Filed 10/20/17 Chinn v. Schmidt CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Beverly Chinn appeals from two orders granting two separate

anti-SLAPP motions, one striking all causes of action, one striking three causes of

action. We affirm.

BACKGROUND

On July 14, 2015, Chinn filed a complaint and then, on February 29, 2016, a first amended complaint (FAC), the operative complaint here. The FAC named nine defendants: Michael Schmidt, Linda Schmidt, Nicholas Schmidt, Stephen Schmidt, Mark Thomasee, Christina Figueroa Cortes, Project Sentinel, the City of Fremont, and Chris Beatty. The FAC began with these two introductory paragraphs:

“1. In 1997, Chinn rented 4417 Gibraltar Avenue in Fremont, California (‘rental’) to Michael Schmidt (‘Michael’) and Linda Schmidt (‘Linda’), at below market rates. Over 17 years, Chinn raised the rent just seven times, always below market rates. In 2015, Chinn terminated the lease. Chinn is informed and believes that Michael and Linda went to the City of Fremont (‘City’) to ask about the last $210 rent increase and after that visit became malicious, oppressive, and fraudulent in making false claims against her and got others to help.

“2. Chinn brings this action against Michael and Linda to address breach of contract and tortious conduct with malice, oppression, and fraud. She brings this action against Nicholas Schmidt (‘Nicholas’) and Stephen Schmidt (‘Stephen’) to address breach of contract. She brings this action against Mark Thomasee (Thomasee), Christina Figueroa Cortes (‘Cortes’), Chris Beatty (‘Beatty’), Project Sentinel (‘Sentinel’), and the City to address tortious conduct, and civil conspiracy, with malice, oppression, and fraud under color of law. Chinn sues Does 1–50 as agents acting for and on behalf of other defendants with malice, oppression, and fraud.”

The FAC went on for several pages alleging various dealings vis-à-vis the property, following which it purported to allege four causes of action, styled by Chinn as follows: first, “Breach of Contract” against Michael, Linda, Nicholas, and Stephen Schmidt; second, “Economic Tort–Contractual Interference with Malice, Oppression, and Fraud (By Chinn against Michael, Linda, Thomasee, Cortes, Beatty, Sentinel, the City, Beatty and DOES 1–50)”; third, “Personal Tort with Malice, Oppression, and Fraud . . . against Michael, Linda, Thomasee, Cortes, Beatty, Sentinel, the City, Beatty and DOES 1–50)”; and fourth, “Conspiracy to Tortuously [sic] Interfere with Malice, Oppression, and Fraud,” against Thomasee, Cortes, Beatty, Sentinel, and City of Fremont.

On April 11, 2016, defendants Michael Schmidt, Linda Schmidt, and Chris Beatty filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (for convenience, the Schmidts’ anti-SLAPP motion)[1] set for hearing on May 31. The Schmidts’ anti-SLAPP motion was accompanied by a memorandum of points and authorities, and their attorney’s declaration attaching the FAC. The motion contended that the allegations in the FAC against them were based on statements and communications they made in connection with asserting their own rights under the City of Fremont’s “Residential Rent Increase Dispute Resolution Ordinance” (RRIDRO) and federal fair housing laws. This, the motion asserted, was protected activity under subdivisions (e)(1) and (2) of section 425.16.

On May 5, defendants Project Sentinel, Mark Thomasee, and Christina Cortes filed their own anti-SLAPP motion (for convenience, the Sentinel anti-SLAPP motion). The Sentinel anti-SLAPP motion was accompanied by two declarations. One declaration was by Cortes, a fair housing coordinator with Project Sentinel, who testified as to her involvement vis-à-vis Chinn. The other was by Thomasee, a case manager there, who also testified about what had occurred. Both declarations included documents authenticated by the declarants.

On May 19, Chinn filed what she called “Opposition to Strike,” responding to the Schmidts’ anti-SLAPP motion. The opposition began with this:

“Beverly Chinn opposes the strike.

“On the strike, defendants allege:

“Plaintiff has specifically pled Defendants’ participation in the legal process as a basis for her claims, relying on protected activity such as contacting government agencies, making claims pursuant to statute, and conducting negotiations. It is clear that the acts complained of occurred during the course of an ‘official proceeding authorized by law’, and comprise ‘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’ and are therefore subject to a special motion to strike. (Emphasis supplied.)

“Not so. Chinn has never complained of defendants’ rights of petition.

