Case Number: KC069823 Hearing Date: March 29, 2018 Dept: J

Re: Cynthia Flaker, et al. v. Van Butenschoen, et al. (KC069823)

SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

Moving Party: Defendant Michael Brennan

Respondents: Plaintiffs Cynthia Flaker and Chris Flaker

POS: Moving OK; Opposing OK

Plaintiffs Cynthia Flaker and Chris Flaker (“plaintiffs”) allege that they became residential tenants of the premises located at 2428 Gail Court in West Covina (“subject premises”) via a written rental agreement commending 5/9/14. Plaintiffs allege that subject premises suffered from uninhabitable conditions which were not disclosed at the commencement of the lease. Plaintiffs allege that they notified their landlord, Van Butenschoen (“Butenschoen”), of the uninhabitable conditions and requested that he make repairs, but that they ended up making the repairs themselves after Butenschoen refused to do so. Plaintiffs allege that they attempted to deduct repair costs but were not permitted to do so under threat of eviction. Plaintiffs allege Butenschoen charged illegal late fees. Plaintiffs allege that Butenschoen hired attorney Michael Brennan (“Brennan”) to issue a 3-day notice which was fatally defective and to file an unlawful detainer action against them. Plaintiffs allege that Brennan caused this court to make certain rulings which were illegal. Plaintiffs allege that the court clerks are untrained and that Brennan took advantage of this by filing improper documents to obtain their defaults and a judgment against them. Plaintiffs claim that as of 4/13/17, no claim for rent could be made as there was no rental agreement; however, Butenschoen and Brennan initiated a second unlawful detainer action. Plaintiffs allege that before the Appellate Department issued its remittitur setting aside the default and judgment in the first unlawful detainer, Butenschoen and Brennen dismissed same. The complaint, filed 11/27/17, asserts causes of action against Defendants Butenschoen, Chih-Yang Han, Brennan and Does 1-10 for:

1. Malicious Prosecution

2. Retaliation

3. Fraud

4. Nuisance

5. Civil Rights Violations

6. Breach of Contract

A Case Management Conference is set for 4/24/18.

Defendant Michael Brennan (“defendant”) moves the court, per CCP § 425.16, for an order striking Plaintiffs Cynthia Flaker’s and Chris Flaker’s (“Chris”) (collectively, “The Flakers”) complaint as against him, on the basis that his conduct constitutes free speech under the 1st Amendment to the U.S. Constitution and The Flakers cannot prove or establish that defendant acted with malicious intent in prosecuting the underlying actions in his capacity as a member of the California State Bar. Defendant further asserts that his conduct is completely privileged under Civil Code § 47. Defendant is named in only the first and fifth causes of action of the comlaint.

REQUEST FOR JUDICIAL NOTICE:

At the outset, The Flaker’s request for judicial notice is granted in part, to the extent they have provided conformed copies of portions of Case Nos. 16UR0567 and 17UR0935. The court also takes judicial notice of the case summaries. The Flakers have not made a separate California Rules of Court (“CRC”) Rule 3.1306(c) request (i.e., [a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Either make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court”).

“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.” CCP § 425.16(b)(1). Notably, “[t]he express language of section 425.16, subdivision (b)(1) allows a single cause of action to be stricken. The fact that other claims remain does not bar a trial judge from granting a section 425.16 special motion to strike.” Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.

“A SLAPP is 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.’ (§ 425.16, subd. (b)(1).).” Nygard, supra, 159 Cal.App.4th at 1035. The “evaluation of an anti-SLAPP motion requires a two-step process in the trial court.” Id. “Once the party moving to strike a complaint pursuant to subdivision (b) of section 425.16 has made a prima facie showing that the lawsuit arises from an act by the defendant in furtherance of his right of petition or free speech under the United States or California Constitution in connection with a public issue, the plaintiff must establish a ‘probability’ that he will prevail on the merits of the complaint. (§ 425.16, subd. (b).).” Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.

“In analyzing defendant’s burden under the first prong of the section 425.16 analysis, ‘the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ (Navellier [v. Sletten (2002)] 29 Cal.4th [82,] at p. 89). ‘The anti-SLAPP statute’s definitional focus is not on the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ (Id. at p. 92). Defendant does not have to ‘establish [his] actions are constitutionally protected under the First Amendment as a matter of law.’ (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. [(2002)] 29 Cal.4th [53,] at p. 68, fn. 5). The statute requires a defendant to make only a prima facie showing that plaintiffs’ causes of action arise from an act in furtherance of defendant’s constitutional rights of petition or free speech in connection with a public issue. (Wilcox v. Superior Court, supra, at p. 820).” Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.

“[W]hether a cause of action is subject to a motion to strike under the SLAPP statute turns on whether the gravamen of the cause of action targets protected activity.” Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550. “Where…a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 ‘”unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”’ (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672…).” Id. at 1551.

Defendant has met his burden with respect to the first and fifth causes (i.e., for Malicious Prosecution and Civil Rights Violation, respectively) of action, as they “arise out of” his protected activity. As to the first cause of action, “[b]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130-1131). Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. (See, e.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088).” Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.

