Response Reply

Cal. Super. - 6th Dist.November 24, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V373964 Santa Clara - Civil s. \ Mark R. Figueiredo, Esq. (SBN 178850) Electronically Filed mrf@structurelaw.com by Superior Court Of CA, Austin T. JaCkSOIl, Esq. (SBN 312698) County of Santa Clara, ajackson@structurelaw. com . STRUCTURE LAW GROUP, LLP °" 5/20/2021 7'55 PM . . ReVIewed By. S. Vera1754 Technology Drlve, Sulte 135 San Jose, California 951 10 Case #ZOCV373964 Telephone: (408) 441-7500 Envelope: 6490644 Facsimile: (408) 441 -7501 Attorneys for Defendants MEHRANFAR INVESTMENT GROUP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA KAM HONG LUI, an individual, JUN LU, an CASE NO. 20CV373964 individual and STANFORD EDUCATION FOUNDATION GROUP, LLC, a California REPLY IN SUPPORT OF MEHRANFAR LIMITED LIABILITY COMPANY, INVESTMENT GROUP’S SPECIAL MOTION TO STRIKE UNDER CCP § Plaintiffs, 425.16 V. . . . Date: May 27, 2021 ZHEN ZHEN LI, an 1nd1v1dual; KEEN WEI, an individual; DAVID LUO, an individual; glmf‘, 91‘930 am ALLIANCE ONE INVESTMENT, LLC, an 6P ~ , entity ofunknown form; MEHRANFAR Judge: Hon- Peter H- Klrwan INVESTMENT GROUP, an entity 0f UNKNOWN FORM; AND DOES 1-100, Defendants. I. INTRODUCTION Plaintiffs Kam Lui, Jun Lu, and Stanford Education Group, LLC (collectively, “Plaintiffs”) are attempting to use the Santa Clara County Eviction Moratorium (“Eviction Moratorium”) as a blank check to bring unsubstantiated claims against Defendant Mehranfar Investment Group (“MIG”). MIG was left With n0 choice but to file an unlawful detainer action after Plaintiffs, whom had no lease with MIG at the time, refused t0 vacate the premises located at 4232 El Camino Real, Palo Alto, CA 94306 (the “Premises”) despite numerous requests by MIG. Due t0 Plaintiffs’ improper and potentially dangerous occupancy of the Premises, MIG was forced t0 seek judicial intervention and exercise its constitutional right t0 file the unlawful detainer action. As discussed -1- era REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in MIG’s moving papers, the gravamen 0f all of Plaintiffs’ claims against MIG is the underlying unlawful detainer action, which triggers California Code 0f Civil Procedure (“CCP”) § 425. 16. In their opposition, Plaintiffs try to use the Eviction Moratorium as a shield, citing their ability to file a civil action due t0 MIG’S alleged Violation 0f the Eviction Moratorium as a basis for their Cause of Action Number 7. However, as discussed below, simply because there is an alleged Violation 0f the Eviction Moratorium does not grant the Plaintiffs a blank check t0 bring causes of action and allegations that are otherwise based solely 0n MIG’S protected activity. Moreover, Plaintiffs have failed t0 provide sufficient evidence to prove a likely successful outcome 0n all 0f its causes 0f actions and provided n0 evidence whatsoever to support its Causes of Action Numbers 2, 4, 5, 6, 8 and 10. Ultimately, Plaintiffs are attempting t0 improperly use the Eviction Moratorium as a shield to bring allegations and causes of action against MIG that are based 0n MIG’S “protected activity.” Last, Plaintiffs’ claims are not legally sufficient because Plaintiffs has failed to provide admissible evidence establishing a likely successful outcome as required. II. STATEMENT OF FACTS a. Brief Summarv 0f Relevant Facts For the sake 0f brevity, MIG refers this Court to its statement 0f facts presented in its moving papers. In short, Plaintiffs are suing MIG because MIG exercised its protected activity of petitioning this Court to regain possession 0f its Premises by filing the unlawful detainer action. When it became apparent t0 MIG that there was n0 lease between it and Plaintiffs, it attempted to enter into a lease directly With Plaintiffs. Unable to come t0 terms, and without a lease, Plaintiffs were essentially squatters, Which carries significant risk to the owner 0f the premises. Left With no other option but to seek court intervention to protect its property, on September 15, 2020, MIG exercised its right to petition this Court t0 evict Plaintiffs from the Premises by filing an