18-CIV-03290 PROUD THAI MASSAGE LLC VS. LANDLORD BEST SELLER LTD, ET AL.

PROUD THAI MASSAGE LLC LANDLORD BEST SELLER LTD
SARIT SIMHAYOFF-COEHN MICHAEL MENGARELLI

DEFENDANTS BEST SELLER, LTD, ALEX ABELA, AND ALEX ABELA PROPERTIES, INC. (“DEFENDANTS”) WILL BFING A SPECIAL MOTION TO STRIKE SLAPP SUIT AGAINST THE FIRST AMENDED COMPLAINT (“FAC”) OF PLAINTIFFS ALEXANDER MAYER AND PROUD THAI MASSAGE, LLC. TENTATIVE RULING:

The Special Motion to Strike SLAPP Suit by Defendants/Cross-Complainants Best Seller Ltd., Alex Abela Properties, Inc. and Alex Abela (“Defendants”), is ruled on as follows:

Pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute), Defendants move to strike the entire First Amended Complaint (“FAC”) of Plaintiffs Proud Thai Massage, LLC and Alexander Mayer (“Plaintiffs”), or alternatively to strike ¶¶ 74-76, 92, 94, 127, 128, 146-148, 157, 170-175, 179, 188 and 194.

In order to invoke the protection of the anti-SLAPP statute, the only thing that a defendant needs to show is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of the right of petition or free speech. (Equilon Enterprises LLC v Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) Once a defendant meets this burden, the burden shifts to plaintiff to rebut the presumption by showing a reasonable probability of success on the merits. (Ibid.) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Premier Med. Mgmt Systems, Inc. v. Cal. Ins. Guar. Assn. (2006) 136 Cal.App.4th 464, 476.) The court 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. (Baral v. Schnitt (2016) 1 Cal.5th 376, 385.) The motion to strike should be granted if the facts do not support a claim for relief. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460–461.)

Defendants’ Motion to Strike the Entire FAC is DENIED. Defendants have not met their burden of showing that the entire FAC, i.e. all eight causes of action, arise from protected activity. Defendants contend only that Plaintiffs may not bring their claims because the harmful activity alleged by Plaintiff is the filing and prosecution of an unlawful detainer action by Defendants against Plaintiffs. However, the FAC alleges eight causes of action, and includes other allegations of wrongdoing by Defendants. Specifically, Plaintiffs allege that Defendants knew Plaintiffs intended to operate a massage studio, and concealed that the purported yoga studio next door was in fact a high-energy fitness dance studio. (See FAC ¶¶ 31, 32.) Plaintiffs further claim that Defendants knew of the noise from the prior tenant, Plantation Deli. (See FAC ¶ 44.) Plaintiffs allege that they were tricked into signing a lease and investing money into the property as a result. Plaintiffs also allege that although Defendants disclosed prior water intrusion at the property that had allegedly been fixed, Defendants knew the property had been suffering from water leaks for over 20 years and caused substantial damage. (FAC ¶ 57.) Plaintiffs claim Defendants intentionally concealed that work was done on the property within permits and that the water leak was not properly fixed. (FAC ¶ 59.) Thus, the claims in the FAC are not based solely on Defendants filing an unlawful detainer action. As such, Defendants have not established that all of the claims in the FAC arise from protected activity.

Further, Defendants have not met their burden of showing that any of these causes of action should be stricken in their entirety because they arise from protected activity. Instead, Plaintiff’s claims allege both protected and unprotected activity. To the extent Plaintiff’s claims are based on the prosecution of the unlawful detainer action and seek relief as a result, such activity by Defendants is clearly protected. “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) Service of a notice to quit is also an integral part of prosecuting an unlawful detainer action. (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 [3-day notice to quit is communication prepatory to bringing of unlawful detainer action and equally entitled to protection under section 425.16].) However, while filing and service of an unlawful detainer action may have triggered a lawsuit, it does not necessarily follow that the suit arises from protected activity. (See e.g. Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1288; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160-161; Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1287–1288.)

An anti-SLAPP motion may be used to strike allegations of protected activity even without defeating a pleaded cause of action or primary right. (Baral v. Schnitt (2016) 1 Cal.5th 376.) The term “cause of action” in section 425.16(b)(1) was found by the California Supreme Court to mean “allegations of protected activity that are asserted as grounds for relief.” (Id. at 395.) In cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity. (Ibid.) If plaintiff cannot do so, the claim and its corresponding allegations must be stricken. (Ibid.) “Neither the form of the complaint nor the primary right is determinative.” (Ibid.)

The California Supreme Court explained the process as follows:

Although the issue arose here at the second step of the anti-SLAPP procedure, identification of causes of action arising from protected activity ordinarily occurs at the first step. For the benefit of litigants and courts involved in this sometimes difficult area of pretrial procedure, we provide a brief summary of the showings and findings required by section 425.16(b). 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.
(Baral, supra at 396.)

In this Motion, Defendant identifies only the paragraphs that Defendants claim are based on protected activity, but Defendants fail to also address the claims for relief supported by them. Nevertheless, the Court has examined each of the paragraphs cited to by Defendants in connection with the claims pled.

Based on the above, the court find that paragraphs 179 [only as to “filing a meritless unlawful detainer action,”], 188, and 194 [only as to “filing a meritless unlawful detainer action against PTM and Sandy,”] arise from protected activity and seek relief as a result of such protected activity. The Court then turns to the second prong as to whether Plaintiffs have met their burden of showing a reasonable success of probability on the merits. The Court uses the summary judgment standard in determining whether Plaintiff has met its prima facie burden of showing that it has a probability of success on the merits. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 1007 et seq. (TRG 2019). Plaintiffs filed two declarations in opposition to the motion—one from Alexander Mayer (“Mayer”), CEO of Plaintiff and plaintiff’s attorney, Sarit Simhayoff-Cohen (“Attorney”). Defendants did not file any declarations in reply. For purposes of this motion only based on the standards for SLAPP motions, the Court finds that Plaintiff has established through these declarations a prima facie showing of facts sufficient to show probability of success on the merits. First, Mayer at paragraph 14 declares that he had vacated the premises, which means that the gravamen of the unlawful detainer action, that the plaintiff possesses the property, cannot be met. Second, Mayer at paragraphs 9-14, 17, and 19 and Attorney at paragraph 6 demonstrate facts to establish a prima facie case of unhabitalitity (CACI 4320) and retailiation (CACI 4321). Accordingly, the Court DENIES the motion to strike these portions of paragraphs 179, 188, and 194.

As to paragraphs 74-76 (part of the General Allegations) 92, 94, 127, 128, 146-148, 157, 170-175, the remainder of paragraph 179, and the remainder of paragraph 194, the Motion to Strike is DENIED. Defendants fail to show that these claims arise from protected activity. To the extent that these paragraphs include allegations concerning rent demands or the unlawful detainer action, these allegations are merely incidental, or provide context without seeking relief. (See Baral, supra at 394; see also Newport Harbor Offices & Marina, LLC v Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45 (finding that general allegations, even those incorporated into causes of action are collateral when no claim for relief is based on them and their apparent function is to provide context).) Plaintiff’s objection to the motion as untimely is OVERRULED. Defendants filed their motion within 60 days of the First Amended Complaint adding the Sixth (Negligence), Seventh (Violation of Business & Professions Code § 17200) and Eighth Cause of Action (Elder Abuse), which contain paragraphs that the Court finds, in part, arise out of protected activity.

Plaintiff’s request for sanctions pursuant to Code of Civil Procedure § 425.16(c)(1) is DENIED. The Court does not find that the motion was frivolous or totally and completely without merit.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.