TENTATIVE RULINGS

Judge Michael J. Strickroth

DEPT C15

Department C15 hears Law and Motion matters on Mondays at 1:45 pm

Court Reporters:  Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

· Civil Court Reporter Pooling; and

· For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

Tentative rulings:  The court endeavors to post tentative rulings on the court’s website by 10:00 am in the morning, prior to the afternoon hearing.  However, ongoing proceedings such as jury trials may prevent posting by that time.  Tentative rulings may not be posted in every case.  Please do not call the department for tentative rulings if tentative rulings have not been posted.  The court will not entertain a request to continue a hearing or the filing of further documents once a tentative ruling has been posted.

Submitting on tentative rulings:  If all counsel intend to submit on the tentative ruling and do not desire oral argument, please advise the Courtroom Clerk or Courtroom Attendant by calling (657) 622-5215.  Please do not call the department unless all parties submit on the tentative ruling.  If all sides submit on the tentative ruling and so advise the court, the tentative ruling shall become the court’s final ruling and the prevailing party shall give notice of the ruling and prepare an order for the court’s signature if appropriate under Cal. R. Ct. 3.1312.

Non-appearances:  If no one appears for the hearing and the court has not been notified that all parties submit on the tentative ruling, the court shall determine whether the matter is taken off calendar or the tentative ruling becomes the final ruling. The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4^th 436, 442, fn. 1.) 

APPEARANCES:  Department C15 conducts non-evidentiary proceedings, such as law and motion, remotely, by Zoom videoconference.  All counsel and self-represented parties appearing for such hearings must check-in online through the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html prior to the commencement of their hearing.  Once the online check-in is completed, participants will be prompted to join the courtroom’s Zoom hearing session.  Check-in instructions and instructional video are available at https://www.occourts.org/media-relations/aci.html. The Court’s “Appearance Procedures and Information--Civil Unlimited and Complex” (“Appearance Procedures”) and “Guidelines for Remote Appearances” (“Guidelines”) also available at https://www.occourts.org/media-relations/aci.html will be strictly enforced. Parties preferring to appear in-person for law and motion hearings may do so by providing notice of in-person appearance to the court and all other parties five (5) days in advance of the hearing. (see Appearance Procedures, section 3(c)1.)

PUBLIC ACCESS:  In those instances where proceedings will be conducted only by remote video and/or audio, access will be provided to interested parties by contacting the courtroom clerk, preferably 24 hours in advance. No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.

TENTATIVE RULINGS

Date: August 28, 2023

#	Case Name	Tentative
1	Jacome vs Waltraud 2022-01272683	Motion to Strike Portions of Complaint Defendant Emma Waltraud’s Motion to Strike Portions of the Complaint is GRANTED.  Code of Civil Procedure section 435(b)(1) provides: “Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof.” Code of Civil Procedure § 436 provides in pertinent part: "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” “Irrelevant matter” includes allegations not essential to the claim.  Code of Civil Procedure §431.10(b).)  A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. Punitive damages Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. Civ. Code § 3294(c)(1); Mock v. Michigan Millers (1992) 4 Cal.App.4th 306, 328.  It is conduct so extreme as to rouse the contempt and outrage of reasonable people. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.  The adjective “despicable” connotes conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock, supra, at 331. At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation].”). Citing to an article on punitive damages in vehicle accident cases, the Court of Appeal in Dawes stated: “[A]llegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages. [Par.] On the other hand, if the facts show that the defendant intentionally drove his vehicle at a high speed into an intersection with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street, a legitimate inference of actual malice perhaps could arise . . . .’” [Citation.] Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.  The crux of Plaintiffs’ Complaint is that Defendant intentionally took her eyes away from road to look for a specific building, thereby running a red light, and hitting Plaintiffs while traveling 40 mph.  Plaintiffs allege such actions evidence a wanton and reckless disregard for the safety of others.  (Complaint ¶¶ 16, 17.) Taking one’s eye off the road to look for a building while driving a car might be negligent and perhaps even grossly negligent.   However, such actions do not rise to the level of despicable conduct.  There are no allegations Defendant intended to hit Plaintiffs, was driving at an excessive speed, or was intoxicated.  Without more, such actions do not support a finding of malicious conduct and punitive damages.  Therefore, the Court grants the motion to strike.  The motion is unopposed.  The Court Orders the following to be stricken from the Complaint: 1. “Vehicle Code Section 23103(a) makes it illegal to drive a vehicle with willful or wanton disregard for the safety of people” (Complaint, page 3, ¶ 12, lines 10-12); 2. “wantonly and recklessly” (Complaint, page 3, line 22); 3. The entirety of paragraph 22 (Complaint, page 4, lines 14-17); 4. The entirety of paragraph 32 (Complaint, page 5, lines 23-26); 5. Prayer for punitive damages (Complaint, page 6, lines 6-7); 6. Any and all other reference to malice, oppression, or fraud; and 7. Any and all other reference to punitive or exemplary damages. Moving party to give notice.
2	Collins vs Langmuir-Logan 2019-01092238	Motion for Leave to Amend Cross-Defendants Damian Collins (“Collins”) and The Medicine Woman Group, LLC (“TMWG”) Motion for Leave to File First Amended Answer to Cross-Complaints filed by: (1) Moreno Valley Gateway, LLC and MVG Turnpike, LLC; (2) Ethan Logan; and (3) Garfield Langmuir-Logan is GRANTED in part and MOOT in part. Collins and TMWG seek to add one affirmative defense of Statute of Frauds to their Answers to the three Cross-Complaints. On August 17, 2023, Collins and Cross-Complainants Moreno Valley Gateway LLC, MVG Turnpike LLC and Ethan Logan filed a Stipulation and Order granting Collins leave to file First Amended Answers to the Cross-Complaints filed by (1) Moreno Valley Gateway, LLC and MVG Turnpike, LLC; and (2) Ethan Logan. (ROA No. 906.) The Court has signed the Stipulation and Order. Although the Stipulation and Order MOOTS the instant Motion to the extent Collins seeks to amend its Answer to the Cross-Complaints filed by Moreno Valley Gateway, LLC and MVG Turnpike, LLC and Ethan Logan, the following issues remain to be resolved by the Court: 1. TMWG’s request to file an amended answer to the Cross-Complaints filed by (1) Moreno Valley Gateway, LLC and MVG Turnpike, LLC; (2) Ethan Logan; and (3) Garfield Langmuir-Logan. 2. Collins and TMWG’s request to file an amended answer to the Cross-Complaint filed by Garfield Langmuir-Logan. Code of Civil Procedure section 473, subdivision (b), states in part, “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Code of Civil Procedure section 576 states, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “If 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. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. However, even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; internal citations and internal quotation marks omitted. TMWG and Collins seek to add an additional affirmative defense of Statute of Frauds. TMWG and Collins have shown that current counsel of record for TMWG and Collins joined the case recently in the second half of last year and did not prepare or file the original Answers to the Cross-Complaints. (Harrison Decl., ¶¶ 4-5.) Current counsel recently noticed the Statute of Frauds was not included in the Answers filed by prior counsel while in the process of preparing responses to Cross-Complainant’s current discovery requests, and promptly filed this motion. (Harrison Decl., ¶ 6.) Accordingly, TMWG and Collins have shown the motion to amend is timely. TMWG and Collins have also shown that Cross-Complainants will not be prejudiced by the filing of the First Amended Answers since trial at the time the Motion was filed was still nine months away; discovery was open and ongoing; and TMWG and Collins represented to the Court that they intended to include the defense of Statute of Frauds in their responses to discovery responses due to Cross-Complainants in March 2023. Plaintiff has also sufficiently complied with California Rules of Court, Rule 3.1324. Accordingly, the Motion to the extent it is not MOOTED by the filing of the Stipulation is GRANTED. TMWG is to electronically file and serve its amended answers to the Cross-Complaints filed by (1) Moreno Valley Gateway, LLC and MVG Turnpike, LLC; and (2) Ethan Logan and (3) Garfield Langmuir-Logan within 10-days of the notice of this ruling. Collins is to electronically file and serve its amended answer to the Cross-Complaint filed by Garfield Langmuir-Logan within 10-days of the notice of this ruling. Moving parties to give notice.
