Filed 1/7/09; pub. order 2/5/09 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

KAREN A. CLARK,

Plaintiff and Appellant,

v.

MAHVASH MAZGANI,

Defendant and Appellant.

B198309

(Los Angeles County

Super. Ct. No. BC358995)

APPEALS from a judgment of the Superior Court of Los Angeles County, Tricia Ann Bigelow, Judge. Reversed.

Blum Collins and Steven A. Blum for Plaintiff and Appellant.

Law Offices of Yevgeniya G. Lisitsa and Yevgeniya G. Lisitsa for Defendant and Appellant.

_____________________________

SUMMARY

A landlord successfully evicted a long-term tenant from a rent-controlled apartment, ostensibly to free the unit for occupancy by the landlord’s daughter. The landlord’s daughter never moved in, and the tenant sued the landlord for fraud and unlawful eviction, and failure to pay relocation expenses. The landlord responded with a special motion to strike (Code Civ. Proc., §425.16), arguing the tenant’s complaint arose from the landlord’s acts or statements in furtherance of her constitutional rights. The trial court agreed, and granted the motion. We conclude the tenant’s claims did not arise from a protected activity — they are based on the landlord’s violation of rent control laws, not on actions in furtherance of the right of free speech or petition. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Appellant Mahvash Mazgani owns a triplex in the Westwood area of the City of Los Angeles. The property is subject to the Los Angeles Rent Stabilization Ordinance (RSO), which restricts the circumstances in which a landlord may effect an eviction. (Los Angeles Municipal Code (LAMC), § 151.09(A); see also Civ. Code, § 1947.10, subd. (a).) Plaintiff and Appellant Karen A. Clark was Mazgani’s tenant for about eight years and paid a monthly rent of approximately $1,100. The RSO permits eviction of a tenant from a rent-controlled apartment if the landlord intends to remove the unit from the rental market in order to free it for occupancy by a member of his or her immediate family. (LAMC, § 151.09(A)(8)(a); Civ. Code, § 1947.10, subd. (a).)

In January 2006, after serving and filing the requisite notices, Mazgani filed an unlawful detainer action against Clark to evict her from her apartment so Mazgani’s daughter could move into that unit. Mazgani prevailed in that action, and Clark was evicted in April 2006.

In September 2006, Clark filed this action against Mazgani. Clark alleged three causes of action: violation of the RSO, fraud, and unfair business practices (in violation of Bus. & Prof. Code, § 17203). Clark alleged that, following her eviction, Mazgani’s daughter never moved into Clark’s former apartment. Clark claimed Mazgani made fraudulent misrepresentations in the unlawful detainer action and never meant for her daughter to reside in Clark’s former apartment. Instead, and in violation of the RSO, Mazgani purposefully kept the apartment unoccupied (at least until this lawsuit was filed) and performed renovations, with the goal of re-letting the unit to a new tenant for a higher monthly rent. Clark sought an order reinstating her tenancy, and statutory and punitive damages. In addition, under the RSO, Mazgani was required to pay Clark a $3,000 relocation fee at the time of her eviction. (LAMC, § 151.09(G), (G)(2). Mazgani had acknowledged that debt and had given Clark a check for that amount. However, she stopped payment on her check. Clark claimed Mazgani still owed her the relocation fee.

Mazgani responded to the complaint by filing a SLAPP (strategic lawsuit against public participation) motion. (Code Civ. Proc., § 425.16.) She contended Clark’s complaint arose from Mazgani’s privileged communications, made in the course of proceedings before the Los Angeles City Housing Department and in the unlawful detainer action, and from the acts of filing and serving the eviction notice. The trial court agreed and granted the motion. Judgment was entered on May 30, 2007 after a hearing on a motion for attorneys’ fees, and the action was dismissed. Mazgani appealed. Clark filed a cross-appeal.

DISCUSSION

Both sides filed timely appeals. We turn first to Clark’s appeal, as our disposition of that matter renders Mazgani’s appeal moot.

Clark contends the trial court erred in granting the SLAPP motion because Clark’s claim did not arise from Mazgani’s protected activity taken in furtherance of her right of free speech or petition. We agree.

Code of Civil Procedure section 425.16 (section 425.16) sets forth the procedure for bringing a special motion to strike in lawsuits filed 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); Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.) The statute provides: “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 or 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).) An “‘act in furtherance of a person’s right of petition or free speech’” includes any written or oral statement made before a legislative, executive, or judicial body, or any other official proceeding authorized by law, or in connection with an issue under consideration by such body or in such proceeding. (§ 425.16, subd. (e)(1), (2).) If this showing is made, the movant need not separately demonstrate the statement also concerns an issue of public significance. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)

The trial court undertakes a two-step process in determining the merits of a SLAPP motion. First, in order for a complaint to be subject to a SLAPP motion, the court must decide if the defendant has made a threshold showing that the challenged claims arose from his or her protected activity. (Taus v. Loftus (2007) 40 Cal.4th 683, 712; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.) If the defendant fails to satisfy this burden, the complaint is not subject to a motion to strike and the analysis ends. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) But, if the trial court finds such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Ibid.) Our review is de novo. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 158 (Marlin).)

