Judge Walter P. Schwarm, Case 30-2022-01246295 2022-10-18 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2022-01246295, Date: 2022-10-18 Tentative Ruling

Motion No. 1:

Defendant’s (Constructure, Inc.) Special Motion to Strike the Fifth and Sixth Causes of Actin in Plaintiff’s Complaint Pursuant to Code of Civil Procedure Section 425.16 (Motion), filed on 5-18-22 under ROA No. 48, is GRANTED in part and DENIED in part.

Plaintiff’s (18831 Von Karman Irvine Delaware, LLC) Evidentiary Objections to the Declaration of Alexandra Samofalova filed on 10-4-22 under ROA No. 95: The court SUSTAINS all of the objections to this declaration.

Plaintiff’s (18831 Von Karman Irvine Delaware, LLC) Evidentiary Objections to the Declaration of Benjamin J. Bohannan filed on 10-4-22 under ROA No. 94 (The court will address the objections in sequential order because Plaintiff did not number the objections in sequential order.): The court SUSTAINS Objection Nos. 3 and 5, and OVERRULES the remaining objections.

Defendant’s Evidentiary Objections to the Declarations of Ray Thimens, Patricia Cymerman, and Stephen Moses filed on 10-11-22 under ROA No. 111 (The court will address the objections in sequential order because Defendant did not number the objections in sequential order.): The court OVERRULES all of the objections to the declaration of Ray Thimens. The court OVERRULES Objection No. 1 to the declaration of Patricia Cymerman and SUSTAINS the remaining objections to this declaration. The court SUSTAINS all of the objections to the declaration of Stephen Moses.

The court GRANTS Plaintiff’s Request for Judicial Notice (RJN), filed on 10-4-22 under ROA No. 90 pursuant to Evidence Code section 452, subdivision (d).

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, (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.”

“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.) “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. [Citations.] Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Id., at p. 394.)

The Notice of Motion (Notice), filed on 5-18-22 under ROA No. 53, seeks to strike the fifth (Contractual Indemnity) and sixth (Declaratory Relief) causes of action contained in Plaintiff’s Complaint, filed on 2-18-22 under ROA No. 2, pursuant to Code of Civil Procedure section 425.16, subdivisions (e)(1) and (4). (Notice; 1:7-16.)

Timeliness:

Plaintiff’s Opposition to Defendants’ Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 (Opposition), filed on 10-4-22 under ROA No. 88, contends, “Constructure improperly delayed scheduling the hearing on its SLAPP Motion, which violated the SLAPP statute that requires the motion to ‘be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.’ ” (Opposition; 13:13:15.) Code of Civil Procedure section 425.16, subdivision (f), states, “The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” Here, Plaintiff has not shown that Defendant violated Code of Civil Procedure section 425.16, subdivision (f). Code of Civil Procedure section 425.16, subdivision (f), places the responsibility for scheduling the hearing on the Motion on the court clerk. Defendant has not violated Code of Civil Procedure section 425.16, subdivision (f), because that section does not place the responsibility for scheduling the hearing on the moving party.

First Amended Complaint:

In addition to this Motion, Defendant and other defendants have a pending Demurrer (filed on 4-18-22 under ROA No. 31) and a non-Code of Civil Procedure section 425.16 Motion to Strike (filed on 4-18-22 under ROA No. 33). The Demurrer and non-Code of Civil Procedure section 425.16 Motion to Strike are directed to the Complaint. After Defendant filed this Motion, Plaintiff filed a First Amended Complaint (FAC) on 8-17-22 under ROA No. 71.

The Opposition asserts, “In the present case, Constructure’s counsel has now demanded the FAC be “stricken” and stated, ‘a plaintiff cannot amend its Complaint in face of an anti-SLAPP motion. That means that your client’s FAC should be stricken.’ ” (Opposition; 7:9-11.) Defendant’s Reply in Support of Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 (Reply), filed on 10-11-22 under ROA No. 104, states, “Although VKID had the right to file its First Amended Complaint . . . to address the pending demurrer and motion to strike, the filing of the FAC does not render the Anti-SLAPP Motion moot and the Court still has the obligation to adjudicate it.” (Reply; 1:5-8.)

Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 897-898 (Medical Marijuana), states, “Courts have routinely concluded that plaintiffs may not be permitted to evade the intent of the anti-SLAPP statute by amendment once faced with an anti-SLAPP motion. (See, e.g., Simmons, supra, 92 Cal.App.4th 1068, 112 Cal.Rptr.2d 397; Jackson, supra, 10 Cal.App.5th at pp. 1263–1264, 217 Cal.Rptr.3d 234; Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411, 208 Cal.Rptr.3d 707 [’ “[a] plaintiff . . . may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint . . . in response to the motion” ’]; Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547, 90 Cal.Rptr.3d 381 [‘A plaintiff cannot avoid [an anti-]SLAPP motion by amending the complaint’]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055, 18 Cal.Rptr.3d 882.) One of the reasons that a plaintiff is not permitted to amend in the face of an anti-SLAPP motion, and particularly after obtaining a ruling on an anti-SLAPP motion, is to prevent a lawsuit from becoming a moving target and thereby undermining the very purpose of the statute . . . .” Although Plaintiff filed the FAC, Medical Marijuana still requires the court to decide the Motion.

Merits—Fifth Cause of Action:

The Complaint alleges the fifth cause of action at paragraphs 79-82. Specifically, the Complaint pleads, “Defendant recorded the Mechanic’s Lien against the Property on November 18, 2021. [¶] Under the express terms of the Subcontract Agreement, Defendant is required to indemnify and hold harmless Plaintiff as the ‘Owner’ and ‘Contractor’ from the Mechanic’s Lien.” (Complaint, ¶¶ 81 and 82.)

The Motion states, “VKID alleges that Constructure's recording a Mechanic's Lien requires Constructure to indemnify VKID pursuant to a provision in the Subcontract (that is void and unenforceable, as discussed hereinafter). . . . Plaintiff also alleges that Constructure's conduct in securing a Mechanic's Lien is the basis of an alleged controversy requiring declaratory relief. Because the recording of a mechanic's lien is a protected activity and privileged, it cannot be the basis for indemnification or declaratory relief.” (Motion; 6:11-16.) The Opposition responds, “Constructure’s SLAPP Motion should be denied as to VKID’s Fifth Cause of Action for ‘Contractual Indemnity’ because VKID has a contractual right to seek indemnity from Constructure for claims brought against VKID by Constructure’s sub-contractors.” (Opposition; 12:20-22.) The Opposition also states, “Based on the language of the Subcontract and VKID’s understanding of the indemnity provision, VKID has a valid claim for indemnity with respect to any claims brought against VKID by Constructure’s sub-contractors because those claims are not within the scope of the anti-waiver provision in Civil Code section 8122.” (Opposition; 13:6-9.)

RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 422 (RGC), states, California's constitution enshrines a right to record a mechanic's lien: ‘Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.’ (Cal. Const., art. XIV, § 3.) A mechanic's lien gives a contractor, supplier, or laborer a security interest in real property to secure the right to payment for work performed or materials delivered. [Citation.] Civil Code sections 8000 to 9566 set forth a comprehensive statutory scheme to resolve payment disputes in public and private construction projects. Mechanic's liens, filed by Ehmcke here, are available only in private works of improvement. [Citation.]” “RGC asserts that although the filing of a single mechanic's lien is protected activity, the filing of duplicative liens after proper bonding is not. But a defendant does not have to establish that its conduct was ultimately lawful or constitutionally protected at prong one. [Citations.] RGC's quiet title, slander of title, and declaratory relief causes of action all challenged Ehmcke's filing of the fourth mechanic's lien. The filing of a mechanic's lien is a necessary prerequisite to bringing a foreclosure action. (§ 8460.) As such, it is a protected prelitigation statement preparatory to filing a judicial proceeding. (Briggs, supra, 19 Cal.4th at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 [anti-SLAPP statute protects prelitigation statements ‘ “preparatory to or in anticipation of the bringing of an action or other official proceeding” ’].)” (Id., at p. 426.)

