Case Number: VC063679 Hearing Date: June 03, 2014 Dept: SEC

THEE AGUILA, INC. v. ACUNA
CASE NO.: VC063679
HEARING: 06/03/14

#4
TENTATIVE ORDER

I. Defendants SANTIAGO ACUNA, EDGAR FRAGOSO, EVA
MENESES and ERDM, INC.’s demurrer to the complaint is
OFF CALENDAR, per this Court’s May 8, 2014 Order.

II.Defendants SANTIAGO ACUNA, EDGAR FRAGOSO, EVA
MENESES and ERDM, INC.’s special motion to strike is DENIED.
C.C.P. § 425.16.

Defendants seek an order striking plaintiff THEE AGUILA, INC.’s unlawful detainer complaint under the anti-SLAPP statute. They argue that the lawsuit is “retaliatory.” Plaintiff’s sole cause of action is for unlawful detainer based on defendants’ alleged failure to maintain insurance on the property as required under the lease. The claim does not “arise from” defendants’ rights to petition or to free speech, and thus the anti-SLAPP statute is not triggered. See City of Cotati v Cashman (2002) 29 Cal.4th 69.

“[A] lawsuit filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. No lawsuit is properly subject to a special motion to strike under section 425.16 unless its allegations arise from acts in furtherance of the right of petition or free speech.” Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924.

It appears that defendants are arguing that plaintiff’s improper motive in bringing this action is, in essence, an infringement on defendants’ right to have petitioned the court in bringing the related lawsuits. The problem is that the claims asserted in the complaint do not pertain to defendants’ right to petition, but are related to an alleged breach of lease. The anti-SLAPP statute does not apply and the motion is denied on that ground.

The Court also notes that the motion is procedurally improper as it was filed almost 5 months after service of the complaint (which was filed in December 2013). See C.C.P. § 425.16(f). While the Court has discretion to entertain a later-filed motion, defendants did not make a request or offer an explanation as to why the motion should be deemed timely. It is denied on that ground as well.

Based on the above, the Court finds that the motion is frivolous, and unnecessarily delayed both discovery and litigating the matter. Therefore, plaintiff’s request for attorney’s fees is GRANTED in the amount of $2,100, the reasonable costs to oppose the motion (6 hours based on a rate of $350/hr.). C.C.P. § 425.16(c)(1).