Judge: Anne Richardson, Case: 24STCV18667, Date: 2024-10-31 Tentative Ruling

Case Number: 24STCV18667    Hearing Date: October 31, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Millicent Powell (Powell) sues Defendants KPL Select Property Management, Inc. (KPL) and Does 1 through 10 pursuant to a July 29, 2024 Complaint alleging causes of action for: (1) Malicious Prosecution; (2) Tenant’s Right to Quiet Enjoyment; (3) Violation of LAMC 8.52.130(B)(2)(e); (4) Violation of LAMC 8.52.130(B)(4); (5) Violation of LAMC 8.52.130(B)(7); (6) Violation of Beverly Hills Municipal Code Just Cause Ordinance.

The claims arise from the following allegations. Powell alleges that on April 28, 2024, KPL served her with a three-day notice to pay or quit for $6,984.36 in unpaid rent between February 1, 2024 and April 30, 2024. Powell asserts that she then provided a cashier’s check for $6,984.36 to KPL on April 29, 2024. On May 7, 2024, KPL filed an unlawful detainer action against Powell. KPL voluntarily dismissed the action on July 18, 2024.

B. Motion Before the Court

On October 4, 2024, KPL filed the instant special motion to strike (anti-SLAPP motion) the first cause of action for malicious prosecution, the fourth and fifth causes of action for violations of LAMC section 8.52.140 subdivision (B)(4) and subdivision (B)(7), and the sixth cause of action for violation of the Beverly Hills Municipal Code Just Cause Ordinance.

On October 18, 2024, Powell opposed the motion.

On October 24, 2024, KPL replied.

On October 25, 2024, Powell filed a supplemental declaration in support of its opposition, attaching Exhibits 1 and 2 which were inadvertently omitted from the opposition.

KPL’s anti-SLAPP motion is now before the Court.

II. Motion

A. Legal Standard

Anti-SLAPP analysis under Code of Civil Procedure section 425.16 proceeds in two familiar steps. In the first step, the defendant or moving party must make “a threshold showing that the challenged cause of action is one ‘arising from’ protected activity.” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321, quotations omitted (Barry).) In this context, the term “protected activity” refers to speech or petitioning activities. (Barry, 2 Cal.5th at p. 321.) A claim arises from protected activity when that activity underlies or forms the basis for the claim; otherwise stated, “the defendant’s act underlying the plaintiff’s cause of action [must] itself [be] … an act in furtherance of the right of petition or free speech.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063, quotations omitted (Park).) “[T]he focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Ibid.) In teasing out whether protected conduct exists, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. (Ibid.) 

If the court finds the defendant or moving party succeeds at the first step, then the burden shifts to the plaintiff to “demonstrate[] a probability of prevailing on the claim.” (Ibid. [quotations omitted].) At the second step, courts “evaluate the defendants’ evidence only to determine if it defeats that submitted by the plaintiff as a matter of law.’ [Citation.] ‘[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have “‘stated and substantiated a legally sufficient claim.’” [Citation.] “Put another way, the 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.’”‘ [Citation.] … That burden [is] not particularly high.” (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 602 (Area 51 Productions, Inc.).) “Claims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94 (Navallier).) If the cause of action satisfies both prongs of the anti-SLAPP statute, then it is subject to being struck. (Barry, supra, 2 Cal.5th at p. 321.) 

As stated by our State’s highest Court: “This is a ‘summary-judgment-like procedure at an early stage of the litigation.’” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 (Varian).) 

B. Analysis

1.     First-Prong Analysis 

a.      Relevant Law 

A defendant meets his burden of showing that a plaintiff’s claim arises from that defendant’s exercise of free speech or petition rights by making a prima facie showing that the act or conduct underlying the plaintiff’s claims falls within one of the four categories found in Code of Civil Procedure Section 425.16, subdivision (e). (Navellier, supra, 29 Cal.4th at p. 88.) “Courts should analyze each claim for relief — each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action — to determine whether the acts are protected [the first prong of the analysis] and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion [the second prong of the analysis].” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.) “[W]hen the allegations referring to an arguably protected activity are only incidental to a cause of action based essentially on non-protective activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 (Martinez).) 

Code of Civil Procedure Section 425.16, subdivision (e) states: 

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) (italics added.) 

Allegations of protected conduct that are ‘merely incidental’ to the unprotected conduct on which liability is based does not constitute protected conduct for anti-SLAPP purposes. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [“[W]hen 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”]; see Peregrine Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [same in mixed cause of action context]; see, e.g., Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 133-135, 139 [holding causes of action did not arise from alleged eviction, despite their incorporation of all prior allegations by reference].) 

At the first step of the anti-SLAPP analysis, 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 for the first prong of the anti-SLAPP discussion. 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 (Baral).) 

b.     Discussion 

KPL argues that Complaint’s first cause of action for malicious prosecution, the fourth and fifth causes of action for violations of LAMC sections 8.52.140 subdivision (B)(4) and subdivision (B)(7), and the sixth cause of action for violation of the Beverly Hills Municipal Code Just Cause Ordinance are grounded in protected activity, specifically pursuant to Code of Civil Procedure 425.16, subdivision (e), because the Complaint pursues claims based on KPL bringing the unlawful detainer action. (Mot. p. 4.)

