David Alberts, Ph.D. v. Broadway Tower Associates, L.P. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID ALBERTS,
Plaintiff,
v.
BRIDGE HOUSING CORPORATION, et
al.,
Defendants.
Case No.: 25-cv-2908-RSH-SBC
ORDER GRANTING KTS
DEFENDANTS’ MOTION TO
DISMISS
[ECF No. 47]
Pending before the Court is a motion to dismiss, or in the alternative, motion to strike
Plaintiff’s Third Amended Complaint (“TAC”), filed by defendants Kimball, Tirey & St.
John LLP, Natalie D. Contreras, and Raymund M. Quicho (collectively the “KTS
Defendants”). ECF No. 47.
On July 30, 2026, the Court granted the KTS Defendants’ motion to dismiss
Plaintiff’s second amended complaint (“SAC”). ECF No. 45 at 11.1 The Court determined
that “Plaintiff’s second and third claims are based entirely on prelitigation communication
sent by attorneys representing defendant Bridge Housing”—namely, a June 10, 2025 letter
1 All citations to electronic case filing (“ECF”) entries refer to the ECF-generated page
numbers.
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followed by notices to quit on June 12 and June 16, 2025, accusing Plaintiff of lease
violations—and that these three communications fall under the protection of the Noerr-
Pennington doctrine. Id. at 5-7. The SAC alleged that the two notices to quit were “facially
invalid, legally defective, and unenforceable,” for example, because they failed to identify
the landlord or specify the dates that Plaintiff allegedly violated his lease. See ECF No. 32
at 9-10. The Court determined, however, that Plaintiff’s allegations failed to plausibly
plead that the contemplated unlawful detainer action was “objectively baseless” as required
for the sham exception to Noerr-Pennington. ECF No. 45 at 8. The Court granted Plaintiff
leave to file a TAC “for the sole purpose of addressing the deficiencies as they relat[ed] to
claims two and three.” Id. at 11.
The issue before the Court is therefore a narrow one: The Court considers whether
Plaintiff has now adequately pleaded the sham exception to Noerr-Pennington in
connection with the second and third claims in the TAC. As set forth below, the Court
determines that Plaintiff has not.
I. BACKGROUND
The pro se TAC alleges as follows. Plaintiff is a tenant at Celadon, a residential
property in San Diego owned by Bridge Housing Corporation. ECF No. 46 at 4. Beginning
in May 2025 and continuing into June 2025, Plaintiff engaged in various forms of tenant
advocacy. Id. at 4-5. He also submitted to Celadon management on May 17, 2025 a request
for a grievance hearing; and on June 9, 2025, requested certain disability accommodations.
Id.
On June 10, 2025, Plaintiff received a letter from defendant Contreras, identifying
herself as counsel for Celadon, responding to Plaintiff’s “recent grievance regarding
secondhand and thirdhand smoke in the common areas and apartments[,]” and “direct[ing]
Plaintiff to submit written verification” of his previous request for accommodation. Id. at
6; ECF No. 46-1 at 9-11. The letter also asserted “alleged lease violations” by Plaintiff,
ECF No. 46 at 6:
Additional Notice Regarding Conduct. We also wish to address the
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tone and volume of your recent communications, including your June
10, 2025, email. Please be advised that, due to your recent conduct
including repeated use of profanity, harassment, and the public posting
of defamatory statements and unauthorized images of management and
residents - our clients are preparing to serve you with a NOTICE TO
PERMANENTLY PERFORM COVENANT OR QUIT. These actions
constitute violations of your Lease.
Your ongoing pattern of hostile, accusatory, and disparaging language
toward management is outside the bounds of respectful and
constructive dialogue expected under your lease. The excessive volume
and adversarial nature of your emails have contributed to delays in the
grievance process, as management must devote significant time and
resources to reviewing and responding to your frequent and often
duplicative complaints. Our clients encourage you to consolidate your
concerns into a single, comprehensive communication so that we can
more efficiently and effectively address them.
