Kaqilo, Inc. v.Chou CA2/1

Filed 8/26/15 Kaqilo, Inc. v.Chou CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

KAQILO, INC., et al., B256243

Plaintiffs and Respondents, (Los Angeles County Super. Ct. No. BC513541) v.

CINDY CHOU, et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County. Maureen Duffy-Lewis, Judge. Affirmed in part, reversed in part, and remanded. Law Offices of Ray Hsu & Associates and Ray Hsu for Defendants and Appellants. Law Offices of Paul P. Cheng, Paul P. Cheng and Peter Tran for Plaintiffs and Respondents. ___________________________________

After a restaurant partnership soured, Kaqilo, Inc., Ren Yong Chen, and Mei Zhou (collectively plaintiffs) sued Yaping Shen, Chinchung (C.C.) Chou, and Cindy Chou (collectively defendants) for fraud, negligent misrepresentation, conspiracy, abuse of process, and breach of fiduciary duty. Defendants moved to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute, arguing the lawsuit arose from Shen having earlier filed a wage claim with the Division of Labor Standards Enforcement.1 The trial court denied the motion, finding the gravamen of the complaint was not protected activity. We conclude the cause of action for abuse of process arose from protected activity, but the others did not. Accordingly, we affirm in part and reverse in part. BACKGROUND The parties in this case agree on few, if any, of the underlying facts. For purposes of this motion we accept as true the facts plaintiffs set forth in their complaint. However, because those facts give a confusing picture of the dispute, we will also reference some allegations from defendants’ cross-complaint, Shen’s petition to the Division of Labor Standards Enforcement, and the moving and opposing papers below. Nothing in this opinion should be construed as a resolution of a disputed issue of fact or as a determination that any facts are undisputed. A. Shen’s Labor Commission Claim On August 30, 2011, Shen filed a claim with the Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), against Kaqilo, alleging Kaqilo (1) failed to pay her for any hours she worked as a waitress at its dba, a restaurant named P.P.Pop in Monterey Park, from February 16 to July 14, 2011, (2) failed to provide meal or rest breaks, (3) failed to pay split shift premiums, and (4) misappropriated her gratuities. She sought damages in the amount of $15,240 plus penalties and interest. Kaqilo opposed Shen’s complaint, and the Labor Commissioner’s