Case Name: Medina v. Ellingson

Case No.: 18CV337308

The following motions by plaintiff Antonio Medina (“Plaintiff”) are currently before the Court: (1) motion to strike defendant Yvonne Ellingson’s (“Defendant”) response to Plaintiff’s special motion to strike; (2) motion to recover costs related to anti-SLAPP motion; (3) motion for sanctions under Code of Civil Procedure section 128.5 (“Section 128.5”); and (4) motion for leave to file first amended complaint.

I. Factual and Procedural Background
II.

This action arises out of a failed rental transaction. According to the allegations of the underlying complaint (“Complaint”), in October 2017, Defendant advertised a real property unit for rent in San Jose. (Complaint, ¶ 5.) Plaintiff entered into negotiations with Defendant to rent the unit and the parties executed a rental agreement in November 2017. (Id., ¶ 7.) Prior to moving in, Plaintiff inspected the unit with Defendant for potential deficiencies and located several, which Defendant indicated she would immediately repair. (Id., ¶ 8.) However, Defendant later changed her mind and refused to make the repairs, and Plaintiff learned that various portions of the unit were not permitted and did not meet minimum habitability requirements. (Id., ¶¶ 8-9.)

Defendant subsequently breached the rental agreement by informing Plaintiff that she was no longer interested in fixing the deficiencies in the unit or renting it to him. (Complaint, ¶ 10.) On December 2, 2017, Plaintiff received a check for his security deposit and rent previously paid. (Id., ¶ 11.) Plaintiff alleges that Defendant knew of the deficiencies in the unit and made false representations regarding its habitability. (Id., ¶ 12.) Plaintiff alleges that but for these misrepresentations, he would not have entered into the rental agreement and would have sought a different property to rent or remained in his current residence. (Id., ¶ 15.)

Based on the foregoing, Plaintiff filed the Complaint on November 9, 2018, asserting claims for (1) false advertising, (2) intentional and negligent misrepresentation, (3) breach of contract, and (4) infliction of emotional distress.

On February 13, 2019, Defendant filed a cross-complaint (the “Cross-Complaint”) asserting a single cause of action against Plaintiff for abuse of process. Defendant alleged on information and belief that Plaintiff filed the Complaint in hopes of receiving money from her to drop the litigation. (Cross-Complaint, ¶ 16.) In response to the Cross-Complaint, Plaintiff filed a special motion to strike the following month that was set to be heard on April 9, 2019. The motion was rendered moot when Defendant dismissed the Cross-Complaint on April 3, 2019, without prejudice.

On May 28, 2019, Plaintiff filed the four motions that are presently before the Court. Defendant opposes all of them.

I. Plaintiff’s Motion to Recover Costs Related to Anti-SLAPP Motion
II.

With the instant motion, Plaintiff seeks to recover $936.86 against Defendant and her attorneys for costs incurred in filing the anti-SLAPP motion against Defendant’s Cross-Complaint.

As a preliminary matter, the “prevailing defendant” on a special motion to strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) The purpose of this fee-shifting provision is both to discourage meritless lawsuits and to provide financial relief to the SLAPP lawsuit victim. (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627.)

In her opposition to this motion, Defendant argues that Plaintiff is not entitled to recover fees and costs because his anti-SLAPP motion was deemed moot by the Court and thus he is not a prevailing party. While it is true that the motion was deemed moot by the Court, which explained in its order that Defendant’s voluntary dismissal of the Cross-Complaint prior to the hearing deprived the Court of jurisdiction to rule on the motion, the anti-SLAPP statute, Code of Civil Procedure section 425.16 (“Section 425.16”), nevertheless gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to the defendant. (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 878-879.) A plaintiff cannot avoid paying attorney fees and costs by voluntarily dismissing his or her complaint (or cross-complaint, as the case may be) after the anti-SLAPP motion is filed if the motion would have been granted. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1452.) The defendant is entitled to its fees and costs if the plaintiff’s case is shown to be a “pure SLAPP suit.” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918.) Thus, contrary to Defendant’s assertion, the fact that the anti-SLAPP motion was deemed moot does not necessarily mean that Plaintiff cannot recover fees and costs associated with the filing of that motion.

In order to determine whether a plaintiff’s case is a “pure SLAPP suit,” the court must consider the merits of the defendant’s anti-SLAPP motion even though it has no jurisdiction to grant or deny it. (Moore v. Liu (1999) 69 Cal.App.4th 745, 750-751.) A court’s approach to ruling on a special motion to strike has been described thusly:

Section 425.16, subdivision (b)(1) requires the court to engage on 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 the protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue” as defined in the statute. (425.16, subd. (b)(1).) If the court finds such showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers “the pleadings, and supporting and opposing affidavits stating facts upon which the liability of the defense is based.”

