Gomez vs. BGN Acquisitions La Habra Hills

Thus, in ruling on an anti-SLAPP motion, courts engages in a twostep 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, supra, 1 Cal.5th at p. 384.)

First Prong – Protected Activity

KTS moves to strike each cause of action on the grounds that the activity alleged against it arises from statements and filings made in connection with a judicial proceeding (the unlawful detainer action). (See Code Civ. Proc., § 425.16, subd. (e)(2).)

Plaintiffs do not dispute that the UD filing and related litigation activities constitute protected activity. (Opp. p. 2:21-23.)

Accordingly, the sole question is whether Plaintiffs can establish a probability of prevailing on the merits of their claims against KTS.

Second Prong – Probability of Success

To establish probability of prevailing on the merits, a plaintiff must “state and substantiate a legally sufficient claim ...Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 791. [cleaned up].)

“[A] plaintiff's burden at the second anti-SLAPP step is a low one, requiring only a showing that a cause of action has at least minimal merit within the meaning of the anti- SLAPP statute.” (Id., at p. 793.)

The court does not “weigh credibility [nor]compare the weight of the evidence. Rather, [the court] accept[s] as true the evidence favorable to the plaintiff and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Id. at pp. 791-792.)

1st Cause of Action - Malicious Prosecution

Malicious Prosecution consists of three elements. “The underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.)

KTS contends Plaintiffs cannot satisfy the second and third elements.

KTS is correct.

Probable cause requires an objective inquiry: whether, on the facts known to the defendant, “whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable . . . A claim is unsupported by probable cause only if any reasonable attorney would agree [that it is] totally and completely without merit.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776 [cleaned up].)

In addition, “probable cause (or its absence) must be viewed at more than one moment in the life of the prior litigation. Even if the malicious prosecution defendant had probable cause to initiate the suit under a particular theory, his or her decision to continue to prosecute the case on that theory after learning it was not supported by probable cause may result in liability for malicious prosecution. (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 219, citing Zamos v. Stroud (2004) 32 Cal.4th 958, 971 [emphasis in original].)

Here, Plaintiffs have failed to establish KTS initiated or maintained the UD Action without probable cause.

Regarding initiating the UD Action, Plaintiffs contend BGN demanded $13,725 for April through August 2025, the precise period covered by the written rent credit agreement with its own property manager, Monica Ronchetti. (See Gomez Decl. at ¶¶ 5-6, Exhibits 1-2.)

BGN demanded the full Unit L104 rate for months when Plaintiffs were not occupying that unit but a smaller unit.

Plaintiffs further contend that BGN rejected Plaintiffs’ cashier’s check for August 2025 rent, when they returned to Unit L104, six days before filing the UD Action on August 13, 2025, and BGN's manager confirmed she was “instructed not to accept payment.” (See Garcia Decl. at ¶ 10, Exhibit D [JSS, p. 3:7- 8].)

These allegations and evidence, however, do not concern KTS.

Plaintiffs’ opposition seems to conflate the actions of BGN and KTS.

Plaintiffs do not provide evidence that KTS was involved in this conduct other than actually filing the UD Action.

The only argument addressing KTS in the probable cause section of the opposition is Plaintiffs’ argument that KTS continued prosecuting the UD Action after discovering facts showing the case lacked probable cause.

Namely, Plaintiffs contend that during discovery KTS received emails between Plaintiff Gomez and Ronchetti, BGN’s property manager, establishing any rent obligation was waived but rent nevertheless was demanded for a period when they did not occupy Unit L104.

These emails show that when Plaintiffs were displaced from Unit L104 for mold remediation, Ronchetti confirmed that “if you choose to stay away during repairs the daily rate you would get rent credit would be $91.50 . . . .” and “they will be credited for the number of days you have been out of your apartment, starting from the day the issue was 1st reported.” (See Gomez Decl. at ¶¶ 5-6, Exhibits1-2.)

The Ronchetti emails do not establish maintenance of the UD Action lacked probable cause.

While the emails establish BGN agreed to credit rent while Plaintiffs were out of the unit during repairs, the UD Action was maintained due to a dispute as to when the unit was ready for occupancy.

