Harris
v. Locker, LLC
Filed 6/4/13 Harris
v. Locker, LLC CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
MARK
HARRIS,
Plaintiff and Respondent,
v.
LOCKER,
LLC,
Defendant and Appellant.
A135824
(Alameda
County
Super. Ct.
No. RG-11-588790)
Locker, LLC filed an anti-SLAPP motion pursuant to Code of
Civil Procedure section 425.16 (section 425.16) to strike the complaint for
wrongful eviction filed by Mark Harris.
Although Harris filed no opposition, the trial court believed the matter
authoritatively resolved by Clark v. Mazgani (2009) 170 Cal.App.4th 1281
(Clark), and denied the motion. We agree that Clark—and
our own decision in a similar setting—are dispositive, and we affirm.
BACKGROUND
The
first three paragraphs of Harris’s in pro per amended complaint, styled “For
Wrongful Eviction,†explain the genesis of this dispute:
“Plaintiff
lived at 1915 Essex St., a single-family residence, in Berkeley, California,
from February 2005 until Locker, LLC, the owner of record, evicted him, stating
that Plaintiff’s tenancy was subject to the Berkeley Municipal Code (hereafter
B.M.C.) 13.76. . . . The
Complaint and Summons were dated September 29th, 2010, and peaceful possession
was taken on May 5th, 2011. (See
Exhibits A, B, C, and D.). Defendants’ [sic]
legal theory for the eviction was removal from the rental market by demolition.
Defendant signed and swore under penalty
of perjury that ‘the landlord, after having obtained all necessary permits from
the City of Berkeley, seeks in good faith to recover possession of the rental
unit, in order to remove the rental unit from the market by demolition.’ -
B.M.C. 13.76.130A.8.
“It
is a matter of public record that no permit was ever issued or even applied
for. (See Exhibit F). No demolition has been done in the 20 weeks
since possession was taken. Plaintiff is
informed and believes that no demolition was ever contemplated or will ever be
done and that the eviction was willfully false and in bad faith.
“B.M.C.
13.76.150B . . . states that ‘If it is shown in the appropriate court
that the event which the landlord claims as grounds to recover possession under
13.76.130A.8 is not initiated within two months after the tenant vacates the
unit, or it is shown the landlords’ [sic] claim was false or in bad
faith, the tenant shall be entitled to regain possession and to actual
damages. If the landlords’ conduct was
willful, the tenant shall be entitled to damages in an amount of $750 or three
times the actual damages, whichever is greater.’ Therefore Defendant had until July 15th 2011
to begin demolition. . . .â€
Harris
further alleged that the Berkeley Municipal Code entitled him to regain his
tenancy, unpaid “relocation assistance,†and attorney fees. The final cause of action was for “mental
anguish†resulting from the eviction.
Five relevant exhibits were attached to Harris’s complaint: Locker’s unlawful detainer complaint; the
entry of Harris’s default; entry of judgment for Locker in the unlawful
detainer action; the writ of possession; and what appears to be a City of
Berkeley “Notice of Intent To Withdraw Accommodations From Rent Or Lease (BMC
Section 13.77.050.A.1)†form.
Locker
answered Harris’s complaint and then filed a motion to strike that complaint
pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP
statute. Harris filed no opposition
beyond asking the court to take judicial notice of various documents in the
the tentative ruling to deny its motion (at which Harris did not appear), the
court heard counsel for Locker attempt to distinguish Clark (which the
court had apparently found in its own research). The court told Locker’s counsel that Clark
“is almost on all fours,†and that the tentative decision was “based on your
inability to meet prong one. I never got
to prong two.â€
The
court then entered an order, the pertinent language of which reads: “The tentative ruling is affirmed as
follows: Defendant Locker LLC’s
unopposed Special Motion to Strike First Amended Complaint for Wrongful Eviction
is DENIED. Defendant has not made a
threshold showing that the plaintiff’s claims arise from defendant’s free
speech or petition activity as specified in C.C.P. section 425.16,
subds. (b), (e). See, e.g.,
1281, 1286, 1289‑1290 (tenant’s claims were not premised on the
landlord’s protected activity of prosecuting an unlawful detainer action, but
on the claim that landlord removed the apartment from the market and
fraudulently evicted the tenant to install a family member who never moved in);
Marlin v. Aimco Venezia, LLC (2007)
154 Cal.App.4th 154, 157‑160 (lawsuit seeking a declaration of rights
under the Ellis Act did not arise from the landlord’s filing of an Ellis Act
notice, even though it was not triggered by that filing).†Locker perfected this
REVIEW
Anti-SLAPP Law and the Standard of Review
both the trial and reviewing courts:
“Subdivision (b)(1) of section 425.16 provides that ‘[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 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.’
