Judge Teresa A. Beaudet, Case Number: 23STCV19283, Date: 2023-12-07 Tentative Ruling

On August 14, 2023, Plaintiff Larry Link (“Plaintiff”) filed this action against Defendants Victoria Billings (“Billings”) and 5523 Harold Way, LLC (“Harold Way”) (jointly, “Defendants”). The Complaint alleges causes of action for (1) disability discrimination, (2) retaliation for request for accommodation, (3) failure to pay wages owed at termination, (4) failure to pay wages owed after termination, (5) harassment, and (6) “retaliation eviction.”

Defendants now move pursuant to Code of Civil Procedure section 425.16 to strike the sixth cause of action of the Complaint and paragraph 22 of the Complaint. Plaintiff opposes.[1]

As an initial matter, Plaintiff asserts that the instant motion should be denied because it is untimely. Pursuant to Code of Civil Procedure section 425.16, subdivision (f), “[t]he 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.”

On August 16, 2023, Plaintiff filed proofs of service indicating that Defendants were served with the Complaint by substituted service on August 15, 2023. Sixty days after August 15, 2023 is October 14, 2023. The instant motion was filed on October 20, 2023, and the proof of service attached to the motion indicates that it was served on October 20, 2023.

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Emphasis added.)

As noted by Defendants, the proofs of service filed on August 16, 2023 state that the Complaint was served on Defendants by substituted service on August 15, 2023, but the proofs of service do not indicate that the Complaint was thereafter mailed (by first-class mail, postage prepaid) to Defendants.

Defendants also assert that even if the Complaint was thereafter mailed to Defendants on August 15, 2023, service of the Complaint would not be effective until August 25, 2023. As set forth above, Code of Civil Procedure section 415.20, subdivisions (a) and (b) provide that “[s]ervice of a summons in this manner is deemed complete on the 10th day after the mailing.” As noted by Defendants, sixty days after August 25, 2023 is October 24, 2023. As set forth above, the instant motion was filed on October 20, 2023, and the proof of service attached to the motion indicates that it was served on October 20, 2023. Defendants thus assert that the instant motion was filed less than 60 days after the effective service of the Complaint.

In light of the foregoing, the Court does not find that Plaintiff has demonstrated that the instant motion should be denied as untimely.

In the Complaint, Plaintiff alleges that he “was a long-term employee of Defendants having worked from 2016 until June 2022.” (Compl., ¶ 5.)

“On July 15, 2019, Plaintiff agreed to move into two units at 5523 Harold Way, Los Angeles, CA 90028 at the request of the Defendants. This action was taken to facilitate the removal of the current building manager…” (Compl., ¶ 7.) “Defendants directed Plaintiff to occupy a unit without a kitchen. A second unit with a kitchen was provided for Plaintiff’s spouse. Defendants requested Plaintiff and his spouse to complete a Residential Rental Agreement stating the market value of the unit. A verbal agreement was made between the Defendants and Plaintiff that no rent would be forthcoming during the duration of Plaintiff and spouse’s tenancy.” (Compl., ¶ 7.)

Plaintiff alleges that “[o]n or about June 30, 2022, Defendants terminated Plaintiff’s employment without cause.” (Compl., ¶ 9.) Plaintiff alleges that “Defendants’ adverse employment actions taken against him, including, but not limited to, his termination, was motivated by and resulted from his disability (actual and/or perceived).” (Compl., ¶ 17.)

Plaintiff further alleges that “Defendants filed an Unlawful Detainer against Plaintiff on July 12, 2023, seeking alleged back rent. Plaintiff and Defendants entered into a verbal agreement upon move in on July 15, 2019, that no rent would be paid throughout Plaintiff’s tenancy. Defendants were informed by Plaintiff that the Landlord’s signature was not present on the residential lease agreement, and as such was invalid. Defendants continued to pursue the Unlawful Detainer in court.” (Compl., ¶ 22.)

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” ((Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. ((Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” ((Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” ((Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” ((Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (emphasis in original).) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.)

In the motion, Defendants assert that “[t]he portions of the Complaint sought to be stricken arise from a right to petition…” (Mot. at p. 6:18-19.) Defendants cite to Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45, where the Court of Appeal noted that “[a]n unlawful detainer action and service of notices legally required to file an unlawful detainer action are protected activity within the meaning of section 425.16. A cause of action arising from such filing or service is a cause of action arising from protected activity.” (Internal quotations and citation omitted.)

As set forth above, Defendants move to strike paragraph 22 of the Complaint, which alleges that “Defendants filed an Unlawful Detainer against Plaintiff on July 12, 2023, seeking alleged back rent. Plaintiff and Defendants entered into a verbal agreement upon move in on July 15, 2019, that no rent would be paid throughout Plaintiff’s tenancy. Defendants were informed by Plaintiff that the Landlord’s signature was not present on the residential lease agreement, and as such was invalid. Defendants continued to pursue the Unlawful Detainer in court.” Defendants also move to strike the sixth cause of action of the Complaint, which is for “retaliation eviction.”