In other words, neither of the parties disputed whether rent would be charged, but rather when Plaintiffs were obligated to resume rent payments.

Emails stating no rent would be charged during repairs are not relevant to either issue.

On the one hand, there is evidence that KTS advised Plaintiffs’ counsel in April 2025 that the unit was ready. (Greer Decl. ¶ 5, KTS 088; see also Garcia Decl. at ¶ 10, Exhibit D [JSS, p. 2:24-3:2].)

There is also evidence that BGN conducted two mold clearance tests in or about December 2024 and June 2025 by two different vendors and both came back negative. (Greer Decl. at KTS 072-087; see also Garcia Decl. at ¶ 10, Exhibit D [JSS, p. 2:5-14].)

On the other hand, Plaintiffs claim no rent was due until August because they believed repairs were not completed and the unit was not ready until August. (Greer Decl. at KTS 093 Gomez Decl. at ¶¶10-11, Exhibit 3.)

There is also evidence that the two mold reports were not shared with Plaintiffs. (Garcia Decl. at ¶ 10, Exhibit D [JSS, p. 2:16-21].)

This evidence establishes there was a genuine dispute as to when Plaintiffs were obligated to resume paying rent.

A reasonable attorney would not agree that maintenance of the UD Action was “totally and completely without merit.” (See Parrish, supra, 3 Cal.5th at p. 776.)

The fact that Plaintiffs ultimately prevailed after a jury trial does not retroactively render the UD Action untenable.

“The ‘malice’ element . . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. The plaintiff must plead and prove actual ill will or some improper ulterior motive. It may range anywhere from open hostility to indifference.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 [emphasis in original] [cleaned up]; see, e.g., Bertero v. National General Corp., supra, (1974) 13 Cal.3d 43, 54 [attorney admitted filing suit because he “ 'wanted to show the Appellate Court what a bastard Bertero was'”].)

Plaintiffs seem to argue that because KTS continued to prosecute the action after it had the Ronchetti emails, KTS lacked probable cause and therefore imputes improper motive to KTS.

As discussed above, KTS had probable cause for the action.

Plaintiffs also argue that malice existed because KTS knew its client’s general counsel had refused to settle the UD Action independently of the Mold Action but pressed forward to a jury trial anyway.

This fact alone does not establish malice.

A party’s desire for a global settlement is not per se improper.

Further, a party’s refusal to settle has no bearing on the underlying merits of the case.

In addition, KTS provided a declaration from Scott Andrews, the KTS attorney who handled the UD Action once it appeared imminent that a jury trial would proceed, who states he does not know Plaintiffs or their counsel personally and does not have any ill-will toward them. (Andrews Decl., ¶¶ 5-6.)

Andrews also addresses the allegation that he stated during settlement negotiations “OK ... if they lose, they will be out before Christmas though . . . Something to consider.”

Andrews made this statement in response to opposing counsel’s email stating Plaintiffs did not want to vacate and were willing to pay from August to November. (Andrews Decl., ¶3.)

Andrews explains that when he made the statement, he believed that if opposing counsel proposed a date after the holidays that Plaintiffs would be willing to vacate, that BGN would agree. (Andrews Decl., ¶ 4.)

Andrews also explains his statement was implying that settlement would allow Plaintiffs to stay in the unit beyond the holidays if the parties reached a settlement. (Andrews Decl., ¶¶ 3-4.)

Plaintiffs neither address the Andrews declaration nor provide evidence showing any KTS attorney had an improper motive at any point during the UD Action.

Therefore, Plaintiffs have failed to establish minimal merit of their cause of action for malicious prosecution against KTS.

2nd Cause of Action - Abuse of Process

To prevail on an abuse of process claim, a plaintiff must show that the defendant (1) entertained an ulterior motive in using the process and (2) committed a willful act in a wrongful manner. (See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)

“Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process. Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments [citation] or improper use of discovery.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-42 [cleaned up].)

Plaintiffs contend the ulterior motive is established by an email from BGN’s general counsel showing BGN used the UD Action to coerce dismissal of the Mold Action, not to recover rent.