“Also, there are many ‘acts’ that are actionable even if they occur, ‘during the course of an official proceeding authorized by law.’ Example. ‘Abuse of process,’ using ‘official proceedings’ for an improper purpose. ‘Contempt,’ the failure to follow lawfully issued orders. ‘Unclean hands,’ fraud and deception nullifying the use of an, ‘official proceeding.’ The list goes on.

“The gist of defendants’ argument is this, ‘official proceedings’ whitewashes criminal acts.

“Chinn alleged that Mark Thomasee, Christina Figueroa-Cortes, and by, respondeat [sic] superior, Project Sentinel practiced law without a license, a crime under Business and Professions Code section 6126. On information and belief, she alleges that Thomasee, Cortes, and Sentinel wrongfully got the Schmidts to manufacture false claims to break the lease and to use official proceedings, i.e., court and city government, to cause Chinn damages.

“Chris Beatty is a separate case. His wrongful conduct is attempted extortion, also a crime under Penal Code section 518. Only on information and belief, does Chinn allege that he furthers the wrongful acts of Thomasee and Cortes by furthering their manufactured false claims to cause Chinn damages.

“Respectfully, therefore, the strike motion should be denied and Chinn should be awarded costs of defending the motion.”

There followed a four-page document, also entitled “Opposition to Strike,” that as described in its table of contents made one argument, as follows: “OFFICIAL PROCEEDINGS DO NOT WHITEWASH CRIMINAL CONDUCT . . . .

“a. Thomasee’s Criminal Acts . . . .

“b. Cortes’ Criminal Acts . . . .

“c. Sentinel Criminal Acts . . . .

“d. Beatty’s Criminal Acts . . . .”

On May 24 the Schmidts filed their reply to Chinn’s opposition.

On June 14 Chinn filed her opposition to the Sentinel anti-SLAPP motion. This opposition had four brief arguments, in a total of five pages, that asserted:

“IV. THESE DEFENDANTS LACK STANDING TO RAISE AN ANTI-SLAPP MOTION . . . .

“V. THE SUBJECT MATTER OF THE ASSISTANCE DOES NOT CONCERN A PUBLIC ISSUE . . . .

“VI. INEPT ASSISTANCE CONSTITUTING TORTIOUS INTERFERENCE CAUSING DAMAGE . . . .

“VII. UNAUTHORIZED PRACTICE LAW CAUSING DAMAGES . . . .”

On June 27, the Sentinel defendants filed their reply.

On July 5, both anti-SLAPP motions came on for hearing, against the background that the court had issued a tentative ruling granting the motions. Chinn contested that ruling. Following that hearing, the court entered two separate orders, both a comprehensive two and one-half page single-spaced explanation of the court’s rulings. The orders (1) granted the Sentinel motion; and (2) granted in part the Schmidts’ motion, granting it as to the second, third (as to Beatty) and fourth causes of action and denying it as to the third (as to Michael and Linda Schmidt).

On July 29 Chinn filed a notice of appeal.

DISCUSSION

Introduction to the Analysis

Chinn’s opening brief is particularly unhelpful here, where our review is under well-established rules, as set forth below. Chinn makes no argument that addresses those rules, as demonstrated by her table of contents, which reads as follows:

“I. MOTION TIMING, I.E., NO PROCEDURAL JURISDICTION . . . .

“II. MOTION PROCEDURE RENDERS MOTIONS FRIVOLOUS/INTENDED TO DELAY . . . .

“A. Frivolous Ab Initio . . . .

“B. Intended to Delay . . . .

“C. Finding Frivolousness and Intention to Delay . . . .

“III. MOTION SUBSTANCE, I.E., FIRST AMENDED COMPLAINT NOT SUBJECT TO ANTI-SLAPP . . . .

“A. First Amended Complaint Not Brought Primarily To Chill Valid Exercise Of Constitutional Right . . . .

“B. First Amended Complaint After Exercise Of Constitutional Right . . . .

“C. First Amended Complaint Claims Do Not Arise From ‘Protected Activity’ . . . .

“IV. PROPER ANTI-SLAPP ANALYSIS . . . .

“A. A Review of Service Procedure As A First Step. . . . .

“B. A Search For Opposition Papers As A Second Step . . . .

“C. A Review of Other Pleadings As A Third Step . . . .

“D. Analyze Motion Substance as a Fourth Step . . . .

