Tentative Ruling: Joseph L. Shalant v. Whitney Fink and Eric Gans

Case Number

26CV02069

Case Type

Hearing Date / Time

Wed, 08/26/2026 - 10:00

Nature of Proceedings

1. Special Motion to Strike of Defendant Eric Gans; 2. Demurrer of Defendant Whitney Fink to Complaint

Tentative Ruling

For Plaintiff Joseph L. Shalant: Self-represented

                                   

For Defendant Whitney Fink: Eric B. Gans

                                   

For Defendant Eric Gans: Charles M. Oxton             

RULING

For the reasons set forth herein:

1.  The special motion of Defendant Eric Gans to strike the second and third causes of action as to that Defendant is granted. The complaint as against Defendant Gans is ordered dismissed. The Court awards reasonable attorney fees against Plaintiff Joseph L. Shalant and in favor of Defendant Eric Gans in the total amount of $11,330.00.
2.  The demurrer of Defendant Whitney Fink is sustained, with leave to amend, as to the second cause of action, and is in all other respects overruled.
3.  Plaintiff Shalant shall file and serve his first amended complaint on or before September 10, 2026. Because the special motion to strike is granted, the first amended complaint shall not set forth any claim against Defendant Eric Gans.

Background

As alleged in the complaint of Plaintiff Joseph L. Shalant:

Shalant is the owner, through his family trust, of residential property located at 588 Puente Drive, Santa Barbara (the Property). (Complaint, ¶ 1.) Shalant is also the owner of a 2018 Subaru Outback (the Vehicle) that Defendant Whitney Fink possesses and has refused to return to Shalant. (Complaint, ¶ 2.)

Prior to July 9, 2024, Shalant orally permitted Fink to reside at the Property until notified otherwise. (Complaint, ¶ 3.) On July 9, 2024, Shalant notified Fink that until she requested and obtained Shalant’s permission to continue to reside at the Property, she would no longer have his permission to do so. (Complaint, ¶ 4.) Fink continued to reside at the Property without Shalant’s permission. (Complaint, ¶ 5.)

Shalant served Fink with notice to vacate and then filed an unlawful detainer action, which remains pending. (Complaint, ¶ 7.) The reasonable monthly rental value of the Property is $7,500 or more. (Complaint, ¶ 8.)

Gans is a businessman in Santa Barbara. (Complaint, ¶ 11.) Gans has conducted himself tortiously in conjunction with Fink to cause economic harm to Shalant, relying on Fink’s December 11, 2024, email to realtor Gary G. (Complaint, ¶ 12 & exhibit 1.) Beginning on December 11, 2024, Fink and Gans have jointly denied Shalant access to the Property and prevented Gary G. from being able to obtain photos of the inside of the Property so that the Property could be listed for sale and sold. (Complaint, ¶ 13.) Fink and Gans also prevented Shalant’s termite inspector from accessing the Property. (Ibid.)

After Fink sent the December 11, 2024, email, Gans wrote to Shalant, did not address Shalant’s two requests for his realtor to access the Property to obtain photos and for access by the termite inspector, and instead wrote an unrelated insulting letter to Shalant in an effort to embarrass and harm him. (Complaint, ¶ 17.)

On March 26, 2026, Shalant filed his verified complaint for damages asserting three unnamed causes of action, the first against Fink alone, the second against Fink and Gans, and the third against Gans alone. Proofs of service of the complaint were filed showing service on April 24, 2026.

On May 26, 2026, Gans filed his special motion to strike. This motion was originally noticed for hearing on August 19, 2026. Also on May 26, Gans filed a declaration stating his inability to meet and confer with Shalant regarding the complaint.

On June 23, 2026, Shalant filed an “opposition” to Gans’s May 26 declaration.

On June 25, 2026, Fink filed a demurrer to the complaint. The demurrer is and was noticed for hearing on August 26.

