Judge: Michael J. Strickroth, Case: 2022-01287601, Date: 2023-05-22 Tentative Ruling
Motion to Strike Complaint (Anti-SLAPP)
Defendant MGP XII College Plaza, LLC special motion to strike portions of plaintiff 4G Mobility, LLC dba T-Mobile’s Complaint for Damages pursuant to Code of Civil Procedure section 425.16 is DENIED.
The Court declines to rule on Plaintiff’s Evidentiary Objections to Defendant’s Evidence because they are immaterial to the disposition of the Motion.
Plaintiff’s Request for Judicial Notice is GRANTED.
Code of Civil Procedure section 425.16, subdivision (b), states, “(1) 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 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
Section 425.16, subdivision (e), provides the following four categories of protected activity: “(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.”
“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. [Citation.] 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.’ [Citation.] 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. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ ” Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted. “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. [Citations.] Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Id. at 394.
The Baral court also provided a summary of the showings and findings required by section 425.16(b). “At the first step, 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 at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” Id. at 396.
Although the Notice of Motion does not specify the subsection of section 425.16 subdivision (e) under which Defendant moves to strike, Defendant appears to be moving under subsections (1) and (2). (Motion, p. 5, lns. 9-12.)
First Step – Protected Activity:
“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” Baral, Id.,at 396. “A claim arises from protected activity within the meaning of section 425.16(b)(1) if the activity underlies or forms the basis for the claim.” Newport Harbor Offs. & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 44. “In short, in ruling on an anti-SLAPP motion, 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.” Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063; see Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [“In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity”].
Here, Defendant moves to strike the following:
· Line 3:9-11: “On or about May 24, 2022, in absence of good cause, Defendant instituted an unlawful detainer action against Plaintiff to evict Plaintiff from the leased Premises.”
· Plaintiff’s Entire First Cause of Action for Breach of Contract. (Complaint 3:11-28)
· Plaintiff’s Entire Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing (Complaint 4:1-18)
Both the first cause of action for breach of contract and second cause of action for breach of the implied covenant of good faith and fair dealing allege that: “At the time of the filing of the unlawful detainer action, Plaintiff was not in violation of the lease.” (Complaint, ¶¶ 15, 21.) Both causes of action further allege that: “Defendant, absent good cause, evicted Plaintiff from the premises in violation of the lease agreement.” (Complaint, ¶¶ 16, 22.)
There appears to be a split of authority regarding anti-SLAPP case law concerning unlawful detainer litigation. Defendant relies on Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 (Feldman). In Feldman, Park Lane filed an unlawful detainer suit against the Feldmans, whom it contended did not have a valid sublease on an apartment. The Feldmans counterclaimed and argued that Park Lane breached the sublease by sending notices challenging their tenancy and by “illegally evicting [them] from the premises, seeking thereby to deprive [them] of their contractual rights to occupancy of the premises.” Id. at 1473-74, 1494. Feldman stated that the filing of an unlawful detainer complaint, service of a notice to quit, and statements threatening eviction in that case were not merely evidence of wrongdoing or activities triggering the subtenants' cross-complaint, but instead the cross-complaint actually arose from those activities. Id. at 1483. The court stated that “[t]he claim that the eviction was ‘illegal’ because the Feldmans were lawfully in possession under the Addendum does not transform these protected activities into something different or independent. The breach of contract cause of action arose from protected activity.” Id. at 1484.
Plaintiff relies on Ulkarim v. Westfield, LLC (2014) 227 Cal.App.4th 1266 (Ulkarim) to argue that neither cause of action arises out of the unlawful detainer. In Ulkarim, the plaintiff, a commercial tenant, filed suit against her landlord and alleged that the landlord had breached their lease agreement “by ‘giving unilateral notice of termination without cause and in bad faith for the purpose of transferring Plaintiff’s successful business to [a third party and also] breached ¶20 of the [Agreement], providing [plaintiff] is a month-to-month tenant upon holdover after 7/3/2012.’ ” Id. at 1271–1272. The appellate court acknowledged that “[f]iling an unlawful detainer complaint is protected activity under the anti-SLAPP statute, as is service of a notice of termination preceding an unlawful detainer complaint. [Citations.] A cause of action arising from such filing or service is a cause of action arising from protected activity.” Id. at 1275. However, the court noted that “ ‘the mere fact an action was filed after protected activity took place does not mean it arose from that activity.’ [Citation.] ‘Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ ” (Ibid.) The court then explained that “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. Ulkarim cites to Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237 (Copenbarger), which states, “Although an unlawful detainer action itself is protected activity under section 425.16, terminating a lease is not. [Citations.] A complaint arising out of or based on the dispute or conduct underlying the unlawful detainer action is not subject to a special motion to strike.” Id. at 1245.