“E. Review Facts From Previous Steps . . . .

“V. FIRST AMENDED COMPLAINT CLAIMS PREVAIL . . . .

“A. RRIDRO Claims Frivolous . . . .

“1. RRIDRO Claims Frivolous . . . .

“2. Non RRIDRO Claims Frivolous . . . .

“B. First Amended Complaint Claims Prevail . . . .”

Not only is Chinn’s approach inappropriate, so are some of her arguments. Two illustrations should suffice.

Subargument “III A” asserts that the FAC was “Not Brought Primarily To Chill.” As our Supreme Court has held, although the anti-SLAPP statute refers to lawsuits brought primarily to chill exercise of rights of free speech and petition, defendant need not show that the lawsuit was brought with the subjective intent to “chill.” There is nothing in section 425.16 “implying or even suggesting an intent-to-chill proof requirement.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59.) Nor must defendant show any actual “chilling.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 74; Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier.)

Chinn’s argument “I,” “No Procedural Jurisdiction” was not asserted below. Perhaps worse, it is based on a case that has been expressly overruled by legislation. Chinn’s argument is that there was “No Procedural Jurisdiction” for the motions. The basis of the argument is that section 425.16 says that an anti-SLAPP motion is to be heard “not more than 30 days after the service”; here service was on March 30 and

May 5; and the hearing was not until July 5. The argument fails, both procedurally and substantively.

As to the procedural, such argument was not made below, not even in Chinn’s “Opposition” to the tentative ruling that was prepared on the eve of the hearing. The argument has no place here. As the leading appellate treatise puts it, “As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal; and it also reflects principles of estoppel and waiver.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:229, pp. 8-172–173.) The author cites numerous cases in support, including two from this court: Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767; and Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251.)

Not only did Chinn not object to the hearing, she actively participated in it, and thus other well-settled principles come into play. D.H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 185–186 is illustrative, where the United States Supreme Court held that requirements regarding service exists for protection of the party, and are therefore subject to waiver. There, by making an appearance in the action, defendant submitted to the court’s personal jurisdiction and no service was required. Numerous courts have applied this rule, including ourselves, that “ ‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.’ ” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776, quoting Stephen W. v. Matthew S. (1995) 33 Cal.App.4th

1108, 1117.)

Moreover, the fact that the hearing was held more than 30 days after service is not, as Chinn would have, per se improper. To the contrary, section 425.16 provides that a special motion to strike “shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” As best we can tell, that is what happened here.

Were all that not enough, the primary case on which Chinn relies—Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382—was overruled following the Legislature’s amendment to the anti-SLAPP statute specifically dealing with the issue raised in Chinn’s brief. That is, in 2005 the Legislature amended section 425.16, subdivision (f) as an urgency statute effective immediately on that date (Stats. 2005, ch. 535, §§1, 4), to provide as quoted above. And an uncodified section of the statute specifically states: “It is the intent of the Legislature, in amending subdivision (f) of Section 425.16 of the Code of Civil Procedure, to overrule the decisions in Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1387–1390, and Fair Political Practices Commission v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, 1174–1178.” (See generally Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 685, fn. 7.)

We thus turn to an analysis of Chinn’s appeal.

SLAPP Law and the Standard of Review

Subdivision (b)(1) of Code of Civil Procedure 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 the 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 SLAPP.

We described the analysis under the anti-SLAPP law in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463–464 (Hecimovich):

“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. (Navellier, supra, 29 Cal.4th [at p.] 88.)

“ ‘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.’ (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

“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. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)”

Chinn’s Lawsuit Involves Protected Activity

The alleged conduct underlying each of the causes of action against the Schmidts (and related defendants) consists of statements and communications by them in connection with their asserting the Schmidts’ rights under the RRIDRO and federal fair housing laws. Chinn alleges that the Schmidt defendants, her former tenants, filed a small claims action against her to recover illegal rent increases, pursued conciliation services through RRIDRO for exactly the same thing, and made a false claim for reasonable accommodations based on a medical disability under federal law. Chinn also alleges that their attorney, Beatty, called Chinn to demand that she let the Schmidts stay in their unit for nine months, rent-free, or he would dismiss the small claims action to sue her for unlawful rent increases back to 1997 and attorney’s fees and costs. Chinn alleges that Beatty is now the attorney of record, furthering false and unenforceable claims against Chinn for unlawful rent increases back to 1997 and for violations of federal law based on a medical disability. This is protected activity under the anti-SLAPP statute.

