Filed 4/19/17 Parsi v. Rosemary Court Properties CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO


HOURI PARSI,
Plaintiff and Appellant,
v.
ROSEMARY COURT PROPERTIES LLC et al.,
Defendants and Respondents.

A146403

(San Francisco County
Super. Ct. No. CGC14543289)


Appellant Houri Parsi was a former occupant of premises owned by respondent Rosemary Court Properties, LLC (Properties), which had filed an unlawful detainer action against Parsi, and on which it obtained a default judgment. Parsi thereafter filed a complaint, and then an amended complaint, naming two defendants: Properties and Thomas McCormick (when referred to collectively, defendants). The amended complaint alleged nine causes of action. Defendants filed an answer and then a special motion to strike one of the nine causes of action, the second, styled “[v]iolation of the San Francisco Rent Ordinance.” The trial court granted the motion, concluding that the cause of action was based on protected activity. We conclude otherwise, and we reverse.
The Proceedings Below
On December 18, 2014, Parsi filed a complaint against defendants, alleged to be the owners and managers of the property at 25 Corwin Street, #2, in San Francisco (the property). The complaint alleged three causes of action.
On April 1, 2015 Parsi filed a first amended complaint. It named the same two defendants, but now alleged nine causes of action, styled as follows: 1. Breach of contract; 2. Violation of San Francisco Rent Ordinance; 3. Breach of implied covenant of quiet enjoyment; 4. Conversion; 5. Violation of Civil Code § 1965; 6. Intentional infliction of emotional distress; 7. Negligent infliction of emotional distress; 8. Fraud; and 9. Negligent misrepresentation.
Defendants filed an answer, followed by a special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). The anti-SLAPP motion was directed only to the second cause of action, that styled “Violation of the San Francisco Rent Ordinance.” The basis of the motion was simple and straightforward: in defendants’ words, “The second cause of action for Violation of the San Francisco Rent Ordinance derives entirely from Defendants’ prosecution of the unlawful detainer action—an ‘ “indisputedly protected activity” within the meaning of the anti-SLAPP statute.’ (See Moriarty v. Laramar Mgmt. Corp. (2014) 224 Cal.App.4th 125, 133 [(Moriarty)].)” The motion was accompanied by a memorandum of points and authorities, and a request for judicial notice of a complaint for unlawful detainer filed by Properties and an order denying Parsi’s motion to set aside a default judgment obtained in the unlawful detainer case.
Parsi filed opposition, defendants a reply, and the matter came on for hearing on July 22. On August 11 the trial court entered its order granting the motion, from which Parsi filed a timely appeal.
DISCUSSION
Anti-SLAPP Law and the Standard of Review
We have explained the operation of section 425.16, in both the trial and
reviewing courts, in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463–464:
“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) of section 425.16 elaborates the four types of acts within the ambit of a SLAPP . . . .
“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 energy” and drain “his or her resources” [citation], the Legislature sought “ ‘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.’
“With these principles in mind, we turn to a review of the issues before us, a review that is de novo. [Citation.]”
The Second Cause of Action Is Not Based on Protected Activity
We recently had occasion to address the issue in a case quite similar to this, in the case quoted in defendants’ moving papers below: Moriarty, supra, 224 Cal.App.4th at pp. 133–134. We began our analysis as follows: “In order for a complaint to be within the anti-SLAPP statute, 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.) To make that determination, we look to the ‘principal thrust or gravamen of the plaintiff’s cause of action.’ (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, italics omitted; see Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)”
We went on to hold that terminating a tenancy or removing a property from the rental market were not activities taken in furtherance of the constitutional rights of petition or free speech; and that the landlord failed to demonstrate that the tenant’s wrongful eviction cause of action was based in whole or in part on the landlord’s unlawful detainer default suit, which was nowhere referenced in the complaint.
We reach the same result here—this, despite that the unlawful detainer action is referred to in the complaint.
The second cause of action—as noted, styled “[v]iolation of San Francisco Rent Ordinance”—reads in its substantive entirety as follows:
