Cho v. Mehrban



















Filed
2/4/13 Cho v. Mehrban
CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION THREE






>

EUNICE Y. CHO, Cross-complainant and Respondent, v. MORSE MEHRBAN, Cross-Defendant and Appellant.

B236204 (Los Angeles County Super. Ct. No. YC063554)

APPEAL
from an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Dudley W. Gray, II, Judge. Order reversed and matter remanded with
directions.

Law
Offices of Rummel Bautista and Rummel Mor Bautista; Mehrban Law Corporation and
Julie Mehrban for Cross-defendant and Appellant, Morse Mehrban.

Eunice
Y. Cho, in pro. per.; Law Offices of Do & Do and Hieu D. Do, for Cross‑complainant
and Respondent.



_______________________________________

In
this case, the appellant Morse Mehrban (Mehrban) seeks reversal of the trial
court’s order denying his motion to
strike the cross-complaint of respondent Eunice Y. Cho
(Cho). Mehrban’s motion was based on
Code of Civil Procedure, section 425.16 (hereafter, § 425.16href="#_ftn1" name="_ftnref1" title="">[1];
also known as the anti-SLAPP statutehref="#_ftn2" name="_ftnref2" title="">[2]). He argued that the claims asserted in the
cross-complaint arose from his filing of the multiple complaints which he had
done on behalf of his disabled clients, including one against her in a >related action. He contended that such actions on his part
were constitutionally protected activity within the meaning of the anti-SLAPP
statute and the claims asserted by Cho were barred by the absolute litigation privilege (Civ. Code, § 47,
subd. (b).) Although he was
asserting a purely legal argument, the
trial court denied the motion to strike on the sole ground that Mehrban had
failed to file a declaration in support of his motion.href="#_ftn3" name="_ftnref3" title="">[3]

We find ourselves in
agreement with Mehrban on the law applicable to this case. As we discuss below, it is well established
that the litigation privilege will bar any tort claim except one for href="http://www.fearnotlaw.com/">malicious prosecution. (Flatley
v. Mauro (2006) 39 Cal.4th 299, 322.)
Thus, the trial court erred in denying Mehrban’s motion to strike. It should have been granted. We will therefore reverse and remand the
matter with directions.

>FACTUAL AND PROCEDURAL BACKGROUNDhref="#_ftn4" name="_ftnref4" title="">[4]>

On June 24, 2010,
Mehrban, on behalf of his client Thomas Munday, filed a complaint in an
action related to this one against Cho for damages and injunctive relief for
violations of the Unruh Civil Rights Act
(Civ. Code, § 51, et seq.) and the Americans with Disabilities Act Standards
for Accessible Design (42 U.S.C., § 12182, 28 C.F.R.,
§ 36.304). In this complaint, it
was alleged that Cho (and her husband, Dennis Y. Cho)href="#_ftn5" name="_ftnref5" title="">[5]
owned and operated a liquor store and an attached parking lot. In the complaint that he filed, Mehrban alleged
that Munday could not walk and was wheelchair bound. He drove a specially equipped van with a
wheelchair ramp. Specifically, Mehrban
alleged that Munday “was unable to park in [the] parking lot because it lacked
a striped van-accessible handicap parking spot with a 96‑inch-wide access
aisle and corresponding signage . . . . ”href="#_ftn6" name="_ftnref6" title="">[6]

Mehrban, on behalf of
his client, alleged that this failure to provide proper handicap parking and
signage constituted violation of both the Unruh Civil Rights Act and the federal
ADA and related regulations. He prayed for $4,000 in damages,
a permanent injunction, attorney’s fees and costs. The complaint filed on behalf of Munday,
however, was not the underlying complaint in this action, but rather
a related action. On a date for
some reason not reflected in the record, but subsequent to the filing of the
Munday complaint, the underlying complaint was filed by attorney
H. J. Sims (Sims) on behalf of an alleged disabled plaintiff named
Willie Fontano (Fontano). It named Cho
as the defendant and apparently alleged substantially the same allegations as
set forth in the related Munday complaint.