Also on June 25, 2026, Shalant filed an “Opposition to Defendants’ Hearing,” which was for a hearing to take place on August 19 and asserts that service was insufficient because there was no proof of service attached. Attached to that opposition are a number of other documents.

On July 20, 2026, Shalant filed a response to Fink’s request for judicial notice.

On July 28, 2026, Gans filed a declaration of counsel re attorney fees and costs in connection with the special motion to strike. Gans also filed a joinder to Fink’s request for judicial notice.

On August 19, 2026, Gans filed a reply with respect to the special motion to strike. Also on August 19, 2026, the Court continued the hearing on the special motion to strike to this hearing date of August 26.

Analysis

(1) Objection by Shalant

Shalant has filed a number of papers, none of which comply with California Rules of Court, rule 2.111(6), which provides: “The first page of each paper must be in the following form: [¶] … [¶] (6) Below the number of the case, the nature of the paper and, on all complaints and petitions, the character of the action or proceeding. In a case having multiple parties, any answer, response, or opposition must specifically identify the complaining, propounding, or moving party and the complaint, motion, or other matter being answered or opposed.” None of the documents filed by Shalant identifies the specific motion being opposed. There is thus no document identified as an opposition to the special motion to strike and no document identified as an opposition to the demurrer.

The document entitled, “Opposition to Defendants’ Hearing,” filed on June 25, 2026, refers to a hearing on August 19, 2026, which was the original hearing date for the special motion to strike. That document asserts an objection that “nothing was lawfully served on Plaintiff by either Defendant and Plaintiff, thus, has not studied whatever papers were in an envelope which lacked the required proof of service.” (Opposition, filed June 25, 2026, p. 1, capitalization altered.) That document further states that Plaintiff had received an envelope with papers and there was no proof of service included. (Ibid.)

Proof of mailed service of the special motion to strike was separately filed with the Court on May 26, 2026. This proof of service uses the optional Judicial Council form for that purpose.

“The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit or certificate of mailing.” (Code Civ. Proc., § 1013, subd. (b).)

The notice of the special motion to strike does not bear a notation of the date and place of mailing; there is nothing in the Court’s file to indicate that an unsigned copy of the affidavit of mailing accompanied the motion. However, Code of Civil Procedure section 1013, subdivision (h) provides that subdivision (b) is “directory.” “ ‘If the failure to comply with a particular procedural step does not invalidate the action ultimately taken ... the procedural requirement is referred to as “directory.” If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed “mandatory.” [Citation.]’ [Citations.]” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340.)

Because Code of Civil Procedure section 1013, subdivision (b) is directory and not mandatory, the failure to include a proof of service in the mailed envelope does not invalidate service. Shalant states in his opposition (which is verified under penalty of perjury) that he received the envelope. Service of the motion is effective and the objection on that ground is overruled.

(2) Request for Judicial Notice

In support of the demurrer, Fink filed a request for judicial notice (RJN) on June 25, 2026, requesting that the Court take judicial notice of: (RJN, exhibit A) a recorded quitclaim deed; (exhibit B) an opinion of the State Bar Court of California, filed May 16, 2014; (exhibit C) a restraining order after hearing, filed January 8, 2025, in Whitney Fink v. Benjamin Shalant, case No. 24FL02454; (exhibit D) Shalant’s response to the restraining order in case No. 24FL02454; (item 5) the docket, pleadings, and orders filed in case No. 24FL02454, including the minute orders or written orders reflecting denial of Shalant’s motion to modify the restraining order; (item 6) the docket, pleadings, and orders filed in Shalant v. Fink, case No. 25CV06326, including the Court’s order sustaining Fink’s demurrer and the docket entry setting Shalant’s “Motion to Correct Erroneous Ruling” for hearing on June 29, 2026; and (item 7) the complaint in this action and any amended pleadings on file.

On July 20, 2026, Shalant filed a response to the RJN. On July 28, 2026, Gans filed a joinder in the RJN.

