>C & C
Dev., Inc. v. CBS Outdoor, Inc.

 

 

 

 

 

 

 

 

 

 

 

Filed 9/4/13  C & C
Dev., Inc. v. CBS Outdoor, Inc. 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NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 
>

C & C DEVELOPMENT, INC.,   Plaintiff, Cross-defendant and Appellant,                           v.   CBS OUTDOOR, INC.,   Defendant, Cross-complainant and Respondent.

B240195         (Los Angeles County        Super. Ct. No. BC468761)

 

 

            APPEAL
from an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Steven J.
Kleifield, Judge.  Affirmed.

 

            Alston
& Bird, James R. Evans and Ryan McCoy for Plaintiff, Cross-defendant and
Appellant.

 

Caldwell Leslie
& Proctor, Christopher G. Caldwell, Jeanne A. Fugate, and Craig H.
Bessenger for Defendant, Cross-complainant and Respondent.

 

__________________

 

 

Landlord C & C
Development, Inc., and tenant CBS Outdoor, Inc., are the successors to a lease
whereby tenant rented a portion of landlord’s property to operate a
billboard.  Landlord sued tenant for
unlawful detainer, claiming tenant had not paid rent or utilities due under the
lease.  Tenant abandoned the premises and
tried to remove its billboard, which belonged to tenant under the terms of the
lease.  Landlord prevented tenant from
re-entering the premises to remove the billboard, claiming ownership of the
billboard.

The original
unlawful detainer action was dismissed without prejudice, and landlord then
filed this lawsuit, seeking damages for unpaid rent and trespass.  Tenant filed a cross-complaint for href="http://www.mcmillanlaw.com/">conversion and declaratory relief, to
determine ownership of the billboard. 
The cross-complaint summarized the previous unlawful detainer litigation
between the parties.  On this basis,
landlord filed a special motion to strike the claim for conversion, asserting
it arose from landlord’s protected activity in filing the unlawful detainer
action.  The trial court denied the
motion, finding the gravamen of the cross-complaint was not the filing of the
unlawful detainer, but ownership of the billboard.  We agree, and affirm the order below. 

BACKGROUND

In December 1997,
Outdoor Systems Advertising, as tenant, and Robert and Yee Lin Chan, as
landlord, entered into a lease.  Outdoor
Systems Advertising leased a portion of the Chans’ Los
Angeles property for the purpose of erecting and
operating a billboard.  The lease was for
a term of 10 years, with an option for two 5-year extensions.  The lease would automatically extend unless
Outdoor Systems Advertising gave written notice of its intention not to extend
the lease.  The lease called for rent of
$18,000 a year, which would increase by 20 percent for each five-year
extension.  An amendment to the lease was
executed in June 1998, reducing the rent to $12,000 a year (but increasing the
rent if Outdoor Systems Advertising added another advertising face to its
billboard).  In February 2007, landlord
bought the property from the Chans, and tenant (Outdoor Systems Advertising’s
successor) continued to make lease payments.

On March 24, 2009, landlord served a
10-day notice to pay rent or quit, seeking $3,750 in unpaid utilities, and
$7,500 in unpaid rent.  Landlord claimed
that monthly utility payments of $150 had not been made between February 2007
and February 2009.  Also, monthly rent of
$750 had not been paid between May 2008 and February 2009.  On May
6, 2009, landlord served another 10-day notice to pay rent or quit,
this time seeking $4,200 in utility payments. 
On August 17, 2009,
landlord instituted unlawful detainer proceedings against tenant.    

The lease provided
that “Title to the [billboard] shall be held by the Lessee.  All of Lessee’s Structure shall remain the
property of Lessee and are not fixtures. 
Lessee has the right to remove all Lessee’s Structure at its sole
expense on or Thirty (30) days after the expiration or termination of this
Lease.”  The lease also provided that
“Lessor shall provide access to Lessee . . . to the Premises twenty-four (24)
hours a day, seven (7) days a week . . . to construct, maintain, install and
operate Lessee’s Structure.” 

On August 31, 2009, tenant informed
landlord that it would agree to terminate the lease, surrender possession of
the property, and remove its billboard. 
Landlord did not respond to tenant’s correspondence.  In September 2009, tenant started to
dismantle the billboard, but did not complete the removal.  Landlord called the police and did not allow
tenant’s crew to remove the structure, claiming it belonged to landlord. 

