Hames v. Citi Properties

Filed 5/16/07 Hames v. Citi Properties CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Citi Properties I DE, LLC (Citi) appeals from the denial of its special motion to strike plaintiff Kelly Hamess complaint as a strategic lawsuit against public participation pursuant to Code of Civil Procedure[1] section 425.16 (the anti-SLAPP statute). Although the trial courts order does not state the grounds for denying the motion, the tentative ruling to which it adhered indicated that the court did not consider Hamess complaint to be based on protected activity, and that even if it were, Hames made a prima facie showing that she would prevail in the action. We disagree with both conclusions and shall reverse.

Facts and Procedural History

Hamess complaint alleges that she is a tenant in a San Francisco apartment building owned by Citi under a written lease that was entered in 1993. For the past several years Hames allegedly has been repeatedly pestered by phone calls from agents of [Citi], attempting to coerce her into relinquishing possession in exchange for $5,000 - $7,000 and she has refused [Citis] demand each time. In February 2005, an agent of Citi demanded that Ms. Hames meet with him at the management office, screamed at her regarding alleged late payment of rent, and told her that the legal department wanted to evict her, and that the only way to prevent it was for her to sign a pre-drafted stipulation for the entry of judgment. The agent misrepresented the terms of the stipulation and demanded that she sign it, which she did. In November 2005, the complaint continues, Citi filed an unlawful detainer suit against Ms. Hames, alleging habitual late payment of rent. Citi allegedly failed to serve Hames with the unlawful detainer complaint, but in December 2005 filed an ex parte application seeking an order of possession and forfeiture of Ms. Hames[s] lease. [] On or about January 3, 2006, the Court determined that the stipulation was not enforceable in the unlawful detainer action and granted summary judgment in favor of Hames based on [Citi]s acceptance of Ms. Hames[s] rent after the notice period expired.

The complaint alleges five causes of action, designated wrongful eviction, intentional infliction of emotional distress, negligence, breach of contract, and breach of the covenant of good faith and fair dealing. The first cause of action, for wrongful eviction, alleges that none of the grounds specified in the San Francisco rent ordinance, which sets forth the exclusive grounds for recovering possession of non-exempt residential rental units . . . [] . . . was [Citi]s dominant motive for recovering possession of the premises. [] Section 37.9 [subdivision] (f) of the Rent Ordinance provides that whenever a landlord endeavors to recover possession of a rental unit in violation of [section] 37.9 of said Ordinance, the tenant may sue for not less than three times actual damages, attorneys fees, and whatever other relief the court deems appropriate. The complaint alleges that as the result of [Citi]s wrongful acts alleged herein Hames suffered emotional distress and has incurred and will continue to incur attorneys fees as a result of defending against [Citi]s wrongful endeavor to recover possession, and prosecuting this cause of action. The remaining causes of action incorporate the prior allegations, adding only that Citi allegedly breached the covenant of good faith and fair dealing by forcing her to sign the stipulation through duress, . . . wrongful endeavor to recover possession of the Subject Premises, and . . . repeated harassment of Ms. Hames through phone calls requesting her surrender of possession. [Citi]s intent was to deprive Ms. Hames of the beneficial use and enjoyment of the SUBJECT PREMISES.

The declarations filed in opposition to and support of Citis special motion to strike added little to the allegations of the complaint. Hamess declaration estimated that between 2000, or perhaps even earlier, and March 2006 [Citi] and their representatives have contacted me at least 30 times to see if I would be interested in vacating my apartment in exchange for a certain sum of money and she consistently said that she was not. Hames claimed that Citis repeated efforts to pay me to move out of my apartment caused her to become emotionally and physically distraught and that she is nervous, fearful and concerned each and every time I enter my apartment that I will encounter a new telephone message or notice from [Citi] requesting that I move out. She repeated that she had not been served with the November 2005 unlawful detainer complaint, that the first notice I received of the . . . complaint was a notice that I received from the court informing me that I had been sued by [Citi]. I was then forced to visit the courthouse to obtain copies of the papers [Citi] had filed against me. She was served with a three-day notice to pay rent or quit in January 2006. Citis declarations attested to the fact that from July 2001 through February 2005, Hames nearly always paid her rent after the fifth day of the month, when it was due, and that her November 2005 rent check was returned for insufficient funds in her account, prompting Citis application for the entry of judgment pursuant to the February 2005 stipulation. The courts order granting Hames summary judgment in the unlawful detainer action recited that Citi accepted and deposited her December rent check.

As indicated above, in denying Citis special motion to strike, the trial court appears to have agreed with Hames that her complaint is not based on protected activity and that, in all events, she made a prima facie showing that she would likely prevail. Citi filed a timely notice of appeal from the denial, as it is entitled to do by section 425.16, subdivision (i).

