, in part.

REQUEST FOR JUDICIAL NOTICE

Defendant MJPC requests this court take judicial notice of the complaint filed in LASC Case No. 24STCV31250 (Exh. A.)

The court GRANTS Defendant’s request for judicial notice.

DISCUSSION

Defendant MJPC moves to strike the complaint in its entirety or, alternatively, strike the first, second, third, fourth and fifth causes of action or, in the alternative, portions of the complaint. Defendant MJPC also moves for attorney fees and expenses related to the filing of this motion.

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).)

Defendant argues Plaintiff’s complaint alleges Defendant’s service of a notice and institution of an unlawful detainer action in paragraphs 9, 30 and 31. Accordingly, the instant complaint is subject to a special motion to strike.

The court notes there are no paragraphs 30 and 31 of the complaint or any allegations of an institution of an unlawful detainer action. Paragraph 4 of the complaint refers to Defendant’s service of a Three-Day Notice to Pay or Quit. When service of a notice to terminate a tenancy “is a legal prerequisite for bringing an unlawful detainer action … service of such a notice does constitute activity in furtherance of the constitutionally protected right to petition. (Birkner v. Lam (2007) 156 Cal.App.4^th 275, 281-82; Newport Harbor Offs. & Marina LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5^th 28, 45 (“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.”) Service of the Three-Day Notice to Pay Rent or Quit was a prerequisite for Defendant to evict Plaintiff and therefore, qualifies as protected activity.

As noted above, Paragraph 4 of the complaint references the Three-Day Notice, and the first, second, and third causes of action seem to be solely against Defendant Choi. The fourth cause of action is not in regards to the Notice (the court notes the cause of action for spoliation of evidence is not an independent cause of action). The fifth cause of action appears to be against both Defendants, which arises from Defendant’s service of the Three-Day Notice to Quit.

As Defendant has only met their burden as to fourth paragraph and fifth cause of action, the burden has only shifted to Plaintiff to demonstrate the probability of prevailing on such.  

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.)

Defendant argues the serving of the Three-Day Notice is barred by the litigation privilege. The court agrees. The litigation privilege protects the service of notices to pay or quit in connection with a contemplated eviction action.  “A notice of eviction is a communication regarding prospective litigation” and, as such, the litigation privilege applies so long as the notice “relates to litigation that is contemplated in good faith and under serious consideration.”  (Action Apartment, 41 Cal.4^th at 1251.) 

Plaintiff has failed to file an opposition, therefore failing to meet their burden.

Accordingly, the special motion to strike is granted as to paragraph 4 of the complaint and the fifth cause of action.  

III.                Attorney Fees

Defendant seeks attorneys' fees pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), which provides, in connection with special motions to strike, with certain exceptions not applicable here: “…in any action subject to subdivision (b), a prevailing defendant on a motion to strike shall be entitled to recover his or her attorney's fees and costs.”  Where a defendant brings a successful motion to strike under section 425.16, these fees are considered mandatory.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)  The fee award should ordinarily include compensation for all hours reasonably spent, including those relating solely to the fee.  (Ketchum, supra, 24 Cal.4th at pp. 1133, 1141.)

Defendant seeks $3,310.00 in attorney fees for 3 hours preparing the motion, 2 hours to review any opposition and prepare a reply, and another 1.5 hours appearing at the hearing at counsel’s hourly rate of $450.00. (Long Decl. ¶3.) Defendant also seeks $60 filing fee.