3	John Deere Construction & Forestry Company vs Qwest Engineering, Inc. 2023-01301013	Motion for Leave to File Amended Complaint Plaintiff’s Motion for Leave to File First Amended Complaint is GRANTED. The court may, in the furtherance of justice, and on such terms as may be proper, allow amendment of a complaint at any time before or after commencement of trial. Code of Civil Procedure §§ 473(a)(1), 576.) “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081. Here, Plaintiff seeks leave to amend to (1) add Timothy Bell and Bradley Zimmerman as Defendants and (2) add a fifth cause of action for conversion against Bell and Zimmerman. The proposed First Amended Complaint is attached as Exhibit C to the declaration of movant’s counsel. The motion complies with California Rules of Court, Rule 3.1324 and no opposition has been filed. Therefore, the motion is GRANTED. Plaintiff shall file the First Amended Complaint within 10 days of this order. Moving party plaintiff to give notice.
4	Morales-Reyes vs General Motors LLC 2023-01305492	Demurrer to Complaint Defendant General Motors LLC’s Demurrer to the Complaint is taken Off-Calendar as moot.  Code of Civil Procedure § 472 states: “(a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading. ¶ (b) This section shall not apply to a special motion brought pursuant to Section 425.16.” JKC3H8 v. Colton, (2013) 221 Cal. App. 4th 468, 477, (JKC3H8) provides: “‘“[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884, 92 Cal.Rptr. 162, 479 P.2d 362.) “The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Citation.] [¶] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130–1131, 109 Cal.Rptr.3d 88.) Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054, 18 Cal.Rptr.3d 882.)” Here, Plaintiff’s Opposition to the Demurrer was due on 8-15-23. On 8-11-23, Plaintiff filed a First Amended Complaint (ROA 30). The First Amended Complaint renders the demurrer moot. Based on the foregoing, the Court takes Defendant General Motor LLC’s Demurrer to Plaintiff Jorge Sergio Morales-Reyes’ Complaint, filed on 3-14-23 under ROA 15, OFF-CALENDAR as moot. Defendant to give notice. On the Court’s own motion, defendant’s motion to strike punitive damages from the complaint, now set for hearing on 9/11/2023, is similarly rendered moot with the filing of a FAC on 8/11/2023.  Therefore, it is ordered off calendar for hearing on 9/11/2023. Defendant to give notice. Case Management Conference As the case is not at issue with the filing of the FAC on 8/11/2023, the court on its own motion continues the case management conference to 2/26/2024, at 8:30 AM, in C15. Defendant to give notice.
5	Slye vs 24 Hour Fitness USA, LLC 2022-01295070	Motion to Compel Arbitration Defendant 24 Hour Fitness USA, LLC’s is GRANTED in part and DENIED in part. It is undisputed the Federal Arbitration Act (“FAA”) applies to the instant motion. As the Dispute Resolution Agreement expressly states: “This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and evidences a transaction involving commerce.” (Ex. A, ¶ 1 of Declaration of Tabraz Rashid.) Pursuant to Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, the parties to an agreement may incorporate the FAA into its terms. Id. at 346-348. Moreover, the undisputed Declaration of Tabraz Rashid establishes 24 Hour Fitness is headquartered in Carlsbad, California and is a leading fitness industry pioneer with nearly four million members that span in 11 states. 24 Hour Fitness owns and operates approximately 300 clubs throughout 11 states.” (Rashid Decl., ¶ 2.) The FAA has been found to apply where one of the parties engages in business throughout the United States. Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 57; Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 282. The Federal Arbitration Act requires the existence of a valid arbitration agreement before arbitration can be compelled.  9 U.S.C. §2. “[I]t is a cardinal principle that arbitration under the FAA ‘is a matter of consent, not coercion.’” Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236. “Thus, ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” Ibid. “If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exist.’”Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413. Here, Defendant provides sufficient evidence the parties impliedly agreed to arbitrate all disputes which could arise out of Plaintiff’s employment. Craig v. Brown & Root, (2000) 84 Cal. App. 4th 416, 420. Plaintiff agreed to arbitrate all disputes by reviewing and acknowledging the Dispute Resolution Agreement, failing to opt-out, and continuing her employment with Defendant after acknowledgment. Ex. A to the Declaration of Tabraz Rashid, HR Shared Services Senior Specialist is a document entitled “Dispute Resolution Agreement.” Ex. B. to the Declaration of Tabraz Rashid is a copy of the Policy Acknowledgement Status Report for Plaintiff establishing Plaintiff reviewed and acknowledged the Dispute Resolution Agreement. Rashid’s Declaration sufficiently authenticates the exhibits and process by which Plaintiff acknowledged the Dispute Resolution Agreement and Opt-Out Policy. Evidence Code, § 1400. Plaintiff does not provide any evidence she did not review and acknowledge the Dispute Resolution Agreement, or that she opted out of the Dispute Resolution Agreement. Plaintiff’s argument she did not electronically sign or consent to an electronic signature is not persuasive because the Dispute Resolution Agreement did not call for a signature. Once the moving party establishes an agreement to arbitrate, the FAA requires enforcement of an arbitration agreement “save upon such grounds as exist at law or in equity for the revocation of any contract… 9 U.S.C. §2. Here, Plaintiff does not argue there any defenses to enforcement of the agreement to arbitrate. Thus, the Court finds the arbitration agreement is enforceable against Defendant 24 Hour Fitness USA, LLC. Defendant further argues Plaintiff should be ordered to arbitrate the claims against the individually named  defendants. A nonsignatory may enforce an arbitration agreement where the claims against the nonsignatory are based on an underlying contract which includes the arbitration provision.  Marenco v. DirecTV LLC (2015) 233 Cal.App.4th 1409; JSM Tuscany LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1240. However, this rule applies when the nonsignatory has moved to compel arbitration. Here, Defendant Helena Garcia Ochoa submitted a declaration stating she would like to join in the motion. Thus, the Court can and does compel arbitration against her. However, it is unclear whether Robert Doe has been served with the Summons and Complaint. Robert Doe did not bring or have notice of the instant motion. Thus, the Court does not compel arbitration against him. Based on foregoing, the Court GRANTS the Motion to Compel Arbitration of Plaintiff’s claims against Defendant 24 Hour Fitness USA, LLC and Defendant Helena Garcia Ochoa. The Court DENIES the Motion to Compel Arbitration of Plaintiff’s claims against Robert Doe. The entire action is stayed pursuant to Code Civ Proc. § 1281.4. The court schedules this matter for a status conference—ADR Review on 9/30/2024, at 8:30 AM, in C15. Defendant 24 Hour Fitness USA, LLC to give notice. Case Management Conference If the parties submit on the tentative which becomes the order of the court, the CMC will go off calendar.  If the parties do not submit on the tentative or the tentative does not become the order of the court, counsel are required to attend the CMC, either remotely or in person.