A review of the Complaint shows that the first, fourth, fifth and sixth causes of action all involve KPL’s unlawful detainer action (See Complaint ¶¶ 12-14 [KPL’s alleged wrongful bringing of the unlawful detainer action as grounds for malicious prosecution], 30, 35 [KPL’s alleged wrongful bringing of the unlawful detainer action in violation of LAMC sections 8.52.140 subdivisions (B)(4) and (B)(7)], 40 [KPL’s alleged wrongful bringing of the unlawful detainer action in violation of Beverly Hills municipal code].)

Thus, the first, fourth, fifth and sixth causes of action all arise from litigation activity as contemplated by Section 425.16, subdivisions (e)(1)-(2). 

In her opposition Powell argues that the anti-SLAPP motion does not apply to the malicious prosecution claim because of “the malicious prosecution claim exception.” (Opp. p.4:9-10.) It is not clear what exception Powell is referencing. The California Supreme Court has conclusively held that the anti-SLAPP statute applies to malicious prosecution actions. “[B]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 at 735.)

To the extent that Powell is contending that there is an exception to the litigation privilege for malicious prosecution, (see cases cited at Opp., p. 4) these cases do not provide the basis for the analysis necessary in an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323-324 [“Notwithstanding this relationship between the litigation privilege and the anti-SLAPP statute, . . . the two statutes are not substantively the same. . . . Nor do the two statutes serve the same purpose”].)

KPL has met its burden on Anti-SLAPP of showing that the conduct alleged in Powell’s Complaint arises from protected activity. The burden thus shifts to Powell to show a probability of prevailing on the merits of her claims.

2.     Second Prong Analysis

If the first prong of the anti-SLAPP analysis is met, “the burden shifts to the plaintiff [i.e., Ms. Weiss] to demonstrate[] a probability of prevailing on the claim[s].” (Park, supra, 2 Cal.5th at p. 1063 [quotations omitted].) “Claims with the requisite minimal merit may proceed.” (Navellier, supra, 29 Cal.4th at p. 94.) The 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.” (Area 51 Productions, Inc., supra, 20 Cal.App.5th at p. 602 [quotations omitted].) 

a.      First Cause of Action, Malicious Prosecution

To establish a cause of action for malicious prosecution, "a plaintiff must demonstrate 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; (2) was brought without probable cause; and (3) was initiated with malice.' [Citations.]" (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)

Here, Powell argues that KPL brought the unlawful detainer action without probable cause because she had paid the outstanding $6,984.36 amount as stated on the three-day notice to quit before the action was commenced on May 7, 2024. (Opp. pp. 5:16-6:12.)  KPL argues that it believed, albeit mistakenly, that the unlawful detainer action was filed for Powell’s unpaid rent of $15,282.46 which accrued in 2022 and 2023. (Goto Decl. ¶ 3.) KPL asserts that upon realizing that the unlawful detainer action sought the wrong amount and stated the wrong dates, it voluntarily dismissed the action. (Goto Decl. ¶¶ 4-5.) While Powell attaches evidence of the April three-day notice to quit and her cashier’s check for $6,984.36, she does not offer evidence or argument that rebuts KPL’s assertion of the $15,282.46 still owed and due. Nor does she offer evidence that shows KPL knew that it did not have probable cause to file the unlawful detainer action. (see Opp. pp. 5:16-6:12; Supp. Decl., Ex 1.) Additionally, Powell has not provided any facts that indicate KPL acted with malicious intent.

Thus, Powell has not met her burden to show a probability of prevailing on the merits of her malicious prosecution cause of action.

b.     Fourth and Fifth Causes of Action, Violations of LAMC Sections 8.52.140 subdivisions (B)(4) and (B)(7)

LAMC section 8.52.140 subdivision (B)(4) states, in relevant part, that a landlord shall not “[i]nfluence or attempt to influence a Tenant to vacate a Fully or Partially Covered Rental Unit through fraud, misrepresentation, intimidation or coercion. (LAMC § 8.52.140 subd. (B)(4).)

LAMC section 8.52.140 subdivision (B)(7) states in relevant part, that a landlord shall not “[t]ake action to terminate any Tenancy including service of any notice to quit or other eviction notice or bring any action to recover possession of a Fully or Partially Covered Rental Unit based upon facts which the Landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the Landlord.” (LAMC § 8.52.140 subd. (B)(7).)

As discussed above, Powell has not shown that KPL brought the unlawful detainer action through fraud or otherwise based on facts that KPL had no reasonable cause to believe. In her opposition, Powell reasserts the facts as stated in her Complaint but does not address KPL’s assertion of the $15,282.46 still owed and due from 2022 and 2023 which otherwise appears to give KPL good cause to file an unlawful detainer action. KPL admits that it erred in filing the action for the incorrect dates and amount, and KPL promptly dismissed the action upon realizing the mistake.

Thus, Powell has not met her burden to show a probability of prevailing on the merits of her fourth and fifth causes of action for violations of LAMC section 8.52.140 subdivisions (B)(4) and (B)(7).

c.      Sixth Cause of Action, Violation of Beverly Hills Municipal Code Just Cause Ordinance

The City of Beverly Hills Just Cause ordinance requires that a landlord have a “just cause reason to evict a tenant.” (Beverly Hills Municipal Codes §§ 4-5-502, 4-6-6 (A).)

Powell has not shown that KPL did not have just cause to file the unlawful detainer action. Failure to pay rent is a just cause.

Thus, Powell has not met her burden to show a probability of prevailing on the merits of her sixth cause of action for violation of the Beverly Hills Municipal Code Just Cause Ordinance. 

III. Conclusion

Accordingly, Defendant KPL Select Property Management, Inc.’s Special Motion to Strike is GRANTED.