In declining to follow Feldman, the Ulkarim court stated: “The lesson we learn from this line of authority is that a tenant’s complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant’s complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint.” Ulkarim, supra, at 1279.
Other courts have similarly declined to follow Feldman. In finding that the party’s reliance on Feldman was misplaced, the appellate court in Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 748 stated: “In connection with this argument, the City relies heavily on Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 74 Cal.Rptr.3d 1 and Birkner v. Lam (2007) 156 Cal.App.4th 275, 67 Cal.Rptr.3d 190, the former of which the City also relies on heavily here. Such reliance is misplaced. As the leading practice treatise describes it: “Birkner and Feldman have been criticized for failing to recognize that the critical consideration is whether the claim is based on defendant's protected free speech or petitioning activity. The mere fact that a claim may have been triggered by protected activity (such as service of unlawful detainer papers) does not necessarily mean it arose from that activity. [(Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th [1266,] 1275–1282 [175 Cal.Rptr.3d 17] (finding it ‘exceedingly difficult’ to reconcile Birkner and Feldman with collected cases)]; see also Moriarty v. Laramar M[anagement] Corp. [(2014)] 224 Cal.App.4th 125, 136–138, 168 Cal.Rptr.3d 461]] (distinguishing Birkner and Feldman]—terminating tenancy or wrongfully removing property from market under Ellis Act not protected activity ...” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 7:598, p. 7(II)-14.)” (Id. at fn. 6.)
This Court declines to follow Feldman, on which Defendant relies, to
the extent Feldman suggests a different rule than Ulkarim.
Here, although the first and second causes of action were triggered by the eviction and the filing of the unlawful detainer, they arise out of Defendant’s alleged violation of the lease agreement. Specifically, the Complaint alleges that on January 21, 2022, Plaintiff entered into a License Agreement with Defendant for the premises at 2400 E. Chapman Ave., Unit 806-033, Fullerton, California. (Complaint, ¶ 7.) Plaintiff later discovered that on November 30, 2021, Defendant had entered into a lease agreement with SPK Corporation, a California corporation, doing business as Pokeworks for the lease of the premises. (Complaint, ¶ 8.) Plaintiff reached an agreement with Pokeworks wherein Pokeworks’ would, subject to Defendant’s consent, assign its lease with Defendant to Plaintiff to allow Plaintiff to remain at the Leased Premises. (Complaint, ¶ 9.) However, Plaintiff alleges that Defendant unreasonably withheld consent to the assignment and without good cause evicted Plaintiff from the premises in violation of the lease agreement. (Complaint, ¶ 10.) Therefore, the first and second causes of action arise out of the alleged violation of the lease agreement and not the filing of the unlawful detainer action. Accordingly, Defendant has failed to show that the first and second causes of action arise from protected activity.
Further, the allegation in paragraph 11 of the Complaint that “On or about May 24, 2022, in absence of good cause, Defendant instituted an unlawful detainer action against Plaintiff to evict Plaintiff from the leased Premises” provides context of Defendant’s alleged actionable conduct. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Baral, supra, at 394.
Because Plaintiff’s first and second causes of action do not arise from protected activity, Plaintiff need not establish the probability of prevailing on its claims.
Based on the foregoing, the Motion is DENIED.
Attorneys’ Fees:
Both parties have requested attorneys’ fees. The standard for recovery of attorney fees differs depending on whether the prevailing party is the defendant or the plaintiff.
Code of Civil Procedure section 425.16, subdivision (c)(1) provides: “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
Here, Plaintiff is the prevailing party. However, given the split of authority regarding anti-SLAPP case law concerning unlawful detainer actions, the Court finds that Defendant’s Motion was not “frivolous or is solely intended to cause unnecessary delay.” Therefore, Plaintiff’s request for attorney’s fees is DENIED.
Plaintiff to give notice.