Plaintiffs further contend the willful acts include refusing Plaintiffs’ check for the August 2025 rent, serving the 3-day notice immediately thereafter, demanding rent at the wrong unit rate for a period covered by a written waiver, and conditioning any resolution on joint dismissal of both cases.

This evidence is primarily directed at BGN, not KTS.

Even if this evidence were properly directed at KTS, it does not create a separate claim for abuse of process because it does not show that KTS took any action that was not proper in the regular conduct of the UD Action.

Therefore, Plaintiffs have failed to establish minimal merit of their cause of action for abuse of process against KTS.

3rd and 4th Causes of Action - Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress

KTS argues the emotional distress claims are barred by the litigation privilege.

The litigation privilege under Civil Code, section 47, subdivision (b), immunizes “any communication” made in judicial proceedings (Silberg v. Anderson (1990) 50 Cal.3d 205, 212) as well as communications that have “some relation” to litigation. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193.)

It is “applicable to any communication, whether or not it amounts to a publication and all torts except malicious prosecution.” (Silberg, supra, 50 Cal.3d at p. 212 [cleaned up].)

The litigation privilege “is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522.)

Here, Plaintiffs allege KTS initiated and prosecuted the UD Action and made a statement during settlement negotiations to opposing counsel that if Plaintiffs did not prevail in the UD Action, they would be evicted before Christmas.

These activities are undisputably protected by the litigation privilege. (See Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1480 [prosecution of unlawful detainer action “indisputably is a protected activity within the meaning of § 425.16”]; Seltzer v. Barnes (2010) 182 Cal. App. 4th 953, 963-964 [settlement negotiations between opposing counsel are protected activity].)

Plaintiffs contend the litigation privilege does not apply because their emotional distress claims arise from conduct, not communications. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 211 [noting “distinction between injury allegedly arising from communicative acts, i.e., the attorney’s testimony, and injury resulting from noncommunicative conduct, i.e., the invasion of privacy resulting from the attorney's eavesdropping”].)

More specifically, Plaintiffs contend the following actions caused them emotional distress: Instructing an employee to refuse Plaintiffs’ rent payment; demanding rent at the full Unit L104 rate for months when Plaintiffs were displaced in a smaller unit, contradicted by BGN’s own written agreement; and rejecting a settlement offer exceeding Defendants’ own prior demand not because the money was insufficient but to maintain leverage over the unrelated Mold Action.

Plaintiffs’ argument concerns BGN’s actions, not KTS’s actions.

Even if these actions were attributable to KTS, Plaintiffs attempt to recast this litigation activity as “noncommunicative conduct” is unpersuasive.

The gravamen of Plaintiffs’ claims remains initiation and prosecution of the UD Action and related settlement discussions.

Courts have consistently held that claims arising from litigation activities, including settlement communications, are barred by the litigation privilege. (Seltzer, supra, 182 Cal.App.4th 953; Dowling, supra, 85 Cal.App.4th 1404; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17.)

The litigation privilege therefore applies.

Accordingly, Plaintiffs have failed to establish minimal merit of their emotional distress claims against KTS.

Tentative Ruling: The motion of Defendant Kimball, Tirey & St. John, LLP’s (“KTS”) Special Motion to Strike the Complaint under the Anti-SLAPP Statute is GRANTED.

Motion 2: Anti-SLAPP by BGN Acquisitions La Habra Hills LP (ROA 27)

Defendant BGN Acquisitions La Habra Hills LP’s (“BGN”) Special Motion to Strike the Complaint under the Anti-SLAPP Statute.

Each party’s respective request for judicial notice is GRANTED. (Evid. Code, §452, subd. (d).

First Prong – Protected Activity

BGN argues the activity alleged against it arises from the filing and prosecution of litigation, the service of legally required notices, and counsel-to-counsel settlement communications, which is protected activity. (See Code Civ. Proc., § 425.16, subd. (e) (2).)

Plaintiffs do not dispute that the UD filing and related litigation activities constitute protected activity. (Opp. p. 6:13-16.)

Accordingly, the sole question is whether Plaintiffs can establish a probability of prevailing on the merits of their claims against BGN.