(See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

To satisfy the first step of the anti-SLAPP analysis, a defendant need only make a prima facie showing that the plaintiff’s lawsuit “arise from” his or her exercise of free speech or petition rights as defined in Section 425.16, subdivision (e), i.e., protected activity. (See Governor Gray Davis Committee v. American Taxpayer Alliance (2002) 102 Cal.App.4th 449, 458-459.) Code of Civil Procedure section 425.16, subdivision (e) provides:

[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” includes: (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; (4) or 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.

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

In determining whether a defendant has sustained its initial burden, the court considers the pleadings, declarations and matters that may be judicially noticed. (See Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324.) Here, the first prong of the anti-SLAPP analysis relative to the Cross-Complaint would have easily been met because abuse of process claims are subject to the anti-SLAPP statute. (See Booker v. Roundtree (2007) 155 Cal.App.4th 1366, 1370 [explaining that there is no question that a complaint for abuse of process arises out of litigation because “[t]he gravamen of the claim is misconduct in the underlying litigation”].) Accordingly, the burden would have shifted to Defendant to establish a “probability” of prevailing on the merits of her Cross-Complaint. In order to do so, she would have had to demonstrate that the Cross-Complaint was both “legally sufficient and supported by a sufficient prima facie showing of fact to sustain a favorable judgment.” (Premier Med. Mgt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 472.) The Court would not have been permitted to weigh credibility or the comparative strength of evidence. (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Prior to dismissing the Cross-Complaint, Defendant filed a response to Plaintiff’s anti-SLAPP motion on March 26, 2019, stating that while she believed that Plaintiff’s conduct was not deserving of anti-SLAPP protection given his “bad faith and exploitative actions, coupled with his extensive litigation history,” she was going to dismiss the Cross-Complaint given “the likely limited value of the underlying case” and in an effort to efficiently use resources and court time. Defendant therefore did not address the substantive merits of her Cross-Complaint, nor does she attempt to do so here in her opposition. Even if she had, she would not have been able to establish that her claim was “legally sufficient.” This is because the mere filing of a complaint or the maintenance of a lawsuit, even for an improper purpose, does not constitute an abuse of process. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.) Thus, Defendant could not have established a probability of prevailing on the merits of the Cross-Complaint, and because the first prong of the anti-SLAPP test was met, Plaintiff’s motion would have been granted by the Court had Defendant not dismissed the subject pleading. Consequently, Plaintiff would have been the prevailing party and entitled to recover fees and costs.

Though the statute itself is ambiguous as to what “fees and costs” are recoverable, legislative history shows that it was intended to allow only fees and costs incurred on the special motion to strike. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) Further, the statute only permits recovery of those fees deemed reasonable by the court.

Plaintiff’s motion is supported by his declaration and an attached exhibit which breaks down into detail the total amount requested by him. Defendant complains in her opposition that Plaintiff has not established his entitlement to all of the amounts requested and further, she maintains that he is not entitled to costs incurred after the Cross-Complaint was dismissed.

The Court disagrees with Defendant’s assertions. Even though the Cross-Complaint was dismissed, Plaintiff is entitled to recover costs he incurred after that point in connection with collecting any reasonable fees and costs incurred in filing the initial anti-SLAPP motion. (See, e.g., Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 138 [explaining that postjudgment fees and costs incurred in collecting on the judgment for anti-SLAPP fees and costs may be recoverable on noticed motion].) Additionally, the costs claimed to have been incurred by Plaintiff do not appear unreasonable to the Court. Consequently, Plaintiff’s motion is GRANTED in its entirety.

III. Plaintiff’s Motion to Strike Defendant’s Response to Special Motion to Strike
IV.

Plaintiff moves to strike Defendant’s response to his anti-SLAPP motion, arguing that the response (inclusive of a request for judicial notice) contains “false, irrelevant and improper matter.” Plaintiff takes issue with Defendant’s inclusion of a list of prior court actions that he was purportedly involved in, apparently in an effort to establish that he has a litigious history and brought the Complaint in “bad faith.”

As explained above, the special motion to strike was ultimately deemed moot due to Defendant’s dismissal of her Cross-Complaint. The Court questions the utility of the instant motion, not only because the anti-SLAPP motion is moot, but also because it cannot opine on whether or not the assertions made by Defendant in her response regarding Plaintiff’s motives are actually false, as he insists. The mere fact that Plaintiff disagrees with Defendant’s stated belief that his Complaint was filed in bad faith is not a basis, in the Court’s eyes, to order her response to the special motion to strike to be stricken. Therefore, Plaintiff’s motion to strike is DENIED.

V. Plaintiff’s Motion for Sanctions Under Section 128.5
VI.

With the instant motion, Plaintiff moves for an award of sanctions in the amount of $5,680 against Defendant and her counsel pursuant to Section 128.5 based on her contentions that the now-dismissed Cross-Complaint and opposition to his anti-SLAPP motion were frivolous.