With respect to exhibit B, this item is not relevant to the disposition of either the demurrer or the special motion to strike. The request for judicial notice is denied as to exhibit B. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

With respect to exhibit A, this item is relevant to Fink’s arguments in the demurrer. The Court will grant judicial notice as to the filing and content of that document. (See Evid. Code, § 452, subd. (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) With respect to items C and D, these are Court records for which the Court will grant judicial notice. (See Evid. Code, § 452, subd. (d)(1).) Judicial notice does not extend to the truth of factual matters set forth in such records. (See Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

With respect to items 5 and 6, the Court takes judicial notice of specific documents but not whole files not presented with the request. (See Cal. Rules of Court, rules 3.1113(l) [request must list “specific items”], 3.1306(c)(1) [request must specify “the part of the Court file” sought to be judicially noticed and provide the Court with a copy].) The request is denied as to items 5 and 6, except the Court will grant judicial notice as to item 6 that Shalant v. Fink, case No. 25CV06326, is an unlawful detainer action between the parties to this action, which unlawful detainer action was originally filed on October 7, 2025.

As to item 7, the request is granted as to the filing and contents of the complaint in this action (although the request is not necessary). (See Evid. Code, § 452, subd. (d)(1).) The request is denied as to any document other than the complaint as not adequately specified.

(3) Special Motion to Strike

“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) A special motion to strike pursuant to section 425.16 is also known as an “anti-SLAPP motion” and section 425.16 is also known as the “anti-SLAPP statute.”

“As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” 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, subd. (e).)

“Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving Defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the Defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the Plaintiff must show the claim has ‘at least “minimal merit.” ’ [Citation.] If the Plaintiff cannot make this showing, the Court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).)

            (A) First Prong

At the first step of determining whether the Plaintiff’s claims arise from protected activity, “Courts are to ‘consider the elements of the challenged claim and what actions by the Defendant supply those elements and consequently form the basis for liability.’ [Citation.] The Defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni, supra, 11 Cal.5th at p. 1009.)

“In making its determination, the Court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

The second cause of action of the complaint asserts that Gans “conducted himself tortiously in conjunction with Defendant Fink.” (Complaint, ¶ 12.) The alleged conduct is explained: “In relation to establishing Defendants’ jointly tortious conspiratorial misconduct, Plaintiff attaches herewith and in part relies on Defendant Fink’s December 11, 2024 email to Realtor Gary G, marked as Plaintiff’s exhibit 1.” (Ibid., capitalization altered.) Exhibit 1 includes the text: “Hello Gary, hope you’re well today. My lawyer Eric Gans will be handling all communication about the residence. Thank you.” (Id., exhibit 1.) The complaint further alleges that Fink and Gans denied Shalant’s realtor and termite inspector access to the Property. (Id., ¶ 13.)

Shalant does not make clear the legal theory of the second cause of action, but the attached exhibit 1 demonstrates that the factual basis of this cause of action against Gans is his communication while acting in his capacity as Fink’s lawyer. This understanding of the complaint is confirmed by Gans’s declaration that his communications have been solely in connection with his representation of Fink in legal proceedings, which have also involved Shalant and the Property. (Gans decl., ¶¶ 3-6.)

“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 (Neville).) “[S]ection 425.16, subdivision (e)(2), ‘has been held to protect statements to persons who are not parties or potential parties to litigation, provided such statements are made “in connection with” pending or anticipated litigation. [Citations.]” (Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136.)

On January 3, 2025, Shalant filed an “Intervenor’s Brief” in the case of Whitney Fink v. Benjamin Shalant, case No. 24FL02454 in which the issue of access to the Property by Shalant’s realtor and termite inspector was raised. (RJN, exhibit D, pp. 44-45.) (Note: Page numbers of the RJN refer to the page number of the document filed with the Court.) This document also confirms Gans’s role as attorney for Fink in case No. 24FL02454. Gans has therefore met his first-prong burden to show that the claims of the second cause of action against Gans are made in connection with litigation under section 425.16.

