ISMAEL RIVERA VS ENTERPRISE TRUCK RENTAL, INC, ET AL.

Tentative Rulings

Case Number: *******0756 Hearing Date: December 22, 2022 Dept: SEC

RIVERA v. ENTERPRISE TRUCK RENTAL, INC.

CASE NO.: *******0756

HEARING: 12/22/22

JUDGE: OLIVIA ROSALES

#2 TENTATIVE ORDER

Defendant ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, LLC’s Motion for Attorney Fees and Costs Re: Anti-SLAPP Motion is GRANTED in part in the reduced amount of $33,684.91.

Moving Party to give notice.

The Court notes that an Appellate Order dismissing the Appeal was FILED on October 27, 2022.

On July 26, 2022, this Court granted Defendant ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, LLC’s (“Defendant”) Special Motion to Strike under CCP 425.16.

“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. (CCP 425.16(c).) “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, the award of attorney fees must be reasonable. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) [“We readily conclude section 425.16 similarly authorizes an award of reasonable attorney fees to the prevailing party…The right of prevailing defendants to recover their reasonable attorney fees under section 425.16 adequately compensates them for the expense of responding to a baseless lawsuit.”]

Defendant seeks attorney’s fees and costs in the amount of $60,906.91 for 109.7 hours of work at the rates of $710/hr., $397/hr., and $340/hr.—this figure includes Defendants’ counsel’s time incurred on the instant Motion and his estimated time to prepare the Reply brief.

When assessing the amount of any attorney’s fee award, courts typically determine what is reasonable through the application of the “lodestar” method. Under the lodestar method, a base amount is calculated from a compilation of (1) time reasonably spent and (2) the reasonable hourly compensation of each attorney. (Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d 25, 48); (See also Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 448-449 holding that the lodestar method applies to statutory attorney fees award unless the underlying statute provides for another method of calculation). Normally, a “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) That amount may then be adjusted through the consideration of various factors, including “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, and (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The Court is vested with discretion to determine which claimed hours were reasonably spent, and what an attorney’s reasonable hourly rate is. (Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501); (See also Flannery v. California Highway Patrol (1987) 61 Cal.App.4th 629, 644.) [“We readily acknowledge the discretion of the trial judge to determine the value of professional services rendered in his or her court.”].

In Opposition, Plaintiff argues that the amount of fees sought is excessive.

The Court finds counsels’ hourly rates of $710/hr., $397/hr., and $340/hr. reasonable based on each attorney’s respective numbers of years of experience.

Defendant has established an entitlement to reasonable fees in the amount of $33,684.91. The Court’s determination is undertaken in the exercise of its discretion to determine whether or not rates or hours are reasonable. (Dover Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501.) The Court reduces Defendant’s claimed hours and costs as follows:

(1) a reduction of $12,141. —17.1 hours at the rate of $710/hr. as unnecessarily duplicative of the work completed by Attorney Weintrop.

(2) a reduction of $5,576—16.4 hours at the rate of $340/hr. as unnecessarily duplicative of the work completed by Attorney Weintrop.

(3) A reduction of $3,550— 5 hours at the rate of $710/hr. as unnecessarily duplicative of the work completed by Attorney Weintrop for work completed on the instant Motion, the Reply, and to prepare for and appear for the hearing on this Motion.

(4) A reduction of $5,955— 15 hours at the rate of $397/hr. for time spent on drafting this Motion, the Reply, and to prepare for and attend the hearing. 25 hours is unreasonably excessive.

Accordingly, the Court grants attorney fees and costs in the reduced, but reasonable, amount of $33,684.91. Plaintiff does not challenge Defendant’s claimed costs. Accordingly, the Court grants Plaintiff’s unopposed request for costs and expenses in the amount sought.

Case Number: *******0756 Hearing Date: July 26, 2022 Dept: SEC

ISMAEL RIVERA v. ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, LLC, et al.

CASE NO.: *******0756

HEARING: 07/26/22

JUDGE: OLIVIA ROSALES

#6

TENTATIVE ORDER

Defendant’s Motion to Strike is GRANTED as to Plaintiff’s first, second, third, and fourth causes of action.

Defendant’s Demurrer is MOOT as to the first, second, and third causes of action. Defendant’s Demurrer is SUSTAINED, without leave to amend, as to Plaintiff’s fifth cause of action.

Moving party(s) to give notice.

On November 15, 2021 Plaintiff Ismael Rivera (“Plaintiff”) filed a Complaint asserting causes of action for (1) deceit, (2) defamation, (3) IIED, (4) malicious prosecution, and (5) conversion/trespass to chattels against Defendants Enterprise Truck Rental, Inc. (“Enterprise”) and Franklin Paul Perkins (“Perkins”).

The Complaint alleges in relevant part that Perkins, as an employee of Enterprise, falsely accused Plaintiff of stealing a vehicle and filed two false police reports, which caused Plaintiff to be arrested twice and prosecuted based on fabricated and baseless charges. (Compl., 6.) The criminal case against Plaintiff was eventually dismissed. (Compl., 23.)