unlawful detainer action against Plaintiffs, Which has since become the basis of Plaintiffs’ allegations. (See Declaration 0f Austin Jackson in Support 0f Defendant’s Special Motion t0 Strike Under CCP § 425.16 (“Jackson Decl.” at 1] 2.) In response t0 MIG’S Unlawful Detainer Complaint, Plaintiffs filed a Motion to Quash 0n 0r around October 7, 2020. (See Jackson -2- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl. 1] 4, Exhibit B.) Ultimately, the Court determined that it believed there to be some form oftenancy between the parties although it was disputed and ruled that the Eviction Moratorium applies. As a result of the Court’s ruling, and in order t0 comply with the Eviction Moratorium, MIG voluntarily dismissed the action. III. LEGAL AUTHORITY AND ANALYSIS As discussed in length in MIG’S moving papers, CCP § 425.16 entitles a defendant to bring a special motion t0 strike a cause 0f action against a person arising from any act of that person in furtherance 0f the person’s right 0f petition. See CCP § 425.16(b)(1). T0 trigger the statute, the defendant need only show that the causes of action arise from an act in furtherance of his free speech or petition rights under CCP § 425. 16(6) (1-4). Equilon Enters. v. Consumer Cause, Ina, 29 Ca1.4th 53, 67 (2002). The plaintiff then has the burden 0f demonstrating a “probability 0f prevailing 0n the claim.” Id. If the plaintiff fails to satisfy its burden, the court must grant the motion t0 strike. CCP § 425.16(b)(1). This two-step process is often referred t0 as Prong One and Prong Two 0f the statute, respectively, see Navellier v. Sletten, 29 Ca1.4th 82, 89 (2002), and the trial court is required t0 decide these issues in that order. Once the defendant has shown that the lawsuit “arises” from activity protected by the anti- SLAPP provisions [Prong One], the burden shifts t0 the plaintiff t0 establish the “probability” that the plaintiff Will prevail [Prong Two]. See Weil & Brown, 1 Civil Procedure Before Trial (The Rutter Group 2016, hereinafter “Rutter”) at 1] 7:990 and 7:1005. Only then does the court determine Whether the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts t0 sustain a favorable judgment. (Rutter, supra, quoting Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Assn, 136 Cal.App.4th 464. 476 (2006). Here, as will be fully discussed below, MIG’S filing 0f the unlawful detainer action was a protected activity and Plaintiffs’ claims are not legally sufficient because Plaintiffs failed t0 provide admissible evidence that they Will likely prevail 0n their allegations and causes of action. /// /// -3- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. MIG’s Filing 0f the Unlawful Detainer Action Constitutes Protected Activitv Satisfving Prong One 0f CCP S 425.16. Plaintiffs’ allegations and causes 0f action are based 0n MIG’S protected activity to petition this Court t0 evict Plaintiffs Who were wrongfully occupying the Premises without a lease. As discussed in MIG’S moving papers, “the critical consideration 0n the first prong is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” Olivares v. Pineda, 40 Cal.App.5th 343, 35 1-352 (2019). A claim arises from protected activity within the meaning 0f section 425. 16(b)(1) if the activity underlies 0r forms the basis for the claim. Park v. Board 0f Trustees 0f California State University, 2 Cal.5th 1057, 1062 (2017); City 0f Cotati v. Cashman, 29 Cal.4th 69, 79 (2002). An unlawful detainer action and service 0f notices legally required t0 file an unlawful detainer action are protected activity within the meaning of section 425. 