Civil Code section 8122 provides, “An owner, direct contractor, or subcontractor may not, by contract or otherwise, waive, affect, or impair any other claimant's rights under this part, whether with or without notice, and any term of a contract that purports to do so is void and unenforceable unless and until the claimant executes and delivers a waiver and release under this article.”

The Opposition does not respond to Defendant’s argument the filing of a mechanic’s lien is protected activity under Code of Civil Procedure section 425.16, subdivision (e)(1). Thus, the court finds that Defendants have met their burden of demonstrating that the fifth cause of action arises from protected activity under Code of Civil Procedure section 425.16, subdivision (e)(1).

The Complaint alleges that Defendant—Constructure, Inc. was “. . . required to indemnify . . . Plaintiff . . .” for Defendant’s lien. (Complaint, ¶¶ 81 and 82.) The FAC has withdrawn the cause of action for Contractual Indemnity. By withdrawing the fifth cause of action from the FAC and failing to present any argument that Plaintiff is entitled to seek contractual indemnity for Defendant’s own mechanic’s lien, the court finds that Plaintiff has not demonstrated a probability of prevailing on the merits as to the fifth cause of action. Therefore, the court GRANTS the Motion as to the fifth cause of action.

Merits—Sixth Cause of Action:

The Complaint pleads, “84. An actual controversy has arisen and now exists between Plaintiff and Defendant relating to the rights and obligations of the parties under the Subcontract Agreement and Change Order No. 15 thereto. [¶] Defendant contends that it is owed payments for work purportedly performed by Defendant under unapproved Change Orders. Plaintiff contends that Defendant failed to perform its obligations under the Subcontract Agreement and that Defendant is not entitled to receive any payments for work purportedly performed based on unapproved change orders, and that Defendant waived its claim for payment under the unapproved change orders. [¶] Plaintiff further contends that Defendant breached the Subcontract Agreement by abandoning its work under the Subcontract Agreement and that Defendant is liable for liquidated damages pursuant to the terms of Change Order No. 15, and that Defendant is liable for additional damages incurred by Plaintiff as a result of Defendant abandoning its work and wrongfully recording a Mechanic’s Lien based on unapproved change orders. Plaintiff further contends that the Second Mechanic’s Lien recorded by Defendant after Plaintiff secured and recorded the Lien Release Bond should be released without requiring a second lien release bond.” (Complaint, ¶¶ 84-86.)

The Opposition states, “Constructure’s SLAPP Motion should be denied as to VKID’s Sixth Cause of Action for ‘Declaratory Relief’ because VKID, as a project owner, has the right to seek declaratory relief to invalidate duplicative liens.” (Opposition; 10:3-5.) The Reply asserts, To the extent that VKID's Sixth Cause of Action for Declaratory Relief seeks a declaration of VKID's and Constructure's rights and obligations under the Subcontract, Constructure agrees that does not involve an attempt to subvert protected speech on Constructure's part. However, the Sixth Cause of Action runs afoul when it awkwardly and ambiguous inserts an allegation that ‘the Second Mechanic's Lien recorded by Defendant after Plaintiff secured and recorded the Lien Release Bond should be released without requiring a second lien release bond.’ ” (Reply; 5:7-12 (Footnote 4 omitted.).)

RGC states, “To be sure, not every cause of action based on the recordation of an invalid mechanic's lien will be barred by the litigation privilege. Courts have long recognized that upon service of preliminary notice or upon later recordation of a mechanic's lien, a project owner may seek declaratory and injunctive relief challenging the validity of the lien. [Citations.] If Ehmcke had filed several duplicative liens before the filing of a release bond, RGC could seek a court order requiring it to post a single bond to release all duplicative liens. [Citation.] Or, if Ehmcke had tried to foreclose on an invalid lien, RGC could have filed a motion in that action to release the lien. [Citations.] We have found no authority to suggest that these types of actions would be barred by the litigation privilege, which generally precludes derivative tort liability. [Citation.]” (RGC, supra, 56 Cal.App.5th at p. 437; Italics in RGC.)