As to the fifth cause of action, “[f]iling an unlawful detainer complaint is protected activity under the anti-SLAPP statute, as is service of a notice of termination preceding an unlawful detainer complaint. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282). A cause of action arising from such filing or service is a cause of action arising from protected activity.” Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275.

The Flakers allege, in their fifth cause of action, that “Butenschoen and Brennan used State Action under color of law in their violation of the Flakers’ civil rights [42 U.S.C. 1983] by using the courts in attempting to evict the Flakers from the premises. Brennan and Butenschoen deprived the Flakers of their Due Process civil rights by improperly serving the summons and complaint, falsifying the report on such service, and prematurely taking the default of the Flakers in the first unlawful detainer action, as well as dismissing that action in order to prevent the Flakers from having a jury trial to prove their case which would obviate the second unlawful detainer action, collecting their attorney fees incurred in defense and ameliorating the blacklisting by winning that case.” (Id., ¶¶ 65 & 66).

Inasmuch as the first prong of the SLAPP analysis has been satisfied, the court turns to the second prong: whether plaintiffs have satisfied their burden of demonstrating that it is probable they will prevail. Plaintiffs have not met their burden. “To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821). The plaintiff’s showing of facts must consist of evidence that would be admissible at trial. (HMS Capital, Inc.

v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212). The court cannot weigh the evidence, but must determine whether the evidence is sufficient to support a judgment in the plaintiff’s favor as a matter of law, as on a motion for summary judgment. (Wilson, supra, at p. 821; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907; see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192). If the plaintiff presents a sufficient prima facie showing of facts, the moving defendant can defeat the plaintiff’s evidentiary showing only if the defendant’s evidence establishes as a matter of law that the plaintiff cannot prevail. (Wilson, supra, at p. 821).” Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346.

FIRST CAUSE OF ACTION (i.e., MALICIOUS PROSECUTION):[1]

“[I]n order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; Rest.2d Torts, §§ 653-681B).” Sheldon Appel Co. v. Albert & Oiker (1989) 47 Cal.3d 863, 871-872.

The element of a legal termination in plaintiffs’ favor “requires that the termination of the prior action ‘”reflect on the merits”’ and ‘tend[ ] to indicate [the former defendant’s] innocence of or lack of responsibility for the alleged misconduct.’ (Witkin, Summary of Cal. Law [(10th ed. 2005)] Torts, § 498, p. 731; see id., § 501, p. 735). Thus, ‘[a] voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. [Citations.]’ (Robbins v. Blecher (1997) 52 Cal.App.4th 886, 893-894).” Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 455-456.

The Flakers have not met their burden of establishing that the prior action was pursued to a legal termination in their favor. The 10/27/17 dismissal of Case No. 16UR0567 did not reflect on the merits of the underlying claim. The Appellate Division’s 10/16/17 decision held only that the trial court’s order impermissibly limited The Flakers’ responsive pleading in the first unlawful detainer action to only filing an answer, and that the reversal of a default judgment entered on the date The Flakers filed their demurrer was thus warranted. By the time the 10/27/17 dismissal of Case No. 16UR0567 occurred, the second unlawful detainer action (i.e., Case No. 17UR0935) had already been pending for six months.

The Flakers, moreover, have not met their burden of showing a lack of probable cause. “The presence or absence of probable cause is viewed under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior case. (Sheldon Appel, supra, 47 Cal.3d at pp. 878). The test of determining probable cause is whether any reasonable attorney would have thought the claim to be tenable. (Id. at p. 886).” Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018.

Chris attests that defendant did not have probable cause to prosecute Case No. 16UR0567. Chris’ declaration, however, only vaguely states that the premises he and his wife rented from Butenschoen contained “many uninhabitable conditions,” that Butenschoen refused to repair them, that he and his wife “used Civil Code § 1942 to repair and deduct as to some items, but [Butenschoen] would not reimburse [them],” that he and his wife consequently withheld their rent to try to force Butenschoen to make the needed repairs, and that Butenschoen instead “tried to evict [them] for nonpayment of rent in retaliation” and charged illegal fees. (C. Flaker Decl., 1:6-11). Chris’ declaration is unsupported by any documentary evidence, such as photographs depicting the substandard conditions, copies of rent checks, copies of repair invoices and/or receipts, and/or communications between plaintiffs and defendants. Chris further attests that “Brennan’s process server falsely claimed to have served [them], but Brennan suborned [sic] that perjury.” (Id., 1:23-24). He attests that Brennan “manipulated Judge Oki into ordering that we ‘answer only,” wrongfully took their defaults by “trick[ing] the untrained and unsupervised court clerks,” opposed their motions to restore the action and stay pending appeal, refused appeal payments and dismissed Case No. 16UR0567 “after losing on demand to prevent [them] from getting attorney’s fees.” (Id., 1:19-25 and 2:5-7). The foregoing statements, however, are argumentative and conclusory.