Cho’s response to these
two complaints was to file, on December 7, 2010, the cross‑complaint
which is the subject of this appeal.href="#_ftn7" name="_ftnref7" title="">[7] In it, she alleged causes of action for
unfair business practices (Bus. & Prof. Code, § 17200 et seq.) and
intentional fraudulent and negligent abuse of process. Although the cross-complaint is largely
argumentative and conclusionary (and, at times, incomprehensible), it is clear
that Cho is seeking recovery of damages arising from the conduct of Mehrban
(and the other cross‑defendants) in filing the two complaints against
her. She alleges that they are
essentially sham pleadings and simply a part of the way Mehrban and Sims make
their living. That is, they bring these
kind of lawsuits against small business owners on behalf of disabled clients
and attempt to negotiate settlements with businesses not in compliance with the
relevant statutes and related regulations.href="#_ftn8" name="_ftnref8" title="">[8]

On July 12, 2011,
Mehrban filed his anti-SLAPP motion seeking to strike Cho’s cross‑complaint.href="#_ftn9" name="_ftnref9" title="">[9] That motion was essentially based on the
legal argument that Mehrban, in filing the complaint in the related action, was
engaging in protected activity and Cho could not, as a matter of law, establish
a probability of prevailing due to the application of the href="http://www.fearnotlaw.com/">litigation privilege. Mehrban’s motion was, however, not supported
by any declaration.

Cho filed an opposition
to which there was attached a declaration which largely mirrored the
allegations in the cross-complaint and which the trial judge characterized as
“17‑pages long of rambling I don’t know what.”href="#_ftn10" name="_ftnref10" title="">[10] The important point about Cho’s opposition is
that it does not contradict Mehrban’s main point. That is, the cross‑complaint against
Mehrban is based on and clearly arises from his actions in filing the complaint
against her which she claims is a sham and is frivolous.

When Mehrban’s motion
came on for hearing on September 12, 2011, the court denied it with the
following explanation of the ruling:
“The court believes [the motion] deficient in that it fails to comply
with the fundamental requirements of [section] 425.16(b)(2). There are no supporting or opposing
affidavits stating the facts on which the motion is based.” It appears that the trial court rejected
Mehrban’s contention that, given the undisputed record, the motion could be
resolved on legal grounds and a supporting factual declaration in support of
the motion was not required.

Mehrban thereafter filed
this timely appeal.

>CONTENTIONS

Mehrban argues that the
trial court erred in denying his motion because no declaration was
required. The record itself demonstrated
that Cho’s cross‑complaint was obviously based on and arose from the href="http://www.fearnotlaw.com/">protected activity of filing a legal
action against her.

Cho’s arguments are not
entirely clear, but it seems that she believes that she has the right to
protect herself and her business against the kind “nit-picking” type of lawsuit
that Mehrban has brought against her and other small businesses.

As we explain, we agree
with Mehrban. Cho’s cross‑complaint
is subject to his anti-SLAPP motion and, in light of this record, it should
have been granted.

>DISCUSSION

1. Standard
of Review

An order denying a
motion to strike under the anti-SLAPP statute is directly and immediately
appealable. (§§ 425.16, subd. (1);
904.1, subd. (a)(13).) We review
such an order de novo. (>Flatley v. Mauro, supra, 39 Cal.4th
at p. 325.) We review and evaluate
the circumstances reflected by the record liberally in favor of Mehrban to
determine whether it will defeat Cho’s claim as a matter of law. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269,
fn. 3.)

2. General
Legal Principles Applicable to an Anti-SLAPP Motion

“A SLAPP suit—a
strategic lawsuit against public participation—seeks to chill or punish a
party’s exercise of constitutional rights to free speech and to petition the
government for redress of grievances.
[Citation.] The Legislature
enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP
statute—to provide a procedural
remedy to dispose of lawsuits that are brought to chill the valid exercise
of constitutional rights.
[Citation.]” (>Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055‑1056.) “The goal [of
section 425.16] is to eliminate meritless or retaliatory litigation at an
early stage of the proceedings.” (>Seelig v. Infinity Broadcasting Corp.
(2002) 97 Cal.App.4th 798, 806.)

Section 425.16,
provides that “[a] cause of action 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 shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) In considering the application of the anti‑SLAPP
statute, courts engage in a two-step process.
“ ‘First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from
protected activity. . . . If the court finds such a
showing has been made, it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.’ [Citation.]”
(Taus v. Loftus (2007) 40
Cal.4th 683, 712.)
“ ‘ “ ‘The defendant has the burden on the first issue,
the threshold issue; the plaintiff has the burden on the second issue. [Citation.]’
[Citation.]”
[Citations.]’ ” (>Rohde v. Wolf (2007)
154 Cal.App.4th 28, 34–35.)
“ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and
lacks even minimal merit—is a SLAPP, subject to being stricken under the
statute.’ [Citation.]” (Governor
Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th
449, 456.)

