Filed 9/27/19 Swain v. Leshefsky CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

ANNE KIHAGI SWAIN

Cross-complainant and Appellant,

v.

ALLISON LESHEFSKY,

Cross-defendant and Respondent.

A152023

(San Francisco County

Super. Ct. No. CGC-16-553493)

Cross-complainant and appellant Anne Kihagi Swain (Kihagi) appeals the trial court’s order striking the vast majority of her cross-complaint pursuant to a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) brought by cross defendant and respondent Allison Leshefsky. Leshefsky, a former tenant who lived in one of the properties co-owned and managed by Kihagi, provided information to the San Francisco City Attorney and testified in the City and County of San Francisco’s lawsuit against Kihagi for tenant harassment and violation of state and local building and housing laws. (City and County of San Francisco v. Kihagi (Dec. 3, 2018, A151719) [nonpub. opn.], petn. for review den. Mar. 13, 2019, S253354 (Kihagi I).) Leshefsky separately sued Kihagi for wrongful eviction, harassment, and unfair business practices. Kihagi cross-complained, alleging that Leshefsky made defamatory statements about her to government officials and media outlets. In striking all but two allegations in the cross-complaint, the trial court below found that Leshevsky’s statements involved protected speech and petitioning activity and Kihagi had not demonstrated her claims have any legal merit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kihagi is the property manager and managing member of Renka Prop, LLC (Renka), which acquired 195 Eureka Street in San Francisco in December 2013. At that time, Leshefsky was already a tenant in the building, having moved there in March 2006. Renka began renovating the Eureka Street property in 2014. Leshefsky contacted the San Francisco City Attorney’s office to complain about substandard living conditions and tenant harassment occurring at her building, and assisted the City Attorney in gathering evidence and information against Kihagi and others. Leshefsky also filed complaints with the City’s Department of Building Inspection.

Leshefsky vacated her apartment in November 2015 after Renka served her with a 60-Day Notice to Temporarily Terminate Tenancy under section 37.9(a)(11) of the San Francisco Rent Stabilization and Arbitration Ordinance (Rent Ordinance). This section allows landlords to temporarily displace tenants while capital improvements are being made to their units and to complete the improvements and offer the unit back to the tenant generally within three months. (Rent Ordinance, § 37.9(a)(11).) Renka and Kihagi reportedly have yet to complete the renovation work more than three years later and have not offered the apartment back to Leshefsky. Leshefsky sued Renka and Kihagi in August 2016, asserting causes of action for violation of the City’s rent control ordinance, negligence, tenant harassment, breach of the covenant of quiet enjoyment, and unfair business practices.

Kihagi filed the subject cross-complaint against Leshefsky in March 2017 for defamation, trade libel, invasion of privacy–false light, intentional infliction of emotional distress, injunctive relief, civil conspiracy, and nuisance. Kihagi alleged that after she served Leshefsky with the temporary eviction notice, Leshefsky retaliated by filing a lawsuit and recruiting other tenants to join her in a “campaign of harassment.” The cross complaint alleges 29 instances in which Leshefsky made false and defamatory statements about Kihagi to city officials and media outlets, both before and after she vacated her apartment. The cross-complaint alleges, for example, that Leshefsky gave false testimony in the City’s lawsuit against Kihagi and sought to persuade the City Attorney to file a lawsuit, made false complaints to the Department of Building Inspection that the apartment building lacked hot water, and lied to city inspectors during an inspection of the building. According to Kihagi, Leshefsky “illegally” filed two complaints in December 2014 with the Department of Building Inspection using the false name of Kihagi’s sister as the purported complainant.

In response to the cross-complaint, Leshefsky filed a special motion to strike under section 425.16. In an accompanying declaration, Leshefsky acknowledged she had testified as a witness in the City’s lawsuit against Kihagi and assisted the City Attorney by gathering evidence and information in support of the City’s lawsuit. Leshefsky argued that the challenged conduct overwhelmingly involved protected speech and petitioning activity, and Kihagi could not prevail on her claims as a matter of law because the statements in question were either absolutely privileged or Kihagi could not establish by admissible evidence that Leshefsky uttered them. Leshefsky did not seek to strike two non-speech allegations in the nuisance cause of action relating to unauthorized use of a parking space and stored items in the common area of the property.

Kihagi defended only a few of the 29 allegations in the cross-complaint. She declared that in December 2014, someone had submitted two complaints to the Department of Building Inspection impersonating her sister, Christine Mwangi. The complaints reported that an illegal downstairs unit was being occupied by “illegal, unlicensed workers currently performing illegal work” in one of the property’s vacant apartments. Kihagi also asserted in her declaration that Leshefsky engaged in defamatory and nuisance behavior by showing city inspectors areas of the Eureka Street property that were off-limits, approaching tenants at other properties to disparage Kihagi and “recruit” them to her cause, and making false statements to the media.

