This case was last updated from Los Angeles County Superior Courts on 09/23/2021 at 16:15:31 (UTC).

LUANNE MONTILLA, ET AL. VS KATE PURNELL, ET AL.

Case Summary

On 09/20/2021 LUANNE MONTILLA filed a Property - Other Real Property lawsuit against KATE PURNELL. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0717

  • Filing Date:

    09/20/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

CAZAN BRYAN

LY JENNY BAO

MONTILLA EDDIE

MONTILLA LUANNE

STEVENS CHERYL

STEVENS GEORGE

Defendants

PURNELL KATE

PURNELL TOM

Attorney/Law Firm Details

Plaintiff Attorneys

CRAWFORD ROZA

CRAWFORD DANIEL A

 

Court Documents

Notice of Case Management Conference

9/21/2021: Notice of Case Management Conference

Notice of Case Management Conference

9/21/2021: Notice of Case Management Conference

Notice of Case Assignment - Unlimited Civil Case

9/20/2021: Notice of Case Assignment - Unlimited Civil Case

Summons - SUMMONS ON COMPLAINT

9/20/2021: Summons - SUMMONS ON COMPLAINT

Complaint

9/20/2021: Complaint

Civil Case Cover Sheet

9/20/2021: Civil Case Cover Sheet

 

Docket Entries

  • 03/22/2022
  • Hearing03/22/2022 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Case Management Conference

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  • 09/21/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/20/2021
  • DocketCivil Case Cover Sheet; Filed by LuAnne Montilla (Plaintiff); Eddie Montilla (Plaintiff); Jenny Bao Ly (Plaintiff) et al.

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  • 09/20/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 09/20/2021
  • DocketComplaint; Filed by LuAnne Montilla (Plaintiff); Eddie Montilla (Plaintiff); Jenny Bao Ly (Plaintiff) et al.

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  • 09/20/2021
  • DocketSummons (on Complaint); Filed by LuAnne Montilla (Plaintiff); Eddie Montilla (Plaintiff); Jenny Bao Ly (Plaintiff) et al.

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Tentative Rulings

Case Number: *******0717 Hearing Date: March 2, 2022 Dept: F49

Dept. F-49

Date: 3-2-22

Case #*******0717

TRIAL DATE: Not Set/Not At Issue

SPECIAL MOTION TO STRIKE

MOVING PARTY: Cross-Defendants/Plaintiffs, Luanne Montilla, et al.

RESPONDING PARTY: Defendants/Cross-Complainants, Kate and Tom Purnell

RELIEF REQUESTED

Special Motion to Strike the Cross-Complaint

1st Cause of Action: Intentional Infliction of Emotional Distress

2nd Cause of Action: Negligence

3rd Cause of Action: Defamation Per Se

4th Cause of Action: Defamation Per Quod

5th Cause of Action: Nuisance

6th Cause of Action: Trespass

SUMMARY OF ACTION

Defendants Kate and Tom Purnell own certain real property adjacent to Plaintiffs Luanne and Eddie Montilla, Jenny Ly, Cheryl and George Stevens, and Bryan Cazan. All properties are located in the community of Castaic.

Plaintiffs allege Defendants raise livestock and/or keep numerous pets on their property, including horses, sheep, roosters and hens, guinea fowl, rabbits and other unknown animals. Plaintiffs contend the property emanates constant noises from said animals, with some of the sounds described as “young children screaming.” Plaintiffs also allege dust and noxious odors from the animal activity and manure, which coats the parties’ homes, swimming pools and vehicles. The manure also attracts flying insects such as flies.

Plaintiffs also allege that Defendants regularly utilize certain earth moving equipment, which creates water run off channels towards Plaintiffs’ properties. Plaintiffs allege the debris from the runoff also poses a blockage threat, which creates a flood risk.

Plaintiffs contend all of said alleged activities violate local zoning laws. The homes are only zoned R-1, which requires a single-family residence, and does not allow for agricultural and livestock activities, including heavy machinery.

On September 20, 2021, Plaintiffs filed a complaint for Private Nuisance, Public Nuisance, Trespass, and Negligence. On December 21, 2021, Defendants Kate and Thomas Purnell, as well as minors, Jonah, Noah, and Joshua, filed a cross-complaint against all plaintiffs for Intentional Infliction of Emotional Distress, Negligence, Defamation Per Se, Defamation Per Quod, Nuisance, and Trespass.

On January 4, 2022, the court overruled the demurrer to the complaint. The court granted the motion to strike the claim for punitive damages and supporting allegations with 30 days leave to amend. The court record shows no amended complaint or answer within 10 days of the lapsed amendment deadline.

RULING: Granted

Evidentiary Objections to the Declaration of Kate Purnell:

Numbers 1-6, 8-12: Sustained.

Numbers 7: Overruled.

Objections to the Declaration of Mark Oknyansky: Sustained.

Cross-Defendants Luanne Montilla, et al. challenge the operative cross-complaint on grounds on grounds that the subject action arises from protected activities—reports to certain government agencies regarding the alleged improper activities of Cross-Complainants.

