The Baral-Park 1-2 . . .

Newport Harbors Offices & Marina, LLC v. Morris Cerullo World Evangelism, No. G054146 (D4d3 May 9, 2018) 

This is a long-running real estate litigation over a sublease to an office building in the OC. There have been four different appeals in the case, including a trip to the Supreme Court last year. Most of them are disputes over anti-SLAPP motions. This one is too.

There won’t be any wholesale anti-SLAPP-ing going on, because the counts in their entirely don’t arise from protected activity. They largely address the parties’ rights and obligations under various lease contracts. But the current complaint also lays out a lengthy history of unlawful detainer proceedings between the parties. So following the edict of the Supreme Court’s decision in Baral, the court parses the various claims on a claim-by claim-basis. And then, applying the Supreme Court’s decision in Park, it endeavors to ascertain whether any are both protected activity and actually form the basis of Plaintiff’s lawsuit.

A significant number of allegations just provide context and are collateral to the claims for relief. These don’t meet the first step of the test. But there are a series of allegations that claim that the Defendants breaches consisted of the service of documents and the sending of correspondence related to unlawful detainer proceedings. The Court finds that these do meet the first element of the test.

Moving on to the second part of the test, the Court identifies its mission, post-Baral, as determining whether Plaintiff came forward with prima facie evidence to support claims based only the allegations for which the court found the arising from test was met. That seems like a pretty complicated task. 

But Plaintiff made it easy because the only evidence it submitted was an attorney declaration that said all of the documents attached to the complaint were true and correct copies of the originals. That’s not even enough to establish the authenticity of the exhibits for what they are—what if the originals are fake?—much less to satisfy its obligations to make a prima facie showing that it could prevail on the claims. So these particular paragraphs get struck from the complaint.

There’s then a question of if and how much attorneys’ fees Defendant is entitled to, having partially prevailed by getting a bunch of random allegations stricken. That too seems rather complicated. But it will be left up to the trial court to handle that on remand.

Reversed in part.