The trial court held oral argument on May 22, 2017. On the same date, the court issued its order granting, in substantial part, the amended special motion to strike. We discuss the court’s findings below, as relevant to the issues raised in Kihagi’s appeal.

DISCUSSION

I. The Anti-SLAPP Statute

Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of constitutionally protected rights of speech or petition. (§ 425.16, subd. (a).) Subdivision (b)(1) of section 425.16 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 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.” The application of this statutory text involves a two-step inquiry with shifting burdens. (Flatley v. Mauro (2006) 39 Cal.4th 299, 317 (Flatley); Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 489 (Castleman).)

The first step of the inquiry addresses whether the moving party has made a threshold showing that the challenged cause of action is one “arising from” a protected activity, that is, an activity “in furtherance of the person’s right of petition or free speech.” (§ 425.16, subd. (b)(1); see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) The statutory phrase “arising from” has been construed to mean “based on,” not “in response to” or “triggered by.” (Cashman, at pp. 77–78.) Consequently, the moving party must show “the plaintiff’s cause of action must itself have been based on an act in furtherance of the [moving party’s] right of petition or free speech.” (Id. at p. 78.) The moving party meets this burden by demonstrating the act underlying the plaintiff’s claim fits into a category of protected activity listed in subdivision (e) of section 425.16. (Cashman, at p. 78; Castleman, supra, 216 Cal.App.4th at p. 489.)

As relevant to this appeal, protected activity includes any written or oral statement made before an executive or judicial proceeding (or other official proceeding authorized by law), or made in connection with an issue under consideration or review by an executive, judicial, or other official body. (§ 425.16, subd. (e)(1), (2).) Alternatively, under subdivision (e)(4) of section 425.16, a plaintiff’s cause of action must arise from conduct “in connection with a public issue or an issue of public interest.” (See, e.g., Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 142–143 [“A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if (1) defendants’ acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants’ right of petition or free speech (3) in connection with a public issue”].)

In cases where illegal conduct is alleged in the challenged complaint, the appellate court must determine whether the “assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected” by the anti-SLAPP statute. (Flatley, supra, 39 Cal.4th at p. 305.) The Flatley exception is narrow and applies only where “the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence.” (Flatley, at p. 316; see Collier v. Harris (2015) 240 Cal.App.4th 41, 55; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [Flatley used the terms “illegal” and “illegality” to mean criminal behavior, not a mere violation of statute].) If a defendant disputes the illegality of his or her conduct, the exception does not apply and the illegality must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits. (Flatley, at p. 316; City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.) Simply alleging that a defendant’s conduct is unlawful or unethical does not suffice. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910–911 (Kashian).)

If a moving party has made the requisite showing that the challenged conduct arises from a constitutionally protected activity, the burden shifts to the plaintiff at the second step to establish “that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) A plaintiff may defeat an anti-SLAPP motion by stating and substantiating a legally sufficient claim. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) We accept the plaintiff’s evidence as true and evaluate the defendant’s evidence to determine if it defeats the plaintiff’s showing as a matter of law. (City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 420.) “The procedure is meant to prevent abusive SLAPP suits, while allowing ‘claims with the requisite minimal merit [to] proceed.’ ” (Ibid.)

“Review of an order granting or denying a motion to strike under section 425.16 is de novo.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Under this standard, appellate review entails the same two-step inquiry undertaken by the trial court and examines whether the parties have satisfied their respective burdens. (Castleman, supra, 216 Cal.App.4th at p. 490.) In completing this inquiry, an appellate court must “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)

II. Application

On appeal, Kihagi raises four specific challenges to the trial court’s order: (1) The court erred in finding the Flatley exception inapplicable to Leshefsky’s alleged impersonation of appellant’s sister before the Department of Building Inspection; (2) the court wrongly concluded that defamatory statements made by Leshefsky to other tenants were made in connection with a public issue or issue of public importance; (3) allegations supporting the nuisance cause of action should not have been stricken because Kihagi established minimal merit; and (4) the court should have ruled on evidentiary objections prior to deciding the anti-SLAPP motion.

A. False Impersonation

Kihagi asserts Leshefsky’s false impersonation of Mwangi falls within the Flatley exception because the conduct violated Penal Code section 529. By invoking Flatley, she essentially concedes that complaints to initiate governmental proceedings are protected under section 425.16, subdivision (e) if the exception does not apply. Leshefsky argues the Flatley exception is inapplicable because she has not conceded that she committed a crime and the evidence does not conclusively establish that a crime was committed as a matter of law. We agree.