Subdivision (e) elaborates the four types of acts within the ambit of a
SLAPP, including, as pertinent here, ‘(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.’
“A two-step process is used for determining whether an action
is a SLAPP. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected
activity, that is, by demonstrating that the facts underlying the plaintiff’s
complaint fit one of the categories spelled out in section 425.16, subdivision
(e). If the court finds that such a
showing has been made, it must then determine the second step, whether the
plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]
“ ‘The Legislature enacted section 425.16 to prevent and
deter “lawsuits [referred to as SLAPP’s] brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.†(§ 425.16, subd.
(a).) Because these meritless lawsuits seek to deplete “the defendant’s energyâ€
and drain “his or her resources†[citation],
“ ‘to prevent SLAPPs by ending them early and without great cost to
the SLAPP target’ †[citation].
Section 425.16 therefore establishes a procedure where the trial court
evaluates the merits of the lawsuit using a summary-judgment-like procedure at
an early stage of the litigation.’
[Citation.]
“Finally, and as subdivision (a) of section 425.16
expressly mandates, the section ‘shall be construed broadly.’
mind, we turn to a review of the issues before us, a review that is de
novo. [Citation.]†(Hecimovich
v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th
450, 463-464.)
Application of Section
425.16
In
v. Barrett Block Partners (2009)
177 Cal.App.4th 940—which is not cited by either party in their briefs—we examined the two decisions cited by the
trial court here, and virtually all the relevant cases on this point
“[In] Marlin v. Aimco Venezia,
LLC (2007) 154 Cal.App.4th 154, . . . after the landlords had
served notice under the Ellis Act
(Gov. Code, § 7060 et seq.)
name="_ftnref2" title="">[2]
that they intended to withdraw certain rental units from the market, the
tenants of some of those units brought a declaratory relief action to clarify
their rights under that statute. The
landlords filed an anti-SLAPP motion, contending that the tenants’ complaint
arose from the landlords’ action in filing and serving the Ellis Act notices,
and from other litigation involving the removal of the rental property from the
market. The trial court granted the
SLAPP motion, thereby striking the tenants’ cause of action and dismissed their
declaratory relief action.
“The Court of
Appeal disagreed with the trial court that the SLAPP motion was appropriate and
reversed its order. After quoting the
key language from section 425.16(a), the court wrote: ‘Even if we assume filing and serving the
Ellis Act notice and the notice to vacate constituted protected petitioning or
free speech activity “the mere fact that an action was filed after protected
activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute.â€
Rather, the critical question in a SLAPP motion “is whether the cause of
action is based on the defendant’s protected free speech or petitioning
activity.†[¶] Defendants have
fallen victim to the logical fallacy post hoc ergo propter hoc—because the
notices preceded plaintiffs’
complaint the notices must have caused plaintiffs’ complaint. 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.’ (Marlin, supra, 154 Cal.App.4th at pp.
160–161, fns. omitted).
“In January 2009, perhaps the
most pertinent of the appellate decisions discussing the application (or lack
thereof) of the SLAPP statute to landlord-tenant disputes was published. It is Clark v. Mazgani (2009) 170
Cal.App.4th 1281 (Clark).[
for fraud and unlawful eviction after the landlord evicted her, allegedly to
make the rental unit available to the landlord’s daughter; the latter never
happened. The trial court granted the
landlord’s SLAPP motion, holding that the tenant’s complaint was essentially
based on the landlord’s privileged communications. Again, the Second District reversed. In so doing, it held that although ‘[t]here
is no question that the prosecution of an unlawful detainer action is indisputably
protected activity within the meaning of section 425.16,’ on the facts before
it, the tenant’s complaint was ‘not premised on Mazgani’s protected activities
of initiating or prosecuting the unlawful detainer action, but on her removal
of the apartment from the rental market and fraudulent eviction of Clark for
the purpose of installing a family member who never moved in.’ (Clark, supra, 170 Cal.App.4th at p.
1286.)
