Judge: Colin Leis, Case: 23STCV17736, Date: 2024-12-05 Tentative Ruling

Case Number: 23STCV17736    Hearing Date: December 5, 2024    Dept: 74

Gomez v. Acevedo et al.

Defendants Victor Guevara Acevedo and Mayra Flores’s Special Motion to Strike (Anti-SLAPP)

BACKGROUND 

            This motion arises out of a housing discrimination and habitability dispute between plaintiff Andrea Gomez (Plaintiff) and defendants Victor Guevara Acevedo and Mayra Flores (Defendants). Defendants move to strike under Code of Civil Procedure section 425.16.

            The court continued the hearing as a matter of calendar management. In continuing the hearing from November 7 to December 5, 2024, the court did not reopen briefing nor invite supplemental briefing. Accordingly, the court disregards Defendant’s untimely reply filed on November 27, 2024, which was due at least five court days before November 7.

LEGAL STANDARD

The anti-SLAPP statute 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 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.” (Cal. Civ. Proc. § 425.16(b)(1).)

            The protected conduct is defined under CCP § 425.16 (e) (1) –(4) which 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.”   

            Therefore, regardless of the label assigned to a cause of action, “[i]f the supporting allegations include conduct furthering the defendant's exercise of the constitutional rights of free speech or petition, the pleaded cause of action ‘arises from’ protected activity, at least in part, and is subject to [a] special motion to strike.” (Baral v. Schnitt (2016) 1 Cal.5th 376 at 381- 382 (Baral) quote marks omitted.)  

            “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. Claims with the requisite minimal merit may proceed.” (Baral at 384-85, citations omitted.)  

DISCUSSION

First Prong - Protected Activity

Defendants identify seven different allegations of protected activity, which Defendants describe as service of eviction notices and attempting to evict the Plaintiff. “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) Plaintiff asserts the challenged allegations in the Complaint’s Introduction; the tenth cause of action for violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance; the twelfth cause of action for violation of the Los Angeles Civil and Human Rights Ordinance; the thirteenth cause of action for retaliatory eviction; and the fifteenth cause of action for violation of the California Fair Employment and Housing Act (FEHA).

Service and prosecution of an unlawful detainer action are, in and of themselves, a protected activity.  (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45; see also Cal. Civ. Proc. § 425.16 (e)(1) [complaint made in judicial proceeding is protected activity].) Here, however, Plaintiff’s allegations reciting service of the eviction notice and the eviction proceedings are the background and context for the unlawful activity Plaintiff alleges. That unlawful activity – Defendant’s purportedly illegal discrimination and retaliation – is the activity from which Plaintiff’s lawsuit arises, not the unlawful eviction proceeding. (See Complaint ¶¶ 69 [gender discrimination], 173.vi [paraphrases ordinance – no conduct alleged], 187 [transgender discrimination], 195 [retaliation] 196 [retaliation], 216 [discrimination].)

For example, Plaintiff’s tenth cause of action alleges violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance.  In this cause of action, Plaintiff alleges six separate activities Defendants engaged in that constituted the violation, including “[m]isrepresenting to a tenant that the tenant is required to vacate… through an intentional misrepresentation or the concealment or omission of a material fact” and “[t]hreatening and taking action to terminate a tenancy including service of any notice to quit… based on facts which the Defendant has no reasonable cause to believe to be true.” The central facts underlying the tenth cause of action are the misrepresentation, concealment, and threats, not the eviction itself.  In the tenth cause of action, the notice to quit is merely an example of retaliation. 

Plaintiff’s twelfth cause of action for its part alleges a violation of the Los Angeles Civil and Human Rights Ordinance which states, in part, “no person shall discriminate in any manner or retaliate against in party” in housing.  (Los Angeles Municipal Code §§ 51.03, 51.04.)  The thirteenth cause of action similarly prohibits a landlord from “… taking adverse action against a tenant to retaliate against a tenant.”  (Civ. Code § 1942.5(a).) And the fifteenth cause of action similarly prohibits harassing or evicting a tenant in retaliation.  (Cal. Gov. Code § 12955.)  Each of these causes of action’s central component is unlawful gender discrimination or retaliation.  (See Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1052-53; Moriarty v. Laramar Mgmt. Corp. (2014) 224 Cal.App.4th 125, 140.) 

Defendants have not met their initial burden of showing that the allegations arise from protected activity. Accordingly, the court does not continue to the second prong.

CONCLUSION

The Court denies Defendants’ motion to strike.