Judge: Daniel S. Murphy, Case: 22STCV08759, Date: 2023-04-28 Tentative Ruling

Case Number: 22STCV08759    Hearing Date: April 28, 2023    Dept: 32

BACKGROUND

            On March 10, 2022, Plaintiffs Clare Sassoon and Thomas Kielty initiated this action arising from a landlord-tenant dispute. The operative Second Amended Complaint, filed March 15, 2023, asserts causes of action for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) tenant harassment, (4) contractual interference, (5) declaratory relief, (6) negligence, and (7) unfair competition.

            According to the SAC, a prior dispute between the parties resulted in a Tenant Settlement Agreement (TSA), which essentially granted Plaintiffs tenancy for life at the subject premises. Plaintiffs allege that Defendants attempted to work around the TSA by falsely accusing Plaintiffs of breaching their lease. Specifically, Defendants contend that Plaintiffs improperly sublet their unit to another individual while Plaintiffs themselves lived elsewhere. Plaintiffs maintain that this individual was a preapproved roommate and that they did not violate the lease. Plaintiffs allege that Defendants have wrongfully threatened eviction, invaded their privacy, refused to accept rent, and failed to articulate the residency requirements under the lease.

            On March 27, 2023, Defendants filed the instant special motion to strike (anti-SLAPP), arguing that the lawsuit arises from Defendants’ protected activity of issuing a 3-day notice to quit, which constitutes a statement in furtherance of a legal proceeding.

LEGAL STANDARD

A special motion to strike under Code of Civil Procedure section 425.16 allows a defendant to seek early dismissal of a lawsuit that qualifies as a strategic lawsuit against public participation. A SLAPP is “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (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, sub. (e).)

Evaluation of an anti-SLAPP motion requires a two-prong process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) If both prongs are met—(1) the defendant is being sued for protected activity, and (2) the plaintiff has no reasonable probability of success—then the lawsuit is subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

DISCUSSION

I. Timeliness of Motion

            “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Code Civ. Proc., § 425.16(f).) Plaintiffs argue that the motion is untimely because it should have been brought within 60 days of the service of summons. However, the statute provides that the motion must be filed within 60 days of “the complaint,” not the summons. Here, the operative complaint being challenged by Defendants’ anti-SLAPP motion is the SAC, filed March 15, 2023. Defendants timely filed this motion on March 27, 2023.

II. Protected Activity

            To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.)  

            Service of a 3-day notice to quit is protected speech under Section 425.16 because it is a legal prerequisite to filing an unlawful detainer action. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480.) Threats to evict are also protected as “communications in connection with an ongoing dispute and in anticipation of litigation.” (Id. at p. 1481.)

Here, the SAC is at least partially based on Defendants’ protected activity. The contract claim alleges that Defendants breached the TSA “by failing to provide the quiet enjoyment that is PLAINTIFFS’ legal right as to the UNIT. PLAINTIFFS’ allegations throughout this complaint are incorporated herein by this reference. It is a breach of the AGREEMENT to harass PLAINTIFFS when there is no basis.” (SAC ¶ 75.) The harassment without basis which this allegation references is Defendants’ notice to quit and threat to evict. (Id., ¶¶ 41, 58, 62.) The harassment claim alleges that it is unlawful to falsely threaten eviction. (Id., ¶ 88.) The contractual interference claim is based on Defendants’ threat to evict, which interfered with Plaintiffs’ contract with their roommate. (Id., ¶ 98.)

Plaintiffs argue that their complaint cannot target protected activity because the 3-day notice was null and void by the time Plaintiffs filed this action. Plaintiffs cite to Civil Code section 1945, which states that “[i]f a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.” Plaintiffs contend that Defendants accepted rent and never filed an unlawful detainer action. However, this has no bearing on the protected nature of the communication. A notice to quit is protected as a communication “preparatory to or in anticipation of the bringing of an action or other official proceeding.” (See Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.) “[A]lthough litigation may not have commenced, if a statement concerns the subject of the dispute and is made in anticipation of litigation contemplated in good faith and under serious consideration . . . then the statement may be petitioning activity protected by section 425.16.” (Ibid., internal citations omitted.)

Plaintiffs also argue that the injury alleged is harassment and disturbance of quiet enjoyment, not service of a notice. However, “the focus of the [anti-SLAPP] statute is not the form of plaintiff’s cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability.” (Feldman, supra, 160 Cal.App.4th at p. 1483.) The allegations discussed above demonstrate that the harassment and disturbance to which Plaintiffs refer is, at least partially, Defendants’ service of a 3-day notice and threat to evict. Therefore, the SAC targets protected activity and is subject to the provisions of the anti-SLAPP statute.

III. Probability of Success

“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.” (Area 55, LLC v. Nicholas & Tomasevic (2021) LLP, 61 Cal.App.5th 136, 150.) A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff's favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-14.) Rather than weighing the evidence, the court must “accept as true the evidence favorable to the plaintiff . . . The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP . . . .” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.¿) The defendant’s showing is only analyzed “to determine if it defeats the plaintiff’s claim as a matter of law.” (Area 55, supra, 61 Cal.App.5th at p. 151.)

Plaintiffs’ opposition does not address the second prong. Therefore, Plaintiffs have not satisfied their burden of demonstrating a probability of success on the claims to the extent they are based on Defendants’ service of a notice to quit and other threats of eviction.

IV. Attorneys’ Fees

“[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(c)(1).) Taking into account the complexity of the issues involved and Defendant’s limited success, the Court awads attorneys’ fees of $1,700, representing 4 hours at $425 per hour. (See Hollenbeck Decl. ¶¶ 5-6.)

CONCLUSION

            Defendants’ special motion to strike is GRANTED in part. The SAC is stricken to the extent that it asserts liability based on Defendants’ service of a notice to quit and other threats of eviction. The SAC survives to the extent that it asserts liability based on invasion of privacy and other nonprotected acts. (See SAC ¶¶ 59, 65-69, 90.) The Court awards Defendant attorneys’ fees of $1,700.