In analyzing defendant’s burden under the first prong of the SLAPP analysis, “the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) The definitional focus is not on the form of the plaintiff’s cause of action, but on the defendant’s activity that gives rise to his or her asserted liability. (Id. at p. 92.)

There is no question that the prosecution of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735; Navellier, supra, 29 Cal.4th at p. 90; Birkner v. Lam (2007) 156 Cal.App.4th 281 (Birkner).)

Clark’s complaint, however, is not premised on Mazgani’s protected activities of initiating or prosecuting the unlawful detainer action, but on her removal of the apartment from the rental market and fraudulent eviction of Clark for the purpose of installing a family member who never moved in. “Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (Marlin, supra, 154 Cal.App.4th at pp. 160-161; Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318.) “‘[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.’” (Marlin, supra, 154 Cal.App.4th at p. 160, quoting Navellier, supra, 29 Cal.4th at p. 89.) The pivotal question “‘is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’” (Ibid.)

Marlin is instructive. There, a landlord filed notice under the Ellis Act (Gov. Code, § 7060 et seq.) of its intention to permanently remove units from the rental market. The Ellis Act allows landlords who comply with its provisions to go out of the rental business even if doing so would otherwise violate a local rent control ordinance. Tenants subjected to the notice sued the landlord challenging its right to invoke the Ellis Act. The landlord responded with a SLAPP motion, arguing the tenants’ action arose from the landlord’s filing and service of the Ellis Act notices. This District’s Division Seven disagreed. The Court was willing to assume that filing and service of the eviction notices constituted protected free speech or petitioning activity, but concluded the landlord failed to show the lawsuit arose from any protected activity. The Court reasoned that simply because an action was filed after Ellis Act notices were served and filed, did not mean it arose from or was based on those protected activities. (Marlin, supra, 154 Cal.App.4th at p. 160.) Rather, “the cause of plaintiffs’ complaint was [‘the landlords’] allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs’ tenancy. Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (Id. at pp. 160-161.) “[T]he [plaintiffs’] suit is not based on defendants’ filing and serving of a notice required under the Ellis Act, it is based on the [plaintiffs’] contention ‘defendants are not entitled to invoke or rely upon the Ellis Act to evict plaintiffs from their home.’” (Id. at pp. 161-162.)

A similar result was reached in Dept. of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (DFEH). There, the Court held that an action against a landlord for disability discrimination for refusal to acknowledge or accommodate a tenant’s disability in removing an apartment building from the rental market, and evicting the tenant under the Ellis Act was also not subject to the SLAPP statute. (Id. at pp. 1284-1285.) As in Marlin, the DFEH Court assumed the landlord’s “acts of filing and serving notices of its intent to remove its residential units from the rental market, . . . and its filing and prosecuting its unlawful detainer actions against [the tenant] constituted” protected activities. (Id. at p. 1283.) However, the Court also found the landlord was not sued because it filed the notices, or because it communicated with the tenant in connection with the eviction process, or even because it filed an unlawful detainer action against her. Although the suit may have been “triggered by” the landlord’s filing, serving and processing of the paperwork necessary to remove its units from the rental market, and its filing of an unlawful detainer action, it was not sued because it undertook those protected activities. Rather, the gravamen of the tenant’s complaint arose from the landlord’s discriminatory failure to accommodate her disability, by extending her tenancy for a year. (Id. at pp. 1284, 1287-1288.)

The same reasoning applies here. Clark’s action against Mazgani is not based on Mazgani’s filing or service of the notices of intent to evict, it is not based on anything Mazgani said in court or a public proceeding, and it is not based on the fact that Mazgani prosecuted an unlawful detainer action against her. The complaint is based on Mazgani’s allegedly unlawful eviction, in that she fraudulently invoked the RSO to evict Clark from her rent-controlled apartment as a ruse to provide housing for her daughter, but never installed her daughter in the apartment as required by that ordinance, and also that she failed to pay Clark’s relocation fee. Mazgani’s briefs fail to distinguish the holding in Marlin, and fail to address DFEH at all. Instead, she offers the decisions in Birkner, supra, 156 Cal.App.4th 281 and Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 (Feldman) to buttress her claim that the SLAPP motion was properly granted. Those cases are inapposite.

