Case Name: Sahib Mann, individually and dba The Mann Sales Team v. Lam Do, et al.

Case No.: 1-14-CV-269467

Motion to Strike Plaintiff’s [First] Amended Complaint by defendants Lam Do, individually and dba 3Dos LLC, Western Property Group, Inc., Barry Ford, and Sheila Kerns

On October 16, 2014, plaintiff Sahib Mann, individually and dba The Mann Sales Team (“Mann”), filed a Judicial Council form first amended complaint (“FAC”) which alleges defendant Lam Do, individually and dba 3Dos LLC (“Do”), is the owner of premises located at 6010 Hellyer Avenue, Suite No. 1 in San Jose. (FAC, Attachment First Cause of Action, page 1, lines 18 – 20.) According to Mann, Do filed an unlawful detainer action against Mann seeking to recover possession of 6010 Hellyer Avenue, Suite 150. (FAC, Attachment First Cause of Action, page 3, lines 10 – 23 and Exh. A.) Do obtained a judgment and writ of possession to recover possession of 6010 Hellyer Avenue, Suite 150. (FAC, Attachment First Cause of Action, page 4, lines 7 – 19 and Exh. C – D.) Mann, however, occupied possession of 6010 Hellyer Avenue, Suite 1, not suite 150. (FAC, Attachment First Cause of Action, page 3, line 23 to page 4, line 6 and page 4, lines 20 – 22.) On July 1, 2014, defendants wrongfully evicted Mann from Suite 1. (FAC, Attachment First Cause of Action, page 4, line 20 to page 6, line 6.)

Plaintiff Mann’s FAC asserts causes of action for:

(1) Forcible Detainer
(2) Intentional Infliction of Emotional Distress
(3) Defamation
(4) Interference with Contractual Relations
(5) Unfair Competition
(6) General Negligence
(7) Negligent Infliction of Emotional Distress

On November 14, 2014, defendants Do, Western Property Group, Inc., Barry Ford, and Sheila Kerns filed a demurrer to the first, third, fourth, fifth, and sixth causes of action of the FAC.

On December 19, 2014, defendants Do, Western Property Group, Inc., Barry Ford, and Sheila Kerns (through associated counsel) filed the motion now before the court, a motion to strike plaintiff’s FAC pursuant to the anti-SLAPP statute (CCP §425.16).

On January 8, 2015, the court (Hon. Lucas) sustained, in part, defendants’ demurrer to the FAC with leave to amend.

On January 15, 2015, plaintiff filed a second amended complaint (“SAC”).

I. Defendants’ special motion to strike the FAC is MOOT.

“An amended complaint filed before the anti-SLAPP motion renders moot an anti-SLAPP motion directed to the prior complaint (so long as the amendment does not seek to subvert or avoid a ruling on the anti-SLAPP motion).” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ¶6:665.6, p. 6-170 citing JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477- 478—“So too does an amended complaint render moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.”)

Plaintiff’s filing of the SAC renders the anti-SLAPP motion to the FAC moot. In reviewing the SAC, the amendments do not appear to subvert or avoid a ruling on the anti-SLAPP motion. Plaintiff continues to assert the same general allegations.