6	American First Credit Union vs ROI Property Group Management, LLC 2022-01255653	Motion to Strike Cross-Complaint Defendant and Cross-Defendant Platinum Properties Investor Network, Inc.’s (INC) Special Motion to Strike First Amended Cross-Complaint under the Anti-SLAPP Statute (Motion) is DENIED. The Court SUSTAINS ROI’s Objections to Evidence in Support of Motion, filed under ROA No. 703. The Court OVERRULES INC’s objections 1-5, 7-8, and 12-18 to Testimony and Evidence in Support of Opposition, filed under ROA No. 744. Objections 6 and 9-11 are SUSTAINED. The Court declines to rule on ROI’s Objections to Evidence in Support of Reply filed under ROA 756 as such objections are not dispositive to the Court’s ruling on this motion. ROI’s Request for Judicial Notice in Support Opposition, filed under ROA No. 752, is GRANTED pursuant to Evidence Code section 452, subdivisions (d) and (h). INC moves for an order striking ROI’s Cross-Complaint, filed 7-21-22, pursuant to the Anti-SLAPP Statute, Code of Civil Procedure section 425.16. Whether Ruling is Premature Pending Interlocutory Order Preliminarily, INC argues the Court lacks authority to resolve this motion because the Court is first required to issue an interlocutory order as to Plaintiff’s interpleader claim in this action. Lincoln National Life Insurance Co. v. Mitchell (1974) 41 Cal.App.3d 16, 19 (Mitchell) states the procedure for interpleader actions is as follows: “[t]he determination of the propriety of interpleader has turned on whether the stakeholder is truly a disinterested party, whose discharge still leaves parties in litigation with substantial rights to be resolved with respect to the property in question. [citation] In California, the interpleader procedure is viewed as two suits in one…“The first step is a trial or hearing by the court on the issue of the plaintiff's right to interplead. If the proof is sufficient (or the right is admitted by failure to object or by stipulation; supra, § 224), the court makes an interlocutory order. This directs the plaintiff stakeholder to deposit the amount or deliver the property, and requires the defendant claimants to interplead and litigate their claims among themselves.” Id. INC’s reply acknowledges the Court has previously rejected this argument but urges the Court to reconsider. The Court declines to further consider its position. The use of the word “if” in the cited portion of Mitchell only denotes the Court is required to conduct a “trial or hearing” on the right to interplead if the Court wishes to issue an interlocutory order. There is no indication from that sentence that an interlocutory order is necessary before proceeding on an anti-SLAPP motion to a separate (though related) cross-complaint. Whether the is Motion Moot Due to Filing of FACC Next, INC argues the Court must consider its motion which addresses the Cross-Complaint filed on 7/21/2022 (rather than the First Amended cross-complaint filed on 8/23/2022) because ROI filed its FACC after forewarning from INC’s counsel that INC was planning to file an anti-SLAPP motion. (Motion, 11:8-13:9.) INC argues the FACC is a sham pleading which should be disregarded. (Id.) INC’s counsel, James Diefenbach, declares in support of this argument: “On August 23, 2022, I, as counsel for INC, I informed Mr. Heffner that INC was imminently going file this motion to strike. Within several hours, Mr. Heffner filed an amended cross-complaint. Thereafter, Mr. Heffner and I met and conferred again regarding the amended cross-complaint on September 13, 2022, and again through e-mail communications on September 14th and 16th. During those discussions, we agreed to remove one section and that ROI would allow leave to file the Amended Demurrer and Motion to Strike. [¶]  Counsel, as part of a draft motion for sanctions sent to INC, ROI’s counsel stated: “Although ROI disagreed, they did not want to give Platinum any excuse to file their motion and stay discovery. Thus, ROI revised the Filed XC to omit all references to settlement communications…”” (Diefenbach Decl., ¶¶ 3, 5.) INC primarily relies on Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055 (Sylmar) in support that ROI’s FACC is inappropriately pleading around an anti-SLAPP motion. In Sylmar, the cross-complainant filed a first amended cross-complaint 3 days prior to the hearing on the anti-SLAPP motion pursuant to authority granted by Code of Civil Procedure section 472 and argued the anti-SLAPP motion was moot based on the filing of the FACC. Id. at 1053. The Court of Appeal concluded that cross-complainant could not moot the anti-SLAPP motion by filing the FACC because “It is settled that a plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing a cause of action to which a SLAPP motion is directed.” Id. at 1054 (emphasis original). The motion also cites JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 469 (Colton). In Colton, plaintiffs filed a first amended complaint and on the same day, defendants filed an anti-SLAPP motion to strike the first through fifth causes of action of the original complaint. Id. at 472-473. The Court of Appeal concluded the anti-SLAPP motion was rendered moot by the filing of the FAC. Id. at 475. In reaching this conclusion, the Court stated: “so too does an amended complaint render moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.” Id. at 477-478. The court in Colton believed there was no evidence that Plaintiff filed the FAC to avoid the anti-SLAPP motion, even though the anti-SLAPP motion. Id. at 478. In Opposition, ROI relies on Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676-681 (Dickinson) for the argument that ROI’s filing of its FACC before INC filed its anti-SLAPP motion moots the instant motion. Dickinson states “When a plaintiff files an amended complaint before the defendant files an anti-SLAPP motion—even by a matter of hours—the amended complaint is effective and the defendant has no right to a hearing on the anti-SLAPP motion directed to the original complaint.” Id. at 677-678. Therefore, Colton and Dickinson stand for the same argument that an amended complaint will moot an anti-SLAPP motion directed towards the original complaint as long as the amended complaint is filed prior to the anti-SLAPP motion being filed and as long as the amending party does not do so for the purpose of avoiding the anti-SLAPP motion. The below procedural history is relevant to the Court’s analysis on this argument: · First, ROI filed its Cross-Complaint on 7-21-22 under ROA No. 82. · On 8-23-22, ROI filed its First Amended Cross-Complaint · INC then filed an initial Special Motion to Strike on 9-21-22 under ROA No. 222. The initial anti-SLAPP motion sought to strike the Cross-Complaint. · On 10-10-22, the Honorable Melissa McCormick vacated the hearing on INC’s initial anti-SLAPP under ROA No. 238 in response to Hartman Media Company’s peremptory challenge. · On 11-4-22, the parties entered a “Stipulation and Order Allowing Cross-Defendants to Amend Special Motion to Strike and Demurrer.” (ROA 278) The Stipulation provided that: (1) INC has 14 days after the Stipulation to amend their anti-SLAPP motion, but also that (2) ROI “does not waive any timeliness arguments that could have been asserted as to the initial filings of the September 21, 2022 Demurrer and MTS.”  · On 11-18-22, INC filed its operative “Amended” Anti-SLAPP motion. The instant motion also seeks to strike the Cross-Complaint. Additionally, Exhibit 1 to the Heffner Declaration is an 8-23-22 email from Heffner to INC’s counsel, Mr. Diefenbach, which states in pertinent part: “Dear James, Attached please find a copy of my clients’ amended complaint. My intention with this is to resolve the pleading issues you raised today. I also don’t think the parties need to add anti-SLAPP litigation to their plates even if I believe your clients’ position would lack merit. I therefore removed all reference to any statement arguably made in connection with litigation. ROI Property Group Management and ROI Property Group 2 do not intend to base any claim on your clients’ litigation related activities.”  (Heffner Decl., Exhibit 1.) In Reply, INC contends it is undisputed that ROI “rushed” to file its FACC on 8/23/22 after being informed that INC planned file its anti-SLAPP motion. (Reply, 4:3-11.) INC argues the anti-SLAPP motion should not be deemed moot due to the filing of the FACC because doing so would encourage “hide the ball” tactics and gamesmanship. (Id.) First, based on the above, it is undisputed INC’s original anti-SLAPP addressed the Cross-Complaint even though the FACC was already on file at that time. Second, there is no evidence of subversion based on the submitted meet and confer evidence. Based on the submitted evidence, Mr. Diefenbach told Mr. Heffner on 8-23-22 that INC would be filing an anti-SLAPP. However, the case law does not hold that a mere “forewarning” of an anti-SLAPP is sufficient to demonstrate any amendment in response to this forewarning constitutes subverting the anti-SLAPP. On the contrary, ROI’s submitted evidence demonstrates that Mr. Heffner responded the same day stating he would voluntarily withdraw ROI’s references to litigation activity in the FACC because he believed they were unnecessary. ROI’s counsel voluntarily withdrawing references to litigation activity, without more, does not constitute filing the FACC to subvert an anti-SLAPP motion within the meaning of Colton. The fact the parties stipulated for INC to file the amended anti-SLAPP motion does not compel a different result. The Stipulation states that ROI does not waive any “timeliness arguments” which could have been asserted as to, the original anti-SLAPP motion. Although it is not entirely clear what “timeliness” arguments refers to, here the original anti-SLAPP motion was moot at the time it was filed because it pertained to the original Cross-Complaint, which was no longer operative. Finally, the sham pleading doctrine also does not compel a different result. The sham pleading doctrine states that: “[P]laintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425. If there is an inconsistency between the original and amended complaint, the pleader is required to “explain satisfactorily” any inconsistency or omission. Id. at 426. Here, the Heffner Declaration and Exhibit 1 constitutes a satisfactory explanation why the FACC withdraws most of its references to litigation activity, namely, that the parties have met and conferred and that ROI believes it no longer requires references to litigation activity to assert its claims. Thus, the Court finds the FACC does not constitute a sham pleading. Therefore, based on content of the original anti-SLAPP motion, the timing of the FACC, and the lack of evidence of subversion in the parties’ meet and confer emails, the Court finds ROI did not file the FACC for the purpose of subverting or avoiding a ruling on INC’s anti-SLAPP motion. Although the Court makes this finding, the Court notes the FACC is still substantially identical to the Cross-Complaint. Because of these substantial similarities, the Court will further analyze the Motion as to the FACC. Application of Anti-SLAPP Statute In ruling on a § 425.16 motion to strike, the Court engages in a two-step process. “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] [Second,] [i]f the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  Baral v. Schnitt (2016) 1 Cal.5th 376, 384. Code of Civil Procedure section 425.16(e) defines protected activity as follows: “as used in this section, “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, 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.”  