Defendants cite to Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1473, where “[t]he trial court granted the anti-SLAPP motion as to the Feldmans’ cause of action for retaliatory eviction and denied it as to the remaining six causes of action of the cross-complaint. Park Lane cross-defendants appeal[ed] from the denial of their motion as to the six causes of action. The Feldmans cross-appeal from the grant of the anti-SLAPP motion on the retaliatory eviction cause of action.” The Court of Appeal “determine[d] that the anti-SLAPP motion should have been granted as to all causes of action, except that of negligent misrepresentation.” ((Ibid.) The Feldman Court noted that “[t]he trial court found that all seven causes of action arose from Park Lane’s right of petition. With the exception of the cause of action for negligent misrepresentation…it appears that the cross-complaint was based entirely upon the alleged threats by Hawkins, the service of the notice to quit, and the filing of the unlawful detainer action itself…The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Id. at p. 1479 [internal quotations omitted].)

In the opposition, Plaintiff asserts that “Defendants have failed to make a threshold showing that the challenged cause of action arise [sic] from protected activity…” (Opp’n at p. 7:3-6.) Plaintiff cites to Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1270, where “Monira Ulkarim appeal[ed] an order granting a special motion to strike…her complaint against Westfield LLC (Westfield). She alleges several counts against Westfield relating to the termination of a lease allegedly in violation of a lease agreement. Plaintiff contends her complaint does not arise from protected activity under the anti-SLAPP statute and she established a probability of prevailing on the merits.” The Court of Appeal “conclude[d] that the complaint does not arise from protected activity” and reversed. (Ibid.)

The Ulkarim Court found that “[t]he gravamen of the first and eighth counts is that Westfield breached the Agreement by terminating it in bad faith, with no valid grounds for termination, and despite plaintiff’s holdover tenancy, and that the notice of termination was ineffective. The gravamen of these counts is not an attack on the service of the notice of termination or the filing of the unlawful detainer complaint. Rather than attack such service and filing themselves, the first and eighth counts attack the underlying decision to terminate.” (Id. at p. 1281.) The Ulkarim Court further found 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. We decline to follow Birkner v. Lam, supra, 156 Cal.App.4th 275, and Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 [74 Cal. Rptr. 3d 1] (Feldman) to the extent that those opinions suggest a different rule.” (Id. at p. 1279.)

Plaintiff asserts that here, the sixth cause of action “arises from Defendant’s and Defendant’s representatives [sic] conduct other than the filing of the unlawful detainer complaint, namely,” inter alia, “the ‘pattern of harassment’ carried out in 2022 and 2023; decision to terminate Plaintiff’s employment as property manager…decision to reject the repair of holes in wall of Plaintiff’s rental unit…decision to harass Plaintiff regarding past work product…decision to relocate trash container in Plaintiff’s designated parking space…decision to reject the repair of Plaintiff’s PTAC (heating and air-conditioning) system…and decision [sic] to use nonpayment of rent as a basis to evict Plaintiff…” (Opp’n at p. 8:2-12.)[2]

In the Complaint, Plaintiff alleges that “[o]n or about June 30, 2022, Defendants terminated Plaintiff’s employment without cause.” (Compl., ¶ 9.) Plaintiff further alleges that “[o]n September 16, 2022, Plaintiff reported via email to the Defendants, regarding the repair of holes in the interior wall of Plaintiff’s unit 20 caused by the removal of the security camera system by Duggan Properties authorized by the Defendants. The issue was ignored and yet to be resolved, 11 months later.” (Compl., ¶ 12.) Plaintiff also alleges that “[o]n October 27, 2022, Plaintiff received multiple harassing telephone calls from Gabriell Lambert from Duggan Properties making false accusations towards Plaintiff alleging incomplete tenant files and missing property keys.” (Compl., ¶ 13.)

Plaintiff further alleges that “[o]n November 1, 2022, Plaintiff reported via email to Defendants regarding the placement of a large trash container in Plaintiff’s designated parking space. In an email from Stephanie Rydall dated November 18, 2022, it stated, ‘if vehicles continue to block the area for trash to be disposed of weekly, we will have to have them towed’…On November 26, 2022, Plaintiff provided documentation to Defendants supporting Plaintiff’s assertion that Plaintiff received prior approval to park in the designated parking space. Defendants did not respond to email communication.” (Compl., ¶ 14.) In addition, Plaintiff alleges that “[o]n May 18, 2023, Plaintiff reported that the HVAC unit was leaking water and was unusable to Stephanie Rydall during a scheduled Inspection to Enter Premises. Again, on June 25, 2023, this issue was submitted to Defendants in the Answer – Unlawful Detainer. This issue was ignored and was not resolved until July 21, 2023, over two months later.” (Compl., ¶ 16.)