Second Prong – Probability of Success

1st Cause of Action - Malicious Prosecution

Malicious Prosecution consists of three elements. “The underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.)

BGN contends Plaintiffs cannot satisfy the second and third elements.

Plaintiffs contend BGN lacked probable cause to initiate the UD Action because BGN demanded $13,725 for April through August 2025, the precise period covered by the written rent credit agreement with its own property manager, Monica Ronchetti. (See Gomez Decl. at ¶¶ 5-6, Exhibits 1-2.)

BGN demanded the full Unit L104 rate for months when Plaintiffs were not occupying that unit but a smaller unit.

Plaintiffs further contend that BGN rejected Plaintiffs’ cashier’s check for August 2025 rent, when they returned to Unit L104, six days before filing the UD Action on August 13, 2025, and BGN's manager confirmed she was “instructed not to accept payment.” (See Garcia Decl. at ¶ 10, Exhibit D [JSS, p. 3:7- 8].)

Plaintiffs also contend BGN lacked probable cause to maintain the UD Action because it pressed forward through a jury trial even though discovery revealed the Ronchetti emails establishing BGN agreed that any rent obligation was waived.

The Ronchetti emails do not establish lack of probable cause.

They merely established BGN agreed to credit rent while Plaintiffs were out of the unit during repairs.

A genuine factual dispute existed regarding when the unit was ready for occupancy and when Plaintiffs became obligated to resume paying rent.

The Ronchetti emails are not relevant to that dispute.

In addition to the above stated evidence, there is evidence that Plaintiffs refused to return to Unit L104 despite two separate mold inspections conducted in or about December 2024 and June 2025 by different vendors finding that no elevated mold was present. (Beck Decl. ¶ 7, Ex. 2, BGN DOC PROD 51, 53-58, 72-73; Compl., ¶ 24.)

BGN’s position was that rent resumed once the unit was cleared and available.

Plaintiffs disagreed and maintained the unit remained uninhabitable because the unit still smelled “musty.”

This was a factual dispute that was resolved by a jury.

The fact that Plaintiffs ultimately prevailed does not retroactively render the UD Action untenable.

Regarding malice, Plaintiffs argue BGN refused to settle the UD Action independently of the Mold Action.

Plaintiffs also contend BGN refused their August 2025 rent before filing the UD Action to manufacture the appearance of non-payment as a pretext.

A party’s desire for a global settlement is not per se improper.

California public policy strongly favors settlement over litigation in the interest of efficiency and economy for both the parties and the courts. (See Kaufman v. Goldman (2011)195 Cal. App. 4th 734, 745; Osumi v. Sutton (2007) 151 Cal. App. 4th 1355, 1359.)

Plaintiffs concede global settlements are not unlawful but argues tying a rent-collection lawsuit to dismissal of an unrelated personal injury suit involving the same family’s children is unlawful.

Plaintiffs fail to cite authority for this proposition.

Further, the two actions are not unrelated as Plaintiffs contend.

The two actions arose from the same factual nexus in that the mold issue is the reason the rent dispute existed.

BGN provides a declaration from D. Michael Beck, who became BGN’s General Counsel on October 23, 2025. (Beck Decl. ¶ 1.)

Beck states any communications attributed to him in the Complaint (i.e., the 11/2/25 email stating BGN was not interested in settling the matters individually) were made during settlement discussions solely for the purpose of exploring a global resolution of the parties’ pending litigation matters. (Beck Decl. ¶ 8.)

Beck also states he does not have a personal relationship with Plaintiffs or their counsel; he does not harbor any animus toward them and is not aware of any facts or circumstances supporting any claims of animus towards Plaintiffs by any individual under his supervision at BGN. (Beck Decl., ¶ 9.)

Plaintiffs attack Beck’s declaration arguing malice does not require personal animus but improper motive.

Plaintiffs are only partially correct.

Malice requires proof of “actual ill will or some improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 [emphasis in original] [cleaned up].)

Beck’s declaration addresses both.

It denies animus and explains the purpose underlying the communications was to pursue global settlement of related disputes.

Plaintiffs offer no evidence refuting Beck’s declaration.