Nevertheless, our clients will not tolerate harassment of employees,
other residents, guests, or vendors. Any behavior that is physically,
sexually, or verbally abusive, profane, threatening, or disrespectful is a
material breach of the Lease and may result in legal action, including
termination of tenancy. This includes, but is not limited to, harassing
communications, defamatory statements, and unauthorized publication
of residents’ or management’s images. You must also cease and desist
emailing corporate management and submit your substantiated
complaints in writing to the leasing office in a businesslike manner.
You will receive formal notice regarding these violations in accordance
with the requirements of the Lease and applicable law.
A copy of this response will be mailed or delivered to you and retained
in your tenancy file, as required. Our clients expressly reserve all rights
and remedies under the Lease and applicable law, including the right to
pursue further legal action as warranted.
ECF No. 46-1 at 10-11.
On June 12, 2025, Plaintiff received a notice to permanently perform covenant or
quit signed by defendant Quicho, identifying himself as “Attorney for Agent/Landlord.”
ECF No. 46 at 7. On June 13, 2025, Plaintiff notified defendant Conteras in writing the
reasons why “he believed Notice 1 was deficient[,]” “identifying, among other things, its
failure to state the address of the rental property and its failure to provide a sufficiently
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detailed description of the alleged lease violations.” Id. at 7. On June 14, 2025, Plaintiff
sent two written communications to defendant Contreras “requesting the legal authority
and factual particulars supporting the allegations and directives in the June 10 letter and
[n]otice 1, including the names, dates, times, places, and detailed descriptions of the alleged
misconduct.” Id. On June 15, 2025, Plaintiff notified defendant Contreras in writing that
he believed the first notice was retaliatory. Id.
On June 16, 2025, a second notice to permanently perform covenant or quit was
posted on Plaintiff’s door containing much of the same language as the first notice and
stating that it superseded all other notices. Id. at 12. The first and second notices both stated:
You are being served with this Notice by reason of the fact that you
have breached a covenant contained in your Lease or Rental
Agreement, in that you have, contrary to said Lease or Rental
Agreement, done or omitted to do the following: harassed employees
of management.
The grounds for this notice are based on one or more of the following
without limitation:
By way of background, you have engaged in a campaign of harassment
against Management by sending them a cumbersome amount of emails
and complaints, generally accusing them of malfeasance. You have
emailed rants to Management almost daily. The majority of these
emails discuss topics outside of Management’s scope of responsibility.
For issues that Management is handling, you have accused them of
acting in bad faith.
ECF No. 46-1 at 12, 19 (emphasis in original). The notices contained a list of dated
incidents associated with the alleged breach of Plaintiff’s lease agreement:
On or about May 31, 2025 you reported to Management that another
resident was bringing in visitors and guests to his unit. You accused
Management of giving this resident “deferential treatment” without any
basis for this claim. You believe that this resident’s guests are
“druggies” and “prostitutes” but have no evidence to support this claim.
On or about June 1, 2025, you sent a lengthy email to Management
discussing topics that are irrelevant and outside the scope of
Management’s duties. You accused Management of lying to you with
no proof they have done so. You further stated, “Ms. Ramirez hasn’t
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lied to me yet, but she will. For now, she’s just ignoring me. Treating
me like she treats all the other people she thinks are beneath her and not
worth her time, trusting that you can handle me, like you handle all the
other poor, ignorant sheep who live here, and that sooner or later I’ll
just go away.”
On or about June 3, 2025, at around 8:03pm, you accused Management
of hoping that you were, “stupid, ignorant, and gullible.” There are no
grounds to believe that this is Management’s belief. You further
accused Management of trying to subvert or delay the hearing process.
On or about June 3, 2025, at around 9:49pm, you further sent an email
to Management because you were dissatisfied with their response to a
previous email. In this email you again accused Management of delay
tactics in handling your grievance. There is no evidence to support
Management is acting in bad faith. You further stated Management,
“Fucked up,” that Management tried to, “fake [their] way through
[their] stupidity and incompetence and try to manipulate [you] and tell
[you] what to do and try to fuck [you] around?” These statements were
wholly unnecessary as Management has been working with you on your
grievance.