On October 2, 2009, landlord filed a
notice with the trial court, indicating that possession was no longer at issue
in its unlawful detainer lawsuit against tenant.  Therefore, the trial court converted the
unlawful detainer action to a limited civil case.  Tenant continued, without success, to make
arrangements with landlord to remove the billboard from landlord’s
property.  Landlord made clear it would
not give tenant access to its property. 
The case languished in court, until the trial court issued an order to
show cause re:  dismissal in May 2011 for
landlord’s failure to request that its case be set for trial.  Landlord moved to dismiss the unlawful
detainer action, without prejudice, and that action was dismissed on August 25, 2011. 

Landlord then
filed this case on August 30, 2011.  Landlord asserted causes of action for href="http://www.fearnotlaw.com/">breach of contract and trespass, claiming
the lease was breached when tenant failed to make utility payments and
“abandon[ed] the leasehold and fail[ed] to pay rent.”  The complaint also alleged tenant wrongfully
entered landlord’s property and attempted to remove the billboard, asserting
“it had no right of entry without [landlord’s] permission for purposes of
removing the . . . billboard and supporting structure.”  The complaint also alleged tenant did not
obtain necessary permits or plans for the removal of the billboard, and that
landlord was concerned that improper removal of the billboard could damage its
building on the property because of the proximity of the billboard to the
building’s foundation. 

Tenant
cross-complained for declaratory relief and conversion.  The cross-complaint summarized the earlier
litigation between the parties (as discussed above), describing the filing of
the notices to pay rent or quit, the unlawful detainer action, the assertion by
landlord of ownership rights to the billboard and refusal to allow tenant to
remove the billboard.  The
cross-complaint alleged the billboard belonged to tenant under the terms of the
lease, and that landlord wrongfully denied access to the billboard, as required
by the lease.  The cause of action for
declaratory relief alleged a controversy concerning the ownership of the
billboard had arisen.  The claim for
conversion alleged “[tenant] is . . . the owner and title holder to the
remaining steel billboard structure . . . located on the Property[;]  [¶] 
[t]he steel used to construct the billboard structure is
valuable[;]  [¶]  [tenant] has sought the right to safely
remove the remaining billboard structure since September 24, 2009. 
[Landlord] has refused all such requests . . . .” 

Landlord filed a
special motion to strike the
conversion cause of action in the cross-complaint under Code of Civil Procedure
section 425.16href="#_ftn1" name="_ftnref1"
title="">[1]
(anti-SLAPP motion), contending it arose from protected petitioning
activity.  Landlord seized upon the allegation
in the cross-complaint that landlord’s “purpose in serving the Notices to Quit
and filing the Original Lawsuit was simply to seek [and] take ownership of
[the] Billboard.”  Tenant countered that
the cross-complaint was not based on litigation conduct, but rather on the
refusal to allow tenant to recover its property as required by the lease.  The trial court found that landlord failed to
make a prima facie showing that the cross-complaint arose from protected activity.  The trial court concluded the conversion
claim was essentially a claim by a tenant that the landlord wrongfully retained
personal property following termination of the lease, and that prosecution of
the unlawful detainer did not bring the claims within the anti-SLAPP statute.   

We affirm the
order, finding the cross-complaint does not arise from protected activity.>

DISCUSSION

A party opposing a SLAPP claim may bring a special
motion to strike any cause of action “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 the California Constitution in connection with a public
issue.”  (§ 425.16, subd. (b)(1).)  A special motion to strike may be addressed
to individual causes of action and need not be directed to the complaint as a
whole.  (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141,
150.)  The trial court rules on an anti-SLAPP motion using a
two-step process.  First, it looks to see
whether the moving party has made a prima facie showing the challenged causes
of action arise from protected activity. 
(§ 425.16, subd. (b)(1).) 
Second, if the moving party meets this threshold requirement, the burden
shifts to the other party to demonstrate a probability of prevailing on the
claims.  (Ibid.; see Taus v. Loftus (2007)
40 Cal.4th 683, 712.)  In making both of
these determinations, the trial court considers “the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense
is based.”  (§ 425.16, subd. (b)(2).)  Our review on appeal is de novo.  (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269,
fn. 3.)