In Birkner, tenants sued their landlord for wrongful eviction in violation of San Francisco’s rent-control ordinance, negligence, breach of the covenant of quiet enjoyment and intentional infliction of emotional distress. (156 Cal.App.4th at p. 278.) The sole basis for liability was the landlord’s service of an eviction notice and his refusal to rescind it after the tenants informed him they were exempt from eviction based on age and length of tenancy. The Court acknowledged the rule articulated in Marlin, that terminating a tenancy or removing a property from the rental market does not constitute an activity taken in furtherance of the constitutional right of petition or free speech. (Id. at pp. 282-282.) But, it found the circumstances of Marlin distinct. In Marlin, the tenants’ claims were based on their contention that the landlord was not entitled to rely on the Ellis Act to evict them. In contrast, in Birkner, the gravamen of the complaint was the landlord’s service of the eviction notice under the rent ordinance and his refusal to rescind it, activities indisputably protected under the anti-SLAPP statute. (Id. at p. 283.)

In Feldman, supra, 160 Cal.App.4th 1467, tenants refused to vacate an apartment after the landlord demanded higher rent. The landlord filed an unlawful detainer action. The tenants filed a cross-complaint alleging retaliatory eviction, negligence, negligent misrepresentation, breach of the covenant of quiet enjoyment, wrongful eviction, breach of contract and unfair business practices. The unlawful detainer action was dismissed, and the landlord moved to strike the cross-complaint as a SLAPP suit. The court of appeal found that, with the exception of the claim of negligent misrepresentation, the tenants’ cross-complaint was based on the filing of the unlawful detainer action, service of the notice to quit, and statements made by the landlord’s agent in connection with the threatened unlawful detainer. Those activities were not merely evidence of the landlord’s wrongdoing or activities which “triggered” the filing of an action that arose out of some other independent activity. On the contrary, as was the case in Birkner, they were the challenged activities and the bases for all but one cause of action. (Id. at p. 1483.) The pivotal distinction between the circumstances in Marlin and DFEH, on one hand, and Birkner and Feldman on the other, is whether an actual or contemplated unlawful detainer action by a landlord (unquestionably a protected petitioning activity) merely “preceded” or “triggered” the tenant’s lawsuit, or whether it was instead the “basis” or “cause” of that suit.

As in Marlin and DFEH, we assume, without deciding, that statements made by Mazgani were in furtherance of her right of petition or free speech. Nevertheless, Clark’s claims do not “arise from” Mazgani’s conduct in exercising those constitutional rights. The gravamen of Clark’s action is her claim that wrongful eviction was the result of fraud in that Mazgani did not fulfill the RSO requirement that her family member reside in the evicted tenant’s apartment for at least six months. (Civ. Code, § 1947.10, subd. (a).) That claim could only be raised and determined months after Mazgani accomplished the eviction. A landlord’s fraudulent act of terminating a tenancy or removing a unit from the rental market and allowing that unit to stand empty, in breach of the RSO, is an actionable unlawful eviction. (Civ. Code, § 1947.10, subd. (a).) Neither that act, nor the failure to make good on the check tendered to her former tenant are acts protected by Mazgani’s constitutional rights of petition or speech.

Contrary to her contentions, Mazgani was not sued for exercising constitutional rights. She was sued to compel compliance with the provisions of the RSO. Clark’s suit was unquestionably “triggered by” Mazgani’s statements and the documents she filed in connection with the unlawful detainer. But the suit is not based on those statements or filings. It is based on Clark’s claim that Mazgani fraudulently invoked the family occupancy exemption of the RSO to effect Clark’s eviction, and failed to fulfill her obligations under that ordinance to install her daughter in the apartment or to pay Clark’s relocation expenses. Mazgani’s eviction notices and the unlawful detainer action are merely cited as evidence and background to illustrate Mazgani’s subsequent violation of the RSO and Civil Code section 1947.10, subdivision (a). To paraphrase an observation in DFEH, “‘[i]f we were to accept [Mazgani’s] argument, then [she] could preclude any judicial review of [her] violation of the rent control law, no matter how egregious, by simply filing a SLAPP motion . . . .” as was done here. (DFEH, supra, 154 Cal.App.4th at p. 1287.) We, like the other courts that have considered the issue, remain “confident that the Legislature intended no such application of [the rent control laws].” (Ibid.; Santa Monica Rent Control Bd. v. Pearl Street, LLC, supra, 109 Cal.App.4th at p. 1318; Gallimore v. State farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1398.)

Mazgani has not met her threshold burden of showing this suit is based on protected activity. Accordingly, we need not consider whether Clark demonstrated she is likely to succeed on the merits.

DISPOSITION

The judgment is reversed. Clark shall recover her costs of appeal.

WEISBERG, J.*

We concur:

MALLANO, P.J.

ROTHSCHILD, J.
Filed 2/5/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

KAREN A. CLARK,

Plaintiff and Appellant,

v.

MAHVASH MAZGANI,

Defendant and Appellant.

B198309

(Los Angeles County

Super. Ct. No. BC358995)

CERTIFICATION AND

ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed on January 7, 2009 was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

WEISBERG, J.* MALLANO, P.J. ROTHSCHILD, J.

________________________________________________________________________

*Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.