The third cause of action of the complaint is solely against Gans. As with the second cause of action, the third cause of action contains one paragraph of conclusory allegations (Complaint, ¶ 16) and one paragraph that is more factually specific (id., ¶ 17). The specific allegation is that after Fink sent exhibit 1 to realtor Gary G, “Defendant Gans wrote to Plaintiff and very pointedly did not address Plaintiffs two (2) aforesaid requests for his realtor to access [the Property] to obtain photos needed to list the property for sale, and for his termite inspector to see the property and thus enable termite remediation, Defendant Gans instead wrote an unrelated insulting letter to Plaintiff in an effort to embarrass and harm him.” (Id., ¶ 17.) This allegation again demonstrates that the claim asserted against Gans is based upon his communications regarding the same issues upon which the second cause of action is based. For the same reasons discussed above with respect to the second cause of action, Gans meets his first prong burden as to the third cause of action that the claim arises from activity protected by section 425.16.

            (B) Second Prong

“If the Court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The Court, without resolving evidentiary conflicts, must determine whether the Plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the Plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

As discussed above, Shalant has failed to identify any document that is specifically intended as a substantive opposition to the special motion to strike. Based upon the absence of substantive opposition, Shalant has failed to meet his second prong burden to show that the second and third causes of action are legally sufficient and factually substantiated under the standards applicable to a motion under section 425.16. The special motion to strike will therefore be granted.

Alternatively and additionally, Gans has shown that the allegations of the second and third causes of action arise out of statements made in connection with pending or anticipated litigation. In this context, Gans has also thereby shown that the claims asserted against Gans are barred by the litigation privilege of Civil Code section 47, subdivision (b) (the litigation privilege).

“ ‘The principal purpose of the Civil Code section 47 litigation privilege “ ‘is to afford litigants and witnesses [citation] the utmost freedom of access to the Courts without fear of being harassed subsequently by derivative tort actions. [Citations.]’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 115 (Optional Capital).) “ ‘ “ ‘Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. [Citations.] Thus, the privilege has been applied to suits for fraud [citations], negligence and negligent misrepresentation [citation], and interference with contract.’ ” ’ [Citation.]” (Id. at p. 116.)

“The litigation privilege applies ‘to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.] The privilege is ‘absolute in nature, applying “to all publications, irrespective of their maliciousness.” ’ [Citation.] ‘ “Any doubt about whether the privilege applies is resolved in favor of applying it.” ’ [Citation] ‘ “Many cases have explained that [Civil Code] section 47[, subdivision] (b) encompasses not only testimony in Court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit.” ’ [Citation.]” (Optional Capital, supra, 18 Cal.App.5th at p. 116.)

“To be privileged under section 47, a statement must be ‘reasonably relevant’ to pending or contemplated litigation. [Citations.] The reasonable relevancy requirement of section 47 is analogous to the ‘in connection with’ standard of section 425.16, subdivision (e)(2).” (Neville, supra, 160 Cal.App.4th at p. 1266.)

The case of Contreras v. Dowling (2016) 5 Cal.App.5th 394 (Contreras) is instructive. In Contreras, the Plaintiff tenant sued her landlords for tenant harassment and other causes of action arising out of allegedly illegal entries into the Plaintiff’s apartment. (Id. at p. 399.) After an attorney assumed representation of the landlords, the Plaintiff amended her pleadings to name the attorney as a Defendant, alleging that the attorney had aided and abetted his clients’ wrongful entries. (Ibid.) The attorney filed a special motion to strike, which was denied by the trial Court. (Ibid.)

