TUNG TAI GROUP v. HOWARD N. MISLE, ET AL.

Case No.:  1-14-CV-259660

DATE:  September 9, 2014

TIME:  9:00 a.m.

DEPT.: 3

As an initial matter the Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted.  Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied.  While the Court can consider evidence in evaluating a special motion to strike it cannot consider extrinsic evidence in ruling on a demurrer or “normal” motion to strike.

The Request for Judicial Notice by Defendants/Cross-Complainants Howard and Tamara Misle, American Metal Recycling Services, Inc., and Cornerstone Nevada Limited Partnership (collectively, “Misle Defendants”) is GRANTED as to both documents pursuant to Evid. Code §452(d).  Both documents are noticed only as to their existence and filing and not as to the truth of their contents.

Plaintiff’s Demurrer to the Cross-Complaint for Declaratory Relief filed by Defendants/Cross-Defendants Roy and Eleanor Ferrari on the ground that it fails to state sufficient facts to state a cause of action is OVERRULED.  As the Court has previously noted in this action, a general demurrer (such as failure to state sufficient facts) to a cause of action for declaratory relief must be overruled as long as an actual controversy is alleged; the pleader need not establish that it is also entitled to a favorable judgment.  See Lockheed Corp. v. Continental Ins. Co. (2005) 134 Cal App 4^th 187, 221 (“demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief.”)  The Ferrari Cross-Complaint alleges a present actual controversy at 34.  Plaintiff’s displeasure with various assertions or allegations in the Cross-Complaint is not a basis for a demurrer on the basis of failure to state sufficient facts.

Plaintiff’s Demurrer to and “normal” Motion to Strike the original Cross-Complaint filed by the Misle Defendants are OVERULED and DENIED as MOOT respectively in light of the filing of the First Amended Cross-Complaint (“FACC”) by the Misle Defendants on Aug. 27, 2014.

The Misle Defendants’ assertion that the filing of the FACC also moots Plaintiff’s Special Motion to Strike is incorrect as a matter of law.  “It is the public policy of the state that complaints arising from the exercise of free speech rights be evaluated at an early stage.  This cannot be defeated by filing an amendment even as a matter of right pursuant to section 472.”  Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal App 4^th 1049, 1052; See Also South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal App 4^th 634.

A party bringing a Special Motion to Strike must make a prima facie showing that the targeted claims arise “from an act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  CCP §425.16(b).  Plaintiff is able to meet that burden here as its filing of a lis pendens, the basis for the Misle Defendants’ slander of title claim, was privileged under Civ. Code §47(b)(4).  See original Cross-Complaint at 3-5.  The declaratory relief claim in the original Cross-Complaint incorporated these allegations by reference.  When the burden shifts the Misle Defendants have failed to show a probability of prevailing on the targeted claims as stated in the original Cross-Complaint.

Plaintiff’s Special Motion to Strike is therefore GRANTED.  As the prevailing party Plaintiff is entitled to its reasonable attorneys’ fees and costs incurred in bringing the motion under CCP §425.16(c)(1).  Plaintiff has not submitted any evidence as to those amounts.

As the Slander of Title cause of action has been abandoned and the Declaratory Relief claim in the operative FACC is not based on protected activity, granting the motion does not require the Court to strike any claims from the FACC.