1 6. Copenbarger v. Morris Cerullo World Evangelism, 215 Cal.App.4th 1237, 1245. Prosecution 0f an unlawful detainer action is undisputedly protected activity Within the meaning 0f the anti-SLAPP (strategic lawsuit against public participation) statute. Moriarty v. Laramar Management Corp, 224 Ca1.App.4th 125 (2014). For example, in Feldman, the court ruled that a landlord's service of notice to terminate tenancy of Tenants, who claimed t0 be protected from eviction under a local ordinance, was an act in furtherance of Landlord's free speech 0r petitioning rights under CCP § 425.16. Feldman v. 1 1 00 Park Lane Assocs.,160 CA4th 1467, 1480 (2008); see also Birkner v. Lam, 156 CA4th 275, 282 (2007). Therefore, Tenants' subsequent lawsuit against Landlord for wrongful eviction and intentional infliction of emotional distress was subj ect t0 an anti-SLAPP motion. Id. Additionally, speech 0r activity “must be illegal as a matter 0f law t0 defeat a defendant's showing 0f protected activity. The defendant must concede the point, 0r the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.” City 0f Montebello v. Vasquez, 1 C5th 409, 424 (2016); Flatley v. Mauro, 39 C4th 299, 320, (2006); Zucchet v. Galardi, 229 CA4th 1466, 1478-1479 (2014)-excepti0n for illegal activity applies only if there exists n0 factual dispute about illegality. The term “illegal” means criminal, rather than merely Violation of a statute 0r common law standard (as alleged in every complaint). -4- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mendoza v. ADP Screening & Selection Services, Ina, 182 CA4th 1644, 1654 (2010)-even if disclosure of information regarding a registered sex offender to prospective employer violated applicable statute, it was not criminal conduct beyond protection 0f anti-SLAPP statute; Bergstein v. Stroock & Stroock & Lavan LLP, 236 CA4th 793, 806-807 (2015). Plaintiffs are attempting t0, yet again, abuse the Eviction Moratorium, which was put in place t0 help companies and people who truly need help, to bring meritless claims against MIG. Here, all of Plaintiffs’ allegations and causes of action against MIG are based 0n MIG’S “protected activity” of petitioning this Court to evict Plaintiffs through its unlawful detainer action, including Plaintiffs’ Cause of Action Number 7. Specifically, Plaintiffs were and continue to improperly occupy the Premises Without a lease and in an effort to protect its property rights, and because it was left With no other option, MIG filed the underlying unlawful detainer action against what it believed t0 be squatters, Which was not in Violation 0f the Eviction Moratorium and thus protected activity. In fact, and as discussed further below, once the Court ruled that there was some form of tenancy and that the Eviction Moratorium applied, MIG voluntarily dismissed the action. Even if the filing 0f the unlawful detainer action was in Violation of the Eviction Moratorium-Which it is not-simply Violating a statute 0r common law is not sufficient t0 render the activity not protected. See City ofMontebello, 1 C5th at 424; see also Flatley, 39 C4th at 320; Zucchet, 229 CA4th at 1478-1479; Mendoza, 182 CA4th at 1654; Bergstein, 236 CA4th at 806- 807. The reality of the situation is that all 0f Plaintiffs’ allegations and causes 0f action against MIG are based on MIG’ s initiation 0fthe unlawful detainer, which is a protected activity. Contrary to Plaintiffs’ argument, the mere fact that the Court granted Plaintiffs’ Motion t0 Dismiss MIG’s unlawful detainer action does not mean that MIG’S unlawful detainer action was not a protected activity. To conclude, as discussed at length in MIG’ s moving papers, MIG’s filing of the unlawful detainer action underlies and forms the basis for Plaintiffs’ claims, and thus MIG’s unlawful detainer action is considered “protected activity” within the meaning 0f CCP § 425. 16(b)(1) satisfying Prong One. Ultimately, all of Plaintiffs’ allegations and causes 0f action against MIG are based 0n -5- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MIG’S “protected activity” 0f petitioning this Court t0 evict Plaintiffs, Whom MIG believed to be squatters at the time, through its unlawful detainer action. b. Even if The Court Determines that MIG’s Filing 0f the Underlving Unlawful Detainer Action is Not A Protected Activitv Because It was in Violation 0f The Eviction Moratorium-Which it Should Not-The Remaining Allegations and Causes 0f Action Outside 0f Cause 0f Action Number 7 Stand Alone and Are Based 0n Protected Activitv and Should Be Stricken from the Complaint. Even if the Court determines that the basis 0f Plaintiffs’ Seventh Cause 0f Action is