A claim may be struck pursuant to Sec. 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884. “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. Allegations of protected activity which merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Baral, supra, at 394 (internal quotation marks and citations omitted). See also Newport Harbor Offices v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61 (Equilon) states: “[t]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech. From that fact the court may [effectively] presume the purpose of the action was to chill the defendant's exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.”  1. First Prong It appears ROI’s Cross-Complaint and FACC allege the same causes of action. Specifically, ROI’s Cross-Complaint (ROA 82) alleges the following causes of action: (1) declaratory relief against INC, LLC and Mr. Hartman, (2) enforcement of judgment against INC, LLC and Mr. Hartman, (3) constructive fraudulent transfer, common law and Civil Code § 3439.04(a)(2) against INC, LLC, Hartman Media and Mr. Hartman, (4) intentional fraudulent transfer, common law and Civil Code § 3439.04(a)(1) against INC, LLC, Hartman Media and Mr. Hartman, (5) constructive trust, Civil Code §§ 2223, 2224 against LLC, Hartman Media and Mr. Hartman. In comparison, the FACC alleges the following causes of action: (1) declaratory relief against INC, LLC and Mr. Hartman, (2) enforcement of judgment against INC, LLC, Mr. Hartman, (3) constructive fraudulent transfer, common law and Civil Code § 3439.04(a)(2) against INC, LLC, Hartman Medi and Mr. Hartman, (4) intentional fraudulent transfer, common law and Civil Code § 3439.04(a)(1) against INC, LLC, Hartman Media and Mr. Hartman, (5) constructive trust, Civil Code §§ 2223 and 2224 against LLC, Hartman Media and Mr. Hartman. INC argues ROI’s claims on the Cross-Complaint can be divided into (1) claims based on settlement negotiations and (2) claims based on litigation payments. INC argues that the anti-SLAPP statute applies to both types of allegations. As to first category of allegations discussed above – settlement negotiations, it appears the FACC removed specific references to the parties’ meet and confer or settlement discussions in the Judgment Enforcement Action entirely. For example, the Motion points out that the FACC removed paragraphs 14, 15, 21 and 49. These reference emails between the parties’ counsel and specific references to actions Mr. Hartman engaged in which allegedly support ROI’s alter ego claims. Although not pointed out by the motion, paragraph 26 is also removed. Therefore, because the FACC removes all of the specific allegations of settlement negotiations, the Court finds the motion moot as to this category of allegations. As to the second category of allegations discussed above – allegations of litigation payments, INC’s motion argues paragraphs 13, 16, 18, 43, 47, 55, and 58 of the FACC still allege ROI’s fraudulent transfer claims are based on communicative conduct, which is covered under the anti-SLAPP statute. (Motion, 16:4-17:24.) For example, INC argues the Cross-complaint/FACC improperly targets its payments for attorney’s fees by targeting its payments to the Apple Card alleged in the FACC. Id. As to both types of allegations, the Court finds Manlin v. Milner (2022) 82 Cal.App.5th 1004, (Manlin) instructive.  Manlin deals with a dispute between members of a limited liability company.  There plaintiff sued the managing member engaged in self-dealing to the detriment of plaintiff and the LLC.  The managing member cross-complained against plaintiff, who in turn, cross-complained back further alleging self-dealing including misappropriation of funds from the LLC to finance the litigation. The Cross-defendants moved to strike under Code of Civil Procedure section 425.16 arguing the alleged conduct occurred as part of the litigation, and therefore protected activity. Manlin, at 1019, states: “To determine whether a challenged allegation or claim ”arises from” protected activity we must determine whether protected activity was the alleged injury-producing act forming the basis of the claim (Park, supra, 2 Cal.5^th at pp. 1062-1063) “’ The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)’” (Id. at p. 1063.)…”[I]n ruling on an anti-SLAPP motion, the courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability” (Park, supra, 2 Cal.5^th at p. 1063.)  In so doing, the courts should be “attuned to and… respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” (Id. at p. 1064.)” The Manlin Court, at 1019-1020, went on to state: “Here, the gravamen of the first and third (and derivatively the fourth) causes of action in Manlin's cross-complaint is that Milner and the Attorneys breached fiduciary duties owed to Manlin and the LLCs by diverting the LLCs’ money to fund Manlin's legal expenses…Cross-defendants argue that funding litigation constitutes protected petitioning activity [citation] and that Manlin's cross-complaint arose from that activity. We disagree…Here, the element of Manlin's claim for breach of fiduciary duty is the self-dealing act of diverting funds from the LLCs in which Manlin owns an interest. The allegation that the cross-defendants engaged in this self-dealing completes the claim. Why they did so, for example to fund litigation—is not an element of the claim, and therefore forms no basis for liability…Here, cross-defendants allegedly breached fiduciary duties owed to Manlin and the LLCs by diverting the LLCs’ money. No element of Manlin's claim depends on the purpose for that diversion, but only on the diversion itself and whether it constituted self-dealing. The diversion may have been to further some protected activity—for example to fund a political campaign or publish a newsletter or fund litigation—but that purpose does not convert Manlin's suit to one arising from the protected activity. The protected use to which cross-defendants put the diverted funds may supply evidence of the selfishness of their self-dealing but does not convert the use itself into the basis for liability. Manlin's complaint is based on the act of diverting funds from the LLC for selfish purposes. Manlin could have omitted allegations regarding funding lawsuits and still state the same claim.” Here, the First, Second and Fifth Causes of Action are based on theories of Alter Ego. The basis for the FACC’s first cause of action for declaratory relief can be found in paragraph 30, which states: “[a]n actual and present controversy currently exists between the parties regarding whether Platinum LLC is the alter ego of Platinum Inc. and thus liable for the judgment entered against Platinum Inc.” (FACC, ¶ 30.)  ROI is alleging it was injured by Cross-Defendants acting as the alter egos of each other such that they avoided the Judgment. ROI does not allege it was injured by the communications between Cross-Defendants during any negotiations. The gravamen of the FACC’s second cause of action for enforcement of judgment can be found in paragraph 37, which states: “[t]he ROI Cross-Complainants therefor seek entry of a further amended judgment against Mr. Hartman, Platinum LLC, Platinum Inc., and DOES 1-5 jointly and severally.” Again, alter ego based. The basis for the FACC’s fifth cause of action for constructive trust is found in paragraph 62 which alleges Cross-Defendants hold assets for ROI as constructive trustees.  Alter ego based. None of these causes of action assert liability based on protected activity. Further, the Third and Fourth Causes of Action are based on the transfer of property/funds allegedly to hinder, delay or defraud creditors.  As stated in Manlin at 1020: “Why they did so, for example to fund litigation—is not an element of the claim and therefore forms no basis for liability.” Because it appears that none of the five causes of action of the FACC arise from protected activity, the Court finds INC does not meet its burden on the first prong. Therefore, INC’s motion is DENIED. 2. Second Prong Having denied the motion for INC’s failure to meet its burden on the first prong, the Court does not address the merits of the second prong. Monetary Sanctions ROI moves for sanctions of $34,310 against INC and its counsel pursuant to Code of Civil Procedure section 425.16(c)(1) on the grounds the motion is frivolous and filed solely to cause delay. (Opposition, 19:12-24.) Code of Civil Procedure section 425.16(c)(1) provides: “[e]xcept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” The Court finds INC’s motion is not frivolous or solely for the purpose of causing delay based on the procedural history of this action and the parties’ prior litigation activity. Therefore, ROI’s request for monetary sanctions is denied. ROI is to give notice. Case Management Conference Regardless whether the parties submit on the tentative above, counsel for the parties are to attend the CMC, either remotely or in person.