Discussion

A special motion to strike pursuant to the anti-SLAPP statute involves a two-part inquiry. First, the defendant must demonstrate that the challenged cause of action arises from protected activity, an act in furtherance of the persons right of petition or free speech. ( 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).) Such activity is defined to include any written or oral statement or writing made before a . . . judicial proceeding and any written or oral statement or writing made in connection with an issue under consideration . . .by a . . . judicial body . . . . ( 425.16, subd. (e)(1, 2).) If the court finds that such a showing has been made, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) If the plaintiff fails to carry that burden, the claim is subject to being stricken under the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) The trial courts decision is reviewed de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

In deciding whether the initial arising from requirement has been met, the court considers  the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.  (Navellier, supra, 29 Cal.4th at p. 89.) That the cause of action is filed after protected activity, or is triggered by protected activity, does not necessarily subject it to scrutiny under the anti-SLAPP statute. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) [T]he critical consideration is whether the cause of action is basedon the defendants protected free speech or petitioning activity. (Navellier, supra, 29 Cal.4th at p. 89.) The Supreme Court has explained, [t]he anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (Id. at p. 92.)

[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action.  (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) The apparently unanimous conclusion of published appellate cases is that where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct. [Citations.] As one court explained, if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to anti-SLAPP motion. [Citation.] [Citation.] But if the allegations concerning protected activity are more than merely incidental or collateral, the cause of action is subject to a motion to strike. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.)

The prosecution of an unlawful detainer action is indisputably protected activity within the meaning of the anti-SLAPP statute. ( 425.16, subd. (e)(2); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734; Navellier, supra, 29 Cal.4th at p. 90.) It is equally apparent that Citis filing of the unlawful detainer action against Hames is much more than incidental to the conduct on which her causes of action against Citi are based. While Hames stresses the conduct in which Citis agents allegedly engaged prior to filing the unlawful detainer actionrepeatedly asking her to accept payment to relinquish her tenancy and pressuring her to sign a stipulation for the entry of judgmentmuch of this conduct was in anticipation of, and in connection with, the litigation and itself within the scope of protected activity. ( 425.16, subd. (e)(2); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; see also Rubin v. Green (1993) 4 Cal.4th 1187; Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918.)[2] But in all events the filing of the wrongful eviction action unquestionably is  the principal thrust or gravamen  of the first cause of action, denominated wrongful eviction (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at pp. 672-673, quoting Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414), and is a significant part of the conduct that Hames alleges caused her emotional distress and underlies her other theories of relief. Indeed, the complaint alleges as an element of damages that she incurred attorney fees as a result of defending against [Citis] wrongful endeavor to recover possession, which can refer only to attorney fees incurred in defending against the unlawful detainer action.[3] Citi thus satisfied its burden of showing that the complaint is based on protected activity.

In order to avoid dismissal of the action, Hames therefore was required to make a prima facie showing of a right to prevail. [T]he plaintiff need only have  stated and substantiated a legally sufficient claim,   i.e., she  must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.   (Navellier, supra, 29 Cal. 4th at pp. 88-89.) This she entirely failed to do. Although alleging that her failure to timely pay rent that was due was not Citis dominant motive for bringing the unlawful detainer action, she proffered no evidence to show that the filing of the action was not within the scope of the litigation privilege as Citi contends. (Civ. Code,  47, subd. (b)(2).) The fact that she prevailed in the action because Citi accepted a subsequent check for the rent, or because of a defect in the service of the three-day notice, does not negate the defense. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action].)

Hames contends that her claims are principally based on allegations concerning [Citi]s harassing efforts to buy Ms. Hames out of her tenancy at the Subject Premises via a seven-year campaign of phone calls, and thus not covered by the litigation privilege. As indicated above, these communications may well be viewed as anticipatory to the litigation and within the scope of the privilege. (Blanchard v. DIRECTV, Inc., supra, 123 Cal.App.4th at p. 919 [It has long been the law that communications that bear some relation to an anticipated lawsuit fall within the privilege]; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115.) But in all events, the only factual showing Hames made with respect to such calls is that Citi agents called her approximately 30 times over a period of six or seven yearsi.e., once every two to three monthsand did no more than ask whether she would be interested in vacating [her] apartment in exchange for a certain sum of money. This conduct was hardly sufficiently outrageous to support a claim of intentional infliction of emotional distress and, in all events, is constitutionally protected. (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 515.) Hames failed to carry her burden of presenting evidence sufficient to support a right to recover in the action. The special motion to dismiss should have been granted.

Disposition

The order denying the special motion to dismiss is reversed. The matter is remanded to the trial court with directions to grant the motion and dismiss the action.[4] Appellant shall recover costs on appeal.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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[1] All statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] Hamess reliance on Santa Monica Rent Control Bd. v. Pearl Street, LLC. (2003) 109 Cal.App.4th 1308 is entirely misplaced. That case held that an action by a local rent control board to prevent a landlord from using sham tenancies to avoid the impact of the rent control ordinance was not an action to punish the landlord for utilizing the rent control process. The court held that the suit was not based on the landlords filing of papers with the rent board but on the claim that the landlord was charging an illegal rent, not a protected activity. (Id. at p. 1318.) Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, relied on by the court in Santa Monica Rent Control Bd. v. Pearl Street, LLC., supra, at page 1317, is similarly distinguishable.

[3] Plaintiff made this allegation despite the fact that as the prevailing party she was awarded her attorney fees in the unlawful detainer action.

[4] Hamess motion to augment the record with documents filed in the trial court subsequent to the denial of the special motion to dismiss is denied. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)