Case Number: BC651071 Hearing Date: August 06, 2018 Dept: 61

Plaintiff and Cross-Defendant Stuart Lee Zubrick’s Special Motion to Strike the Second Amended Cross-Complaint is GRANTED in its entirety.

Plaintiff and Cross-Defendant Stuart Lee Zubrick’s Demurrer to the Second Amended Cross-Complaint is OVERRULED as moot.

SPECIAL MOTION TO STRIKE

Plaintiff/Cross-Defendant’s Request For Judicial Notice is GRANTED.

Plaintiff/Cross-Defendant’s Objections 1-4 are SUSTAINED.

In 1992 the Legislature enacted Code of Civil Procedure section 425.16 as a remedy for the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., §425.16, subd. (a); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as “SLAPP” lawsuits, an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any cause of action “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 . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) An anti-SLAPP motion may be addressed to individual causes of action and need not be directed to the complaint as a whole. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.app.4th 141, 150.)

In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure at any early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendants must show that the acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States of California Constitution in connection with a public issue.” (Code Civ. Proc., §425.16 subd. (b)(1).) Next, if the defendant carries that burden, the burden shift to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16 subd. (b)(3).)

In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); Equilon Enterprises, supra, 29 Cal.4th at p. 67.)

PROTECTED ACTIVITY

Zubrick here seeks to strike the Second through Sixth Causes of Action in Akhtar’s Cross-Complaint.

The anti-SLAPP statute defines protected activities as:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Code Civ. Proc., § 425.16, subd. (e).)

Courts have “have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)

When faced with “a cause of action that involves both constitutionally protected and unprotected conduct,” courts “must examine the ‘substance of’ or ‘gravamen’ of each cause of action to determine whether section 425.16 applies in the first instance. [Citation.] ‘[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.”’ [Citation.] Where the allegations of constitutionally protected activity are not merely ‘incidental’ to the unprotected conduct, the protections of section 425.16 are implicated.” (Scott v. Metabolife Intern., Inc. (2004) 115 Cal.App.4th 404, 419.)

Additionally, “conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage (or . . . the protection of the litigation privilege) simply because it is alleged to have been unlawful or unethical. If that were the test, the statute (and the privilege) would be meaningless.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910–11.)

The conduct that Akhtar complains of in his Cross-Complaint is generally set forth as follows:

On or about February 17, 2017, Zubrick (1) denied the existence of the agreement whereby Zubrick transferred the Larmar Property and the Hollywood Blvd. Property to Akhtar; (2) put a cloud on the title of said properties by advising or causing information to be given to Fidelity National Title Group to the effect that Akhtar obtained title to the properties by fraud and/or identity theft, which allegation not only defamed Akhtar, but prevented buyers from obtaining title insurance for the properties, thereby preventing transfer of the properties for reasonable value; and (3) retained agents and property managers who have, on information and belief, wrongfully communicated with the tenants of the properties, and effectively taken possession of the properties in the capacity of a property manager without Akhtar’s consent, and has interfered with Akhtar’s use of the properties and collection of rents therefrom.

In addition, Zubrick filed quiet title actions concerning the Larmar Property and the Hollywood Blvd. Property, and recorded Notices of Pending Action for the purpose of preventing Akhtar from transferring the properties.

(SAXC ¶¶ 13–14.)

Specifically, Akhtar’s First Cause of Action for Breach of Contract alleges that two breaches occurred: when Zubrick fraudulently induced Akhtar to modify the contract, and when Zubrick filed the complaint in this action. (SAXC ¶ 21.) The Second Cause of Action for Promissory Fraud is based on Zubrick’s renunciation of that modification in these proceedings. (SAXC ¶ 30.) The same allegations underlie Akhtar’s Third through Seventh Causes of Action. (SAXC ¶¶ 35–65.)

As with Zubrick’s previous anti-SLAPP motion, each of these alleged events stems in time from February 17, 2017, the date that Zubrick filed his original Complaint in this action. Akhtar repeatedly refers to Zubrick’s interference with his properties — the result of a preliminary injunction in this action — and to this litigation as the origin of his injuries. (See SAXC ¶ 53.) The court thus finds sufficient basis for a prima facie showing that each of Akhtar’s claims arise from Zubrick’s Complaint in this action, and accordingly arise from protected activity.