not based 0n a protected activity, which it should not, the remaining allegations and causes 0f action are outside the scope of the remedies Plaintiffs are relying on in the Eviction Moratorium. Plaintiffs focus nearly their entire opposition on their Seventh Cause of Action and provide n0 analysis regarding the remaining allegations or causes 0f action. However, the allegations raised in Paragraph 21 through 32 and Causes 0f Action Numbers 2, 4, 5, 6, 8 and 10, are all separate from the Seventh Cause of Action and not based 0n the alleged Violation of the Eviction Moratorium and thus should be stricken from the Complaint. Anti-SLAPP procedures are designed t0 shield a defendant's constitutionally protected conduct from the undue burden of frivolous litigation. Baral v. Schnitt, 1 Cal. 5th 376, 393 (2016). It follows, then, that courts may rule on plaintiffs' specific claims 0f protected activity, rather than reward artful pleading by ignoring such claims if they are mixed With assertions of unprotected activity. Id. In Baral, the California Supreme Court addressed “mixed-conduct” situations-i.e., Where a plaintiff‘s cause 0f action combines allegations about a defendant that the statute protects along With allegations ofunprotected activity. See generally Baral, 1 Cal. 5th 376. Further, in Baral, the California Supreme Court unanimously held that the anti-SLAPP statute is available t0 strike any portion of a cause of action that arises from a defendant's protected petitioning or free-speech activities regardless of Whether the plaintiffs entire cause of action or claim is dismissed. Id. at 382. In other words, an anti-SLAPP motion may challenge any claim for relief founded on allegations 0f protected activity, even if it does not reach claims based on unprotected activity. Id. Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required t0 establish a probability 0f prevailing 0n any claim for relief based on allegations 0f protected activity. Id. at 395. Unless the -6- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff can d0 s0, the claim and its corresponding allegations must be stricken. Id. Here, Plaintiffs are essentially silent, with the exception of one or two sentences in their opposition regarding their unsubstantiated allegations (Paragraphs 21 through 32 of Plaintiffs’ Complaint) and all causes 0f action against MIG except the Cause 0f Action Number 7. Plaintiffs solely focus on the argument that they are legally entitled to bring a civil proceeding pursuant t0 Section 3(c)(9) 0f the Eviction Moratorium and thus MIG’S activity is not a protected activity under CCP § 425.16. However, an alleged Violation of the Eviction Moratorium does not grant the Plaintiffs a blank check t0 bring causes 0f action not permitted under the Eviction Moratorium. If the Court agrees that MIG’S filing 0f an unlawful detainer action is not protected because it violates the Eviction Moratorium for purposes of the Seventh Cause 0f Action, then that activity should only be considered unprotected activity for the purposes 0f the Seventh Cause 0f Action and the Court should nonetheless strike the other causes 0f action and allegations against MIG. Ultimately, even if the Court determines that Plaintiffs have properly brought the Seventh Cause 0f Action, Which is should not, because MIG violated the Eviction Moratorium, this does not give Plaintiffs carte blanche to bring other causes of actions and allegations based 0n MIG’S protected activity outside the scope of the Eviction Moratorium. Thus, although all the allegations and causes of action should be stricken from the Complaint, at a minimum all the allegations in Paragraph 21 through 32 and Causes of Action Numbers 2, 4, 5, 6, 8 and 10 should be stricken. c. Plaintiffs’ Claims Are Not Legallv Sufficient Because Plaintiffs Will Be Unable t0 Prove with Admissible Evidence That MIG Violated the Eviction Moratorium. Plaintiffs’ claims are not legally sufficient because they have not demonstrated that MIG Violated the Eviction Moratorium. Further, and very telling that this Complaint was improperly brought against MIG, Plaintiffs have