Defendant Enterprise (hereinafter referred to as “Defendant”) moves the Court to strike the first through fourth causes of action of Plaintiff’s Complaint under California’s anti-SLAPP statute.

Defendant also demurs to Plaintiff’s Complaint.

Anti-SLAPP Motion

Legal Standard

CCP section 425.16 permits the court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

The defendant bears the initial burden of showing that the claims fall within the class of suits subject to a motion to strike under CCP section 425.16, i.e., that plaintiff's claim is based on an act of defendant in furtherance of his right to free speech. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 304.) Under CCP section 425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination. A defendant meets his initial burden by demonstrating that the act underlying the plaintiff’s case fits one of the categories identified in section 425.16(e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Subdivision (e) defines the protected acts as the following:

1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

If the defendant meets this initial burden, the plaintiff then has the burden of demonstrating a probability of prevailing on the claim. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 741.) The plaintiff satisfies this burden by demonstrating 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. (Id.) Under CCP section 425.16(b)(2), a plaintiff may use affidavits to meet the plaintiff’s burden.

In order to determine whether a cause of action is subject to a SLAPP motion, the court examines the principal thrust or gravamen of the plaintiff's cause of action. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal. App. 4th 510, 519-520.) The critical consideration for section 425.16 analysis is whether the cause of action is based on the defendant's protected free speech or petitioning activity. Feldman v. 1100 Park Lane Associates (2008) 160 Cal. App. 4th 1467, 1478-1479. The anti-SLAPP statute’s definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning. (Id.)

First Prong – Defendant’s Burden

CCP section 425.16(e) defines the protected acts as the following:

1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The Anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but “extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) “[C]ourts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’” (Id.)

Defendant contends that Plaintiff’s first through fourth causes of action arise from protected conduct because those causes of action relate to Defendant’s conduct in either making official reports to the police (through Perkins), statements made in assisting the Los Angeles District Attorney in connection with Plaintiff’s criminal proceeding, or statements made at Plaintiff’s criminal hearing. (See Compl., 6, 28, 34, 38, 45, 54-61.)

Plaintiff contends that conduct giving rise to the causes of action is not protected because the filing of a false police report is not protected activity. (See Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696.) Plaintiff contends that there is evidence that the police report was false based on the letter sent by his Public Defender to the prosecutor for his criminal case, which ultimately led to the dismissal of the criminal case.

Here, the Court finds that the conduct complained of by Plaintiff in the first through fourth causes of action is protected activity because it relates Defendant filing of official police reports, statements made in assisting the Los Angeles District Attorney in connection with Plaintiff’s criminal proceeding, or statements made at Plaintiff’s criminal hearing. (See Compl., 6, 28, 34, 38, 45, 54-61.) Plaintiff’s reliance on Lefebvre is misplaced. In that case, the defendant did not dispute that she had submitted an “illegal” and “false criminal report”. (Lefebvre, supra, 199 Cal.App.4th at 705.) Here, in contrast, Defendant denies that any of the police reports that were filed regarding Plaintiff were false, and that they were filed because they believed Plaintiff had stolen a vehicle. (Perkins Decl., 8.)

Accordingly, this shifts the burden to Plaintiff to establish a prima facie case for deceit, defamation, IIED, and malicious prosecution.

First Prong – Plaintiff’s Burden

Deceit, Defamation, IIED

The Court finds that Plaintiff has failed to establish the probability of prevailing as to his deceit, defamation, and IIED causes of action because those causes of action are barred by the litigation privilege.

Civil Code section 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code, 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) Section 47(b) bars all tort causes of action except malicious prosecution. (See Hagberg, supra, 32 Cal.4th at 360.) A report made to the police is subject to the privilege of section 47(b). (See Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 424.) Section 47(b) only applies to communicative acts, not tortious conduct. (Id. at 423.)

Plaintiff contends that the litigation privilege is inapplicable because the statements made in the police reports and in court were perjurious. While Plaintiff contends that defendants committed perjury, he fails to provide any evidence or point the Court to the evidence that supports his contention. To the extent Plaintiff is relying on the dismissal of the criminal case to show that there was a finding that the police report was false, that reliance is improper, as there is no evidence that there was a finding that the police report was false. Here, Defendant’s provide evidence that they believed that Plaintiff had stolen the vehicle and filed a police report for the stolen vehicle. (Perkins Dec., 8.) As previously stated, these causes of action arise from Defendant filing an official report to the police, statements made in assisting the Los Angeles District Attorney in connection with Plaintiff’s criminal proceeding, and/or statements made at Plaintiff’s criminal hearing. Accordingly, Plaintiff’s causes of action for deceit, defamation, and IIED are barred under Civil Code section 47(b).

Thus, Defendant’s Motion to Strike Plaintiff’s causes of action for deceit, defamation, and IIED is GRANTED.