“23. As a tenant of residential property located in San Francisco, California and subject to the San Francisco Rent Ordinance (Sections 37.9 and 37.10 of the Administrative Code of San Francisco, hereinafter ‘Rent Ordinance’), Plaintiff is entitled to bring an action against all Defendants who have violated said ordinance to Plaintiff’s detriment.
“24. San Francisco’s Rent Ordinance provides safeguards for tenants in San Francisco. When a landlord wrongfully endeavors to recover possession of a property in violation of the San Francisco Rent Ordinance, a Plaintiff is entitled to economic damages, damages for mental and emotion [sic] distress, as well as treble damages.
“25. Defendants violated the San Francisco Rent Ordinance by, among other things, wrongfully endeavoring to recover possession of the Subject Premises by terminating housing services as required by Plaintiff’s residential lease without just cause and in bad faith, terminating Plaintiff’s lease for conduct that constituted neither good cause for eviction nor a breach of the terms of the written lease agreement between the parties, refusing to cash Plaintiff’s rent checks over the course of several months, interfering with Plaintiff’s right to quiet use and enjoyment of the property, and refusing to accept Plaintiff’s lawful rent payments.”
It is true that the second cause of action incorporates earlier paragraphs, and paragraphs 11 through 13 describe the unlawful detainer action. But that does not make the unlawful detainer case the gravamen, the basis, of the second cause of action. Numerous cases have so held, including cases collected in Parsi’s brief.
Parsi’s opening brief asserts that “Termination of a tenancy is not protected activity,” going on in some detail to argue as follows: “While service of a 3-day Notice and filing an unlawful detainer action are protected activities, terminating a tenancy is not. (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266 [landlord’s underlying decision to terminate not protected activity]; Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 110 [violation of the Rent Ordinance not protected activity]; Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1247 [tenant’s complaint not based on 3-day notice even if triggered by it]; Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1053 [landlord’s failure to occupy unit as required by Rent Ordinance not protected activity].)
“Therefore, ‘[c]ourts 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.’ (Ulkarim v. Westfield LLC, supra, 227 Cal.App.4th at p. 1276.)
“ ‘Unless the sole basis of liability asserted in the tenant’s complaint is the filing and prosecution of the unlawful detainer action, the tenant’s action will not be targeted at protected activity.’ (Ben-Shahar v. Pickart, supra, 231 Cal.App.4th at p. 1051.) ‘Where, however, the action is predicated upon conduct distinct from the prosecution of unlawful detainer action—even though the complaint is based upon the unlawful detainer action or arises from it—the tenant’s action is not targeted at protected activity and thus does not meet the first prong of the anti-SLAPP analysis.’ (Id. at p. 1052.)”
In addition to those four cases, Parsi’s brief discusses two other cases: Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160–161, and Clark v. Mazgani (2009) 170 Cal.App.4th 1281 (Clark).
In sum, Parsi’s brief cites and relies on six cases, all in essence holding that an anti-SLAPP motion is restricted to the situation where the “ ‘gravamen of the plaintiff’s cause of action’ ” was the filing of the unlawful detainer itself (or the service of notices preceding the filing). Where, on the other hand, the gravamen of the cause of action was the allegedly wrongful reason for the decision to terminate the lease or file the unlawful detainer action, then the cause of action should not be deemed one arising from the protected activity, but rather from the illegality or wrongfulness of the decision to terminate.
Defendants’ brief ignores five of those six cases, not even mentioning them in their brief. This is hardly model advocacy.
Defendants’ brief has a section entitled “The case law upon which [Parsi] relies is unconvincing.” The only cases discussed are Moriarty and Clark. The discussion is unavailing, defendants’ attempt to distinguish the cases unpersuasive. Indeed, these cases support Parsi.