Defendant, in turn, attests that on 2/7/16, Butenschoen and his wife opened a case with his firm, Brennan Law Firm (“BLF”), requesting it to draft a 3-day notice to pay rent or quit to be served on plaintiffs. (Defendant Decl., ¶ 2). He attests that the notice was served on 2/18/16 and expired on 2/22/16, that the notice was prepared on information provided by the client, that there was no reason to believe that any information underlying the notice was improper or incorrect, that plaintiffs failed to pay rent during the statutory time period and that the first unlawful detainer action was consequently initiated on 3/1/18. (Id., ¶¶ 3 and 4). He attests that, after The Flakers’ motion to quash was heard and denied on 3/14/16, this court ordered Butenschoen to file an “answer only” within 5 days of the ruling and ordered him to provide notice. (Id., ¶ 5). BLF sent out the notice of ruling that same day, such that The Flakers’ last date to file their answer was 3/24/16. (Id., ¶ 6). Defendant attests that, after he called the court on 3/25/16 and was notified by the clerk that no responsive pleadings had been filed, BLF drafted and filed the request for entry of default, which was entered on 3/28/16. (Id., ¶ 7). Defendant attests that The Flakers, unbeknownst to him, challenged the ruling by filing a petition for writ of mandate on 3/24/16, which was denied on approximately 4/1/16. (Id., ¶ 8). He alleges that BLF has no record of receiving The Flakers’ petition and Notice of Stay prior to filing the request for default. (Id., ¶ 9). Defendant attests that both the default and default judgment were prepared on information provided by the court, and that there was no reason to believe that any information underlying same was improper or incorrect. (Id., ¶¶ 7 and 10). He recounts that The Flakers’ motion to vacate judgment, an ex parte motion to stay the lockout, and a motion for relief from default were all heard and denied, but that The Flakers’ motion for stay pending appeal was heard and granted on 5/5/16, conditioned upon The Flakers paying into the BLF Client Trust Account the monthly rental value of $2,000.00. (Id., ¶¶ 12 and 13). Defendant attests that, while The Flakers made multiple payments as required, one payment was written on an account with NSF, such that BLF was prompted to file an ex parte motion for relief from the stay for failure to comply with the court’s order. (Id., ¶ 14). He attests that the court denied BLF’s motion because The Flakers showed up with cash. (Id.).

Defendant attests that, as of 4/17, his clients were concerned that the appellate court was taking too long, as it had not yet set a date for oral argument. (Id., ¶ 15). In 4/17, BLF served both a second 3-day notice to pay rent or quit for the unpaid rent that had accrued between the time period in the first 3-day notice and the date on which The Flakers started paying rent per the terms of the conditional grant of the stay pending appeal, as well as a 60-day notice of termination of tenancy. (Id., ¶ 16). He attests that there was no reason to believe that any information underlying the notice was prepared on information provided by the clients and that there was no reason to believe that any information underlying the notice was improper or incorrect. (Id.). He explains that this was a “strategic decision based on objective observation that the appellate court was continuing oral argument,” that the relief sought was possession, and that the second notice was “based on mutually exclusive grounds than that sought in the initial unlawful detainer action.” (Id., ¶ 17). He attests that The Flakers failed to pay the rent and, as such, BLF filed the second unlawful detainer action. (Id., ¶ 18). As soon as BLF and the clients received the appellate ruling, they dismissed the first action and proceeded with the second. (Id., ¶ 20).

Finally, plaintiffs have not met their burden of showing malice. “’The “malice” element … relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of … the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.’ Improper purposes can be established in cases in which, for instance: (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim. (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 C.A.4th 1385, 1407).” Daniels v. Robbins (2010) 182 Cal.App.4th 204, 224. “A lack of probable cause in the underlying action, by itself, is insufficient to show malice.” Id. at 225.

There is no evidence of any personal relationship between plaintiffs and defendant. Again, Chris’ declaration is argumentative and conclusory and does not state when he and/or his wife made oral complaints to Butenschoen regarding tentantability in relation to the commencement of the unlawful detainer proceedings, or affirm that they were not in default as to the payment of their rent. Defendant again attests that there was no reason for him to believe that any information underlying the notices, default and default judgment was improper or incorrect and that BLF never received a copy of The Flaker’s petition and Notice of Stay prior to filing the request for default. (Defendant Decl., ¶¶ 3, 7, 9, 10 and 16). He attests that BLF filed an ex parte motion for relief from automatic stay for failure to comply with the court’s order when one of The Flaker’s payments to the BLF Client Trust Account was written on an account with NSF, and that the decision to dismiss the first unlawful detainer action and proceed with the second was a strategic one based on the procedural delays in the first action. (Id., ¶¶ 14-20).

FIFTH CAUSE OF ACTION (i.e., CIVIL RIGHTS VIOLATIONS):

42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, or any State…causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileged, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

Defendant is not being sued as a state or municipality, nor anyone affiliated with it; rather, defendant is a private attorney who was seeking to enforce the terms of a rental agreement on behalf of his client.

Accordingly, the motion is granted.

[1] Incidentally, defendant’s litigation privilege argument fails, as it is not extended to actions for malicious prosecution. See Albertson v. Raboff (1956) 46 Cal.2d 375, 382 (i.e., “[t]he policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied”).