Case Number: BC522504 Hearing Date: June 13, 2014 Dept: 32

CASE NAME: Fatima Janjua, M.D. v. Wilshire
Center Building
CASE NO.: BC522504
HEARING DATE: 6/13/14
DEPARTMENT: 32
CALENDAR NO.: 6
SUBJECT: Special Motion to Strike Plaintiff’s
First Amended Complaint
MOVING PARTY: Defendant Wilshire Center Building
RESP. PARTY: Plaintiff Fatima Janjua

COURT’S TENTATIVE RULING

Special Motion to Strike Plaintiff’s First Amended Complaint GRANTED. Defendant may file a separate motion for anti-SLAPP attorney’s fees.

ANALYSIS

In ruling on a special motion to strike pursuant to CCP § 425.16, the court engages in a two-step process. First, the court must decide whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If such a showing has been made, the court then determines whether plaintiff has demonstrated a “probability” of prevailing on the claim. (Equilon Enterprises, L.L.C. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) A plaintiff opposing a special motion to strike meets his or her burden by making a prima facie showing of facts which would support a judgment in the plaintiff’s favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

With regard to the second prong of the anti-SLAPP statute, “the plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. [Citation.] In reviewing the plaintiff’s evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. [Citation.]” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.) “Plaintiff cannot rely on his pleading at all, even if verified, to demonstrate a probability of success on the merits.” (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 474.)

The principal thrust or gravamen of the claim determines whether section 425.16 applies. (Martinez v. Metabolife Int’l, Inc. (2003) Cal.App.4th 181, 187.)

Protected Activity

According to the first amended complaint, Plaintiff entered into a commercial lease agreement with Defendant on May 20, 2005, to be a tenant in Defendant’s property for a term of five years. Plaintiff allegedly sent a letter to Defendant that she did not seek to renew the lease in October of 2010. Defendant filed a civil action for unpaid rent due in July 2011. On or about January 13, 2012, Defendant obtained a judgment against plaintiff in the amount of $26,629.25 for unpaid rent. Plaintiff alleges Defendant obtained a money judgment against plaintiff without giving her proper notice. Plaintiff alleges that, despite knowing that Plaintiff did not occupy the subject premises, Defendant served her by substitute service at the premises. Plaintiff’s wages were garnished following the judgment. (FAC ¶¶ 5-14.)

“It is settled that an action for malicious prosecution arises from protected speech.” (Ross v. Kish (2006) 145 Cal.App.4th 188, 189.) Likewise, claims for abuse of process in an earlier lawsuit are subject to an anti-SLAPP motion. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.) As discussed in the moving papers, Defendant’s challenged conduct arises from the prosecution of unlawful detainer actions, which would be litigation activity protected by the anti-SLAPP statute. (See Mot. 8-9; see Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467, 1479-1481 [service of three-day notice to quit, filing of unlawful detainer action, and threats by landlord’s agent in connection with the dispute protected by anti-SLAPP statute].) Plaintiff does not dispute that Defendant has met its initial burden on this motion of showing that the action arises from protected activity.

Probability of Prevailing

In order to prove malicious prosecution, Plaintiff must show (1) a termination of the underlying lawsuit in Plaintiff’s favor, (2) lack of probable cause in bringing or continuing to prosecute the lawsuit, and (3) malice. (Ross v. Kish (2006) 145 Cal.App.4th 188, 198.)

The elements of an abuse of process claim are: (1) Ulterior purpose in commencing a process; and (2) willful act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057.)

As set forth above, to establish a probability of prevailing on her claims, “plaintiff may not rely solely on [her] complaint, even if verified; instead, [her] proof must be made upon competent admissible evidence.” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.) In opposition, Plaintiff has not submitted a declaration or any other evidence to establish a probability of prevailing on either of her claims. Accordingly, Plaintiff has necessarily failed to meet her burden in opposition and the motion must be granted on that basis.

Plaintiff seems to argue that Defendant maliciously prosecuted the underlying action and abused process by attempting to serve Plaintiff at the subject premises, even though Defendant knew Plaintiff had not occupied the premises since 2006 and was represented by counsel. However, this assertion is not supported by any evidence.

To establish malicious prosecution, Plaintiff must also show that Defendant acted with malice. “‘The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action….” (Ross, supra 145 Cal.App.4th at 204.) Plaintiff submits no evidence to establish that Defendant actually knew Plaintiff was not occupying the premises or was represented by counsel. The only evidence before the Court are the two leases submitted by Defendant, which seem to show Plaintiff’s signature and establish that Defendant would have good cause to serve Plaintiff at the leased premises. (Pisieczko Decl. Exh. A-B.) Based on this record, this is no evidence of malice or that Defendant engaged in an unauthorized use of process.

The motion is GRANTED.

Attorney’s Fees

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney’s fees and costs. (CCP §425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 -1142.) Defendant may file a separate motion for attorney’s fees incurred in this anti-SLAPP motion.

_______________________________
(1) Although Plaintiff cannot rely on a verified pleading, her FAC is not verified in any event.
(2) Defendant concedes in the moving papers that Plaintiff’s signature on the option to extend the lease was a forgery, apparently by her father purportedly acting under a Power of Attorney. (Mot. 4-5.) According to Defendant, it discovered the forgery after the underlying unlawful detainer actions were filed. This admission does not support a prima facie finding that Defendant should have known that Plaintiff did not occupy the subject premises or would not receive service there. This admission also does not support a finding that Defendant somehow acted maliciously in pursuing its rights under the lease documents.