Plaintiff also alleges that “Defendants filed an Unlawful Detainer against Plaintiff on July 12, 2023, seeking alleged back rent. Plaintiff and Defendants entered into a verbal agreement upon move in on July 15, 2019, that no rent would be paid throughout Plaintiff’s tenancy. Defendants were informed by Plaintiff that the Landlord’s signature was not present on the residential lease agreement, and as such was invalid. Defendants continued to pursue the Unlawful Detainer in court.” (Compl., ¶ 22.)

In the reply, Defendants do not address all of the foregoing allegations of the Complaint or the Ulkarim case. Rather, Defendants assert that “[i]n the case at bar, the ‘retaliation’ consisted of service of the notice in anticipation of the unlawful detainer action and the prosecution of such action. The entire cause of action is predicated on a right to petition.” (Reply at p. 10:23-25.) But the Complaint does not appear to contain any allegations concerning the service of a notice in anticipation of the alleged unlawful detainer action.

The Ulkarim Court noted that “Copenbarger, supra, 215 Cal.App.4th 1237, stated, ‘Although an unlawful detainer action itself is protected activity under section 425.16, terminating a lease is not…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.’…Copenbarger concluded that the complaint was based on a dispute over the parties’ rights and obligations under the sublease, the sublessor’s alleged breach of the sublease by failing to serve a 60-day notice, and acts by other defendants allegedly inducing the sublessor to terminate the sublease. The complaint was not based on either the service of the 30-day notice or the filing of the unlawful detainer complaint, and therefore did not arise from protected activity…” (Ulkarim v. Westfield LLC, supra, 227 Cal.App.4th at p. 1278.)

Similarly here, the Complaint is based on the dispute or conduct underlying the alleged unlawful detainer action, specifically, that “Defendants filed an Unlawful Detainer against Plaintiff on July 12, 2023, seeking alleged back rent. Plaintiff and Defendants entered into a verbal agreement upon move in on July 15, 2019, that no rent would be paid throughout Plaintiff’s tenancy. Defendants were informed by Plaintiff that the Landlord’s signature was not present on the residential lease agreement, and as such was invalid. Defendants continued to pursue the Unlawful Detainer in court.” (Compl., ¶ 22.) Plaintiff alleges that “[a] verbal agreement was made between the Defendants and Plaintiff that no rent would be forthcoming during the duration of Plaintiff and spouse’s tenancy.” (Compl., ¶ 7.) As set forth above, “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 v. Westfield LLC, supra, 227 Cal.App.4th at p. 1279.) The Court does not find that Defendants have shown that the sixth cause of action arises from “the service of a notice of termination or filing of an unlawful detainer complaint.” (Id. at p. 1279.)

Based on the foregoing, the Court does not find that Defendants have satisfied their burden under the first prong of the anti-SLAPP analysis. Accordingly, the burden does not shift to Plaintiff to establish that there is a probability of prevailing on the claims.¿¿

Pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), “[e]xcept 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.” As Defendants are not the prevailing party on the instant motion, their request for attorney’s fees and costs is denied.

[1]As an initial matter, the Court notes that on December 1, 2023, Plaintiff filed a “Sur-Reply to Defendants’ reply to Opposition to Anti-SLAPP Motion to Strike.” Plaintiff does not appear to cite any Court order authorizing him to file a surreply. Thus, the Court disregards the surreply filed by Plaintiff on December 1, 2023.

[2] Plaintiff alleges that the sixth cause of action is based upon Civil Code section 1942.5. (Compl., ¶ 61.) “Civil Code § 1942.5 prohibits landlords from evicting residential tenants, raising their rent or decreasing housing services, in retaliation against the exercise of lawful tenant rights. Proscribed landlord ‘retaliation’ is an affirmative defense to an unlawful detainer; and may render the landlord liable to aggrieved tenants for damages.” (Friedman et al., Cal. Practice Guide Landlord-Tenant (The Rutter Group 2023) ¶ 7:331 [emphasis omitted].)

LARRY LINK, Plaintiff, vs. VICTORIA BILLINGS, et al., Defendants.	Case No.:	23STCV19283
	Hearing Date:	January 16, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO STRIKE (ANTI-SLAPP) PORTIONS OF COMPLAINT, AND FOR AWARD OF EXPENSES, INCLUDING ATTORNEY’S FEES AGAINST LARRY LINK PURSUANT TO C.C.P., SECTION 425.16

Superior Court of California

County of Los Angeles

Department 50