Cross-Complainants Kate and Tom Purnell in opposition challenge any applied claim of privilege based on reports to the government agency(ies), and deny that the complaints constitute the gravamen of the action. Cross-Complainants additionally characterize any and all said complaints as false, thereby negating any potential privilege. Cross-Complainants add that cross-defendants “lack” evidence and improperly rely on a single self-serving declaration.

Cross-Defendants in reply contend that the opposition fails to support the crux of their argument: proof of illegal conduct underpinning the claims. Cross-Defendants specifically challenge the lack of any evidence regarding knowingly false statements, and Cross-Complainants’ application of the privileged statements standard. Specifically, Cross-Complainants note the lack of allegations regarding reports to any law enforcement agencies in the operative cross-complaint. Cross-Defendants alternatively request the court strike out just the limited allegations regarding complaints to the government agencies, if the court finds the complaints are not the gravamen of the complaint.

The court declines to consider the declaration of Bryan Cazan submitted with the reply.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Code Civ. Proc. 425.16, subd. (b). Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (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." (Code Civ. Proc., 425.16.)

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) The anti-SLAPP applies where the allegations of the defendant’s protected activity are the gravamen or principal thrust of the cause of action. (Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’”].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [“We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute”].)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) “An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. (Citation.) The privilege is based on ‘[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.’ (Citation.)” (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.) “One policy underlying the absolute privilege for statements made in governmental investigations and reports of misconduct ‘is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ (Citations.) … [ ] … As other courts have stated, ‘there must be an open channel of communication by which citizens can call [the investigator's] attention to suspected wrongdoing.’” (Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1390–1391; Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 335; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009.) The reporting to the animal welfare agency constitutes an identified Los Angeles County government agency, which qualifies for application of the absolute privilege.

Cross-Complainants correctly point out the exception to the privilege for reports to peace officer. (Civ. Code, 47 subd. (a)(5).) Cross-Complainants make this argument based on the subsequently submitted declarations of Cross-Complainants, and otherwise lack support for any such claim in the operative pleading. As addressed further below, the only identified agencies in the cross-complaint are “Employees of the County Board of Supervisors, of Animal Control, and of Regional Planning (sic).” [Cross-Comp., 24.]

The operative cross-complaint indisputably arises from the complaints to the “various departments of the County of Los Angeles,” and the subsequent investigations. [Cross-Comp., 21-27.] Said reports are both incorporated and permeate each and every cause of action. [Cross-Comp., 45, 58, 68, 85, 91, 106.] Other than the legal elements of the individually identified causes of action, the subject causes offer no additional no additional or distinguished conduct other than specifically incorporated complaints to the varying Los Angeles County agencies. Whether Cross-Defendants wanted Cross-Complainants in the neighborhood or not, and whether the reports caused emotional distress or not, in no way undermines the core basis of the cross-complaint—reports to the government agencies as the means for effecting any and all alleged emotional impacts to property use and distress. [Cross-Comp., 11-16, 28-31-32, 34-35.] The alleged screaming of profanities, dislike of Cheryl Stevens, and burglary on the property is minor, incidental and/or unrelated to the common core of facts. [Cross-Comp., 17-20, 33, 26, 36-42.] The cross-complaint is therefore subject to a special motion to strike.

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ( 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

As addressed above, notwithstanding the plain language of the operative cross-complaint which only identifies the departments of animal control and regional planning, cross-complainants now seek to characterize the reports as both to “peace officers,” and false in nature. Kate Purnell submits a declaration in opposition which now adds the Health and Safety Department and Sheriff’s Department. [Declaration of Kate Purnell, 5.][1] The declaration specifically relies on an incident involving an alleged call for domestic violence, which the declarant characterizes as screaming at a horse. [Id., 6.] Notwithstanding the call, Luanne Montilla in fact subsequently told the officers it was not a domestic violence incident and the responding deputies took no further action. [Id., 7.] The subject information relies on a partially inadmissible declaration regarding the alleged communications of Luanne Montilla. Even considering the information, however, the statement undermines any finding of a knowingly false statement to a police officer. The subsequent alleged charges brought by the District Attorney lack any specificity as to the reporting agency (again notwithstanding the evidentiary objections). [Id., 8.]

Thus, even considering the additional, admissible testimony, the court finds no exception to the absolute privilege established from the reporting of improper land use and animal husbandry practices. Whether the subject conduct amounts to a repugnant collective “bullying” effort or not, the underlying law and public policy unequivocally protects reporting citizens making such types of reports from potential lawsuits arising from said communications. Again, the court finds the common core of facts regarding the reports and subsequent fall out pervades all causes of action and therefore renders all causes of action barred by the absolute privilege to report suspected wrongful conduct.

The special motion to strike the cross-complaint is granted.

The court declines to consider any request for attorney fees. Defendants may proceed with any motion for the recovery of attorney fees pursuant to statutory guidelines.

The court granted the motion to strike the complaint on January 4, 2022. The court record shows no amended complaint. Defendants are ordered to answer the complaint in order to bring the case at issue.

Cross-Defendants to give notice.


[1]In addition to the evidentiary objections, the court also notes that the electronically filed copy of the declaration is also unsigned.


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