Judge Mark A. Young, Case 22SMUD00423 2023-04-25 Tentative Ruling

Judge: Mark A. Young, Case: 22SMUD00423, Date: 2023-04-25 Tentative Ruling

Case Number: 22SMUD00423 Hearing Date: April 25, 2023 Dept: M

CASE NO.: 22SMUD00423

MOTION: Special Motion to Strike

HEARING DATE: 4/25/2023

Legal Standard

Code of Civil Procedure section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“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.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “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. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

Analysis

First Prong

Cross-Defendant Farrah Soleimani moves to strike the entirety of the first (wrongful eviction) and sixth (retaliatory eviction) causes of action.

The filing of an unlawful detainer action is undoubtably a protected activity under the anti-SLAPP statute. (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248; Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45; Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1479.) An act in furtherance of a person’s right of petition or free speech 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,” and “(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.” (CCP §425.16(e)(1)-(2).) An unlawful detainer action, and communications attendant to such an action, necessarily fall within the scope of either of these subdivisions. Unsurprisingly, there are some nuances to this point. Caselaw distinguishes complaints that were based on the decision to terminate or other conduct in connection with the termination, and not on the termination of the tenancy itself. (See Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 157–158, 160.)

In Marlin, plaintiffs sought declaratory relief regarding their rights under the Ellis Act, which filing was triggered by the landlords filing and service of notices. The Marlin court stated: “The filing and service of the notices may have triggered plaintiffs' complaint and the notices may be evidence in support of plaintiffs' complaint, but they were not the cause of plaintiffs' complaint. Clearly, the cause of plaintiffs' complaint was defendants' allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs' tenancy. Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (Id.; see also Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1287 [complaint triggered by filing and serving paperwork to remove units from rental market and evict tenant but was based on disability discrimination]; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286–1287 [complaint was based on violation of rent control laws and not on landlord's UD action]; Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 948 & 953 [complaint was based on defendants' breach of tenancy termination agreement; no unlawful detainer filed by the defendant-landlords]; Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1240-1247 [sought declaration of rights and duties under a ground lease, sublease, trust deed, quitclaim deed, and duties to repair].)

In Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, a commercial tenant claimed breach of contract and declaratory relief against a landlord. The tenant alleged that landlord, which had filed an unlawful detainer complaint, breached the lease agreement by terminating the lease in bad faith with no valid grounds for termination and despite a holdover tenancy, rendering ineffective the notice of termination. (Id. at 1281-1282.) The Court found that the gravamen of the action was neither an attack on the service of the notice of termination nor the filing of the unlawful detainer complaint, but rather the underlying decision to terminate the tenancy. (Id.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Id., at 1276.) The question is whether the subject cause of action “arises from . . . service of the notice of termination or filing of the unlawful detainer complaint.” (Id.)

Here, the first and sixth causes of action refer to Sharp being evicted by Cross-Defendant. Notably, the causes of action are labeled as wrongful and retaliatory evictions. That said, the labels provided by the causes of action do not control the analysis. (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 (“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”).) The Court must look to whether the cause of action arises from the protected activity. Examining the gravamen of the two causes of action, the Court determines that they do “arise from” the notice of termination of tenancy and filing of an unlawful detainer action.

The first cause of action is based on alleged violations of Santa Monica Ordinance section 8.52.130. Notably, there are two possible bases of liability for this ordinance: retaliatory eviction and/or harassment by a landlord. The former option would naturally involve protected activity, to wit, the service of eviction notices and the filing of the underlying unlawful detainer complaint. (§8.52.130.A.1-3.) On the other hand, violations of the anti-harassment ordinance may not stem from protected activities. (§8.52.130.B.) This subsection prohibits landlords, or their agents, from failing perform repairs and maintenance required by the rental agreement, or by federal, State, or local laws in “bad faith”. (§ 8.52.130.B.2.a.)

As to the sixth cause of action, Civil Code section 1942.5 provides for liability, in relevant part, as follows:

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

Similarly, there are two potential factual bases for a violation of this section: eviction or a “decrease” in services.