Under Penal Code section 529, subdivisions (a)(2) and (a)(3), “[e]very person who falsely personates another . . . and in that assumed character . . . [¶] . . . [¶] (2) [v]erifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true [or] [¶] (3) [d]oes any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person,” is guilty of either a felony or a misdemeanor. To be guilty of this crime, the perpetrator must falsely impersonate another person and, while doing so, commit an additional act that is “something beyond, or compounding, the initial false personation . . . ; it must be more than simply providing information regarding the false identity.” (People v. Stacy (2010) 183 Cal.App.4th 1229, 1235.)

There is nothing to support Kihagi’s claim that Leshefsky conceded she engaged in unlawful conduct. Leshefsky’s supplemental declaration in support of her special motion to strike expressly states that she never impersonated Mwangi and has always identified herself by her own name in complaints to the City. She did not know who filed the December 2014 complaints and noted that other tenants on the property had also complained to the Department of Building Inspection in this time period. She surmised that the agency mistakenly entered contact information for the property owners in the field that is intended to identify the complaining party. Kihagi argues Leshefsky conceded her criminal conduct because Leshefsky argued in her briefing that even if she had used Mwangi’s name on the complaint form, there was no evidence she committed the “additional act” required by Penal Code section 529. Kihagi confuses the difference between a concession and an argument made in the alternative that would defeat a claim of illegality. Kihagi also asserts that the language used in the false complaints is distinctive and “eerily similar” to a declaration Leshefsky prepared in support of the City’s lawsuit, and from this we can readily discern that she was the author of both. These arguments are speculative and fail to establish that Leshefsky has admitted to criminal conduct.

Nor does the evidence conclusively show that Leshefsky committed a crime as a matter of law. Violation of Penal Code section 529 requires two acts, the false impersonation of another and an additional act as specified in subdivisions (a)(1) through (a)(3) that compounds the initial false impersonation. “ ‘[I]t must be more than simply providing information regarding the false identity.’ ” (People v. Casarez (2012) 203 Cal.App.4th 1173, 1179 (Casarez).) Kihagi misreads Casarez in asserting that the “additional act” requirement only determines whether a violation of the statute is charged as a misdemeanor or a felony. She is incorrect. (See Casarez, at p. 1190 [“former section 529 requires more than mere impersonation. It requires that the impersonator use—not just assert—the false identity in one of the ways listed in the three former subdivisions.”].) Casarez held that a defendant who offered a false birth certificate to a peace officer during a lawful arrest did not violate section 529 because he had not committed the requisite additional act. Rather, the defendant committed a misdemeanor under Penal Code section 148.9 for providing false identification to a peace officer. (Id. at pp. 1191–1192.)

Kihagi alternatively contends that Leshefsky committed an additional act in two ways, by listing Mwangi on a “written instrument”—the housing complaint form—and by committing an act “whereby any benefit might accrue to the party personating” (i.e., Leshefsky). Both arguments are unavailing. Penal Code section 529, subdivision (a)(2) is “intended to apply to an additional act in which the impersonator uses the false identity to create or exploit a written instrument[,] . . . for example, the impersonator signs a contract or deed in that person’s name, applies for a credit card or loan in that person’s name, buys or sells something in that person’s name, acknowledges executing a document in that person’s name, verifies a document in that person’s name, signs or issues a will in that person’s name, signs an official birth or death certificate in that person’s name (i.e., the doctor’s or other official’s name), and so on.” (Casarez, supra, 203 Cal.App.4th at p. 1192.) Submitting a complaint to a building inspection department in another person’s name does not constitute the creation of a “written instrument” and is “ ‘no more than part of the act of providing the false information upon which the false identity was based.’ ” (Ibid.)

The evidence does not support a violation under Penal Code section 529, subdivision (a)(3) either. That subdivision requires that Leshefsky engage in an act whereby, if done by the person falsely personated, that person might “become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person.” As respondent points out, no liability, penalty, or lawsuit could be imposed against Mwangi based on the alleged impersonation. Her filing of a complaint with the Department of Building Inspection would not subject her to any liability.

Kihagi concedes the point and instead argues that Leshefsky is criminally liable under Penal Code section 529, subdivision (a)(3) because she stands to benefit from exposing Kihagi to administrative violations and potential penalties. Once again, it is unclear what “additional act” Kihagi has alleged Leshefsky committed apart from the act of impersonation. What’s more, the mere filing of a complaint does not result in a penalty or administrative action unless the complaint is investigated and substantiated, a notice of violation issued by the City, and the landlord fails to abate the violation. Conjecture about possible future penalties does not provide the evidentiary basis to show conclusively that the crime of impersonation was committed as a matter of law.

