Case Number: BC536128 Hearing Date: June 09, 2014 Dept: 46

Posted 6-6-14 at 1:20 p.m.

Case Number: BC536128
THE JENNIFER FINE JEWELRY CORP VS KAJIMA DEVELOPMENT CORP
Filing Date: 02/13/2014
Case Type: Other Real Property Rights Case (General Jurisdiction)
Status: Pending

Kajima Development Corporation’s (“Kajima’s”) Anti-SLAPP motion.

Even though the motion is not opposed, the motion must be DENIED as it is not appropriate under the law and facts as discussed below.

Kajima’s motion, pursuant to CCP § 425.16, seeks as order striking out Plaintiff’s second (2nd) Cause of Action for Injunctive Relief on the basis that it arises out of its exercise of free speech and petition rights under the U.S. and CA Constitutions and that Plaintiff cannot meet its burden to prove a probability of prevailing on the merits. Plaintiff further seeks to restrain Defendant Kajima from proceeding with a UD action against it to obtain possession of the property.

Kajima bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. Matson v. Dvorak (1995) 40 C.A.4th 539, 548; Dixon v. Superior Court (1994) 30 C.A.4th 733, 742; Wilcox v. Superior Court (1994) 17 C.A.4th 809, 819.

In the court’s view, Kajima has failed to meet this burden.

Plaintiff, in its 2nd Cause of Action, has alleged as follows:

“12. Plaintiff is informed and believes and thereon alleges that Defendants intend to proceed with an unlawful detainer action and unless restrained will proceed with an unlawful detainer all to Plaintiffs’ great and irreparable injury.

13. Such an unlawful detainer action is wrongful and should be enjoined by virtue of the facts alleged above. Plaintiff has no other adequate remedy and the injunctive relief prayed for below is necessary and appropriate at this time to prevent the damages Plaintiff will suffer unless said action is enjoined since it will be impossible to determine the precise amount of damages to Plaintiffs.” (Complaint, ¶¶ 12 & 13; emphasis added).

In an anti-SLAPP motion, the court must focus on the act which forms the basis for the plaintiff’s suit. §425.16(e); Equilon Enterprises, supra, 29 C.4th at 66; Dixon, supra, 30 C.A.4th at 742.

While “statements and writings made during judicial proceedings are protected by the anti-SLAPP statute” [Navellier v. Sletten (2002) 29 C.4th 82, 90; Briggs v. Eden Council for Hope & Opportunity [(1999)] 19 C.4th [1106,] at 1115; Feldman v. 1100 Park Lane Assocs. (2008) 160 C.A.4th 1467, 1480, there is no protected activity alleged here because Defendant Kajima had not yet filed its UD action at the time the complaint was filed. Furthermore, the Plaintiff’s complaint does not reference any protected activity engaged in by this Defendant in preparation for filing its UD action.

This case is distinguishable from other cases which applied the anti-SLAPP motion to strike pleadings in UD cases. Here the only allegation is that “Plaintiff is informed and believes and thereon alleges Defendants intend to proceed” with a UD action and there is no pleading of acts by Defendant such as threats, service of notice, or filing of a UD action. See Feldman vs. 1100 Park Lane Associates 160 C.A.4th 1467, at 1480. The pleading that plaintiff believes that the defendant intended to file a UD action is merely Plaintiff’s statement of their own state of mind which itself is not an act by Plaintiff in furtherance of moving parties right to petition or free speech. See also Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154.