Antonova v. Duringer

Filed 4/27/07 Antonova v. Duringer CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEALS from orders of the Superior Court of Los Angeles County.

Stanley M. Weisberg, Judge. Affirmed in part and reversed in part.

Nina Antonova, in pro. per., for Plaintiff and Appellant.

Duringer Law Group, Stephen C. Duringer and Kirk D. Beatty for Defendant and Respondent Stephen C. Duringer.

Plaintiff Nina Antonova, in pro. per., appeals from orders dismissing her malicious prosecution action against two attorneys, Stephen C. Duringer and Sam Chandra, upon the granting of their respective motions to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute; undesignated section references are to that code). We reverse the order with respect to Duringer but affirm with respect to Chandra.^[1]

FACTS

An unlawful detainer proceeding is at the heart of this case. In 1994, Antonova leased from Helen Towers Apts. (landlord) an apartment on Sherman Way in Van Nuys, for a monthly rent of $595.^[2] This amount, however, was subject to an agreement between the landlord and the Los Angeles housing authority, to provide subsidy of Antonovas rental obligation. Her personal share accordingly devolved to $262 per month. In addition, the apartment was subject to the Rent Stabilization Ordinance of the City of Los Angeles, Los Angeles Municipal Code section 151.00 et seq.

In 2001, the landlord determined to withdraw from the housing subsidy program. The landlord delivered to Antonova a notice of rent increase, to $625 per month, effective March 1. The notice also stated, You will need to make rent agreement w/ Helen Towers. A.S.A.P. Landlord submitted an agreement, which contrasted with the previous one in several respects besides the rent amount. Moreover, it did not reflect the transitional rent reduction required under Civil Code section 1954.535.^[3] Antonova did not execute this new agreement.

There followed a series of alternative notices to quit, the first grounded in the failure to sign the new lease, and others based on asserted deficiencies in rent paid. On March 22, 2001, the landlord served a notice specifically superseding all previous ones. It stated that the tenancy would be terminated in 90 days, due to the tenants failure to execute a written rental agreement, and that This notice is served to withraw from Section 8 housing program.

Following expiration of this notice, the landlord commenced an unlawful detainer proceeding against Antonova. Respondent Duringer filed the complaint; respondent Chandra, employed by Duringer, appeared on motions. Antonovas demurrer to the form complaint was sustained for failure to attach documents, and a first amended complaint was filed.^[4] Antonova noticed two successive demurrers to this complaint. On July 27, 2001, the court struck the second demurrer, and entered default and default judgment for possession against Antonova.

Antonova moved out of the premises. She also filed a motion to vacate the default and judgment. When the motion was denied, Antonova appealed to the appellate division of the superior court. That court reversed the judgment, holding that the trial court had erred and deprived Antonova of due process by acting without allowing her an opportunity to answer the complaint. On remand, Antonova apparently had the trial judge disqualified. Thereafter, approximately four months following the appellate decision, the landlord (through Duringer) voluntarily dismissed the unlawful detainer, without prejudice.

Antonova then brought the present case, for breach of contract, wrongful eviction, and malicious prosecution, against the landlord, several related persons, and Duringer and Chandra. The attorneys were named only in the malicious prosecution cause of action. They separately moved to dismiss that cause, and hence the entire action as against them, under section 425.16. The superior court granted both motions.^[5]

DISCUSSION

Section 425.16, subdivision (b)(1) provides for the striking of a cause of action based on an act in furtherance of a persons constitutional right of petition or free speech, unless the plaintiff establishes there is a probability that it will prevail on the claim. We thus face two questions: whether Antonovas malicous prosecution claim was based on acts in the nature of petition or speech, and if so whether Antonova established a probability of prevailing.

The first answer is straightforward. Malicious prosecution claims have been recognized as subject to section 425.16, in that they are directly based on the bringing or maintenance of judicial proceedings, in the exercise of the right of petition. (E.g. Jarrow Formulas, Inc.v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow Formulas).) Accordingly, Antonovas case is prima facie within the statutory remedy. And this is unaffected by Antonovas argument that there was no exercise of constitutional rights because the unlawful detainer claim contained falsities. As the court noted in Jarrow Formulas, supra, at pages 739-740,a challenge to the validity of the protected act confuses the first prong of a section 425.16 motion with the second. (Accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 94-95.)

We therefore turn to the issue of whether Antonova established a probability of prevailing on her malicious prosecution claim. We review this question de novo. It depends on whether Antonova advanced a legally sufficient claim, and adduced admissible evidence that, assuming it were credited, would warrant a favorable result on the claim. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584-585.)