The moving party has the burden of making a prima facie showing one or more causes of action arise
from an act in furtherance of the constitutional right of petition or free
speech in connection with a public issue. 
(§ 425.16, subd. (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  Statements made in litigation, or in
connection with litigation, are protected by section 425.16, subdivision
(e).  Courts have taken a fairly
expansive view of what constitutes litigation-related activity for purposes of
section 425.16.  (See Kashian v.
Harriman (2002) 98 Cal.App.4th 892, 908.) 
The motion must be denied if the required prima facie showing is not made.  (City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)

When a cause of action
involves both protected and unprotected activity, the court looks to the
gravamen of the claim to determine if the claim is a SLAPP.  (Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 672.)  Protected conduct
which is merely incidental to the
claim does not fall within the ambit of section 425.16.  (Martinez
v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; >Peregrine, supra, at p. 672.)  Where the
moving party’s protected activity will only be used as evidence in the case,
and none of the claims are based on it, the protected activity is only
incidental to the claims.  (Wang
v. Wal-Mart Real Estate Business
Trust (2007) 153 Cal.App.4th 790, 809-810.) 
Determining the gravamen of the claims requires examination of the
specific acts of alleged wrongdoing and not just the form of the claim.  (Peregrine,
supra, at pp. 671-673.)

The elements of a claim for conversion are a plaintiff’s ownership
or right to possession of personal property, defendant’s disposition of the property in a
manner that is inconsistent with plaintiff’s rights, and damages.  (>Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 119.) 
Although the cross-complaint alleged that landlord’s “purpose in serving
the Notices to Quit and filing the Original Lawsuit was simply to seek and take
ownership of [the] Billboard,” the conversion claim is not based on litigation conduct. 
Rather, the basis of the conversion claim is unlawful retention of the
billboard (ownership of which had not been litigated in the unlawful detainer
action) and interference with tenant’s contractual right to the billboard by
refusing access to the property.  The
details of the litigation, recited in the cross-complaint, merely provide a
context to explain how the claim evolved. 


            In >Department of Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273 (1105
Alta Loma Road),
the appellate court refused to apply the anti-SLAPP statute to a complaint
for housing discrimination.  A dispute
between the landlord and a disabled tenant arose when the landlord, in
accordance with local rent control regulations, issued a notice of intention to
remove its apartment building from the rental market.  After receiving the notice, the tenant
requested an extension of her tenancy on the ground she suffered from a
disability.  The landlord filed an href="http://www.fearnotlaw.com/">unlawful detainer action, and ultimately
secured a writ of possession that resulted in the tenant’s eviction.  The Department of Fair Employment and Housing
(DFEH) sued the landlord for disability discrimination on behalf of the tenant.  The landlord filed a special motion to strike
portions of the complaint that were based on protected communications made in
connection with the unlawful detainer action. 
The trial court denied the motion on the ground “the gravamen of the
complaint was for disability discrimination.” 
(Id. at p. 1281.) 

            The
appellate court affirmed, finding the landlord had failed to meet its threshold
burden of showing the acts alleged in the complaint were in furtherance of its
right of petition or free speech.  (>1105 Alta Loma Road, >supra, 154 Cal.App.4th at p. 1284.)  The court distinguished between the
landlord’s acts and communications in furtherance of the unlawful detainer
action, which constituted protected petitioning or free speech activity, and
the landlord’s alleged failure to accommodate the tenant’s disability, which
was not a protected activity.  (>Id. at pp. 1284-1285.)  “Contrary to [the landlord’s] argument, the
communications and the actual eviction itself were not the acts attacked in
DFEH’s complaint.  Instead, the
allegations of wrongdoing in DFEH’s complaint arose from [the landord’s]
alleged acts of failing to accommodate [the tenant’s] disability.  The letters, name="SDU_1285">email
and filing of unlawful detainer actions constituted DFEH’s evidence >of [the landlord’s] alleged disability
discrimination.”  (Ibid.)

            The
court acknowledged the “suit might have been ‘triggered by’ [the landlord’s]
filing, serving and processing the paperwork necessary to remove its
residential units from the rental market in accordance with applicable
laws.  However, it is not true [the
landlord] was sued because it filed these notices in the official municipal and
state statutory removal process, or because it communicated with [the tenant] in
connection with the process, or even because it filed the unlawful detainer
actions against her.”  (>1105 Alta Loma Road, >supra, 154 Cal.App.4th at pp.
1287-1288.) 

Here, like in 1105 Alta Loma
Road, >supra, the special motion to strike was properly denied by the trial court,
because the conversion claim was not based on, and did not arise out of
protected activity, even though it was “triggered” in part by the filing of the
unlawful detainer action.  (>1105 Alta Loma Road, >supra, 154 Cal.App.4th at pp.
1287-1288.)  Since we conclude the conversion claim does not arise from protected
activity, we need not consider whether tenant demonstrated a probability of
prevailing on the merits of its conversion claim. 

>DISPOSITION

            The order is affirmed. 
Respondent is to recover its costs
on appeal.

 

 

 

                                                                                    GRIMES,
J.

 

WE CONCUR:

 

 

RUBIN, Acting P. J. 

 

 

FLIER, J.