provided zero evidence or facts t0 substantiate their allegation in Paragraph 21 through 32 and Causes of Action Number 2, 4, 5, 6, 8 and 10. The burden is 0n plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. Baral, supra, 1 Ca1.5th at 396. The court, without resolving evidentiary conflicts, must determine Whether the plaintiffs showing, if accepted by the trier 0f fact, would be sufficient to sustain a favorable judgment. Id. If not, the claim is stricken. Id. -7- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Plaintiff s Lack Evidence and AbilitV t0 Prove LikelV Success for Their Seventh Cause of Action Against MIG. Here, Plaintiffs baselessly stated that MIG is in Violation 0f the Eviction Moratorium without providing any substantive evidence. In their opposition, Plaintiffs rely on the Court’s December 15, 2020 Order (“Order”), which did not state that MIG was in Violation 0f the Eviction Moratorium. Rather, the Order stated that the case was a “non-payment of rent case subj ect to the Santa Clara moratorium 0n evictions.” The fact that the Court stated that the case was “subject t0 the Santa Clara moratorium 0n evictions” does not by any means imply that MIG was in Violation 0f the Eviction Moratorium. Further, although the Court determined that this was a “non-payment 0f rent case,” MIG did not actually bring its unlawful detainer action due t0 Plaintiffs’ non- payment of rent, but rather based 0n the fact that the Plaintiffs did not have a lease With MIG, and thus was not in Violation of the Eviction Moratorium. Nonetheless, upon the Court’s determination, in compliance With the Eviction Moratorium applied, MIG voluntarily dismissed its unlawful detainer action. In other words, MIG did not “endeavor t0 recover possession 0f the Commercial Real Property in Violation of the Eviction Moratorium ordinance.” See Section 3(C)(9) of the Eviction Moratorium. Plaintiffs assume that they have succeeded 0n their claim that MIG violated the Eviction Moratorium merely because the Court ruled in their favor 0n a motion t0 quash, but this is not the case. Further, as discussed above, MIG did not bring the unlawful detainer action due t0 Plaintiffs’ non-payment 0f rent but because Plaintiffs were squatters improperly occupying the Premises and as soon as the Court determined otherwise, MIG voluntarily dismissed the action. ii. Plaintiffs’ Silence Relating to the Remaining Allegations and Causes 0fAction. Of most importance is the fact that Plaintiffs have provided zero evidence 0r facts t0 substantiate their claims alleged in Paragraphs 21 through 32 and Causes 0f Action Numbers 2, 4, 5, 6, 8, and 10. This is quite telling that Plaintiffs have no proof that any of these allegations are true and are retaliating against MIG for exercising its constitutional right t0 seek court intervention to remove What MIG believed t0 be squatters. Ultimately, even if the Court determines that MIG’S filing 0f the underlying unlawful -8- REPLY ISO SPECIAL MOTION TO STRIKE UNDER CCP § 425. 16 ADJ \OOOVQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detainer action, and its subsequent voluntary dismissal pursuant to the Court’s ruling, is not protected activity, Plaintiffs have nonetheless failed to carry the burden that there is any likelihood of success, especially for claims alleged in Paragraphs 21 through 32 and Causes of Action Numbers 2, 4, 5, 6, 8, and 10, for which Plaintiffs were essentially silent. IV. CONCLUSION For the foregoing reasons, MIG respectfully requests that this Court grant its Special Motion to Strike under CCP § 425. l 6 and that the Complaint, or Plaintiffs’ causes ofaction against MIG, be dismissed in their entirety. In the alternative, if the Court finds that the filing of the unlawful detainer by MIG was not a protected activity for the purposes of Plaintiff’s Cause of Action Number 7, MIG respectfully requests this Court grant its Special Motion to Strike Under CCP § 425.16 by striking Paragraphs 21 to 32 and Causes of Action Numbers 2, 4, 5, 6, 8 and 10. Dated: May 20, 2021 STRUCTURE LAW GROUP, LLP - 9 _ REPLY Iso SPECIAL MOTION T0 STRIKE UNDER CCP § 425.16