HFOP> >City> >Plaza> v. Brady,
Vorwerck et al.

 

 

 

 

 

 

Filed 10/2/13  HFOP City Plaza v. Brady, Vorwerck et al. CA4/3

 

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

HFOP CITY PLAZA, LLC,         Plaintiff and Respondent,                            v.   BRADY, VORWERCK, RYDER & CASPINO,         Defendant and Appellant.

G047928            (Super. Ct. No. 30-2012-00596407)            O P I N I O N

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, David R. Chaffee, Judge.  Motion to strike portions of reply
brief.  Request for judicial notice.  Order affirmed.  Motion to strike denied.  Request for judicial notice denied.

                        Brady, Vorwerck, Ryder
& Caspino, Ravi Sudan
and Glen A. Stebens for Defendant and Appellant.

                        Freedman + Taitelman,
Bryan J. Freedman, Jesse A. Kaplan and Jordan Susman for Plaintiff and
Respondent

 

*               
*                *

                        Defendant Brady,
Vorwerck, Ryder & Caspino appeals from the denial of its special motion to
strike plaintiff HFOP City Plaza, LLC’s complaint for declaratory relief.  (Code Civ. Proc., § 425.16; all further
statutory references are to this code unless otherwise stated.)  Defendant contends the trial court erred in
finding it had not met its burden under the first prong of the analysis to
demonstrate the complaint was based on protected activity.  It also requests href="http://www.mcmillanlaw.com/">judicial notice of an Orange County
Register news article dated January
15, 2010, contending it shows plaintiff cannot sustain its burden
to establish a probability of prevailing on the merits.  Plaintiff opposes the request on the ground
the news article is irrelevant to the issues on appeal.  We agree and deny defendant’s request for
judicial notice.

                        Plaintiff further moves
to strike portions of defendant’s reply brief referring to matters not in the
appellate record or occurring after the court issued its order, namely that
plaintiff has no standing to continue the action because it is no longer the
real party in interest, having sold its interest in the lease, requiring the
dismissal of the first amended complaint. 
In its opposition, defendant claims the transfer of ownership is
properly before the court because standing can be raised at any time and
affects plaintiff’s right to bring an action on the lease and ability to carry
its burden of establishing a probability of prevailing on the merits.  But because we conclude defendant has failed
to show the complaint was based on protected activity, the burden never shifted
to plaintiff to demonstrate a probability of prevailing.  We thus affirm the order denying defendant’s
anti-SLAPP motion and deny plaintiff’s motion to strike section II of
defendant’s reply brief as being unnecessary to our decision.

 

FACTS AND PROCEDURAL BACKGROUND

 

                        Defendant leases office
space from plaintiff under a written commercial lease agreement (lease).  In July 2012, defendant informed plaintiff it
disliked the appearance and behavior of certain individuals who appeared to be
employees of tenants in the building. 
The next month, defendant sent plaintiff letters about the discourteous
conduct of “unsavory gentlemen” and smokers in the building, stating “it may be
necessary to have a full time security guard to keep sentry over the smokers”;
complaining that someone, described as a “skin head,” had parked in a space
reserved for defendant and that this person, as well as others, had changed
their clothing in the parking lot; and advising that a “disheveled group” had
been seen walking around the front of the building, which made family members
of one of defendant’s employees feel “unsafe.” 
Defendant reiterated the complaint about smokers “not staying in the
smoking area” and, claiming a new tenant had employed “a number of convicted
felons,” requested plaintiff to “conduct a safety risk assessment, offered by
independent consultants” and to “put a security guard in the smoking area” to
ensure compliance with the smoking rules.

                        Plaintiff disagreed it
owed these obligations and did “not believe a risk assessment [was] necessary”
given the information before it and the level of security currently in place,
which was “consistent with [that] . . . offered at comparable office
buildings.”  It was aware of no incidents
indicating employees of tenants posed a risk to other building occupants and
stated that although defendant’s employees had
“complained . . . about some
rudeness, . . . [it did] not equate rudeness to a safety
threat that would indicate that there is inadequate security at the
[b]uilding.”  Defendant responded by
letter that it took “great umbrage to the manner in which [plaintiff] addressed
the issue concerning [its employee’s family]” and e-mailed plaintiff that it
would be retaining counsel to resolve the dispute. 