As a general matter, in all civil cases, a judge may order a party or counsel, or both, “to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).) As Plaintiff explains in his motion, “actions or tactics” is defined to include “the making or opposing or motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (Code Civ. Proc., § 128.5, subd. (b)(1).) “Frivolous” means “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).) Plaintiff maintains that Defendant’s Cross-Complaint was completely without merit because it did not allege a cause of action as a matter of law and was barred by the litigation privilege.

Defendant’s now-dismissed Cross-Complaint asserted a single claim for abuse of process, which was predicated on Plaintiff filing the underlying action against her. The common law tort of abuse of process arises when one used the court’s process for a purpose other than that for which the process was designed. (See Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463.) Plaintiff is correct that no claim was actually stated as a matter of law because, as set forth above, the mere filing of a complaint or the maintenance of a lawsuit, even for an improper purpose, does not constitute an abuse of process. (See Oren Royal Oaks Venture, supra, 42 Cal.3d at 1169.) Thus, it is accurate to state (without the need to address the litigation privilege) that Defendant’s Cross-Complaint, as pleaded, was without merit.

Despite the foregoing, the Court nevertheless will not impose sanctions on Defendant and her counsel, noting that it has already granted Plaintiff’s request to recover fees and costs incurred in connection with his anti-SLAPP motion. More critically, Plaintiff has not established that he complied with the safe harbor provision of Section 128.5 before filing his motion, which provides that:

If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in [Code of Civil Procedure] Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

(Code Civ. Proc., § 128.5, subd. (f)(1)(B) [emphasis added].)

A party moving for sanctions under Section 128.5 must comply with the foregoing procedure in order for such a request to be considered by the Court. As there is no indication that Plaintiff complied with the statute by serving Defendant with a copy of his motion for sanctions over 21 days prior to filing it in order to provide her with an opportunity to withdraw the Cross-Complaint, his motion for sanctions is DENIED.

VII. Plaintiff’s Motion for Leave to File First Amended Complaint
VIII.

Lastly, Plaintiff moves for leave to amend to file a first amended complaint (“FAC”), which adds two additional claims to the existing Complaint (and related allegations) for negligence resulting in personal injury and breach of implied warranty of habitability.

Motions for leave to amend are directed to the discretion of the Court. “The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .” (CCP §473(a)(1), emphasis added.) The law generally favors amendments on the basis that cases should include all disputed matters between parties and be decided on their merits. However, if the party seeking amendment has been dilatory and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (See Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490.) Absent other prejudice, delay alone is not considered grounds for denial. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488. See also Melican v. Regents of the Univ. of Calif. (2007) 151 Cal.App.4th 168, 176.) Where some prejudice is shown, the Court may still allow the amendment but can impose conditions. These can include continuing the trial date (if requested by the opposing party), limiting discovery and/or ordering the party seeking the amendment to pay the costs and fees incurred by the opposing party in conducting discovery and preparing for trial on a newly added claim. (Code Civ. Proc., § 473, subd. (a)(1); see, e.g., Fuller v. Vista Del Arroyo Hotel (1941) 42 Cal.App.2d 400, 404.)

Critically, the policy favoring amendment is so strong that denial of leave to amend can rarely be justified, to wit: “[i]f the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [emphasis added].)

Here, Defendant unpersuasively argues that Plaintiff’s motion should be denied for the following reasons: (1) the motion is based on a flawed premises- that the proposed amendments clarify or elaborate facts, when in fact add entirely new facts which were known to Plaintiff when he initially filed the Complaint; and (2) the proposed FAC fails to comply with California Rules of Court 3.1324(a) and (b) (“Rule 3.1324”). Considering the strength of the policy favoring amendment and no persuasive showing of resulting prejudice, the Court does not see the import of whether the new facts Plaintiff seeks to add to his Complaint were known to him at the time he filed his initial pleading; unless his adding them now results in some sort of prejudice to Defendant, or contradicts that which has already been pleaded, the motion must be granted. While Defendant states generally that she will be prejudiced if the motion is granted, this action has existed for less than a year and there is currently no trial date. Thus, Defendant undoubtedly has more than enough time to conduct discovery and investigation relating to the two proposed new claims.

With regard to Defendant’s second argument, Rule 3.1324(a)(2) and (3) provide that a motion to amend a pleading before trial must state “which allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located” and “which allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” Subdivision (b) of Rule 3.1324 provides that a supporting declaration must accompany the motion to amend and must specify the following: the effect of the amendment, why the amendments are necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons for why the request for amendment was not made earlier. While the Court acknowledges that there are slight deficiencies in Plaintiff’s supporting papers relative to the requirements articulated in Rule 3.1324(a)(2) and (3) and (b), it ultimately finds that Plaintiff has substantially complied with the foregoing. A proposed FAC has been submitted with the motion, and the Court is otherwise able to easily discern from this document the changes that Plaintiff’s seeks leave to make to the Complaint. Accordingly, Plaintiff’s motion for leave to file a FAC is GRANTED.