Detamore v. Jain CA2/1 ( 2021 )

Filed 4/26/21 Detamore v. Jain 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
JASON A. DETAMORE et al., B305561
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 18SMCV00120)
v.
SURESH JAIN et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Rosario Perry for Defendants and Appellants.
Fisher & Wolfe, David R. Fisher, Ryan R. Gordon for
Plaintiffs and Respondents.
___________________________________
In a dispute involving several defendants, the plaintiffs
alleged that one of the defendants, Devon Wheeler, sought a
permit from the City of Los Angeles that should not be granted.
Another defendant, Suresh C. Jain; Suresh & Usha Jain Living
Trust 2003; and Pico 12300, LLC (collectively Jain), moved to
strike the allegation as a strategic lawsuit against public
participation (SLAPP), arguing that because plaintiffs alleged
elsewhere in the complaint that all defendants conspired to
interfere with the plaintiffs’ business, this particular allegation
constituted a strategic claim against the moving defendants’
public participation. The trial court denied the motion on the
ground that the plaintiffs asserted no claim against the moving
defendant based on the allegation. We agree and affirm.
BACKGROUND
We take the facts from the complaint, accepting them as
true for purposes of this appeal.
Jain owned real property at 12320 W. Pico Boulevard in
Los Angeles. Jason A. Detamore, Lisa M. Detamore, and
Advanced Pain Solutions, Inc. (collectively the Detamores), in
partnership with Devon Wheeler, operated a cannabis dispensary
on the premises. The lease was in Wheeler’s name.
In 2016, the Detamores sued Wheeler for breach of the
partnership agreement. The litigation settled, with Wheeler
agreeing to cede his interest in the partnership to the Detamores.
Three weeks after the settlement, Jain instituted eviction
proceedings against Wheeler. Wheeler immediately stipulated to
the eviction, which ultimately forced the Detamores to move to a
new location. Jain then leased the property to Gabriel Dezio,
Wheeler’s half brother.
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On January 8, 2017, the Detamores’ dispensary moved
across the street to a new location, and the next day, January 9,
Wheeler began operating a new dispensary at the old location.
The Detamores sued Jain, Wheeler and other parties for
breach of contract, interference with contractual relations and
prospective economic advantage, and violation of Business and
Professions Code section 17200, essentially alleging that Jain and
Wheeler conspired to interfere with the Detamores’ business.
At issue here is paragraph 36 of the complaint, which
alleged as follows:
“The Detamores are informed and believe that [Wheeler’s]
Dispensary has applied for an Adult Recreational Use License (a
‘Recreational License’). If [Wheeler’s] Dispensary is granted such
a Recreational License, zoning laws may prohibit the Detamores
from operating their dispensary at the New Location. It would be
a gross injustice if the Detamores are deprived of the right to
operate their business due to [Wheeler’s] Dispensary being
granted a Recreational License even though [Wheeler’s]
Dispensary does not have a lawful right to exist or operate, and is
operating in violation of the Settlement Agreement.”
The complaint alleged elsewhere that all defendants were
mutual agents, alter egos, and coconspirators.
The Detamores sought disgorgement of “monies paid to
Defendants for facilitating” Wheeler’s dispensary, “an injunction
prohibiting the operation of a marijuana dispensary at the
Premises,” and reimbursement of lost profits suffered due to
“Defendants’ interference with the Settlement Agreement and
the facilitation of [Wheeler’s] dispensary.”
Jain specially moved to strike paragraph 36, arguing that
Wheeler’s application for a license constituted protected activity,
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and the Detamores had no reasonable probability of prevailing on
any claim against Jain arising from the allegations in paragraph
36.
The trial court denied the motion, finding that although
“the conduct of applying for a permit is protected, [Jain has] not
shown that Plaintiff actually alleges that [Jain] engaged in this
particular conduct.”
Jain appeals.
DISCUSSION
Jain argues that the Detamores’ claims against it arise in
part from the allegation in paragraph 36. We disagree.
Code of Civil Procedure section 425.16 provides, “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 the 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.” (§ 425.16, subd. (b)(1), emphasis added.)
A “special motion to strike under [Code of Civil Procedure]
section 425.16 involves a two-step process. First, the moving
defendant must make a prima facie showing ‘that the act or acts
of which the plaintiff complains were taken “in furtherance of the
[defendant]’s right of petition or free speech under the United
States or California Constitution in connection with a public
issue,” as defined in the statute.’ ” (City of Montebello v. Vasquez
(2016) 1 Cal.5th 409, 420.) “If the defendant makes this initial
showing of protected activity, the burden shifts to the plaintiff at
the second step to establish a probability it will prevail on the
claim.” (Ibid.)
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The term “cause of action” “refers to claims for relief that
are based on allegations of protected activity.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.) “At the first step, the moving
defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them.
When relief is sought based on allegations of both protected and
unprotected activity, the unprotected activity is disregarded at
this stage. If the court determines that relief is sought based on
allegations arising from activity protected by the statute, the
second step is reached.” (Ibid., italics added.)
We independently review whether a moving party has
made a threshold showing that the challenged cause of action
arises from protected activity. (Grewal v. Jammu (2011) 191
Cal.App.4th 977, 988.)
The parties agree that Wheeler seeking a permit from the
City of Los Angeles constitutes protected activity.
However, Jain identifies no claim for relief against it (or
anyone) based on Wheeler’s permit application, and we discern
none. Therefore, the trial court properly denied Jain’s anti-
SLAPP motion without requiring that the Detamores
demonstrate a probability of prevailing.
Jain argues that through boilerplate agency, coconspirator
and alter ego allegations earlier in the complaint, the Detamores
seek to hold it liable for Wheeler’s protected conduct, triggering
operation of the anti-SLAPP statute. We disagree. Paragraph 36
forms the basis of no claim even against Wheeler, much less Jain.
The Detamores seek an injunction against, and recovery for
damages suffered as a result of, operation of the competing
dispensary, and for Jain’s interference with the settlement
agreement by leasing the premises to Wheeler. No cause of
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action or prayer for relief is predicated on Wheeler’s dispensary
seeking a permit from the City of Los Angeles.
Jain argues that in prior pleadings in this years-long
litigation, of which it intends to seek judicial notice, the
Detamores have basically equated Jain with Wheeler, alleging
them to be, in effect, the same entity. We have received no
request for judicial notice of other pleadings, which in any event
would be irrelevant. In paragraph 36 of this pleading, no claim is
made against Jain.
Jain argues without elaboration that an anti-SLAPP
motion may be brought on behalf of another person to protect
that person’s petitioning and free speech activities. But absent
some attempt to fill out a syllogism here, we deem the argument
forfeited.
DISPOSITION
The order denying Jain’s special motion to strike is affirmed.
Respondents are to recover their costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
*
ROTHSCHILD, P. J. FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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