Statements and writings made during judicial proceedings are protected by the anti-SLAPP statute as “indisputably is a ‘statement or writing made before a . . . judicial proceeding.’ ” (Navellier, supra, 29 Cal.4th at p. 90.) This includes pleadings, statements, and writings “in connection with” civil litigation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs).) And a statement or writing is “in connection with” litigation if it “relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.)

Because the anti-SLAPP statute is to be construed broadly, courts have held that lawsuits predicated on statements or writings prior to litigation may be subject to an

anti-SLAPP motion. As Briggs put it, “ ‘[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of section 425.16.’ ” Thus, Briggs held that some of the allegedly defamatory statements protected by section 425.16 were in connection with a potential complaint to HUD and a potential small claims case—neither of which had been filed. (Briggs, supra, at pp. 1109–1110,

1114–1115.) Other cases are to the same effect, holding that actions based on prelitigation statements or writings may be within the SLAPP statute. (See, e.g., Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1266 [letter to employer’s customers accusing ex-employee of misappropriation of trade secrets and threatening to file litigation]; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 271 [statements made in 60-day notice of intent to sue required by Prop. 65]; Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 887–888 [letter to film distributors asserting that film was not authorized and threatening to sue].) Indeed, this court applied this principle in Comstock v. Aber (2012) 212 Cal.App.4th 931, holding that a sexual harassment plaintiff’s prelitigation complaints to defendant employer’s human resources manager, made to address potential affirmative defense that plaintiff failed to take advantage of employer’s internal remedial procedures, were protected as statements prior to litigation or other proceedings. (Id. at pp. 944–945.)

Similarly as to the Sentinel defendants. Thomasee, an employee of Project Sentinel, testified that it is a nonprofit agency contracted by the City of Fremont to provide landlords and tenants with information related to rental housing questions. Thomasee assisted the Schmidts with their request for information, and with counseling regarding their rights as tenants; attempted to facilitate a mediation with Chinn under the RRIDRO program; and provided them with information about the option of filing in small claims court. Thomasee also referred the Schmidts to Cortes, in Project Sentinel’s fair housing division, to provide them with additional information about whether Michael Schmidt might qualify for additional protections under state or federal fair housing laws.

All this is conduct that falls within the meaning of protected activity under the anti-SLAPP statute. (Briggs, supra, 19 Cal.4th at pp. 1115–1118; Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1266.)

We thus turn to step two.

Chinn Has Failed to Demonstrate a Likelihood

of Prevailing on the Merits

As to step two, we confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at p. 989:

“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.) [¶] That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier[, supra,] 29 Cal.4th [at p.] 95,

fn. 11.)”

As we stated in Hecimovich, supra, 203 Cal.App.4th at p. 469: “While plaintiff’s burden may not be ‘high,’ he must demonstrate that his claim is legally sufficient. (Navellier, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with ‘competent and admissible evidence.’ (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)” In sum, to defeat an anti-SLAPP motion, plaintiff “ ‘ “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” ’ ” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.) Chinn’s demonstration does not measure up.

To begin with, Chinn did not submit any admissible evidence in support of her opposition. This alone is sufficient grounds to grant the motion. (See, e.g., HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [“in opposition an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.”].) To the extent that Chinn would attempt to rely on her pleading, she cannot use it to demonstrate a probability of success on the merits. (Hecimovich, supra, 203 Cal.App.4th at p. 474; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613–614.) Whatever the complaint may allege, it is not sufficient to defeat an anti-SLAPP motion. The evidence is what counts.

Second, it appears that all of the asserted conduct is protected by the litigation privilege in Civil Code section 47, subdivision (b), which immunizes from liability communications having some relation to judicial, quasi-judicial, or other official proceedings to achieve the objects of those proceedings. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Chinn’s claims described above are all premised on actions taken by defendants in connection with litigation and during the course of the RRIDRO dispute resolution process, an official proceeding authorized by Fremont Municipal Code. (See Civ. Code § 47, subd. (b)(2)–(3).)

To defeat a SLAPP motion, plaintiff must overcome substantive defenses. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 447–448) Here, Chinn’s claim would fail, as have the claims of many other plaintiffs who lost

anti-SLAPP motions because of such inability. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 275; Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1162.)

DISPOSITION

The orders are affirmed. Defendants shall recover their costs on appeal.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.