Judge: Walter P. Schwarm, Case: 30-2022-01243640, Date: 2022-08-09 Tentative Ruling
Defendants’ (Dennis P. Block and Dennis P. Block and Associates APC) Motion to Strike Portions of Complaint (Motion), filed on 3-14-22 under ROA No. 26, is DENIED.
Defendant’s Request for Judicial Notice (DRJN) filed on 3-14-22 under ROA No. 24: The court GRANTS Defendant’s RJN pursuant to Evidence Code section 452, subdivision (d). The court OVERRULES Plaintiffs’ (Betsy Fuller and Katherine Sofia Baxter, a minor child by and through her mother Betsy Fuller) Objection to Defendant’s Request for Judicial Notice filed o 5-2-22 under ROA No. 56.
Plaintiff’s Request for Judicial Notice (PRJN1) filed on 5-2-22 under ROA No. 66: The court GRANTS PRJN1 as to Exhibits B, C, and D pursuant to Evidence Code 452, subdivision (d). The court does not take judicial notice of the truth of the matters asserted in Exhibit D. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.) The court notes that Exhibit A is not attached to PRJN 1.
Plaintiff’s Request for Judicial Notice (PRJN1) filed on 5-2-22 under ROA No. 68: The court GRANTS PRJN1 as to Exhibit A pursuant to Evidence Code 452, subdivision (c). The court does not take judicial notice of the truth of the matters asserted in Exhibit A. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.)
Plaintiff’s Request for Judicial Notice (PRJN1) filed on 5-2-22 under ROA No. 70: The court GRANTS PRJN1 as to Exhibit A (Part 2) pursuant to Evidence Code 452, subdivision (c). The court does not take judicial notice of the truth of the matters asserted in Exhibit A. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.)
Initially, the court notes Defendants direct this Motion at the eighth (Civ. Code., § 1788) and ninth (Civ. Code., § 789.4) causes of action contained in Plaintiffs’ Complaint, filed on 2-2-22 under ROA No. 2. The Complaint does not identify Defendants as defendants to the ninth cause of action. Therefore, the court construes this Motion as directed only against the eighth cause of action.
Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. . . .” Code of Civil Procedure section 425.16, subdivision (e), states, “As used in this section, ‘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, (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 . . . .”
“In determining whether to grant or deny a section 425.16 motion to strike, the court engages in a two-step process. [Citation.] First, the court must decide whether the defendant has met his or her threshold burden of showing that his or her acts arose from protected activity. [Citation.] . . . [¶] If the defendant meets his or her burden of showing that the activity is protected, then the court determines whether the plaintiff has carried his or her burden of showing that there is a probability that he or she will prevail on the claim. [Citations.]” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 811 (Jewett.)
Baral v. Schnitt (2016) 1 Cal.5th 376, 385 (Baral), addressed the following issue: “The question here arises at the second step of the analysis: What showing is required of a plaintiff with respect to a pleaded cause of action that includes allegations of both protected and unprotected activity?” In answering this question, the Baral court explains, “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Id., at p. 396.) “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. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.] 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. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Id., at pp. 384-385.)
Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408-1409 (Mundy), provides, “The filing of a complaint fits the definition of an act in furtherance of a person's right of petition because it is a ‘written . . . statement or writing made in connection with an issue under consideration or review by a . . . judicial body.’ [Citations.]” “Plaintiffs concede that ‘petitioning activity involves lobbying the government, suing, [and] testifying.’ As pertinent here, ‘ “[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.” ’ [Citations.] (Briggs v. Eden Council for Hope & Opportunity (Briggs) (1999) 19 Cal.4th 1106, 1115.)
Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480 (Cabral), states, “Under the plain language of section 425.16, subdivisions (e)(1) and (e)(2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” [Citations.]”