First, the court finds that Defendant has met its burden of demonstrating that the sixth cause of action arises from protected activity under Code of Civil Procedure section 425.16, subdivision (e)(1), for the same reasons as stated for the fifth cause of action. Although Defendant has shown the filing of a mechanic’s lien constitutes protected activity, Plaintiff has demonstrated a sufficient probability of prevailing on its declaratory relief claim under RGC. Plaintiff has demonstrated the existence of an actual controversy as to the validity of the mechanic’s lien and corrected mechanic’s lien. (See Thimens Decl., ¶¶ 5-20.) Mr. Thimens declares, “. . . it is my understanding that Constructure has release the second lien . . . .” (Thimens Decl. ¶ 21.) Since Plaintiff has shown a probability or prevailing as to the sixth cause of action, the court DENIES the Motion as to the sixth cause of action.

Attorney’s Fees:

Code of Civil Procedure section 425.16, subdivision (c)(1), provides, “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 425-426 (Lin), explains, “The anti-SLAPP statute reflects the Legislature's ‘strong preference for awarding attorney fees to successful defendants.’ [Citation.] The term ‘prevailing party’ must be ‘interpreted broadly to favor an award of attorney fees to a partially successful defendant.’ [Citations.] However, a fee award is not required when the motion, though partially successful, was of no practical effect. [Citation.] ‘A party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.’ [Citation.]”

Here, the court granted the motion as to the entire fifth cause of action. The court notes that Defendant withdrew its lis pendens on the property on 8-23-22 “. . . as a result of a bond to release mechanic’s lien having been recorded and there being no other claim against real property alleged in the Complaint . . . .” (RJN, ¶ 6 and Exhibit C.) Despite the withdrawal of the lis pendens, the Motion had a practical benefit because this withdrawal did not occur until after Defendant has filed this Motion and after the recording of a bond to release mechanic’s lien. The Motion also had a practical benefit as shown by Plaintiff’s withdrawal of the fifth cause of action after Defendant filed the Motion. The court finds that Defendant prevailed on the Motion, and achieved a practical benefit by bringing the Motion. Therefore, the court awards Defendant attorney’s fees in the amount of $5,046.00. (Samofalova Decl., ¶ 3 and Code Civ. Proc., § 425. 16, subd. (c)(1).)

Based on the above, the court GRANTS Defendant’s (Constructure, Inc.) Special Motion to Strike the Fifth and Sixth Causes of Action in Plaintiff’s Complaint Pursuant to Code of Civil Procedure Section 425.16, filed on 5-18-22 under ROA No. 48, as to the fifth cause of action. The court DENIES the Motion as to the sixth cause of action.

Defendant is to give notice.

Motion No. 2:

Defendants’ (Constructure, Inc., Benjamin J. Bohannon, and Bryan Bohannon) Demurrer to Complaint Filed by 18831 Von Karman Irvine Delaware LLC (Demurrer), filed on 4-18-22 under ROA Nos. 25 and 31, is OFF CALENDAR as MOOT.

JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 states, “ ‘ “[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ [Citation.] ‘The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Citation.] [¶] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]’ [Citation.] Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. [Citation.]”

On 8-17-22 under ROA No. 71, Plaintiff (18831 Von Karman Irvine Delaware, LLC) filed a First Amended Complaint (FAC). This FAC supersedes Plaintiff’s Complaint. Since Defendants direct the Demurrer to the Complaint, the court finds that the Demurrer is MOOT and takes it OFF CALENDAR.

Plaintiff is to give notice.

Motion No. 3:

Defendants’ (Constructure, Inc., Benjamin J. Bohannon, and Bryan Bohannon) Motion to Strike Portions of the Complaint Filed by 18831 Von Karman Irvine Delaware LLC (Motion), filed on 4-18-22 under ROA Nos. 21 and 33, is OFF CALENDAR as MOOT.

On 8-17-22 under ROA No. 71, Plaintiff (18831 Von Karman Irvine Delaware, LLC) filed a First Amended Complaint (FAC). This FAC supersedes Plaintiff’s Complaint. Since Defendants direct the Motion to the Complaint, the court finds that the Motion is MOOT and takes it OFF CALENDAR.

Plaintiff is to give notice.