The first and sixth causes of action refer to Cross-Defendant’s attempt to “evict” Sharp. (See CC ¶¶ 14-18.) The CC alleges that on April 11, 2022, Cross-Defendant served a 3-Day Notice to Pay Rent or Quit Premises “in clear retaliation against [Sharp].” (¶ 14.) Cross-Defendant responded to Sharp’s complaints regarding habitability by filing their original unlawful detainer complaint to evict Sharp. (¶ 16.) Sharp vacated the premises – a constructive eviction – incurring substantial moving costs. (¶ 17.) This suggests that liability is based, at least in part, on Cross-Defendant’s filing of the unlawful detainer notices and complaint and the eviction of Sharp. (CC ¶¶ 20, 25, 50, 52 and 56.)

The first cause of action also alleges that Cross-Defendant violated the Santa Monica Ordinance and breached the lease by failing to perform maintenance on the garage and heating system. (CC ¶¶ 23-24.) This violation sounds in the unprotected, anti-harassment provision. The cross-complaint, however, also alleges that Cross-Defendant decided to “evict” Cross-Complainant in retaliation for her complaints about the cited issues, and instead of repairing these issues. (¶¶ 20, 25.) The damages appear to stem both from the unlawful detainer or notices, and from the lack of maintenance.

As to the sixth cause of action, Cross-Defendant allegedly “retaliated against, harassed and evicted Sharp in retaliation for and because of her good faith complaints about habitability and for reporting a nuisance, and because she consulted with various companies about the Premises, thereby lawfully and peaceably exercising their legal rights.” (CC ¶ 55, emphasis added.) Notably, the Cross-Complaint cites statutes and local ordinances which prohibit landlords from evicting tenants because they engaged in specified protected activities. (¶¶ 52-53.) The “retaliatory eviction” took place within 180 days of a complaint. (¶ 56.) Aside from the eviction, the sixth cause of action alleges that Cross-Defendant “retaliated” and “harassed” Sharp by decreasing housing services. (¶¶ 55, 57.) The cross-complaint previously alleged that Cross-Defendant refused to repair the heating issues, which may be considered a decrease in required housing services. (¶¶10-13; 23-24.)

Here, the cross-complaint refers to both non-eviction “harassment” and decrease of housing services and Sharp’s eviction through the unlawful detainer process. (CC ¶¶ 21-24; 55-57.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (See Baral, supra, 1 Cal.5th at 396.) Read as a whole, and disregarding the unprotected activity alleged, the Court concludes that the gravamen of the two causes of action arises from protected activities, namely, the decision to file the evict Sharp. Thus, the Court moves to the second prong of the analysis.

Second Prong

To the extent that the targeted causes of action are based on Cross-Defendant’s attempt to evict cross-complainant Sharp through the underling unlawful detainer action, Cross-Complainant Sharp fails to show a probability of prevailing. Sharp fails because of the litigation privilege, and her failure to substantiate a prima facie case.

The first cause of action is barred by the litigation privilege. Civil Code § 47(b) provides that a privileged communication is one made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.” The privilege is an absolute privilege and protects any statements or writings that have “some relation” to a lawsuit made both during and in anticipation of litigation (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965.) It is well-settled that statements made in the course of judicial proceedings are protected by the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.) Moreover, this protection also extends to include prelawsuit notices and demands. (CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 271.) A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. [Citations.]” (Action Apartment, at p. 1251, 63 Cal.Rptr.3d 398, 163 P.3d 89; Rohde v. Wolf, supra, 154 Cal.App.4th at p. 36, 64 Cal.Rptr.3d 348.)

Litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Feldman, supra, 160 Cal.App.4th at 1485 [litigation privilege “applies to bar the cross-complaint causes of action for retaliatory eviction, negligence, breach of the implied covenant of quiet enjoyment, wrongful eviction under the Rent Ordinance, breach of contract and unfair business practices”].) The litigation privilege is an absolute affirmative defense to all tort causes of action, except the tort of malicious prosecution. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322.) “Any doubt as to whether the privilege applies is resolved in favor of applying it.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.) A notice of eviction is a communication regarding prospective litigation, and, as such, it is not necessarily part of a judicial proceeding. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1250–1251.) To be protected by the litigation privilege, a communication must be ‘in furtherance of the objects of the litigation, that is, the communication be connected with, or have some logical relation to, the action. (Id.) It is a factual question “[w]hether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration . . ..” (Id.)

Based on the authorities discussed further below, it is apparent that the litigation privilege would apply to the local Santa Monica Ordinance. Thus, the first cause is barred. However, and as discussed below, there is a split of authority as to whether Civil Code section 1942.5 retaliation claims are barred by the litigation privilege.

In Feldman v. 1100 Park Lane Associates, (2008) 160 Cal. App. 4th 1467, the Court of Appeal found that the filing of an unlawful detainer action fell within the litigation privilege such that the retaliatory eviction claim was barred. (Id. at 1480, 1485-86, 1492, 1498.) The Second District later held, however, that a cause of action for retaliatory eviction under Civil Code section 1942.5 was not barred by the litigation privilege. (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 326.) Banuelos concluded that that “[t]he Legislature ‘makes clear’ that it does not intend the enforcement of a statute to be barred by the litigation privilege when the statute ‘is more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.’” (Id. at 331-332.) “The statute’s reference to a landlord’s liability ‘in a civil action’ for bringing ‘an action to recover possession’ in retaliation for a tenant’s exercise of rights coupled with the provision recognizing a good faith defense ‘at the trial or other hearing’ demonstrates that the Legislature intended to create a cause of action for retaliatory eviction that is not barred by the litigation privilege[.]” (Id. at 332.) “If the litigation privilege trumped a suit for retaliatory eviction under section 1942.5 the privilege would ‘effectively immunize conduct that the [statute] prohibits’ thereby encouraging, rather than suppressing ‘the mischief at which it was directed. [Citation.]’” (Id. at 332, quoting Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 338.) “[T]he right of tenants to be free from eviction actions brought by their landlords because the tenant ‘lawfully and peaceably exercised [their] rights under the law’ (§ 1942.5, subd. (c)) would be ‘significantly or wholly inoperable if its enforcement were barred [by the litigation privilege].’” (Id., quoting Action Apartments, supra, 41 Cal.4th at 1246.) In declining to follow Feldman, the Banuelos Court noted that Feldman failed to consider section 1942.5 offered an exception to the litigation privilege. (Id. at 333.) Other cases have concurred with this conclusion. (See Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 252-57 [discussing the principles in Action Apartment, Banuelos, and Feldman, finding Banuelos was more recent and better reasoned decision]; see also Ulkarim, supra 227 Cal.App.4th 1266, 1281 [questioning and limiting Feldman].) The Court finds the reasoning in Banuelos and Winslett controlling, better reasoned and more persuasive.

Accordingly, the Court applies the litigation to the first cause of action, but does not apply the privilege to the sixth cause of action. As to the sixth cause of action, Plaintiff must demonstrate minimal merits.

Sharp’s evidence fails to do so. As a necessary element to the statutory retaliation claim, Sharp must demonstrate that she was not in default on rent. While she alleges that she was excused from paying rent based on the unhabitable conditions and her right to offset her repair attempts, she does not provide substantial evidence showing such facts. Instead, Sharp focuses solely on her notices and written communications to Cross-Defendant. (See Sharp Decl., ¶¶ 3- 5.) At best, she vaguely refers to costs out of her own pocket. (Id.¶ 5.) However, she fails to show that these costs exceeded the amount of rent owed. Moreover, she does not provide any evidence of the allegedly unhabitable conditions which excused her rent. Thus, she fails to show that she was excused from paying the outstanding rent.

Accordingly, the motion is GRANTED to the extent that liability is based on the unprotected activities as discussed above.