LITIGATION PRIVILEGE

A 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) A defendant can meet its burden if it can establish that the plaintiff cannot overcome an affirmative defense. (Birkner v. Lam (2007) 156 Cal.App.4th 275 at 285.)

“[A] plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480.)

“Legally sufficient” means that the cause of action would satisfy a demurrer. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421.) The evidentiary showing must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444.) Proof, however, cannot be made by declaration based on information and belief. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497–1498.) The question is whether the plaintiff has presented evidence in opposition to the defendant’s motion that, if believed by the trier of fact, is sufficient to support a judgment in the plaintiff’s favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)

Zubrick argues that the SAXC is legally deficient here because each cause of action in the SAXC is precluded by the litigation privilege of Civil Code § 47. (Motion at p. 13.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “[T]he litigation privilege bars all tort causes of action except malicious prosecution.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960.) Otherwise, the privilege “is absolute and applies regardless of malice.” (Id. at p. 955.)

Zubrick’s argument here mimics his argument as to protected activity: each of Akhtar’s claims are based on communications arising out of and relating to the present litigation. (Motion at pp. 13–15.) The court agrees that the filing of a complaint and lis pendens notice are almost by definition (1) made in a judicial proceeding (2) by litigants or other participants authorized by law (3) to achieve the objects of the litigation and (4) had a logical relation to the action. (See, e.g., Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1486 [unlawful detainer filing “clearly fell” within the litigation privilege].) The court moreover agrees that communications with tenants in the buildings pursuant to this court’s preliminary injunction, as well as a report to a title insurance company relating to the allegations of the Complaint, are similarly protected as litigation-related activities made to third parties to help achieve the objects of the litigation. (See Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5–6 [holding that litigation privilege applied to letter sent by homeowners’ association to individual members regarding pending litigation].)

Akhtar argues in response only that the conduct alleged was not “communicative” within the meaning of the litigation privilege. (Opposition at p. 7, citing LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 345 [holding that litigation privilege “applies only to communicative acts and does not privilege tortious courses of conduct”].) But the only non-litigation-related “course of conduct” that Akhtar refers to is Zubrick’s transferring of the grant deed to the subject properties. (Opposition at p. 7.) While Akhtar is perhaps correct that the act of giving Akhtar title to the property is not litigation-related conduct, he neglects that this conduct alone entitles him to no relief. Akhtar would have no cause of action if Zubrick had only modified a pre-existing contract to give Akhtar an alternative form of payment, which Akhtar accepted. Nor would there be any cause of action if Zubrick did all these things with the intent to renounce them at some future date, as there is no civil remedy for tortious intentions unaccompanied by some injury. Each of Akhtar’s claims only accrued when Zubrick injured Akhtar by initiating this litigation. It is thus plain that each of Akhtar’s claims targets communication made in judicial or quasi-judicial proceedings, by litigants or other participants authorized by law, to achieve the objects of the litigation, and that have some connection or logical relation to the action. (See Silberg, supra, 50 Cal.3d at p. 212.)

It is thus plain that Akhtar’s tort claims are barred by the litigation privilege. The court notes that there are some cases holding that certain breach of contract claims, even if implicating conduct protected by the litigation privilege, may proceed unencumbered by the privilege. (See Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1494 [holding that litigation privilege did not apply to claim that defendants had breached a confidentiality agreement by offering testimony in a summary judgment proceeding]; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 774 [discussing how parties to a contract not to speak or sue may have “waived the right to the anti-SLAPP statute’s protection in the event he or she later breaches that contract”].) However, these cases have been interpreted as being limited to express confidentiality agreements or releases of claims, not to claims where a lawsuit is alleged to violate the spirit of a pre-existing contractual relationship. (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1497–98 [holding that litigation privilege barred breach of contract claim by tenant against landlord where breach was based on threats to initiate litigation].)

The court therefore concludes that the litigation privilege bars the entirety of Akhtar’s Second Amended Cross-Complaint. Zubrick’s anti-SLAPP Motion is therefore GRANTED.

ATTORNEYS’ FEES

“The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion, . . or as part of a cost memorandum.” (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.)

As the party prevailing on this motion, Zubrick may seek attorney’s fees incurred in relation to this motion.