“Quoting Marlin, the Clark court
continued: ‘ “Terminating a tenancy
or removing a property from the rental market are not
of petition or free speech.â€
[Citations.] “ ‘[T]he mere
fact that an action was filed after protected activity took place does not mean
the action arose from that activity for the purposes of the anti-SLAPP
statute.’ †[Citation.] The pivotal question “ ‘is whether the cause of action is
based on the defendant’s protected free speech or petitioning
activity.’ †[Citations.]’ (Clark, supra, 170 Cal.App.4th at
pp. 1286–1287, italics omitted.)
“The Clark court then discussed the facts and
rulings of both Marlin and DFEH [Department of Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273] and held: ‘The same reasoning applies here. Clark’s action against
notices of intent to evict, it is not based on anything Mazgani said in court
or a public proceeding, and it is not based on the fact that Mazgani prosecuted
an unlawful detainer action against her.
The complaint is based on Mazgani’s allegedly unlawful eviction, in that
she fraudulently invoked the [rent ordinance] to evict Clark from her
rent-controlled apartment as a ruse to provide housing for her daughter, but
never installed her daughter in the apartment as required by that ordinance,
and also that she failed to pay Clark’s relocation fee.’ (Clark, supra, 170 Cal.App.4th at p.
1288.)
“Because the landlord in Clark relied on our decision
. . . in Feldman [v. 1100 Park
Lane Associates (2008) 160 Cal.App.4th 1467] and also on Birkner v. Lam
(2007) 156 Cal.App.4th 275 (Birkner), the Clark court
distinguished those cases: ‘In Birkner,
tenants sued their landlord for wrongful eviction in violation of San
Francisco’s rent control ordinance, negligence, breach of the covenant of quiet
enjoyment and intentional infliction of emotional distress. [Citation.]
The sole basis for liability was the landlord’s service of an eviction
notice and his refusal to rescind it after the tenants informed him they were
exempt from eviction based on age and length of tenancy. The Court acknowledged the rule articulated
in Marlin, that terminating a tenancy or removing a property from the
rental market does not constitute an activity taken in furtherance of the
constitutional right of petition or free speech. [Citation.]
But, it found the circumstances of Marlin distinct. In Marlin, the tenants’ claims were
based on their contention that the landlord was not entitled to rely on the
Ellis Act to evict them. In contrast, in
Birkner, the gravamen of the complaint was the landlord’s service of the
eviction notice under the rent ordinance and his refusal to rescind it,
activities indisputably protected under the anti-SLAPP statute. [Citation.]
[¶] In Feldman [citation], tenants refused to vacate an
apartment after the landlord demanded higher rent. The landlord filed an unlawful detainer
action. The tenants filed a
cross-complaint alleging retaliatory
eviction, negligence, negligent misrepresentation, breach of the covenant of
quiet enjoyment, wrongful eviction, breach of contract and unfair business
practices. The unlawful detainer
action was dismissed, and the landlord moved to strike the cross-complaint as a
SLAPP suit. The Court of Appeal [i.e.,
this court] found that, with the exception of the claim of negligent
misrepresentation, the tenants’ cross‑complaint was based on the filing
of the unlawful detainer action, service of the notice to quit, and statements
made by the landlord’s agent in connection with the threatened unlawful
detainer. Those activities were not
merely evidence of the landlord’s wrongdoing or activities which ‘triggered’
the filing of an action that arose out of some other independent activity. On the contrary, as was the case in Birkner,
they were the challenged activities and the bases for all but one cause of
action. [Citation.]’ (Clark, supra, 170 Cal.App.4th at pp.
1288–1289.)
summed up the critical distinction between the facts before it and those before
us in Feldman and the court in Birkner: ‘The pivotal distinction between the
circumstances in Marlin . . . on one hand, and Birkner and Feldman
on the other, is whether an actual or contemplated unlawful detainer action by
a landlord (unquestionably a protected petitioning activity) merely “precededâ€
or “triggered†the tenant’s lawsuit, or whether it was instead the “basis†or
“cause†of that suit.’ (Clark, supra,
170 Cal.App.4th at p. 1289.)†(Delois
v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 950-953,
fns. omitted.)
This last sentence is explained by the trio of decisions that
came from our Supreme Court in 2002.
“[T]he mere fact an action was filed after protected activity took place
does not mean it arose from that activity.â€
(City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 76-77.)
