Filed 8/27/18 Kane v. Giannini CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

—-

JOHN KANE et al.,

Plaintiffs, Cross-defendants and

Respondents,

v.

ERIC W. GIANNINI,

Defendant, Cross-complainant and

Appellant;

SID M. ROSENBERG et al.,

Cross-defendants and

Respondents.

C085592

(Super. Ct. No. CV-16-1275)

Cross-complainant and appellant Eric W. Giannini (the Tenant), acting in propria persona, appeals the trial court’s order granting the SLAPP motion of cross-defendants and respondents John and Rosalie Kane (the Landlords), to strike the Tenant’s malicious prosecution cross-claim brought within the very lawsuit upon which the malicious prosecution claim was premised.

The Tenant argues the trial court abused its discretion in striking his malicious prosecution claim because the Landlords’ act of amending their original unlawful detainer complaint to eliminate the unlawful detainer portion of the action resulted in a “termination” of the unlawful detainer action that was favorable to the Tenant.

After the close of briefing, co-appellant Jihad Ben Sebahia filed a motion to be dismissed from the appeal, which was granted after the Landlords did not file an opposition. (Cal. Rules of Court, rule 8.54(c).) Accordingly, we issue this decision as to appellant Eric W. Giannini only and affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

The Landlords filed an unlawful detainer action against the Tenant on August 9, 2016, alleging multiple violations of the lease agreement, including disturbances of the peace that interfered with the quiet enjoyment of other residents, violations of the nonsmoking provision, improper use of the dumpsters and laundry rooms, and suspected wrongful occupancy. On January 26, 2017, Landlords filed a first amended complaint (FAC) including breach of contract and related claims in the unlawful detainer action. The Landlords did not separately restate an “unlawful detainer” cause of action and acknowledged the Tenant quit the property on or about December 21, 2016. Nonetheless, the FAC reiterated the Landlords’ previous allegations concerning the Tenant’s violations of the lease agreement, that the Landlords served the Tenant with notices of lease termination and to vacate the property, and that when the Tenant failed to leave, the Landlords filed an unlawful detainer action. The damages sought in the FAC included a claim for holdover damages for the fair rental value of the property for the 143 days the Tenant remained in possession at the same rate requested in the original unlawful detainer claim, as well as money for alleged damage to the rental premises.

On April 28, 2017, the Tenant filed a cross-complaint, which included a claim for malicious prosecution alleging, in pertinent part, “[t]here was an unlawful detainer action filed as the initial part of this action, which lacked probable cause and was dismissed on the merits by the [Landlords] and Counsel, which had been brought by the [Landlords] and Counsel with the malicious intent to punish [the Tenant] for [his] assertion” of various rights. “The dismissal of the unlawful detainer cause of action was on the merits because the [Landlords] and Counsel not only had recognized from the beginning that there was no legal basis for that cause of action, but the [Tenant] w[as] not deterred by these terrorist tactics and would be able to prove how wrongful the eviction was.”

The Landlords filed a special motion to strike the malicious prosecution cross-claim on June 1, 2017, which the Tenant opposed, and which the trial court granted on August 31, 2017.

DISCUSSION

The Tenant argues the trial court abused its discretion in granting the Landlords’ special motion to strike the Tenant’s cross-claim for malicious prosecution premised upon the Tenant’s termination of the Landlords’ unlawful detainer claim brought in the same action.

Section 425.16 provides a mechanism to combat “a disturbing increase in lawsuits 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).) “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.” (§ 425.16, subd. (b)(1).)

Special motions to strike are evaluated using a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Under the first step, the court determines “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).)” (Navellier, at p. 88.) Upon that showing, the burden shifts to the plaintiff in the second step to demonstrate “a probability of prevailing on the claim.” (Navellier, at p. 88, citing § 425.16, subd. (b)(1).) A plaintiff meets this burden by showing “ ‘ “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier, at pp. 88-89.)

Here, the Tenant does not contest that the Landlords showed their cause of action arose from protected activity. Rather, the Tenant argues compliance with the second step of the special motion to strike analysis. We review the trial court’s decision de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

“[T]o prevail on [a] claim for malicious prosecution, [the Tenant] must show that the unlawful detainer action was (1) terminated in [his] favor; (2) begun with malice; and (3) prosecuted without probable cause.” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 112.)

Here, the trial court granted the special motion to strike, finding the Tenant failed “to establish that a prior litigation was pursued to a termination in [his] favor.” We concur.

It has long been settled that a malicious prosecution claim premised upon a pending action may not be filed as a cross-complaint in that pending action. (Babb v. Superior Court (1971) 3 Cal.3d 841, 846.) This is true even where amendment of a pleading in that pending action eliminates a cause of action upon which the malicious prosecution claim is based and regardless of whether the eliminated and remaining claims concern the same primary right. (Jenkins v. Pope (1990) 217 Cal.App.3d 1292, 1298-1301.) Therefore, we need not decide whether the unlawful detainer and subsequent contract claims concern the same primary right, as that inquiry “is irrelevant before termination of the action as a whole.” (Id. at p. 1299; see Pasternack v. McCullough (2015) 235 Cal.App.4th 1347, 1356-1357 [separate malicious prosecution action premised upon claim severed and adjudicated in favor of malicious prosecution claimant was premature while malicious prosecution claimant’s cross-complaint in the first suit against the same defendants remained pending].) Any malicious prosecution claim must await the termination of the original suit.

DISPOSITION

The trial court’s order striking the malicious prosecution cross-claim is affirmed. The Landlords shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

BUTZ , J.

We concur:

RAYE , P. J.

ROBIE , J.