Metropolitan News-Enterprise


Friday, June 30, 2023


Page 1


Court of Appeal:

Judge’s Comment Erroneously Construed As Interim Ruling

Opinion Declares Judge Kin Improperly Granted Anti-SLAPP Motion in Malicious Prosecution Action Brought by

Victor in U.D. Suit; Bendix Says Judge Hammock’s Off-the-Cuff Observation in That Earlier Suit Is No Bar


By a MetNews Staff Writer


Depicted above is the building on North Vine Street from which a church sought to evict tenants, claiming they were on a month-to-month basis when, in fact, they had long-term written leases. The Court of Appeal on Wednesday held that an anti-SLAPP motion was improperly granted in a malicious prosecution action instituted by the tenants after prevailing in an unlawful detainer action.


A comment by a judge in a 2019 unlawful detainer proceeding that the plaintiff had made a prima facie showing that an oral contract had been entered into for a month-to-month tenancy was not a proper basis for another judge to dismiss, in 2022, a malicious prosecution action against the landlord and others based on the interim adverse judgment rule, the Court of Appeal for this district has held.

The comment was uttered by Los Angeles Superior Court Judge Randolph M. Hammock at the hearing on a bid by St. John Armenian Church and the Western Diocese of the Armenian Church to evict Divine Food and Catering, LLC and Petros Taglyan from a banquet hall/cultural center. After the tenants proceeded to establish that two leases in writing were in effect, one that would not expire until 2039, Hammock awarded them judgment.

Divine in 2021 sued the church, the diocese, and Archpriest Manoug Markarian for malicious prosecution, alleging that the plaintiffs in the unlawful detainer action knew that there were written leases and sued in an effort to extort money from Devine and Taglyan. The defendants in that action brought an anti-SLAPP motion which Los Angeles Superior Court Judge Curtis A. Kin granted.

Bendix’s Opinion

Div. One of the Court of Appeal for this district reversed the judgment of dismissal on Wednesday in an opinion by Justice Helen I. Bendix.

“We hold that the triggers for the interim adverse judgment rule are limited to actual judgments and rulings on dispositive motions,” she wrote. “The trial court therefore erred by applying the rule based on the unlawful detainer court’s sua sponte comments during trial.”

The jurist commented:

“[W]e disagree with the trial court’s analogizing the unlawful detainer court’s statements regarding the church entities’ prima facie case to a finding on the merits following a full adversary hearing. There was no adversary hearing—although both sides had asked questions of Petros, the unlawful detainer court neither invited nor heard argument before making the remarks on which defendants rely. Nor would we expect the unlawful detainer court to have invited argument given that no one had made a motion, the parties had not completed their examination of Petros, and the church entities had not rested their case-in-chief.”

She continued:

“The more accurate reading of the unlawful detainer court’s statements is that it was providing its assessment of the case as of that point in time to guide the parties in their presentation of evidence, advising them to focus on the written lease as the key issue rather than how and with whom the original tenancy was formed.”

Bendix added that “[e]xtending the interim adverse judgment rule as the trial court did is contrary to the principle that a court’s oral comments during trial are inherently tentative, and generally have no preclusive effect for any purpose.”

Perjury Alleged

In its opening brief, Divine cited the Sept. 28, 2011 opinion by Div. Eight’s then-presiding justice, Tricia A. Bigelow (now retired) in Lefebvre v. Lefebvre. Bigelow wrote that the anti-SLAPP statute, Code of Civil Procedure §425.16, “does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights.”

The brief, signed by Raymond A. Cardozo of Reed Smith LLP, recites that Hammock found that Markarian signed the two written leases “beyond a reasonable doubt” and testified falsely that he had not. Cardozo noted that the defendants in the malicious prosecution action “do not dispute that perjury is illegal as a matter of law,” adding that evidence of perjury “is conclusive” based in Hammock’s findings.

He asserted that Kin “was required to deny the anti-SLAPP motion” based on the failure to show protected conduct, the requisite of the first prong of §425.16.

Statute Quoted

The defendants countered that “[c]laims for malicious prosecution plainly fall within the scope of section 425.16.” Citing §425.16(e) they said: “Divine’s entire malicious prosecution action arises from ‘petition activity’ (bringing a lawsuit) and written and oral statements made before a judicial proceeding ‘in connection with an issue under a...judicial body.”

The brief—filed by Harry W.R. Chamberlain II, Robert M. Dato, and Michael Muse-Fisher of the Buchalter firm and by Brian S. Kabateck and Shant A. Karnikian of the Kabateck firm—quotes Hammock as saying:

“Here, the Court does not find that the filing of the UD Action was illegal as a matter of law or that Divine Catering’s claims of extortion and perjury are conclusively demonstrated.”

Bendix said it was not necessary to decide whether the malicious prosecution action is founded on protected conduct or not, declaring:

“Assuming arguendo Divine’s complaint implicates protected conduct, we conclude Divine nonetheless has demonstrated its complaint has the minimal merit required to proceed, thus satisfying the second step of anti-SLAPP analysis.”

Three Elements

In a malicious prosecution action, she recited, the plaintiff, to prevail must show a favorable determination in a prior proceeding—which, Bendix noted, was undisputed—and a lack of probable cause for instituting the previous action, coupled with malice.

She said that aside from Kin erring in determining that the interim adverse judgment precludes a finding of probable cause, no other basis for the contention that probable cause had not existed was advanced by the defendants. Sufficient evidence had been adduced by the plaintiffs of malice, Bendix wrote, setting forth:

“Assuming…that Divine’s evidence is true, and drawing all favorable inferences therefrom, Petros’s declaration, combined with the evidence that defendants knowingly concealed the existence of the written lease, is sufficient to make a prima facie showing that defendants brought the unlawful detainer action for a wrongful purpose, either to compel Petros to pay additional monies to which they were not entitled, or to punish him for refusing to do so.”

The case is Divine Food and Catering, LLC v. Western Diocese of the Armenian Church of North America, 2023 S.O.S. 2197.


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