In Moriarty, as here, the tenant alleged wide-ranging failure by defendants to maintain his apartment in good repair, claiming they “fail[ed] to provide a habitable dwelling; fail[ed] to maintain and repair plumbing fixtures; allow[ed] water intrusion and fail[ed] to rectify it; fail[ed] to repair multiple sources of water intrusion and remediate development of airborne contaminants; fail[ed] to eliminate illness-causing airborne contaminants from the premises due to the persistent water intrusion, excessive dampness, and prolonged saturation of indoor building materials; permit[ed] dilapidated and/or stained and peeling paint on the walls and ceiling; and fail[ed] to provide operable and locking windows and doors which were watertight or weatherproofed.” (Moriarty, supra, 224 Cal.App.4th at p. 129.)
Based on these alleged failings, the tenant asserted the property management company “ ‘endeavored to recover possession of the Subject Premises in bad faith through unlawful harassment and other means, including’ ” by “ ‘[r]efusing to perform effective repairs . . . ; [d]emanding rent while the Subject Premises was in a condition of severe dilapidation and disrepair; [and] [s]eeking to force Plaintiff to vacate the Subject Premises by permitting the Subject Premises to fall into and/or remain in a condition that was substandard, untenantable and a threat to the health and safety of Plaintiff.” (Moriarty, supra, 224 Cal.App.4th at pp. 129–130.)
The landlords lost their anti-SLAPP motion in the trial court. We affirmed, concluding that the landlords had not made the required showing under step one of the anti-SLAPP analysis.
Clark is similar. There, in the words of the court, a “landlord successfully evicted a long-term tenant from a rent-controlled apartment, ostensibly to free the unit for occupancy by the landlord’s daughter.” (Clark, supra, 170 Cal.App.4th at p. 1284.) “The landlord’s daughter never moved in, and the tenant sued the landlord for fraud and unlawful eviction, and failure to pay relocation expenses.” (Ibid.) The landlord responded with an anti-SLAPP motion, arguing the tenant’s complaint arose from the landlord’s acts or statement in furtherance of her constitutional rights. The trial court granted the motion. The Court of Appeal reversed, holding that the tenant’s suit was not based on the fact that the landlord prosecuted an unlawful detainer against her, but rather on the allegedly unlawful eviction. (Clark, supra, 170 Cal.App.4th at p. 1288.) Put otherwise, the landlord was not sued for exercising constitutional rights, but rather to compel compliance with the rent ordinance. (Id. at pp. 1289–1290.) Finally, the fact that the tenant’s suit was triggered by the landlord’s statements and documents filed in connection with the unlawful detainer was inconsequential to the determination of whether the tenant’s suit was based on those statements or filings: the eviction notice and unlawful detainer action were merely “cited as evidence and background to illustrate [the landlord’s] subsequent violation of the [rent ordinance] and Civil Code section 1947.10, subdivision (a).” (Clark, supra, at p. 1290.)
Those cases, we conclude, all apply here, where the second cause of action arises from defendants’ conduct in terminating Parsi’s housing services, terminating her lease, refusing to cash her rent checks, interfering with her right to quiet enjoyment of the property, and refusing to accept her rent payments.
Defendants rely primarily on two cases: Birkner v. Lam (2007) 156 Cal.App.4th 275 and Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, which it cites three times. Neither is availing. We could discuss at length the reasons why, but need not. Suffice to say that not only has neither case been followed in recent times, both have been criticized. As the leading practical treatise describes it, “Birkner and Feldman, supra [citation], have been criticized for failing to recognize that the critical consideration is whether the cause of action is based on defendant’s protected free speech or petitioning activity. The mere fact that a cause of action 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, supra, 227 [Cal.App.]4th at
1275–1282, (finding it ‘exceedingly difficult’ to reconcile Birkner and Feldman with collected cases); see also Moriarty v. Laramar Mgmt. Corp. (2014) 224 [Cal.App.]4th 125, 136–138 (distinguishing Birkner and Feldman)—terminating tenancy or wrongfully removing property from market under Ellis Act not protected activity; Ben-Shahar v. Pickart (2014) 231 [Cal.App.]4th 1043, 1053—claims based on breach of settlement agreement between tenant and landlord re unlawful detainer did not arise out of protected activity]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 7:598, pp. 7(ll)-13-14.)
DISPOSITION
The order granting the anti-SLAPP motion is reversed. Parsi shall recover her costs.
 

_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.

























A146403; Parsi v. Rosemary Court Properties LLC, et al.