For background, see Mohsen Loghmani’s Im Pro Per Performance/
Mohsen Loghmani recently sued me for testifying against him as an expert witness, along with the lawyers and clients from that case….Here’s the Judge’s tentative ruling for tomorrow’s hearing….
Case Number: BC581625 Hearing Date: July 23, 2015 Dept: 56
Case Name: Loghmani v. Tucker, et al.
Case No.: BC581625
Matters: (1) Anti-SLAPP Motion; (2) Vexatious Litigant Motion
Tentative Ruling: (1) Anti-SLAPP motion is granted; (2) Vexatious litigant motion is denied
Plaintiff Mohsen Loghmani dba L.A. Design Group filed this action against various defendants arising out of another lawsuit which resulted in a judgment against Plaintiff and his wife. The complaint asserts causes of action for intentional and negligent misrepresentation, fraudulent concealment, abuse of process, civil conspiracy, intentional infliction of emotional distress, and declaratory relief.
Defendants Jan B. Tucker, James Jeffery Little, Michael Thompson, Law Office Administrators LLC, J.J. Little & Associates P.C., Moses Chadwick, Carolyn Chadwick, Davis Daryl Nucum, and Tessie Cleveland Community Services Corporation move to strike Plaintiff’s complaint pursuant to CCP §425.16, the anti-SLAPP statute. In connection with the motion, Defendants request judicial notice of papers filed in Case Nos. EC057134 and TC023641; the RJN is granted.
An anti-SLAPP motion involves a two-step process: 1) the defendant must establish that the challenged causes of action arise from protected activity; and 2) if the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of success on the merits. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Brenton v. Metabolife International (2004) 116 Cal.App.4th 679, 684.
Protected Activity –
In the first step of an anti-SLAPP motion, the moving party must make a threshold showing that the challenged cause of action “arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180, 192. A claim “arises from” protected activity when the activity forms the basis for the plaintiff’s cause of action. Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 66.
Plaintiff’s complaint is based entirely on things that happened in the earlier lawsuit against Plaintiff and his wife, EC057134. See Complaint ¶ 29-49. It contains allegations on matters such as withdrawal of a designated expert witness, failure to provide documents until after trial commenced, the unqualified testimony of expert witnesses, and offering fraudulent testimony. These allegations and all of the causes of action concern statements and writings in connection with civil litigation, which is protected activity under the Anti-SLAPP statute. See Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-80; Briggs v. Eden Council (1999) 19 Cal.4th 1106, 1115.
In opposition, Plaintiff has argued that the Anti-SLAPP statute does not apply because the activity was illegal. But this is just a bald argument with no evidence or other support. The defense of illegality must be established through the opposing party’s concession or by admissible evidence that conclusively establishes illegal conduct as a matter of law. See Flatley v. Mauro (2006) 39 Cal.4th 299, 320; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365-67.
Defendants have met their burden to establish that Plaintiff’s action arises from protected activity.
Probability of Prevailing –
Because Defendants have established that Plaintiff’s action arises from protected activity, the burden shifts to Plaintiff to present admissible evidence that supports a prima facie case in his favor, much like the burden on a motion for summary judgment or directed verdict. See Code Civ. Proc. §425.16(b)(1); Taus v. Loftus (2007) 40 Cal.4th 683, 714; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087. To meet this burden, Plaintiff must submit evidence that would be admissible at trial. See HMS Capital v. Lawyers Title (2004) 118 Cal.App.4th 204, 212. He cannot rely upon lay opinions, legal conclusions, speculation or argument. See Gilbert v. Sykes, supra 147 Cal.App.4th at 26; Morrow v. LAUSD (2007) 149 Cal.App.4th 1424, 1444.
Plaintiff has not offered any evidence in opposition to the motion. He makes references to his complaint, but this is insufficient. See Hecimovich v. Encinal School PTO (2012) 203 Cal.App.4th 450, 474; Church v. Wollersheim (1996) 42 Cal.App.4th 628, 656.
In addition, Defendants have affirmatively shown that the absolute litigation privilege under CC §47(b) applies to all of the conduct alleged in the complaint. This privilege broadly applies without regard to malice. See Silberg v. Anderson (1990) 50 Cal.3d 205, 211-12; Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 95-56.
Plaintiff has failed to meet his burden to establish a probability of prevailing on his claims.
The Anti-SLAPP motion is granted and the complaint is stricken. It is not clear whether Defendants Tunnell and BTI Appraisal have joined in the motion. The grounds apply to all defendants, and if there is joinder it will be granted with an order striking the complaint as to all defendants.
VEXATIOUS LITIGANT MOTION
Defendant Tessie Cleveland Community Services Corporation (TCCSC) also moves to declare Plaintiff a vexatious litigation pursuant to CCP §391. In connection with the motion TCCSC requests judicial notice of various court documents; the RJN is granted.
Section 391(b) lists four distinct definitions for a vexatious litigant. These are “alternative” definitions, and the evidence must separately establish the requirements for a defined category. See Holcomb v. US Bank NA (2005) 129 Cal.App.4th 1494, 1501.
TCCSC’s evidence does not meet this standard, because it combines or mixes conduct within each of the four definitions. Based upon the record presented, the motion is therefore denied.