Protected Activity:
The Complaint pleads, “Defendant and her former counsel, Defendant Dennis P. block, are liable for violations of 15 U.S.C. § 1692f for engaging in unfair and/or unconscionable means to collect a purported debt, 15 U.S.C. 1692f(1) (prohibiting ‘attempting to collect on a debt not authorized by an original agreement or permitted by law,’), and 15 U.S.C. § 1692e(2)(A) (prohibiting a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt” including ‘[t]he false representation of—the character, amount, or legal status of any debt’), by falsely representing the character, amount, and legal status of Plaintiff’s alleged debts in connection with the collection of Plaintiff’s alleged debt. These sections are incorporated into the RFDCPA through Cal. Civ. Code § 1788.17; and 15 U.S.C. § 1692e(10) by using false and deceptive representations in connection with the collection of Plaintiff’s alleged debts. This section is incorporated into the RFDCPA through Cal. Civ. Code § 1788.17. [¶] Specifically, Defendants Alfi, Patricia, and Shahid initiated a meritless unlawful detainer action against Plaintiff, which was based on the false premise that Plaintiffs had not paid rent. In reality, Plaintiffs had obtained COVID-19 rental relief which was awarded to Defendants. The rental relief amount was sufficient to fully cover any and all rental amounts due. Defendants were aware of this. Notwithstanding, they fraudulently attempted to collect an amount that was not due and owing, falsely stating that such amount was due and owing, and instituting a meritless unlawful detainer action, which caused Plaintiff damages in the form of money, time, and emotional distress. Prior to commencing the unlawful detainer, Defendants issues to Plaintiff a 3-day notice to pay rent or quit, which not only falsely alleged a debt, but did not contain any mini-Miranda debt collection language.” (Complaint, ¶¶ 139 and 140.)
The court finds the underlying activity alleged to support eighth cause of action consists of the act by Defendant in filing an unlawful detainer action. (DRJN, Exhibit B.) Since the Complaint relies on the filing of the unlawful detainer action to support the eighth cause of action, the allegations in paragraphs 139 and 140 fall within Code of Civil Procedure section 425.16, subdivision (e)(1) and (2), under Mundy and Cabral. Therefore, the court finds that Defendants have carried their initial burden of demonstrating that the Complaint’s reference to the unlawful detainer actoin in paragraph 140 constitutes protected activity under Code of Civil Procedure section 425.16, subdivision (e)(1) and (2).
Plaintiff’s Opposition to Defendant’s Special Motion to Strike Under Cal. Code of Civ. Proc. § 425.16 (Opposition), filed on 5-2-22 under ROA No. 60, also asks the court to consider the application of Flatley v. Mauro (2006) 39 Cal.4th 299. (Flatley.) (Opposition; 6:22-7:27.) Flatley states, “We conclude, therefore, that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action. In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant's concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff's second prong showing of probability of prevailing. With this understanding, we turn to Mauro's claim that even conduct illegal as a matter of law is protected by the anti-SLAPP statute if it is protected by the litigation privilege. [Citation.]” (Id., at p. 320.) Flatley states, “We emphasize that our conclusion that Mauro's communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. . . .” (Id., at p. 332, footnote 16.)
Cabral addressed Flatley by explaining, “The court made clear, however, that its holding was limited to ‘the specific and extreme circumstances of this case,’ in which the assertedly protected communications, as a matter of law, fell outside the ambit of protected speech. [Citation.]” Here, the alleged protected activity does not rise to the level of illegal conduct described in Flatley.