Therefore, Plaintiffs have failed to establish minimal merit of their cause of action for malicious prosecution against BGN.

2nd Cause of Action - Abuse of Process

To prevail on an abuse of process claim, a plaintiff must show that the defendant (1) entertained an ulterior motive in using the process and (2) committed a willful act in a wrongful manner. (See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)

“Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process. Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments [citation] or improper use of discovery.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-42 [cleaned up].)

Plaintiffs contend Beck’s email shows BGN used the UD Action to coerce dismissal of the Mold Action, not to recover rent.

Plaintiffs further contend the willful acts include refusing Plaintiffs’ check for the August 2025 rent, serving the 3-day notice immediately thereafter, demanding rent at the rate for the larger unit when Plaintiffs were occupying the smaller unit, demanding back-rent for a period expressly waived by the Ronchetti emails, and conditioning any resolution on joint dismissal of the Mold Action.

This evidence does not create a separate claim for abuse of process because it does not show that BGN took any action that was not proper in the regular conduct of the UD Action.

Plaintiffs identify no misuse of discovery, attachment, writ process, or any judicial mechanism outside the ordinary prosecution of the UD Action itself.

Therefore, Plaintiffs have failed to establish minimal merit of their cause of action for abuse of process against BGN.

3rd and 4th Causes of Action - Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress

BGN argues the emotional distress claims are barred by the litigation privilege.

The litigation privilege under Civil Code, section 47, subdivision (b), immunizes “any communication” made in judicial proceedings (Silberg v. Anderson (1990) 50 Cal.3d 205, 212) as well as communications that have “some relation” to litigation. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193.)

It is “applicable to any communication, whether or not it amounts to a publication and all torts except malicious prosecution.” (Silberg, supra, 50 Cal.3d at p. 212 [cleaned up].)

The litigation privilege “is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522.)

Here, Plaintiffs’ emotional distress claims arise out of BGN’s filing and prosecuting the UD Action and statements made during negotiations requiring joint dismissal of the Mold Action.

These activities are undisputably protected by the litigation privilege. (See Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1480 [prosecution of unlawful detainer action “indisputably is a protected activity within the meaning of § 425.16”]; Seltzer v. Barnes (2010) 182 Cal. App.4th 953, 963-964 [settlement negotiations between opposing counsel are protected activity].)

Plaintiffs contend the litigation privilege does not apply because their emotional distress claims arise from conduct, not communications. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 211 [noting “distinction between injury allegedly arising from communicative acts, i.e., the attorney’s testimony, and injury resulting from noncommunicative conduct, i.e., the invasion of privacy resulting from the attorney's eavesdropping”].)

More specifically, Plaintiffs contend the following actions caused them emotional distress: Instructing an employee to refuse Plaintiffs’ rent payment; demanding rent at the full Unit L104 rate for months when Plaintiffs were displaced in a smaller unit, contradicted by BGN’s own written agreement; and rejecting a settlement offer exceeding Defendants’ own prior demand not because the money was insufficient but to maintain leverage over the unrelated Mold Action.

Plaintiffs attempt to recast BGN’s litigation activity as “noncommunicative conduct” is unpersuasive.

The gravamen of Plaintiffs’ claims remains BGN’s initiation and prosecution of the UD Action and related settlement discussions.

Courts have consistently held that claims arising from litigation activities, including settlement communications, are barred by the litigation privilege. (Seltzer, supra, 182 Cal.App.4th 953; Dowling, supra, 85 Cal.App.4th 1404; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17.)

The litigation privilege therefore applies.

Accordingly, Plaintiffs have failed to establish minimal merit of their emotional distress claims against BGN.

Tentative Ruling: Defendant BGN Acquisitions La Habra Hills LP’s (“BGN”) Special Motion to Strike the Complaint under the Anti- SLAPP Statute is GRANTED. Defendant to give notice.

8 Herbas vs. Ean Holdings, LLC

2023-01360506 Motion to Dismiss

Defendant Lauren A. Boisdore moves to dismiss plaintiff Alejandra Ortiz’s Complaint, for her failure to appear for her Court ordered deposition on January 16, 2026.