“ ‘ “[T]he act underlying the plaintiff’s cause†or “the act
which forms the basis for the plaintiff’s cause of action†must
of the right of petition or free speech.’
(Equilon Enterprises, LLC v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) “[T]hat 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.†(Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
True, as noted in Delois,
Locker’s notice to Harris to quit the premises and the unlawful detainer
complaint do qualify—in the abstract—as protected activity. But our de novo review of Harris’s complaint
discloses that its gravamen is Locker’s alleged numerous and sundry violations
of Berkeley’s Rent Stabilization and Eviction for Good Cause Ordinance. In other words, using the language of
have “triggered†Harris’s lawsuit, but it does not constitute the “basis†of
that lawsuit.
Harris’s claim that Locker allegedly violated the Berkeley
law with a bogus and fictitious demolition can stand independently of Locker’s
unlawful detainer action. The same
municipal ordinance which provides that Harris was, according to his
computation, entitled to $16,200 of relocation assistance does not condition
that entitlement to prosecution of an unlawful detainer action. The terms of the Berkeley law paraphrased in
Harris’s complaint and the “Notice of Intent To Withdraw Accommodations
From Rent Or Lease (BMC Section 13.77.050.A.1)†form clearly extend that
entitlement to treble damages and attorney fees, which is predicated only on
the landlord’s noncompliance with the duty to deposit relocation assistance
funds at the time the notice is filed with the city.
landlord to commence an unlawful detainer action, but may be established if the
tenant voluntarily quits the premises (as occurred in Delois: see 177 Cal.App.4th at p. 955). In short, Locker’s alleged violations of the
Berkeley laws allegedly occurred before and after it filed the unlawful
detainer action against Harris. Our de
novo review demonstrates that the Locker’s unlawful detainer action was not the
“basis†or “cause†of Harris’s subsequent wrongful eviction suit.
Understandably, Locker places its major reliance on
Cal.App.4th 1169, where Division Five of this District held that a cause of
action for wrongful eviction based on a landlord’s alleged noncompliance with a
municipal rent control ordinance involved speech and petitioning activity that
were protected by section 425.16.
However, the underlying force of the analysis is considerably weakened
by not addressing Delois and by its
conclusory discussion of Clark in a
footnote. (Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1192, fn.
10.) We continue to believe that
Locker also detects procedural and substantive defects in the
trial court’s ruling. Procedurally, Locker points to Harris’s failure to offer
evidence in support of his claims. But
there was no evidentiary burden or obligation on Harris unless and until Locker
carried its initial burden, which it did not.
(Birkner v. Lam,
280-281; Ross v. Kish (2006) 145
Cal.App.4th 188, 197.) Substantively,
Locker asserts that it is entirely protected by the litigation privilege of
Civil Code section 47. But the foregoing
has already established that the basis of Harris’s complaint is not limited to
Locker’s official filings. “The
anti-SLAPP statute and the litigation privilege are
coextensive. . . .
[¶] [I]f the statements and communications do not qualify for
protection under section 425.16 . . . then the litigation privilege
is similarly inapplicable . . . .†(Department
of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC,
supra, 154 Cal.App.4th 1273, 1288, fn. 23.)
Lastly, Locker contends that the judgment entered on Harris’s default in
the unlawful detainer action prove that “Harris’ claims are barred by the
doctrines of claim and issue preclusion.â€
The sole issue in an unlawful detainer action is possession of the
premises. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159; Berry v. Society of Saint Pius X (1999) 69 Cal.App.4th 354, 363.)
The range of Harris’s claims is, as already shown, far wider than that.
DISPOSITION
The order is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
name="_ftn1" title="">[1]
The only relevant precedent subsequent to Delois
is Oviedo v. Windsor Twelve Properties,
LLC (2012) 212 Cal.App.4th 97, where it was held that a cause of action for
wrongful eviction based on alleged noncompliance with a municipal rent control
did not involve protected conduct or communication within the meaning of
section 425.16.
name="_ftn2" title="">[2]
“The Ellis Act permits owners of property subject to rent control to evict
their tenants and go out of business if they comply with certain procedural
requirements.†(Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles
(2009) 173 Cal.App.4th 13, 18.) The
Ellis Act is never cited in Harris’s complaint, or cited in his brief as
applicable to his situation. We further
note that Division Four
of this District held that a municipal ordinance which provides for “reasonable
relocation assistance compensation for displaced tenants does not violate the
Ellis Act.†(Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th
886, 893.)