On appeal in Contreras, the Court of Appeal reversed the denial of the special motion to strike, ordering that it be granted. (Contreras, supra, 5 Cal.App.5th at p. 399.) The Court noted that the complaint alleged that the attorney Defendant aided and abetted unlawful entries into the Plaintiff’s apartment pursuant to an agreement among the Defendants, that the attorney Defendant agreed with the Defendants to conceal evidence and deny that their conduct was illegal, and that the attorney Defendant falsely contended in a letter to Plaintiff’s counsel that the first entry was not illegal and falsely denied that the second entry took place. (Id. at p. 408.) The Court held that the first prong of the anti-SLAPP statute had been met because “ ‘all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.’ [Citation.]” (Id. at p. 409.) This determination applied equally to Plaintiff’s conspiracy and aiding and abetting theory. (Id. at pp. 410-411.) The Court then held that the litigation privilege protected all communicative acts of the attorney Defendant. (Id. at pp.415-416.)

As in Contreras, the communicative acts of attorney Gans are shown to have been made in the context of, and reasonably related to, pending litigation. Shalant does not provide evidence to show that any of the alleged conduct giving rise to the claims in the second or third causes of action falls outside of the protection of litigation privilege. The Court thus concludes on this alternative basis that Shalant has failed to meet his second prong burden to show that either the second or third causes of action is legally sufficient and factually substantiated within the standards applicable to a special motion to strike.

Accordingly, the special motion to strike will be granted to strike the second and third causes of action as against Defendant Gans. Because the special motion to strike goes to all causes of action asserted against Gans, and leave to amend is not permitted in an anti-SLAPP motion (Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 171), the complaint will be ordered dismissed as against Gans.

            (C) Attorney Fees and Costs

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing Defendant on a special motion to strike shall be entitled to recover that Defendant’s attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

The Court finds that Gans is a prevailing Defendant entitled to attorney fees and costs under section 425.16.

“The successful Defendant can: make a subsequent noticed motion as was envisioned by Defendant in this case; seek an attorney fee and cost award at the same time as the special motion to strike is litigated as is often done; or as part of a cost memorandum. [Citations.] The successful Defendant who specially moves to strike pursuant to section 425.16 has the option of utilizing a separate noticed attorney fee motion.” (American Humane Ass’n v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103.)

Gans requests $15,168.06 in fees and costs as part of this motion. (Oxton decl., dated July 28, 2026, ¶ 9.) Counsel for Gans has a reasonable hourly rate of $550. (Oxton decl., ¶ 4.) Counsel has tracked a total of $9,680.00 in work (amounting to 17.6 hours of time) up through the date of the declaration of July 28, 2026. (Oxton decl., ¶ 6.) Counsel anticipated an additional $5,000 in attorney time. (Oxton decl., ¶ 7.) Counsel also requests $488.06 in filing fees. (Oxton decl., ¶ 6.)

Fees awarded under section 426.16 are limited to the reasonable fees and costs incurred in connection with the motion, not the entire case. (S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.) Given the nature of the reply and the insufficiently specifically identified documents filed by Shalant, the Court finds that the 17.6 hours of time incurred through July 28 and 3 hours of additional time are reasonable, for an attorney fee award in the total amount of $11,330.00 (20.6 hours). Gans has not identified costs specific to this motion rather than the entire case. The award of costs is denied without prejudice to claiming costs by memorandum of costs upon entry of judgment.

(4) Demurrer

“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)

Fink demurs to the complaint on the grounds that that the complaint is uncertain and fails to state facts sufficient to constitute a cause of action, that the complaint is barred by res judicata and collateral estoppel based upon the DVRO proceeding, that another action is pending, that the complaint fails to join a necessary and indispensable party, and that the claims are barred by the litigation privilege.

No document filed by Shalant is identified as opposition to the demurrer. In a notice filed August 20, 2026, Fink states that no opposition to the demurrer was received.

            (A) Causes of Action

As discussed above in the context of Gans’s special motion to strike, the complaint contains three unnamed causes of action. The first two causes of action are asserted against Fink, while the third cause of action is asserted only against Gans.

