Case Number: BC558489 Hearing Date: February 09, 2015 Dept: 58
JUDGE ROLF M. TREU
DEPARTMENT 58
________________________________________
Hearing Date: Monday, February 9, 2015
Calendar No: 3
Case Name: Tessie Cleveland Community Services Corporation v. Loghmani, et al.
Case No.: BC558489
Motion: Special Motion to Strike
Moving Party: Defendant Mohsen Loghmani
Responding Party: Plaintiff Tessie Cleveland Community Services Corporation
Notice: OK

Tentative Ruling: Special motion to strike is denied. Attorney fees are awarded as requested, payable by moving party no later than March 9, 2015.
________________________________________

Background –
On 9/23/14, Plaintiff Tessie Cleveland Community Services Corporation filed this action against Defendants Mohsen Loghmani dba L.A. Design Group; Mahsid Loghmani; Ciavash Matthew Loghmani; Ciamack Loghmani; Arianne K. Loghmani; 1518 Eleventh Street Condominiums, LLC; and Ali Sadoughi arising out of allege fraudulent transfers by Mohsen to avoid a judgment against him. Plaintiff asserts causes of action for (1) intentional fraudulent transfers (Civil Code § 3439.04(a)(1)), (2) constructive fraudulent transfers (Civil Code § 3429.04(a)(2)), (3) common law fraudulent conveyance, (4) civil conspiracy, (5) imposition of a trust, (6) resulting trust, (7) declaratory relief – interest in property, and (8) declaratory relief – alter ego liability.

On 10/24/14 and 11/6/14, the Loghmani Parties filed answers. On 12/23/14, the Court overruled a demurrer filed by 1518 LLC and Sadoughi and granted a motion to strike the claim for punitive damages in the 1st and 2nd COAs without leave to amend. On 1/2/15, 1518 LLC and Sadoughi filed an answer.

Factual Allegations of the Complaint –
In June 2006, Plaintiff entered into written contracts with Mohsen to remodel several properties for which Plaintiff paid “progress payments” to Mohsen for costs and expenses incurred. ¶ 14. In July/August 2009, Plaintiff discovered that Mohsen’s work was defective and that Mohsen did not have documentation to validate his expenses. ¶ 15. On 10/26/09, Plaintiff filed an action against Mohsen (Case No. TC023641) in which Plaintiff obtained a verdict against Mohsen. ¶¶ 16-17. On 3/29/12, Mohsen filed for Chapter 7 bankruptcy which failed to disclose all his property transactions and which the bankruptcy court entered an order denying discharge on 1/7/14. ¶¶ 18-20. Prior to the denial of discharge, Plaintiff obtained relief from the automatic stay to enter judgment against Mohsen, which was entered on 3/7/13 for $1,869,389.87. ¶ 21. Defendants have conspired with Mohsen to transfer title to real and personal property to defraud Mohsen’s creditors. ¶ 22.

Plaintiff asserts causes of action for (1) intentional fraudulent transfers (Civil Code § 3439.04(a)(1)), (2) constructive fraudulent transfers (Civil Code § 3429.04(a)(2)), (3) common law fraudulent conveyance, (4) civil conspiracy, (5) imposition of a trust, (6) resulting trust, (7) declaratory relief – interest in property, and (8) declaratory relief – alter ego liability.

Special Motion to Strike –
On 11/25/14, Mohsen, in propria persona, filed a special motion to strike pursuant to CCP § 425.16. “An anti SLAPP motion requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” Brenton v. Metabolife International Inc. (2004) 116 Cal.App.4th 679, 684.

The opposition asserts the motion was filed one day late, but the Court notes that it in fact was fax-filed November 24, on the last day permitted.

1. Protected Activity
“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. “The phrase ‘arising from’ means the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” City of Cotati v. Cashman (2002) 29 Cal.4th 69, 67.

Mohsen argues that the claims against him arise out of protected activity pursuant to CCP § 425.16(e)(1)-(2) because they relate to petitioning activity in connection with judicial proceedings.. The Court disagrees. “The mere fact that a lawsuit was filed after the defendant engaged in protected activity does not establish the complaint arose from protected activity under the statute because a cause of action may be triggered by protected activity without arising from it.” Optional Capital, Inc. v. Das Corp. (2014) 222 Cal.App.4th 1388, 1399; see also id. at 1400 (“[C]onduct is not automatically protected merely because it is related to pending litigation; the conduct must arise from the litigation.”).

Here, Plaintiff’s action is based on alleged fraudulent transfers by Mohsen in an effort to avoid Plaintiff’s judgment against him. Although Plaintiff’s action has been triggered by the parties’ conduct in the various judicial proceedings, Plaintiff’s claims are not based on any conduct by Mohsen in connection thereto: the result of the various judicial proceedings only provides the reason for Mohsen’s alleged fraudulent transfers. See Optional Capital, Inc., 222 Cal.App.4th at 1400-1. Therefore, Mohsen fails to establish that Plaintiff’s action against him arises from protected activity.

2. Probability of Prevailing
Because Mohsen fails to meet the threshold showing, it is unnecessary to reach the second prong of the analysis concerning Plaintiff’s probability of prevailing on the merits. See Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 31-32. Therefore, the Court declines to rule upon Plaintiff’s evidentiary objections as moot.

3. Attorney Fees
Plaintiff seeks to recover attorney fees in opposing Mohsen’s motion, asserting that the motion was frivolous or solely intended to cause unnecessary delay. Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 468-69. The Court notes for frivolousness, the Court must conclude that Mohsen’s motion was totally and completely without merit. Id. at 468.

The Court agrees with Plaintiff’s position and awards attorney fees in the amount prayed, $10,767.50, payable by moving party within no later than March 9, 2015.