                        In September, defendant
e-mailed plaintiff about a racially-motivated incident purportedly witnessed by
one of defendant’s employees and demanded plaintiff “take immediate action on
this dangerous condition in the building.” 
(Capitalization omitted.) 
Thereafter, defendant circulated a flyer to other tenants inviting them
to attend a “meeting to discuss forging a unified front in demanding change”
due to plaintiff’s refusal to address “[p]roblems with smoking in public areas;
[i]nappropriate conduct and language in public areas; [a]n unacceptable
business dress code; [p]otential security/safety issues; and, [a] general lack
of overall business decorum.”  Following
that meeting, defendant sent plaintiff a letter stating that “[a]ll tenant
representatives . . . at the meeting[] unanimously request
 . . . [plaintiff] retain an independent security
consultant to perform an assessment of security
needs . . . .”  A
newspaper article indicated defendant “is on the lookout for office space after
alleging its current location at . . . [defendant’s] tower
has become an unsafe and unpleasant working environment. . . .  The
firm doesn’t plan to see out the lease . . . .” 

                        On Halloween day,
defendant e-mailed plaintiff complaining about a tenant’s employees’
inappropriate costumes.  Plaintiff
responded by stating it “does not get involved with [t]enant attire,” did not
see any of the tenant’s employee’s in Halloween attire, and asked for “more
clarity as to why this was a violation of building rules and
regulations[.]”  Defendant replied that
it was a third party beneficiary to the dress code provision in the lease
between the offending tenant and plaintiff.

                        Plaintiff filed a
complaint for declaratory relief. 
Defendant demurred to the complaint on the grounds it was uncertain and
failed to state a viable cause of action for declaratory relief because there
was no actual justiciable controversy between the parties and an adequate
remedy existed to resolve their disputes. 
Plaintiff filed a first amended (operative) complaint to clarify the
dispute and relief requested, namely “a declaration that it is not in breach of
its obligations under the [l]ease; that it is not required to perform any of
the actions demanded of it by [defendant] and, that it is not liable for the
acts of third party tenants as alleged by [defendant].”  Neither the original nor the first amended
complaint sought damages, although both requested attorney fees and costs based
on a provision in the lease. 

                        Defendant moved to
strike the amended complaint on the ground it constituted a Strategic Lawsuit
Against Public Participation, or SLAPP, in violation of section 425.16
(anti-SLAPP motion) because it arose from an act in furtherance of defendant’s
right of free speech in connection with an issue of public interest; it did not
address whether plaintiff could carry its burden to establish a probability it
would prevail in the action.  Plaintiff
opposed the motion, arguing in part that its amended complaint did not arise
out of defendant’s speech.  The court
agreed and denied the motion, finding the action did not “arise from
[d]efendant’s speech” but rather arose “from a
controversy . . . reflected by [d]efendant’s speech[.]  (Italics and bold omitted.)  As such, it found “no need to determine if that
speech is protected under . . . [section] 425.16[,
subdivision] (e).”

 

DISCUSSION

 

                        Under section 425.16,
subdivision (b)(1), a cause of action against a person arising from an act in
furtherance of a constitutionally protected right
of free speech may be stricken unless the plaintiff establishes the probability
of prevailing on the claim.  The statute
“requires the court to engage in a two-step process:  First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is
one arising from protected activity. . . .  If the
court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim.”  (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) 

                        We review the court’s ruling
de novo, considering “‘“the pleadings, and supporting and opposing
affidavits . . . upon which the liability or defense is
based.” [Citation.]  However, we neither
“weigh credibility [nor] compare the weight of the evidence.  Rather, [we] accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant’s evidence
only to determine if it has defeated that submitted by the plaintiff as a
matter of law.”’”  (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)

                        “[T]he statutory phrase
‘cause of action . . . arising from’ means simply that the
defendant’s act underlying the plaintiff’s cause of action must >itself have been an act in furtherance
of the right of petition or free speech. 
[Citation.]  In the anti-SLAPP
context, the critical point is whether the plaintiff’s cause of action itself
was based on an act in furtherance of
the defendant’s right of petition or free speech.”  (City
of Cotati
v. Cashman (2002) 29 Cal.4th 69,
78.)  To determine whether a defendant
has met its burden on this issue we look at the “gravamen of the lawsuit” (>Kronemyer v. Internet Movie Database Inc.
(2007) 150 Cal.App.4th 941, 947) to “distinguish between (1) speech or
petitioning activity that is mere evidence related to liability and (2)
liability that is based on speech or
petitioning activity.  Prelitigation
communications or prior litigation may provide evidentiary support for the
complaint without being a basis of liability.” 
(Graffiti Protective Coatings,
Inc. v. City of Pico
Rivera (2010) 181 Cal.App.4th 1207,
1214-1215.)  “‘[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.] 
Moreover, that a cause of action arguably may have been “triggered” by
protected activity does not entail that it is one arising from such.’”  (Episcopal
Church Cases (2009) 45 Cal.4th 467, 477.) 


                        Defendant contends
plaintiff’s declaratory relief action was based on conversations, correspondence,
and e-mails between it and plaintiff, as well as the newspaper article about
the safety of the building.  According to
defendant, these “are the bases of any liability, not just evidence thereof.  The speech did not just trigger the action,
it is at its core.  The whole issue
raised revolves around that speech; without it there would be no action.  It is a blatant attempt to silence
[defendant] in its efforts to improve the health and safety conditions at the
leased location.”  We disagree.