A cause of action for malicious prosecution consists of the following essential elements (besides damages): commencement of a lawsuit without probable cause, termination of that case favorably to the malicious prosecution plaintiff, and malice, in the form of ill will or ulterior motive. (5 Witkin, Summary of Cal. Law (10th ed. 2005), Torts  486, 511, pp. 712, 760.)

Addressing first the element of probable cause, we observe note that Antonova did show prima facie that the unlawful detainer lacked legal basis. The stated grounds of the proceeding, and of Antonovas alleged breach, was the refusal to sign a new lease. However, under the Los Angeles rent ordinance refusal to execute a lease constitutes grounds for eviction only when the lease is of similar provisions to its predecessor, which are not inconsistent with or violative of any provisions of this chapter or any other provision of law. (Los Angeles Mun. Code,  151.09A5.) Here, the proposed new lease contained materially different provisions. Moreover, it would have imposed rent of $625 per month during the period in which Civil Code section 1954.535 (ante, fn. 3) limited the rent to the tenants subsidized share of the former amount, here $262. And tender of the lease also violated Los Angeles Municipal Code section 151.04B, which makes it unlawful to demand rent in excess of tenants portion after the landlord has terminated or failed to renew a rental assistance contract with the city housing authority].) In sum, the notice and grounds of termination of tenancy were improper.

In a malicious prosecution claim against an attorney, the test for probable cause is whether any reasonable attorney would have deemed the claim tenable. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886.) The distinct unfoundedness of the unlawful detainer claim signifies that Antonova showed a probability of prevailing on the issue of lack of probable cause, at least with respect to defendant Duringer. There was no evidence, however, that defendant Chandra played any role in the initiation of the unlawful detainer. For that reason alone, his dismissal from the malicious prosecution case must be affirmed.

We examine next, with respect to Duringer, the issue of favorable termination of the unlawful detainer. That proceeding was terminated by the landlords and Duringers voluntary dismissal of it. A voluntary dismissal is generally considered a termination considered favorable to the defendant. (5 Witkin, supra, Torts,  501, p. 735.) To counter this, Duringer argues that his dismissal occurred only after the unlawful detainer had achieved its primary object, removal of Antonova from the premises. Although that may be true as a practical matter, ultimately a reviewing court held that Duringers initial victory was erroneous. Moreover, Duringer did not dismiss the case upon obtaining the premises. He waited for the results of plaintiffs appeal, and then for another four months, before dismissing, which he then did avowedly under an assessment of the cases remaining worth. That dismissal cannot be characterized as technically based, as opposed to implicating the merits. The dismissal reflected favorable termination on Antonovas part.

There remains the element of malice, which in the context of malicious prosecution means either ill will or a wrongful, ulterior purpose in commencing the suit. As so defined, malice necessarily must be established (absent declarations of motive) by circumstantial evidence. We believe that Antonova sufficiently showed such evidence here. Malice in the sense of improper purpose appears when the claimant commences the proceeding knowing that it is unmeritorious. (Albertson v. Raboff (1956) 46 Cal.2d 375, 383; Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1371.) Here, two weeks before Duringer filed the case, a pro bono lawyer representing Antonova explained to the landlord (and inferentially Duringer) the fundamental deficiency of the new lease as a grounds for unlawful detainer. To proceed with the litigation with such knowledge would manifest an improper purpose.

DISPOSITION

The order of dismissal as to Stephen C. Duringer is reversed. The order of dismissal as to Sam Chandra is affirmed. The parties shall bear their own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] This action originally was commenced by both Antonova and her mother, Goarine Asriyan, who also was a defendant in the case alleged to have been maliciously prosecuted. After Asriyans death, we granted Antonovas motion to proceed on her behalf, as successor in interest under section 377.11. Henceforth we shall refer to both Antonova and her predecessor as Antonova.

^[2] The lease is ambiguous about whether Helen Towers Apts. or another named entity is the actual landlord.

^[3] Where an owner terminates or fails to renew a contract or recorded agreement with a governmental agency that provides for rent limitations to a qualified tenant, the tenant or tenants who were the beneficiaries of the contract or recorded agreement shall be given at least 90 days written notice of the effective date of the termination and shall not be obligated to pay more than the tenants portion of the rent, as calculated under the contract or recorded agreement to be terminated, for 90 days following receipt of the notice of termination of nonrenewal of the contract.

^[4] Throughout the proceedings below, as here, Antonova appeared in pro. per.

^[5] We deny Antonovas second motion to correct the reporters transcript of the hearing.