7	Eshraghian vs Kindred Healthcare Operating, LLC 2022-01253701	Demurrer to Amended Complaint Defendant Regents of the University of California’s Demurrer to the Second Cause of Action for Elder Abuse in the First Amended Complaint is OVERRULED. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App. 5th 989, 996. The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” Id. The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” Id. “A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119. Defendant demurs to the Complaint’s second cause of action for elder abuse on the grounds it fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 410.10(e) and (f). Specifically, Defendant contends the second cause of action fails to plead facts demonstrating Defendant acted with recklessness, oppression, fraud or malice. California’s Elder Abuse Act (the “Act”) defines dependent adult abuse as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Welfare and Institutions Code §15610.07.) Physical abuse of a dependent adult is defined by Welfare and Institutions Code section 15610.63, subdivision (d) as “unreasonable physical constraint, or prolonged or continual deprivation of food or water.” For conduct to constitute neglect within the Act, Plaintiff must allege facts establishing defendant “(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury.” Id. “Facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity.’” Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, at 406-407 (Carter). Here, the standards announced in Carter have been met.  The Complaint alleges Plaintiff was admitted to Defendant’s facility on or about 12/22/20 and tested positive for COVID-19 following admission. Defendant’s employees/agents charged with Plaintiff’s care ignored him because of his age and struggles with COVID.  (FAC ¶ 17.)  Defendant allegedly forced a “do not resuscitate” order on Plaintiff against his wishes and those of his family.  (Id.)  In addition, Defendant left him to lie unattended in a hospital bed for so long that he developed pressure sores on his sacrum and lower back.  (Id.)  Plaintiff was also allegedly discharged even though a nurse indicated she felt he was not ready/safe for discharge.  The nurse’s note indicated the hospital CEO chose otherwise and decided to transfer him to Defendant Kindred.  (Id.) Assuming the cited facts are true, such acts could suggest Defendant breached its duties to Plaintiff in a reckless, fraudulent, oppressive, or malicious manner.  Therefore, the demurrer to the second cause of action of the First Amended Complaint is OVERRULED.  Plaintiff to give notice. Motion to Strike Portions of Complaint Defendant Regents of the University of California’s Motion to Strike Portions of the Complaint is GRANTED.  Code of Civil Procedure § 436 provides in pertinent part: "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” “Irrelevant matter” includes allegations not essential to the claim. Code Civ. Proc. §431.10(b).  A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. Government Code section 818 states: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damage imposed primarily for the sake of example and by way of punishing the defendant.” The Regents of the University of California are a public entity of the State of California and are therefore exempt from punitive damage claims.  Plaintiff does not dispute the Defendant is a public entity and/or otherwise oppose the imposition of punitive damages or treble damages on Defendant.  Thus, the motion to strike is GRANTED and the Court orders the following to be stricken from the FAC: · Page 9, paragraph 33; “As a further direct and proximate result of Defendants’ reckless neglect, oppressive and willful misconduct and failure to provide care to Plaintiff, which was done with malice and in conscious disregard for Plaintiff’s well-being, Plaintiff is entitled to an award of punitive damages against Defendants, and each of them, under Civil Code §3294.” · Page 9, paragraph 34; “As a further direct and proximate result of Defendants’ reckless neglect, oppressive and willful misconduct and failure to provide care to Plaintiff, which was done with malice and in conscious disregard for Plaintiff’s well-being, and particularly because of Plaintiff’s poor health and infirm status, plaintiffs are entitled to an award of treble damages against Defendants, and each of them, pursuant to Civil Code §3345.” · Page 10, Prayer for Relief as to the Second Cause of Action, Prayer 6; “For treble damages;”; and · Page 10, Prayer for Relief as to the Second Cause of Action, Prayer 8; “For punitive damages”. Moving party defendant to give notice.  Further and additionally, on the court’s own motion, Regent’s motion to compel responses to form interrogatories (ROA 99) set for hearing on 10/2/2023 and Regent’s motion to compel responses to special interrogatories (ROA 100) set for hearing on 10/9/2023 are both continued to 10/16/2023, at 1:45 PM, in C15.  Regents to give notice.
8	Mowji vs Patel 2023-01315995	Motion for Anti-SLAPP Defendant Anil Patel’s Special Motion to Strike is DENIED. Defendant’s Evidentiary Objections are SUSTAINED on the basis of lack of personal knowledge/speculation. Defendant filed a declaration in support of his Reply. Generally, the Court does not consider evidence on Reply and Plaintiffs filed a proper objection on this basis. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.) Plaintiffs also filed a Sur-Reply responding to Defendant’s improper evidence. Given that Plaintiffs have had an opportunity to respond, the Court considers the Declaration on Reply and Plaintiffs’ Sur-Reply. A. Legal Authority Code of Civil Procedure § 425.16 provides for a “special motion to strike” when a plaintiff asserts claims against a person “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(b)(1). Such claims must be stricken “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Id.) Ruling on an Anti-SLAPP motion involves a two-step procedure. First, the “moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” Baral v. Schnitt (2016) 1 Cal.5th 376, 396. At this stage, the defendant must make a “threshold showing” that the challenged claims arise from protected activity. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056. Second, if the defendant makes such a showing, the “burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” Baral, supra, at 96. Without resolving evidentiary conflicts, the court determines “whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” Id. Code Civ. Proc. § 425.16(e) defines the categories of acts that are in “‘furtherance of a person’s right of petition or free speech.’” Those categories include “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,” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest.” Code Civ. Proc., § 425.16(e)(3) & (4). They also include any statement “made in connection with an issue or consideration or review by a ... judicial body.” Code Civ. Proc., § 425.16(e)(2). B. Merits Under the first step of the Anti-SLAPP analysis, the moving party bears the burden of showing that the relief sought is based on allegations arising from protected activity. Murray v. Tran (2020) 55 Cal.App.5th 10, 25. “A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e).” Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.  These categories are: “(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.” Code Civ. Proc., § 425.16(e). A public issue includes “conduct that could directly affect a large number of people beyond the direct participants” and a “topic of widespread, public interest.” Rivero v. American Federation of State, County and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913, 924. Here, Plaintiffs allege the following causes of action in their First Amended Complaint: (1) Civil Extortion; (2) Intentional Infliction of Emotional Distress; and (3) Declaratory Relief. Defendant contends Plaintiff’s claims arise from protected activities in that they are based on proceedings Defendant instituted before the Division of Labor Standards Enforcement (DLSE), and Defendant’s alleged false and/or frivolous statements about his employment by Plaintiffs. Plaintiffs contend the claims arise out of extortionate statements made by Defendant which are illegal as a matter of law. The First Amended Complaint states: “The Mowjis bring this action against Defendant for civil extortion in violation of California law, intentional infliction of emotional distress, and for related declaratory relief.” (FAC, ¶ 1.) The FAC further alleges: “Defendant crossed the legal line. Specifically, Defendant unlawfully threatened the Mowjis with criminal complaints, police action, and prison time for purported civil wrongs that were long beyond the statute of limitations. Defendant made threats of criminal action to “shake down” the Mowjis for hundreds of thousands of dollars. Defendant knows the Mowjis are pillars of the community and threatened criminal action because the risk of reputational and emotional harm would induce them into giving up money to which Defendant had no legal right. Defendant’s conduct is textbook civil extortion under California law. E.g., Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1422. That is because Defendant has used threats of criminal prosecution and prison to extract payment from the Mowjis. After the Mowjis fought back, Defendant responded by filing a frivolous administrative action against them individually claiming he is a Lemoore employee in 2021 and is owed over $110,000.” (FAC, ¶ 1.) Plaintiffs cite Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 (Mendoza), and Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) 74 Cal.App.5th 506 (Falcon) in support of their contention that Defendant’s speech is not protected by the Anti-SLAPP statute. In Flatley, the California Supreme Court held “a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff’s complaint.” Id. at p. 305. Where “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” Id. at p. 320. In Flatley a lawyer’s letters and telephone calls to the plaintiff “constituted criminal extortion as a matter of law” and were unprotected. Id. at pp. 305, 332. The evidence of the defendant’s communications was uncontroverted.  