You also created a Facebook Group where you post images of other
residents and members of Management and accuse them of
wrongdoing.
On or about June 3, 2025, you posted a picture of a resident accusing
him of receiving preferential treatment from Management. You
accused him of committing lease violations for years. You also posted
pictures of him in the common area hall way with his guests. You
accused the resident of picking up alleged druggies and prostitutes, but
you have no basis for making these allegations.
On or about June 10, 2025, you sent another cumbersome email to
Management. In that email you accused Management of intention[al]
stalling and avoidance. You further repeated that a member of
Management was acting in bad faith without evidence.
Id. at 12-13, 19-20. The notices then stated that the incidents described above are in
violation of the House Rules and Regulations and quoted a specific provision:
“2. Management will not tolerate harassment of employees, other
residents, guests or visitors, or management’s vendors. Residents
and/or their visitors may not engage in any behavior which can be
reasonably construed as physically, sexually, or verbally abusive,
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profane, threatening, disrespectful to any member of staff, resident, or
visitor of this community . . . Serious and/or repeated violations will
constitute a material breach of the Lease Agreement[.]”
Id. at 13, 20 (emphasis in original). The second notice requested among other things that
Plaintiff refrain from disrespectful interactions with management, ownership, and other
residents; from posting pictures of other residents or management without consent; and
from making disparaging online posts about other residents or management. Id. at 21. The
same day he received the second notice, Plaintiff filed a housing discrimination complaint
with the U.S. Department of Housing and Urban Development and the California
Department of Fair Employment and Housing. ECF No. 46 at 11.
Defendants never filed an unlawful detainer action against Plaintiff, and Plaintiff
was not evicted. Id. at 8-10, 13. Plaintiff is suing based on Defendants’ acts of sending him
the June 10, 2025 letter and the two subsequent notices to quit. Id. at 15-18.
II. ANALYSIS
A. Noerr-Pennington Doctrine
Under the Noerr-Pennington doctrine, “those who petition any department of the
government for redress are generally immune from statutory liability for their petitioning
conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (citing Empress LLC
v. City & Cnty. of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005)). The doctrine extends to
claims arising out of a litigant’s petitioning activity. See Freeman v. Lasky, Haas & Cohler,
410 F.3d 1180, 1183-84 (9th Cir. 2005). In its prior order, the Court determined that the
letter and notices to quit constitute conduct incidental to filing a lawsuit and fall within the
protection of the Noerr-Pennington doctrine. ECF No. 45 at 6-7.
However, “neither the Petition Clause nor the Noerr-Pennington doctrine protects
sham petitions[.]” Sosa, 437 F.3d at 932. “Litigation is a sham where the lawsuit is
objectively baseless and the defendant’s motive in bringing it was unlawful.” United States
v. Koziol, 993 F.3d 1160, 1171-72 (9th Cir. 2021) (quotation omitted). Litigation is
objectively baseless if “no reasonable litigant could realistically expect success on the
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merits.” Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60
(1993). The Court considers whether Plaintiff alleges sufficient facts to demonstrate that
the sham litigation exception applies to claims two and three. 2
Plaintiff has failed to cure the pleading deficiencies identified by the Court in its
prior order. The TAC, like the SAC, alleges various defects in the legal adequacy of the
notices. See ECF No. 32 at 9-10; ECF No. 46 at 13-14. The TAC alleges that the first notice
“omitted the address of the premises, failed to identify the dates or time period of the
alleged violations, required compliance ‘within the next three (3) days’ without identifying
when the period began or expired, and alleged categories of misconduct without identifying
the conduct Plaintiff was allegedly required to cure.” Id. at 13. The second notice likewise
“required compliance within three (3) days without identifying when that period began or
expired,” and “retained vague and overbroad allegations while imposing revised and
additional demands beyond those contained in Notice 1.” Id. Plaintiff further alleges that
both notices were overbroad in their demands, were insufficiently specific, and relied
substantially on Plaintiff’s protected activities. Id. at 13-14. Plaintiff also alleges that the
second notice was not properly served. Id. at 14. As with the SAC, however, the TAC’s
allegations of formal or procedural defects in connection with the notices does not plausibly
allege that the contemplated unlawful detainer action was objectively baseless. As set forth
in the TAC and its attachments, and as reproduced above, the letter and notices at issue
were reasonably specific about the lease provisions that Plaintiff allegedly violated and
about the incidents supporting the alleged violations. If the allegations in the notices were
true—and Plaintiff does not plead facts establishing otherwise—those facts may have
2 The Parties dispute whether a heightened standard applies to pleading the sham
exception under Noerr-Pennington. ECF No. 47-1 at 16-17; ECF No. 48 at 7-11. As one
district court has noted, there are “conflicting Circuit precedents” on this question. See
B&G Foods N. Am., Inc. v. Embry, 638 F. Supp. 3d 1122, 1127 (E.D. Cal. 2022). In this
case, the Court determines that the TAC fails under either a Rule 8(a) standard or a
heightened standard.