“To demonstrate a
probability of prevailing on the merits, the plaintiff must show that the
complaint is legally sufficient and must present a prima facie showing of facts
that, if believed by the trier of fact, would support a judgment in the
plaintiff's favor. [Citations.] The plaintiff’s showing of facts must consist
of evidence that would be admissible at trial.
[Citation.] The court cannot
weigh the evidence, but must determine whether the evidence is sufficient to
support a judgment in the plaintiff’s favor as a matter of law, as on a href="http://www.fearnotlaw.com/">motion for summary judgment. [Citations.]”
(Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337, 1346.)

3. >Mehrban’s Action In Bringing An Action
Against Cho on Behalf of

His Client Was
Protected Activity



Cho argues here that
Mehrban’s actions in this matter are simply part of a larger general
scheme by which he and his clients go about abusing small businesses in the
hope that they will quickly settle the technical claims asserted and the claims
are thus without any real merit.
Therefore, such actions should not constitute protected activity and Cho
should be entitled to go forward with the tort claims asserted in the cross‑complaint. We disagree.

The subjective
intent of a party in filing a complaint is irrelevant in determining whether it
falls within the ambit of section 425.16.
“There simply is ‘nothing in the statute requiring the court to engage
in an inquiry as to the plaintiff’s subjective motivations before it may
determine [whether] the anti-SLAPP statute is applicable.’ (Damon
v. Ocean Hills Journalism Club [(2000)] 85 Cal.App.4th [468,] 480.)” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 58.)

The complaint filed by
Mehrban on behalf of his client Munday was a “written or oral statement
or writing made before a . . . judicial
proceeding. . . . ”
(§ 425.16, subd. (e)(1); ([“Defendants’ act of filing the
complaint [for abuse of process] in the underlying action squarely falls within
section 425.16, subdivision (e)(1)”]
Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th
1043, 1055.) Filing a lawsuit is an
act in furtherance of the constitutional right of petition, regardless of
whether it has merit. (See, e.g., >Navellier v. Sletten (2002)
29 Cal.4th 82, 90; Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)

The cross-complaint was
plainly based on Mehrban’s actions in filing the complaint against Cho and all
of the other necessarily related activities (e.g., investigation, taking
pictures of the parking lot, etc.).
Therefore, his actions as alleged in the cross-complaint clearly arose
from protected activity and are the proper basis for a motion to strike
under the anti-SLAPP statute. Based
simply on the appellate record before us, Mehrban has therefore met his burden
of satisfying the first issue raised in this two-step process.

4. As
a Matter of Law, Cho Cannot Meet the Burden of Demonstrating

A Probability of
Prevailing

>

The burden thus falls on
Cho to prove the second issue and present evidence sufficient to demonstrate
that she has a probability of prevailing.
Cho’s cross‑complaint seeks recovery on claims for the torts of
both intentional and negligent abuse of process and the business tort of unfair
competition. The gravamen of these
claims plainly rests upon Mehrban’s act of filing a complaint against Cho for
certain statutory violations related to disabled persons. In light of this circumstance, Cho is subject
to the defense of the litigation privilege.
It is settled law that this privilege is an absolute one. It bars >all tort causes of action except
malicious prosecution. (>Flatley v. Mauro, supra, 39 Cal.4th
at p. 322.) Obviously then, the
litigation privilege is necessarily determinative of the question of Cho’s
ability to demonstrate that there exists a probability of prevailing on
the cross-complaint. “The
privilege in section 47 is ‘relevant to the second step in the anti‑SLAPP
analysis in that it may present a substantive defense the plaintiff must
overcome to demonstrate a probability of prevailing. [Citations.]’
[Citation.]” (>Rohde v. Wolf, supra, 154 Cal.App.4th
at p. 38.)

Thus,
it is clear, again from the appellate record alone, that Cho, on the face of
that record, is unable, as a matter of law, to show a probability of
prevailing on the cross-complaint. It
was therefore not necessary for Mehrban to provide any declaration respecting
factual circumstances. The pleadings
before the court, including the complaint that he filed in the related action,href="#_ftn11" name="_ftnref11" title="">[11]
demonstrate the clear application of the litigation privilege as an absolute
defense to all of the claims asserted by Cho in the cross-complaint. The trial court erred in denying Mehrban’s
anti‑SLAPP Motion to Strike. It
should have been granted.









>DISPOSITION

The
order of September 12, 2011 denying Mehrban’s Motion to Strike is reversed and
the matter is remanded with directions to the trial court to enter a new
order granting the motion and to conduct such further proceedings as may be
appropriate. Mehrban shall recover his
costs in this matter.



NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





CROSKEY,
J.

We Concur:





KLEIN,
P. J.





ALDRICH,
J.