                        In City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301 (>D’Ausilio), the court held that the
anti-SLAPP statute did not apply to the city’s declaratory relief cause of
action.  The parties had entered into a
settlement agreement after the defendant sued the city for href="http://www.fearnotlaw.com/">civil rights violations.  As part of the settlement agreement, the
defendant agreed not to participate in certain indisputably protected speech
and petitioning activities against the city. 
(Id. at p. 1303.)  After discovering the defendant had engaged
in the prohibited activities, the city sued him for breach of contract and
declaratory relief.  The court concluded
that the city did not sue the defendant because he had engaged in the protected
activities, but because it believed he had breached a contract and a dispute
existed “as to the scope and validity of that contract.”  (Id.
at p. 1308.)

                        D’Ausilio relied on City of
Cotati v. Cashman, supra, 29
Cal.4th 69, in which mobile home park owners filed a lawsuit in federal court
against the city challenging the legality of a rent stabilization
ordinance.  The city then filed a
declaratory relief action against the owners in state court, seeking a
declaration that the ordinance was valid. 
(Id. at pp. 72-73.)  The city’s complaint made no reference to the
federal suit.  The Supreme Court held
that the city’s action was not subject to a special motion to strike, reasoning
that the owners’ lawsuit was not the actual controversy underlying the city’s
state court action for declaratory relief; rather, the underlying basis for
both actions was the controversy regarding the legality of the city’s
ordinance.  (Id. at p. 80.)

                        Here, the amended
complaint shows plaintiff sued defendant for declaratory relief, not because
defendant had engaged in protected activities, but because it believed an
actual dispute existed as to whether it owed the “numerous duties and
obligations” defendant claimed it did, including “provid[ing] additional
security,” “perform[ing] a safety risk assessment,” “maintain[ing] decorum and
professionalism in the building,” plus “polic[ing] people who smoke around the
building[ and] the attire, demeanor, and deportment of tenants to prevent them
from giving dirty looks, discussing unprofessional subjects, or looking
disheveled.”  Because plaintiff did not
believe it owed these obligations, it “request[ed] a declaration that it is not
in breach of its obligations under the [l]ease; that it is not required to
perform any of the actions demanded of it by [defendant]; and, that it is not
liable for the acts of third party tenants as alleged by [defendant].”  Given these allegations, we reject
defendant’s claim that D’Ausilio is
distinguishable because defendant’s speech in this case was the basis of the
complaint.  It was not.

                        Defendant’s reliance on >Vivian v. Labrucherie (2013) 214
Cal.App.4th 267 is misplaced.  There, the
plaintiff sued his ex-wife for breaching a settlement agreement by making
statements to the court and the internal affairs investigator in connection
with an application for a temporary restraining order filed by his ex-wife’s
new boyfriend.  (Id. at pp. 270-271.)  The
court rejected plaintiff’s attempt to analogize the case to >D’Ausilio:  “plaintiff’s claim is not for declaratory
relief to determine the disputed meaning of the settlement agreement but for
damages for having allegedly breached the agreement.  Plaintiff seeks to impose liability on
[ex-wife] for having made her statements to the internal affairs investigators
and in her family court papers.  Because
plaintiff is seeking to impose liability on [ex-wife] for having engaged in
this protected activity, the action is ‘based on’ that activity and comes
within the scope of section 425.16.”  (>Vivian at p. 274.)  Here, in contrast, plaintiff does not seek to
impose liability on defendant for its communications but rather requests a
declaration of its obligations under the lease. 


                        For the same reason, we
are not persuaded by defendant’s analogy of this case to Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467,
1480, and Birkner v. Lam (2007)> 156 Cal.App.4th 275, 281, both of which
held the basis of the actions before them was the prosecution of an unlawful
detainer action.  Rather, this case is
more like Copenbarger v. Morris Cerullo
World Evangelism (2013) 215 Cal.App.4th 1237, which distinguished those
cases in reversing the trial court’s grant of the defendant’s anti-SLAPP motion
because although the service of a three-day notice may have preceded and
triggered the complaint, it was not based on service of that notice.  (Id. at
pp. 1245-1247.)

                        Because defendant failed
to show plaintiff’s declaratory relief action arose from its communications, we
need not decide if those communications qualify as protected speech under any
of the categories in section 425.16, subdivision (e) or whether, under the
second prong of the anti-SLAPP analysis, plaintiff can establish a probability
of prevailing on the action. 

 

DISPOSITION

 

                        The order is
affirmed.  Plaintiff is entitled to its
costs on appeal.

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

FYBEL, J.

 

 

 

THOMPSON, J.