Id. at p. 329 And the court emphasized its conclusion that the defendant’s communications constituted criminal extortion as a matter of law was “based on the specific and extreme circumstances of [that] case.” Id. at p. 332, fn. 16. Defendant contends in his Reply that the holding of Flatley is narrow and based on the extreme circumstances of the case. But this ignores Mendoza and Falcon, cited by Plaintiff. In Mendoza, the Court of Appeal held: “We do not read Flatley to mean the anti-SLAPP statute applies to some litigation communications which satisfy the criteria for criminal extortion if such communications are not particularly extreme or egregious. The rule must be a bright line rule. The anti-SLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law. (Flatley, supra, 39 Cal.4th at p. 305, 46 Cal.Rptr.3d 606, 139 P.3d 2.)”  Mendoza, supra, at 807; emphasis in original. The Court of Appeal viewed the evidence as uncontroverted because the defendant did not dispute that he sent the letter. Id. at 808, fn. 3. The Court reasoned: “Regardless of whether the threat in Hamzeh's demand letter may be characterized as particularly extreme or egregious, it still constitutes criminal extortion as a matter of law. As the Supreme Court explained in Flatley: ‘Extortion is the threat to accuse the victim of a crime or “expose, or impute to him ... any deformity, disgrace or crime” (Pen.Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made.”  (39 Cal.4th at p. 332, fn. 16, 46 Cal.Rptr.3d 606, 139 P.3d 2.) Hamzeh threatened to report Mendoza's ‘substantial fraud’ to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service, the Better Business Bureau and Mendoza's customers and vendors if Mendoza did not pay ‘damages exceeding $75,000.’” Id. at 807; emphasis supplied. The Court also noted it did not matter whether “Mendoza committed any crime or wrongdoing or owed Chow money, Hamzeh's threat to report criminal conduct to enforcement agencies and to Mendoza's customers and vendors, coupled with a demand for money, constitutes ‘criminal extortion as a matter of law, ….’” Id. at 806. Defendant claims the Court in Falcon agreed with Flatley’s limited holding and stated that Flatley: “should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion.” Falcon, supra, at 523. The Court of Appeal, Fourth District, in Falcon, goes on to read Flatley’s holding considerably broader. “In Flatley, the Supreme Court created an addendum to the standard anti-SLAPP analysis. … The Supreme Court affirmed the judgment of the Court of Appeal: ‘We conclude that, consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint.’ (Flatley, supra, 39 Cal.4th at p. 305, 46 Cal.Rptr.3d 606, 139 P.3d 2.)” Id., at 519. The Falcon Court also recognized that attempted extortion is illegal: “‘Extortion is the obtaining of property ... from another, with his or her consent ... induced by a wrongful use of force or fear.’ (Pen. Code, § 518, subd. (a).) Fear, for purposes of extortion ‘may be induced by a threat of any of the following: [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person. [¶] 2. To accuse the individual threatened ... of a crime. [¶] 3. To expose, or to impute to him ... a deformity, disgrace or crime. [¶] 4. To expose a secret affecting him, her, or them. [¶] 5. To report his, her, or their immigration status or suspected immigration status.’ (Pen. Code, § 519, italics added; Flatley, supra, 39 Cal.4th at p. 326, 46 Cal.Rptr.3d 606, 139 P.3d 2.) Attempted extortion is also a crime. (Pen. Code, § 524; see People v. Umana (2006) 138 Cal.App.4th 625, 41 Cal.Rptr.3d 573 (Umana) [affirming conviction for attempted extortion under Penal Code section 524].)’ Id. at 519; emphasis supplied. This is evidenced in the Court’s holding: “As we have observed, Mousavi was thereby attempting to obtain the ‘property ... from another ... by a wrongful use of force or fear.’ Such conduct falls squarely within the statutory definition of extortion. Consequently, Mousavi's statements which linked Falcon's failure to accept her settlement demands with her potential revelation of its illegal conduct to Harvest do not qualify for protection under the anti-SLAPP law.” Id. at 519. The Falcon Court further made clear that “it is the fact that the threat is directly linked to the monetary demand that is the critical factor. “‘It is the means employed [to obtain the money] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition.’” (Flatley, supra, 39 Cal.4th at p. 326, 46 Cal.Rptr.3d 606, 139 P.3d 2, italics added.)” Id. at 521; emphasis in original. 1. First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress The First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress clearly arise out of Defendant’s threats of police reports, criminal action, and prison, on 5-2-22. (FAC, ¶¶ 12, 16, and 22.) Specifically, the 5/2/22 letter from Defendant stated: “Criminal lawsuit for recovering funds and file with Federal and State agency for Larceny, Embezzlement, Misappropriation of funds. Penalty and prison in addition to recovering funds. Even if I lose civil case I will file this case and prove that it is theft and get my money. ¶ I don’t have to share with you what I discussed with lawyer but due to relation and respectso [sic] asked lawyer to give me some time to move forward. I asked him that I want to give you a time for a second thought. I do not want to be that harsh due to the relation but you will not leave me any choice if we do not come to a fair settlement. It will become really messy if we go to litigation and drag all partners and family to the court. I respect Ba and she will suffer more than anybody else so I thought I give you a time to rethink. I got heart attack and you get prison as a bonus from mess.” (Emphasis supplied.) The foregoing is sufficient to establish Defendant attempted to extort Plaintiffs as a matter of law. Defendant is threatening “filing” criminal action unless the parties come to a “fair settlement.” Defendant contends the circumstances here are controverted, in contrast to Flatley. Defendant contends he does not concede nor does the evidence conclusively establish his assertedly protected speech was criminal extortion as a matter of law. However, Defendant does not dispute he sent the 5/2/22 letter. This is enough based on Mendoza. Additionally, in Defendant’s declaration in support of the Reply, he states: “After my May 2, 2022, letter to Pankaj …” which is admitting to sending the letter at issue. (Declaration of Defendant Anil Patel, ¶ 6.) Defendant contends the alleged conduct cannot be extortion because Defendant did not accuse Plaintiffs of a crime or threaten to expose a crime. But the letter specifically states embezzlement and larceny, which clearly are crimes. Falcon, quoting Flatley, made clear “‘[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.” (People v. Sanders (1922) 188 Cal. 744, at pp. 749-750, 207 P. 380; cited with approval in Flatley, supra, 39 Cal.4th at p. 327, 46 Cal.Rptr.3d 606, 139 P.3d 2.)” Falcon, supra, at 520-521. Based on the foregoing, the 5/2/22 letter is sufficient to accuse or threaten to expose Plaintiffs of criminal acts. Defendant also contends he only complained to Plaintiffs about the substance of the actual disputed issues – that he was owed money by Plaintiffs that he believed was wrongfully taken or withheld. Mendoza clears this up: “But when the threat to report a crime is coupled with a demand for money, the threat becomes illegal, regardless of whether the victim in fact owed the money demanded. (Flatley, supra, 39 Cal.4th at pp. 326–327, 46 Cal.Rptr.3d 606, 139 P.3d 2.) “‘The law does not contemplate the use of criminal process as a means of collecting a debt.’ [Citations.]” (Ibid.)” Mendoza, supra, at 805. Falcon reiterated that a legitimate motive to expose information does not save the extortionate statement: “[T]he fact Mousavi may have believed she had a legitimate reason to forward that information along to Harvest is a separate issue from whether she had a legitimate reason to threaten Falcon that she would do so if her settlement demand was rejected. The extortion arises out of the threat rather than the follow through.” Falcon, supra, at 520-522. Malin v. Singer (2013) 217 Cal.App.4th 1283, 1294 states: “In many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” Based on the above, Defendant’s 5/2/22 letter is the basis of the First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress and arise out of extortionate statements which are illegal as a matter of law. Thus, Defendant has failed to meet his burden to establish that the statements are not protected conduct under Code Civ. Proc. § 425.16. Therefore, the analysis stops here, at the first prong, for the First and Second Causes of Action. Accordingly, the Motion is DENIED as to First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress. 2. Third Cause of Action for Declaratory Relief The Court now turns to whether the Third Cause of Action for Declaratory Relief arises from protected conduct. “To determine whether a challenged allegation or claim ‘arises from’ protected activity we must determine whether protected activity was the alleged injury-producing act forming the basis for the claim. (Park, supra, 2 Cal.5th at pp. 1062-1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) ‘“The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) ....”’ (Id. at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) ¶ ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ (Park, supra, 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) In so doing, the courts should be ‘attuned to and ... respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.’ (Id. at p. 1064, 217 Cal.Rptr.3d 130, 393 P.3d 905.)” Manlin v. Milner (2022) 82 Cal. App. 5th 1004, 1019. The Third Cause of Action for Declaratory Relief seeks the following declarations: “Pursuant to California Code of Civil Procedure sections 1060 et seq., Plaintiffs seek a declaration that Plaintiffs did not commit a legal wrong in connection with the Purchase Price, Compensatory, and Tuscany claims. In addition, Plaintiffs seek a declaration that Defendant was not, nor has he ever been, an employee of Lemoore and that he did not provide the services he claim he provided in 2020 or 2021.” (FAC, ¶ 30.) The allegations regarding Defendant claiming to be an employee are: (1) “That is when Defendant started sending threating and harassing emails and letters that were designed to coerce, intimidate, and threaten the Mowjis with the intent to obtain money and property to which Defendant had no legal right. In these letters, Defendant claimed he did not receive enough money from the 2016 membership interest sale, that certain investments made by Lemoore in 2007 were improper, and that Defendant was not paid for clerical services between 2002 and 2012. … After the Mowjis fought back, Defendant responded by filing a frivolous administrative action against them individually claiming he is a Lemoore employee in 2021 and is owed over $110,000. Accordingly, the Mowjis file this action to right Defendant’s wrongs.” (FAC, ¶ 1.); (2) “Defendant took issue with the following: (1) the above-referenced purchase of Defendant’s membership interests in Lemoore Hospitality in 2016 (the “Purchase Price claim”); (2) alleged lack of compensation for Defendant’s bookkeeping work from 2002 to 2011 (the “Compensation claim”); and (3) Dr. Mowji’s purported authorization of Lemoore Hospitality’s payments relating to the Tuscany Investments in 2007 (the “Tuscany claim”).” (FAC, ¶ 12.); (3) “In or around June 2022, Plaintiffs informed Defendant that his 2022 communications constituted unlawful extortion and that the civil wrongs he complained about were factually meritless and, in any event, time barred. Defendant responded by filing frivolous actions before the California’s Division of Labor Standards Enforcement (the “DLSE Actions”) claiming that he was a Lemoore employee from January 1, 2020, to December 31, 2020 and that he was entitled to thousands of dollars. He then changed his story and claimed he was an employee between February 3 and August 21, 2021 and demanded over $110,000. Defendant’s claim that he was an employee in 2020 or 2021 are false. He made it up. Likewise, Defendant’s claim that he provided hundreds of hours of services to Lemoore is false in 2020 or 2021. He did not provide such services. At least one of the frivolous DLSE Actions were terminated in favor of Plaintiffs because Defendant voluntarily dismissed the claim.” (FAC, ¶ 13.) Plaintiffs seek a declaration regarding whether Defendant was ever an employee, and the services he did not provide in 2020 or 2021. This stems from the claims Defendant made in the action brought to the DLSE, and not the alleged threats to settle which the court determined are extortion. Defendant contends Plaintiffs’ claims arise from protected speech and protected petitioning activity that (1) was made in furtherance of Mr. Patel’s right to free speech and right to petition the government that is protected under both the California Constitution and the First Amendment to the Constitution of the United States of America and (2) relate to matters of public interest or public concern – a violation of California Labor laws by an employer. Here, the request to obtain a declaration regarding whether Defendant was in an employee in 2020 or 2021 arises out of protected conduct. Defendant has filed his DLSE action alleging he was an employee of Lenmore in 2020 or 2021 and, in response, Plaintiffs are requesting a declaration that he is not an employee. Thus, Defendant has met his burden under the initial prong that the Declaratory Relief cause of action at least partially arises out of protected activity. Therefore, the burden shifts to Plaintiff to show a probability of prevailing on the merits. Should the Court determine that the evidence raises a dispute about “the legitimacy of the defendant’s conduct, [the anti-SLAPP special motion to strike] cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s [second step] burden to show a probability of prevailing on the merits.” Flatley, supra, at 316; Douillard v. Smith (1945) 70 Cal.App.2d 522, 527 [“ ‘ “If there be two inferences equally reasonable and equally susceptible of being drawn from the proved facts, the one favoring fair dealing and the other favoring corrupt practice, it is the express duty of the court or jury to draw the inference favorable to fair dealing,” ’ ” quoting Ryder v. Bamberger (1916) 172 Cal. 791, 799–800.]. The California Supreme Court has described the second prong of the anti-SLAPP analysis “‘as a “summary-judgment-like procedure.” ‘” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) “The plaintiff need not prove her case to the court [citation]; the bar sits lower, at a demonstration of ‘minimal merit’ [citation]. At this stage, ‘ “[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” ‘” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891. We must draw all reasonable inferences from plaintiff’s evidence and may not conclude the trial court should have granted the motion simply because conflicting inferences may be drawn from a defendant’s evidence. Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 462. “[W]e conclude it is appropriate, and most consistent with the history and purpose of the suffer or permit to work standard in California's wage orders, to interpret that standard as: (1) placing the burden on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the wage order's coverage;^24 and (2) requiring the hiring entity, in order to meet this burden, to establish each of the three factors embodied in the ABC test—namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. (Accord Hargrove, supra, 106 A.3d at pp. 463-464^25; see also Weil, The Fissured Workplace (2014) pp. 204-205 [recommending adoption of the ABC test ]; ABC on the Books, supra, 18 U.Pa. J.L. & Soc. Change at pp. 61, 82-84, 101-102^26.)” Dynamex Operations W. v. Superior Court, (2018) 4 Cal.5th 903. Plaintiff Dr. Mowji Panjaj, M.D. provides the following evidence: “As to Defendant’s employment, he is not, nor was he ever, an employee of Lemoore. He was never issued a W2. He was free from control and direction of Lemoore per agreement and in practice. The work Defendant did was outside the usual course of Lemoore’s business which is hospitality. Based on Defendant’s claim of extensive experience, I understood he customarily engaged in providing similar type of discrete services to other businesses and/or individuals.” (Declaration of Dr. Mowji Panjaj, M.D., ¶ 13.) The foregoing is sufficient to establish Defendant was not an employee of Lenmore. Plaintiff does not submit any evidence that would defeat Plaintiff’s claim as a matter of law. On Reply, Defendant only submits the Complaint he filed with the DLSE as Ex. 1 to his Declaration. This does not conclusively establish he was an employee and does not appear to be signed under penalty of perjury. Lastly, Defendant contends the litigation privilege applies to Defendant’s communications. There is no contention the litigation privilege applies to the DLSE action nor would the litigation privilege apply. Thus, the litigation privilege does not bar the declaratory relief cause of action. Based on the foregoing, Plaintiff has established a probability of prevailing on the merits of the Third Cause of Action for Declaratory Relief. C. Fees Code of Civil Procedure § 425.16 states: “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Here, Defendant was not the prevailing party and the Motion was not frivolous. Thus, the Court does not award attorney fees. Based on the foregoing, the Court DENIES Defendant Anil Patel’s Special Motion to Strike. Plaintiff to give notice.
9	Shamaan vs Cotta 2023-01319831	Motion to Expunge Lis Pendens Defendant Saad Cotta’s motion to expunge two Notices of Lis Pendens Action that were recorded by Jeffrey J. Czech, counsel of record for plaintiff Ihsan Shamaan, on April 21, 2023, for properties located at (1) 4946 Florence Avenue, Bell, California 90201 and (2) 4151 Humboldt Drive, Huntington Beach, California 92649 is GRANTED. “At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. . . Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure § 405.30. “The only substantive grounds upon which a lis pendens can be expunged is if the underlying action does not contain a real property claim (§ 405.31) or the real property claim lacks probable validity (§ 405.32).” J&A Mash & Barrel, LLC v. Superior Court of Fresno County (2022) 74 Cal.App.5th 1, 22 (J&A). Defendant contends the two Notices of Lis Pendens Action should be expunged because Plaintiff cannot establish the probable validity of the real property claim for either of the two properties. “In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” Code Civ. Proc. § 405.32. “‘Probable validity,’ with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” Code Civ. Proc. § 405.3. “[S]ection 405.30 explicitly places the burden of proving the probable validity of the real property claim on [] the claimant.’” J&A, supra, at 33. Here, Plaintiff as the claimant bears the burden of establishing the probable validity of the real property claims alleged in the Complaint. Code Civ. Proc. § 405.32. Defendant has submitted sufficient evidence to support a position that creates significant doubt Plaintiff’s claim is valid.  Plaintiff has not opposed the Motion and has therefore failed to establish the probable validity of the real property claim. Based on the foregoing, the Motion is GRANTED.  The lis pendens recorded by attorney Jeffrey J. Czech on April 21, 2023, as to 4946 Florence Avenue, Bell, CA 90201 and the lis pendens recorded by attorney Jeffrey J. Czech on April 21, 2023, as to 4151 Humboldt Drive, Huntington Beach, CA 92649 are hereby ordered expunged. Moving party to give notice.