The first cause of action appears to assert two different types of action, one involving real property—the Property—and one involving personal property—the Vehicle. Notwithstanding the title, these are actually separate causes of action asserting separate legal theories.

With respect to the real property claim, Shalant alleges that he is the sole owner of the Property. (Complaint, ¶ 1.) Shalant further alleges that Fink’s permission to reside at the Property ended on July 9, 2024, but Fink continued to reside at the Property thereafter. (Complaint, ¶¶ 4, 5.) Shalant alleges that the reasonable monthly rent for the Property is at least $7,500 and remains unpaid. (Complaint, ¶¶ 8, 9.)

“ ‘By the demurrer it is admitted that the appellants were the owners and entitled to the possession of the premises which respondent tortiously entered upon and wrongfully occupied during all the time mentioned in the complaint. In such a case the tort may be waived, and an action based upon implied assumpsit is usually maintainable to recover the value of the use of the property for the time of such occupation, together with the costs of recovering possession.’ ” (Richmond Wharf & Dock Co. v. Blake (1919) 181 Cal. 454, 459, citation omitted.)

“A landowner, who brings a suit for the use and occupation of his property, need only allege his ownership of the land, occupation of said land by Defendant, the reasonable value of the use of the property for the period of occupation, and that such sum is unpaid.” (Richmond Wharf & Dock Co. v. Blake, supra, 181 Cal. at pp. 457–458.)

The first cause of action adequately alleges an action for the use and occupancy of real property.

With respect to the personal property claim, Shalant alleges that he is the sole owner of the Vehicle. (Complaint, ¶ 2.) Shalant alleges that Fink now possesses the Vehicle and refuses to return the Vehicle despite a demand for such return. (Ibid.) The Vehicle is worth at least $15,000. (Ibid.) Again, Shalant fails to explain the legal theory asserted by this claim, but the nature of these allegations imply an action on a bailment.

“In a broad sense a bailment is the delivery of a thing to another for some special object or purpose, on a contract, express or implied, to conform to the objects or purposes of the delivery which may be as various as the transactions of men. [Citation.] Ordinarily the identical thing bailed or the product of, or substitute for, that thing, together with all increments and gains, is to be returned or accounted for by the bailee when the use to which it is to be devoted is completed or performed or the bailment has otherwise expired.” (H. S. Crocker Co. v. McFaddin (1957) 148 Cal.App.2d 639, 643–644.)

The refusal to redeliver personal property subject to a bailment gives rise to a cause of action for conversion. (Grosso v. Monfalcone, Inc. (1936) 13 Cal.App.2d 405, 409.) “A cause of action for conversion requires allegations of Plaintiff’s ownership or right to possession of property; Defendant’s wrongful act toward or disposition of the property, interfering with Plaintiff’s possession; and damage to Plaintiff.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) In the case of failure to redeliver, the complaint must allege demand for redelivery and refusal to redeliver. (Grosso v. Monfalcone, Inc., supra, 13 Cal.App.2d at pp. 409-410.)

Shalant has adequately alleged his ownership of the Vehicle, his demand for return of the Vehicle and Fink’s refusal to redeliver the vehicle. Damages are adequately alleged as the value of the Vehicle. (See H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 719.)

The first cause of action adequately alleges an action for damages for failure to redeliver the Vehicle.

Shalant’s second cause of action is asserted against both Gans and Fink. Shalant alleges that Fink and Gans denied Shalant access to the Property and prevented access both as to the realtor from obtaining photos so that the Property could be listed for sale and as to the termite inspector to locate termite damage. (Complaint, ¶ 13.) As discussed above in the context of Gans’s special motion to strike, there are no allegations that Gans was acting in any capacity other than as an attorney nor are there allegations that Gans did anything other than communicate with Shalant and others in that capacity. The action asserted against Gans is thus based upon Gans’s communications regarding the Property.