The trial court correctly found the Flatley exception inapplicable. Under the second step of the anti-SLAPP analysis, Kihagi was required to demonstrate a probability of succeeding on the merits of her claims. Her appeal does not challenge the trial court’s finding that Leshefsky’s communications with government officials enjoyed “absolute” immunity under the litigation privilege. (See Kashian, supra, 98 Cal.App.4th at p. 913.) We therefore affirm the trial court’s order striking these allegations from the cross complaint.

B. Statements on Issue of Public Importance

Kihagi next argues that defamatory statements allegedly made by Leshefsky to other tenants were unprotected because they were private communications having no connection to matters of public interest. Kihagi recounted these statements in her declaration filed in opposition to the anti-SLAPP motion. However, these statements did not appear anywhere in the cross-complaint. Rather, Kihagi’s causes of action for defamation, trade libel, invasion of privacy–false light, and intentional infliction of emotional distress were all predicated on allegations that Leshefsky disparaged Kihagi in statements to the media, not to other tenants. As to these media-related allegations, the trial court concluded that Kihagi failed to provide admissible evidence that Leshefsky uttered any of the statements in question and struck the allegations, a determination Kihagi does not challenge on appeal.

Kihagi now asserts that the trial court erred by failing to take into account statements Leshefsky purportedly made to other tenants when it struck the defamation and related causes of action. We are not persuaded. A special motion to strike is directed at claims alleged in the operative complaint, not statements contained in an opposing affidavit. (See § 425.16, subd. (b)(1).) “Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, italics added.) True enough, section 425.16, subdivision (b)(2) requires a reviewing court to consider not only the pleadings but also “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” A declaration describing Leshefsky’s alleged conversations with other tenants, however, does not address, much less support, the cross-complaint’s allegations of defamation which are based on Leshefsky’s alleged statements to media outlets. The trial court took the cross-complaint as it found it and ruled on the allegations that were the subject of the special motion to strike. No error was committed.

C. Nuisance Cause of Action

Kihagi claims she established a prima facie case of nuisance based on her allegations that (1) Leshefsky made false complaints to the Department of Building Inspection, (2) demanded access to “off limits” parts of the building during a City inspection, and (3) visited other tenants at the property and at other buildings that Kihagi manages. The trial court only allowed Kihagi to retain the cross-complaint’s allegations that Leshefsky impermissibly took a parking space and stored things in a common area. It struck the allegations regarding Leshefsky’s filing of complaints with the City, assisting the City’s inspection of the property, and organizing other tenants, concluding these acts fell within the litigation privilege of Civil Code section 47, subdivision (b). We need not resolve whether the challenged conduct is protected under the litigation privilege because we conclude Kihagi has failed to substantiate a legally sufficient claim for nuisance.

While “ ‘virtually any disturbance’ ” of the enjoyment of property may form the basis for a nuisance claim, the interference must amount to more than a transitory annoyance. (See Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) Nuisances are defined by statute as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .” (Civ. Code, § 3479.) “[R]ecovery of damages on a nuisance theory [requires] proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ ” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) Further, “ ‘[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ ” (Ibid.)

The allegations the trial court ordered stricken from the cross-complaint do not make a prima facie showing that Kihagi suffered substantial actual damage to the use and enjoyment of her property. Moreover, her only allegations of damage are that she “has suffered lost revenue and profits as a function of damage to [her] business reputations and diminution in the pecuniary value of [her] good will.” “Damage to reputation is not recoverable in a nuisance action.” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1154.) We find no error.

D. Evidentiary Objections

Finally, Kihagi asserts the trial court failed to rule on the parties’ evidentiary objections before ruling on the merits. She acknowledges that the court sustained Leshefsky’s hearsay objections to news articles and does not contest that ruling. While she claims that “proper evidentiary rulings were critical,” she fails to explain or develop any contentions regarding the objections she made to evidence offered by Leshefsky in support of the special motion to strike. Therefore, as Leshefsky correctly observes, Kihagi has not met her appellate burden of establishing prejudicial error. We may not reverse a judgment unless the complaining party demonstrates a miscarriage of justice. (Cal. Const., art. VI, § 13.)

DISPOSITION

The order is affirmed.

_________________________

Sanchez, J.

WE CONCUR:

_________________________

Humes, P. J.

_________________________

Margulies, J.

A152023 Swain v. Leshefsky