10	Lake vs Kia Motors America, Inc. 2019-01087662	Motion for Summary Judgment and/or Adjudication Defendant Kia America Inc.’s Motion for Summary Judgment is GRANTED. The Court rules as follows on Plaintiffs’ Objections to the Declaration of Dany Chittamany, filed 2-17-23 under ROA No. 230: objection 1 is SUSTAINED, the remaining objections are overruled. Defendant’s Objections to the Declaration of Delores Lake, filed 3-1-23 under ROA No. 239 are OVERRULED. Defendant’s Objections to the Declaration of Matthew Pardo, filed 3-1-23 under ROA No. 240 are OVERRULED. A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. Code of Civil Procedure § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.].” Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732. Defendant moves for summary judgment, or, in the alternative, summary adjudication as follows: 1. Plaintiffs’ First Cause of Action for violation for Civil Code Section 1793.2(d) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”). 2. Plaintiffs’ Second Cause of Action for violation for Civil Code Section 1793.2(b) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”). 3. Plaintiffs’ Third Cause of Action for violation for Civil Code Section 1793.2(a)(3) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”). 4. Plaintiffs’ Fourth Causes of Action for Breach of Express Warranty Fail as a Matter of Law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Act. Defendant argues that pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez), Plaintiffs’ 2012 Kia Optima (Vehicle) is not a “new motor vehicle” entitled to protections of the Song-Beverly Act. On 7/13/22, the California Supreme Court granted review in Rodriguez and such review is pending. As of 8/23/23, the Supreme Court’s docket reflects Rodriguez has been fully briefed but no hearing date has been set. Pursuant to California Rules of Court, rule 8.1115(e)(1), Rodriguez is persuasive authority. Rodriguez states, “While we acknowledge that in isolation the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ could arguably refer to any car sold with a manufacturer's warranty still in force, we agree with FCA that context clearly requires a more narrow interpretation…[¶] To begin with, the phrase appears in a definition of new motor vehicles. That fact alone strongly suggests the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles. But, more importantly, the phrase is preceded by ‘a dealer-owned vehicle and demonstrator,’ which comprise a specific and narrow class of vehicles…[¶] Indeed, nothing about the wording or structure of the provision indicates the Legislature intended to expand the definition of ‘new motor vehicle’ to include used vehicles sold with some part of the manufacturer's warranty still in force…[¶] The lack of reference to transferred warranties in the definition of ‘new motor vehicle’ suggests the Legislature made a deliberate choice not to include sales of used vehicles accompanied by unexpired express warranties…[¶] we conclude the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ unambiguously refers to cars that come with a new or full express warranty.” Id. at 219-222. In opposition, Plaintiffs contends that instead of following Rodriguez, the Court should apply Jensen v. BMW of N. Am. Inc. (1995) 35 Cal.App.4th 112 (Jensen). In Jensen, the Court of Appeal rejected BMW’s argument that the vehicle was not new and stated, “We conclude the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of ‘new motor vehicle.’ The use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are ‘sold with a manufacturer's new car warranty.’ [citation]” Plaintiffs also cite Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 336 (Kiluk), which held that a manufacturer could be liable for warranty claims arising from the sale of a certified pre-owned vehicle with a certified preowned warranty issued by the manufacturer. The present case involves a 2012 Kia Optima which was originally sold on 12/7/11 with Kia’s new vehicle warranties; the 10-year/100,000-mile powertrain warranty only applied to the original purchaser while subsequent purchasers/owners received the balance of a five-year/60,000-mile powertrain warranty. (Chittamany Decl., ¶ 5.) Plaintiffs purchased the vehicle used from Defendant’s authorized dealer in May 2013 with approximately 27,000 miles. (Id. at ¶ 6; Lake Decl. ¶ 3.) It is undisputed that Plaintiffs received the balance of both the 5-year/60,000 mile basic and powertrain warranties. (Undisputed Fact 5.) However, Plaintiff declares the dealership staff also told her the vehicle was being sold to her with Defendant’s 10-year/100,000-mile basic warranty along with the balance of a five-year/60,000-mile powertrain warranty. (Lake Decl. ¶ 4.) Plaintiff declares they presented the vehicle to Redding Kia for engine and other problems multiple times under warranty and the facility ultimately replaced the vehicle’s engine but problems are still ongoing. (Id. at ¶ 5.) None of the cases cited above are directly on point. In Rodriguez, at 223 [upholding grant of summary judgment], the vehicle was sold by “an unaffiliated, third party reseller,” whereas Plaintiffs have presented evidence they purchased the used vehicle from an authorized dealership here. In Jensen, at 119 [upholding plaintiff’s verdict], the vehicle was “demonstrator” which was sold to the plaintiff with a new vehicle warranty, whereas Plaintiffs’ vehicle here was previously owned by another consumer. In Kiluk, at 337 [upholding plaintiff’s verdict], the vehicle came with a certified preowned warranty. Here, Plaintiffs contend the new vehicle warranty remained in effect from the initial purchase by a third-party consumer, but do not claim that a certified preowned warranty was issued upon their purchase of the used vehicle. The Court finds persuasive the following analysis of the Fourth District, Division 3 in footnote 4 of Kiluk, 43 Cal.App.5th at 340, which states, in part: “Would a car accompanied by a 20-year warranty still be a ‘new motor vehicle’ under the Song-Beverly Act on year 18? That would seem to follow from the holding in Jensen. The Jensen court relied on the definition of ‘new motor vehicle’ in section 1793.22 (Jensen, supra, 35 Cal.App.4th at pp. 121-122, 41 Cal.Rptr.2d 295), which includes ‘a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer's new car warranty,’ and concluded that every car sold with any portion of a new-vehicle warranty remaining is a new motor vehicle. (§ 1793.22, subd. (e)(2), italics added.) But arguably that language refers to cars originally sold with a new motor vehicle warranty, not subsequent sales. (See Veh. Code, § 430 [‘A “new vehicle” is a vehicle constructed entirely from new parts that has never been the subject of a retail sale’].)” Here, it is undisputed Plaintiffs did not purchase the car as a “new vehicle” or demonstrator, nor did they purchase the vehicle with a certified preowned warranty issued by the manufacturer. To the extent the statutory definition of “other motor vehicle sold with a manufacturer's new car warranty” is vague, the following reasoning from Rodriguez is persuasive: “To begin with, the phrase appears in a definition of new motor vehicles. That fact alone strongly suggests the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles. But, more importantly, the phrase is preceded by “a dealer-owned vehicle and demonstrator,” which comprise a specific and narrow class of vehicles. Though they have not been previously sold to a consumer, demonstrators and dealer-owned cars are used in the sense that they will have been driven for various purposes before sale. As such, they will necessarily have more miles on their odometers than the typical vehicle in a dealer's new car inventory. What makes these vehicles unique is that even though they aren't technically new, manufacturers (or their dealer-representatives) treat them as such upon sale by providing the same type of manufacturer's warranty that accompany new cars. [¶] In other words, demonstrators and dealer-owned vehicles comprise a narrow category of basically new vehicles—they have never been previously sold to a consumer and they come with full express warranties. Given this context, we think the most natural interpretation of the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ is that it, too, refers to vehicles that have never been previously sold to a consumer and come with full express warranties.” Plaintiffs have not presented evidence which would allow a trier of fact to find the subject vehicle falls within the Song-Beverly Act’s definition of “other vehicles sold with a manufacturer’s new car warranty.” Therefore, the motion for summary judgment is granted because there is no triable issue as to Plaintiff’s claims under the Song-Beverly Act. Should the tentative become the order of the court, the court vacates the trial date of 10/16/2013.  Kia is to prepare a proposed judgment consistent with the Court’s ruling granting summary judgment, and file/serve same.  The Court sets this matter for an OSC hearing re defendant’s submission of a proposed judgment for 9/18/2023, at 8:30 AM, in C15. Kia to give notice.