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legitimately amounted to a lease violation. Plaintiff objects to the form and/or service of
the notices, without establishing their legal invalidity; but even if these particular notices
were in fact flawed—flaws that could presumably be cured, for example, by adding the
name of the landlord or specifying the dates of the three-day period—these flaws would
not render a contemplated unlawful detainer action baseless.3
Plaintiff also alleges that the fact that an unlawful detainer action was never filed is
also evidence that the contemplated litigation was a sham. ECF No. 46 at 13-15. The KTS
Defendants respond that they did not file an unlawful detainer action because Plaintiff in
fact took steps to comply with the notices. ECF No. 47-1 at 16. But regardless, “failure to
file [a] threatened lawsuit supports the second prong of the sham exception[,]”—namely,
whether there was an improper or unlawful purpose. See Koziol, 993 F.3d at 1171-72. The
TAC fails to satisfy the first prong of the sham exception, that of objectively baseless
litigation; the Court need not evaluate the adequacy of the TAC’s allegations as to improper
motive.
B. Leave to Amend
“Rule 15(a) declares that leave to amend shall be freely given when justice so
requires[.]” Foman v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotation
marks omitted). At the same time, “a district court may dismiss without leave where a
plaintiff’s proposed amendments would fail to cure the pleading deficiencies and
amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1041 (9th Cir. 2011) (citation omitted). “[T]he district court’s discretion to deny leave to
amend is particularly broad where plaintiff has previously amended the complaint.”
3 Indeed, even a lawsuit that is unsuccessful on the merits does not establish an
objectively baseless one. See White v. Lee, 227 F.3d 1214, 1232 (9th Cir. 2000) (“The fact
that a litigant loses his case does not show that his lawsuit was objectively baseless for
purposes of Noerr-Pennington immunity[.]”).
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Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008)
(quotations omitted).
Here, the Court has already afforded Plaintiff two opportunities to amend claims two
and three. On April 9, 2026, the Court granted Plaintiff leave to amend the claims that the
Court dismissed, including claims two and three. ECF No. 31 at 13-14. On July 30, 2026,
the Court granted Plaintiff leave to amend for the purpose of pleading facts supporting the
sham exception in claims two and three. ECF No. 45 at 11. The Court finds further
amendment would be futile and DENIES leave to amend. See Zucco Partners, LLC v.
Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (holding plaintiff’s failure to correct
deficiencies in its second amended complaint was a “strong indication” that plaintiff had
“no additional facts to plead”) (internal quotation marks omitted).
III. CONCLUSION
For the foregoing reasons, the KTS Defendants’ motion to dismiss [ECF No. 47] is
GRANTED.4 The Court DISMISSES claims two and three asserted in the TAC.
IT IS SO ORDERED.
Dated: October 9, 2026
____________________
Hon. Robert S. Huie
United States District Judge
4 In light of the dismissal of claims two and three, the Court does not reach the KTS
Defendants’ alternative requested relief of striking these claims.
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