Probability of Prevailing:
Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1261-1262 (Pfeifer), states, “In order to establish a claim under the FDCPA against Recon, the facts as alleged must show that Recon was a ‘debt collector’ as defined by the Act, that Recon's challenged conduct constituted ‘debt collection,’ and that the debt collection actions violated a provision of the Act. [Citation.]” O’Neil-Rosales v. Citibank (South Dakota) N.A. (2017) 11 Cal.App.5th Supp. 1, 7 (O’Neil), states, “ ‘[T]o prevail on an FDCPA claim, a plaintiff must prove that (1) [s]he was the object of collection activity arising from consumer debt, (2) the defendant is a debt collector within the meaning of the statute, and (3) the defendant engaged in a prohibited act or omission under the FDCPA. [Citation.]’ [Citation.]” (Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, 1477 at footnote 7 (Velasquez), states, “Appellate division decisions have persuasive value, but they are of debatable strength as precedents and are not binding on higher reviewing courts. [Citation.]”) The Opposition states, “Defendants made material misrepresentations in the unlawful detainer complaint by falsely stating that monies were due and owing when they in fact were not . . . .” (Opposition; 12:21-25.)
Here, the Complaint in the unlawful detainer action seeks past-due rent of $1,975.00, reasonable attorney fees, and damages at the rate set forth in Item 13 of the unlawful detainer Complaint. (DRJN, Exhibit B.)
At a minimum, Plaintiff has sufficiently demonstrated a probability of prevailing under the federal Fair Debt Collection Practices Act (FDCPA). 15 U.S.C. § 1692a states in part, “As used in this subchapter--. . . [¶] (2) The term ‘communication’ means the conveying of information regarding a debt directly or indirectly to any person through any medium. [¶] (3) The term ‘consumer’ means any natural person obligated or allegedly obligated to pay any debt. [¶] (4) The term ‘creditor’ means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. [¶] (5) The term ‘debt’ means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. [¶] (6) The term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another . . . .”
Since the unlawful detainer Complaint seeks past-due rent (DRJN, Exhibit B), the past-due rent qualifies as a “debt” because it is an obligation that arose from Plaintiff’s failure to pay rent. The past-due rent was primarily the subject of a transaction that was primarily for personal, family, or household purposes because it related to Plaintiff’s month-to-month tenancy. (DRJN, Exhibit B.)
Plaintiff has demonstrated that Plaintiff is the object of collection activity arising from consumer debt because the unlawful detainer Complaint requests past-due rent. Defendants are debt collectors because they regularly collect or attempt to collect debts. (Nefcy Decl., ¶¶ 3, 4, 5, 6, 7, 8, and 9 and Exhibits A and B.) The evidence shows that Defendants engaged in a prohibited act under 15 U.S.C. § 1692e(2)(A) and 15 U.S.C. § 1692f(1). Specifically, Plaintiff—Betsy Fuller states, “. . . I immediately sent a cashier’s check for the October rent via certified mail with a return receipt dated October 4, 2021 to the Non-moving Defendants, but they did not cash the cheque.” (Fuller Decl., ¶ 15.) Exhibit B, attached to Plaintiff—Betsy Fuller’s declaration, is a copy of a cashier’s check dated 10-4-21 payable to Alfi Shahid. (Fuller Decl., ¶ 15 and Exhibit B.) Plaintiff—Betsy Fuller’s declaration does not prove the mailing in terms of the address as to where Plaintiff—Betsy Fuller sent the check. (Fuller Decl., ¶ 15 and Exhibit B.) Further, the receipt that is a part of Exhibit does not contain the address showing where Plaintiff—Betsy Fuller sent the check. (Fuller Decl., ¶ 15 and Exhibit B.) Plaintiff’s declaration provides sufficient evidence that Plaintiff paid the rent for October of 2021. Since the unlawful detainer Complaint pleads Plaintiff failed to pay rent before the expiration date of 10-12-2021 (DRJN, Exhibit B (Item 9 in Unlawful Detainer Complaint), Plaintiff’s evidence sufficiently shows that Item 9 is a misrepresentation.
Based on the above, the court finds that Plaintiff’s evidence establishes a probability of prevailing on the eighth case of action. Plaintiff’s evidence is sufficient to meet the minimal merit standard under Baral.
Therefore, the court DENIES Defendants’ (Dennis P. Block and Dennis P. Block and Associates APC) Motion to Strike Portions of Complaint filed on 3-14-22 under ROA No. 26.
Plaintiff is to give notice.