On the other hand, Fink is alleged to be in possession of the Property. The legal nature of Fink’s possession is not alleged or argued in opposition. For purposes of this discussion, based on the allegations of previously consensual possession of the Property, the Court assumes the relationship is or was some form of tenancy.

“A landlord may enter the dwelling unit only in the following cases: [¶] … [¶] (2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.” (Civ. Code, § 1954, subd. (a)(2).)

“Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.” (Civ. Code, § 1954, subd. (d)(1).)

“If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.” (Civ. Code, § 1954, subd. (d)(2).)

The allegations regarding realtor photos and termite inspection are made in connection with listing the Property for sale. (Complaint, ¶ 13.) The complaint does not allege that notice was given pursuant to Civil Code section 1954, subdivision (d), or that notice was otherwise unnecessary. Additionally, the complaint alleges that access was “prevented” but does not allege what acts were involved in such prevention. Consequently, the second cause of action fails to adequately allege a claim based upon the “prevention” of access by Fink. The demurrer to the second cause of action will be sustained on that ground.

            (B) Res Judicata

Fink argues that the causes of action of the complaint are barred by the doctrines of res judicata and collateral estoppel by virtue of the domestic violence restraining order (DVRO) filed on January 8, 2025, in Whitney Fink v. Benjamin Shalant, case No. 24FL02454. (RJN, exhibit C.)

“Res judicata, or claim preclusion, ‘ “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” [Citation.] Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.]’ [Citation.] Collateral estoppel, or issue preclusion, ‘prevents relitigation of previously decided issues’ and applies ‘(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party. [Citations.]’ [Citation.]” (Egelston v. State Personnel Bd. (2025) 112 Cal.App.5th 1050, 1055.)

With respect to claim preclusion, it is clear that the cause of action for issuance of a DVRO, which is an order of protection, is not the same cause of action as either the first or second causes of action. It is also not shown that Shalant could assert the same claims of this action in the DVRO proceeding. Claim preclusion therefore is not shown to apply.

With respect to issue preclusion, the DVRO includes the order that “Only the person in (1) [i.e., Fink] can use, control, and possess the following property: [¶] Residential property located at 588 Puente Drive, Santa Barbara, CA 93110.” (RJN, exhibit C, ¶ 19.) The DVRO does not mention the Vehicle. The DVRO does not include any statements determining ownership issues with respect to either the Property or the Vehicle.

The first cause of action in Shalant’s complaint seeks only money based upon the continued possession and use of the Property and does not affect the use, control, or possession of the Property. There is therefore no issue preclusion shown from the judicially noticed materials with respect to the first cause of action.

As noted above, the Court will sustain the demurrer to the second cause of action because, regardless of the DVRO and DVRO proceedings, Shalant has failed to allege sufficient facts giving rise to a right to enter the Property. The DVRO provision giving Fink exclusive use, control, and possession of the Property appears to conflict with the allegations of the complaint as to “prevention” of access. Because “prevention” is not adequately alleged in the complaint, it is unclear whether, or to what extent, the DVRO may affect Shalant’s claim of access.

The demurrer based on claim preclusion and issue preclusion is overruled.

            (C) Another Action Pending

Fink also demurs on the ground that another action, specifically, Shalant v. Fink, case No. 25CV06326, an unlawful detainer action, is pending.

“The party against whom a complaint … has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] … [¶] (c) There is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).)

“[I]n order to sustain the plea of another action pending it is essential that it shall appear, in addition to the requirement that both suits are pending, that both suits are predicated upon the same cause of action and that both suits are contested by the same parties.” (Williams v. State of California (1976) 62 Cal.App.3d 960, 965.)

An unlawful detainer action, in which possession of real property is the issue, is not the same as an action for recovery of money, even though the unlawful detainer action may resolve issues relevant to the civil action. Among other things, the unlawful detainer action does not, and would not, address the Vehicle. Also, this action seeks damages for possession of the Property from an earlier date, July 9, 2024, than the unlawful detainer action. (Complaint, ¶¶ 8-9.)