Malicious Prosecution

“‘To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458 (quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50).)

The Court finds that Plaintiff has failed to establish that probability of prevailing as to this cause of action. As previously stated, Plaintiff contends that Defendant filed a false police report but fails to provide any evidence to support that contention, and he cannot rely on the dismissal of the criminal case to show the police report was false. In addition, Defendant’s provide evidence that they believed that Plaintiff had stolen the vehicle and filed a police report for the stolen vehicle. (Perkins Dec., 8.) Accordingly, Plaintiff failed to establish the second and third elements of this cause of action.

Thus, Defendant’s Motion to Strike Plaintiff’s malicious prosecution cause of action is GRANTED.

DEMURRER

Defendant demurs to the first, second, third, and fifth causes of action in the Complaint.

In light of the ruling in the anti-SLAPP Motion, Defendant’s Demurrer to the first, second, and third causes of action is moot. Accordingly, the Court will only analyze the Demurrer as to the fifth cause of action.

Analysis

Defendant contends that Plaintiff’s cause of action for trespass to chattels/conversion is barred by the statute of limitations.

The statute of limitations for a trespass to chattels cause of action is three years from the date of the trespass. (See Code Civ. Proc., 338(c)(1).) The statute of limitations for a conversion cause of action is also three years. (See Code Civ. Proc., 338(c) (1); AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) The statute of limitations for conversion is triggered by the act of wrongfully taking property. (See AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.)

Based on Plaintiffs filing of the Complaint on November 15, 2021, Plaintiff’s allegations for this cause of action must relate to conduct after May 21, 2018 to be within the statute of limitations.[1]

Here, based on the allegations in the Complaint, the trespass and conversion of Plaintiff’s personal property occurred on on December 28, 2017. (See Compl., 13-14, 63-64.) Accordingly, Plaintiff’s cause of action for trespass to chattels and conversion would have to have been filed no later than June 24, 2021. Accordingly, Plaintiff’s filing of this cause of action on November 15, 2021 is untimely. Plaintiff fails to address the statute of limitations argument, and fails to inform the Court on how this cause of action may be amended to render it sufficient. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”])

Thus, Defendant’s Demurrer to Plaintiff’s fifth cause of action is SUSTAINED, without leave to amend.

Conclusion

Defendant’s Motion to Strike is GRANTED as to Plaintiff’s first, second, third, and fourth causes of action.

Defendant’s Demurrer is MOOT as to the first, second, and third causes of action. Defendant’s Demurrer is SUSTAINED, without leave to amend, as to Plaintiff’s fifth cause of action.

Case Number: *******0756 Hearing Date: June 21, 2022 Dept: SEC

RIVERA v. ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, et al.

CASE NO.: *******0756

HEARING: 6/21/22 @ 1:30 PM

JUDGE: OLIVIA ROSALES

#6

TENTATIVE ORDER

I. Defendant Enterprise Rent-A-Car Company of Los Angeles’s motion to strike Plaintiff’s complaint under the California Anti-SLAPP statute is CONTINUED to Tuesday, July 5, 2022 at 1:30 pm in Dept. C.

II. Defendant Enterprise Rent-A-Car Company of Los Angeles’s demurrer is CONTINUED to Tuesday, July 5, 2022 at 1:30 pm in Dept. C.

Moving Party to give NOTICE.

The court is in receipt of Plaintiff’s LATE-filed opposition, and Plaintiff’s counsel’s declaration of inadvertence regarding his calendaring error. The court will exercise its discretion to consider the late-filed papers.

The court will grant Enterprise Rent-A-Car’s request for a continuance to allow it to file Replies. The hearings on the motion to strike and demurrer are CONTINUED to Tuesday, July 5, 2022 at 1:30 pm in Dept. C. Replies are due per Code.

Case Number: *******0756 Hearing Date: June 1, 2022 Dept: SEC

RIVERA v. ENTERPRISE TRUCK RENTAL, INC.

CASE NO.: *******0756

HEARING: 6/1/22 @ 1:30 PM

#6

TENTATIVE ORDER

Attorney J. Douglas Baldrige’s unopposed application for admission pro hac vice is GRANTED.

Moving Party to give NOTICE.

Applications to appear pro hac vice are governed by CRC 9.40. The rule requires that the attorney be admitted to practice before a U.S. court or the highest court of any state or territory. A member of the California bar must be associated as attorney of record. The applicant must not be a resident of or regularly employed in California and should not make repeated appearances in California. (CRC 9.40(a).)

The application must be served upon all parties who have appeared in the case and upon the San Francisco Office of the State Bar of California. (CRC 9.40(b).)

The applicant is admitted to practice and is a member in good standing in out of state jurisdictions. The applicant is not currently suspended or disbarred from practicing law. The applicant has associated as counsel, Bryan Weintrop of Venable LLP, an active member of the State Bar of California. The statutory fees have been forwarded to the State Bar along with the application.

Accordingly, the application is GRANTED.