“Sections 1161 et seq. set forth the jurisdictional and procedural law for unlawful detainer actions. Section 1174 provides the Court’s jurisdiction to enter judgment for possession and to award incidental rents and damages. … “[E]stablished California law holds ‘that possession is the principal subject of unlawful detainer actions and the entitlement of the Plaintiff lessor to recover damages or rents therein is wholly dependent upon the lessor prevailing on the issue of unlawful detainer.’ [Citation.] Thus there can be no damage award if the landlord fails to prove an unlawful detainer. [¶] And, even if the landlord does prevail, only damages that ‘result from the unlawful detention and accrue during that time’ are proper. [Citation.] An award of rent is only allowable if the unlawful detainer is based on the nonpayment of rent. [Citations.] Moreover, the award of damages for breaches of the lease occurring before the unlawful detainer [citation] and of ‘future damages’ for continued unlawful possession beyond the date of the judgment until such time as possession is returned to the landlord are not permitted in unlawful detainer. [Citation.]” (Hudec v. Robertson (1989) 210 Cal.App.3d 1156, 1163.)

The actions are different. The demurrer based upon another action pending will be overruled. The Court does not consider Fink’s alternative arguments regarding a stay on this same basis, which arguments do not address the sufficiency of the pleadings and are thus not appropriate for a demurrer.

            (D) Nonjoinder of Parties

Fink further demurs on the grounds that the complaint fails to join a necessary and indispensable party, Benjamin Shalant, under Code of Civil Procedure section 389.

“The party against whom a complaint … has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] … [¶] (d) There is a defect or misjoinder of parties.” (Code Civ. Proc., § 430.10, subd. (d).)

“A person who is subject to service of process and whose joinder will not deprive the Court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the Court shall order that he be made a party.” (Code Civ. Proc., § 389, subd. (a).)

Fink raises nonjoinder as a ground for a demurrer. The grounds for nonjoinder must therefore appear on the face of the complaint or in judicially noticed material. Fink points to the quitclaim deed on the face of which Shalant grants a 1-percent interest in the Property to Benjamin Shalant. (RJN, exhibit 1.) Shalant, in response to the request for judicial notice, argues that the quitclaim deed is invalid. For these purposes, the Court merely notes that the Court does not take judicial notice of the validity of the quitclaim deed, only that such a document was recorded in the public records. The validity of the quitclaim deed remains an issue not to be resolved by this demurrer.

While Fink asserts that Benjamin Shalant’s rights and interests in the Property are implicated, Fink does not show why complete relief cannot be granted in this action without making Benjamin Shalant a party or why other factors—as they appear on the face of the complaint—would require sustaining the demurrer because of the absence of Benjamin Shalant as a party. The demurrer will be overruled on this ground.

            (E) Litigation Privilege

Finally, Fink demurs on the ground that the claims are barred by the litigation privilege of Civil Code section 47. With respect to the first cause of action, Fink fails to explain how the litigation privilege applies to Shalant’s two claims for money based upon Fink’s use and possession of the Property and the Vehicle. The demurrer to the first cause of action is overruled on this ground.

With respect to the second cause of action, as explained above, the allegations are different as between Gans, acting by communications in his sole capacity as an attorney, and Fink, the possessor of the Property. As also explained above, the Court will sustain the second cause of action because the allegations are insufficient to show either Shalant’s rights that are preconditions to his claim or the conduct by which Fink is asserted to violate those rights. In the absence of those allegations, the Court cannot determine the extent, if any, that the litigation privilege may apply to claims against Fink in the second cause of action.

            (F) Leave to Amend

This is a demurrer by Fink to Shalant’s initial complaint. To the extent the Court sustains the demurrer, the Court will grant leave to amend.