Filed 11/21/19 Chung v. Qureshi 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

POSEE CHUNG,

Plaintiff and Respondent,

v.

RICK QURESHI,

Defendant and Appellant.

A155780

(San Francisco County

Super. Ct. No. CUD-17-660594)

Defendant Rick Qureshi appeals from a trial court order denying his special motion to strike under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, and awarding $2,000 in sanctions against him. Qureshi filed the anti-SLAPP motion after his landlord, plaintiff Posee Chung, initiated an unlawful detainer action against him. On appeal, Qureshi, appearing in propria persona, claims that the court erred by (1) not agreeing with him that the unlawful detainer action was premised on his protected activity of asserting his rights under the San Francisco rent control ordinance and (2) determining sanctions were justified because the anti-SLAPP motion was frivolous. We affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

Qureshi rented an apartment from Chung in 2007. At the beginning of 2017, Qureshi stopped paying rent. In March 2018, Chung served him with a complaint for unlawful detainer. The complaint, which was filed in December 2017, alleged that Qureshi owed 12 months of unpaid rent, amounting to over $20,000. In September 2018, the trial court overruled Qureshi’s demurrer and ordered him to answer the complaint within five days.

On October 2, 2018, Qureshi answered the complaint, filed the anti-SLAPP motion, and filed a motion to reclassify the case as unlimited. In the anti-SLAPP motion, he contended that the unlawful detainer action arose from his protected activity of asserting rights “guaranteed by the San Francisco Rent Control Ordinance regarding buyout agreements and valid notice requirements.” In support of the motion, Qureshi attached several emails between him and Chung, dated between September 2015 and April 2016, involving her request that he move out of the apartment so that she could move in. He also attached an April 2016 tenant relocation agreement, which required him to vacate the property by December 31, 2016, and stated that Chung never filed the agreement with the rent board.

Three days after Qureshi filed the anti-SLAPP and reclassification motions, and at Chung’s request, the trial court set trial for October 22. Because the anti-SLAPP motion was set for hearing on November 1, and the reclassification motion was set for hearing on November 30, Qureshi filed ex parte applications to advance these hearing dates so the motions would be considered before trial. The court scheduled the motions to be heard on October 22, and it heard arguments on both that day.

The following day, the trial court granted the reclassification motion and reclassified the case as unlimited, because the amount of unpaid rent now exceeded the $25,000 threshold. But the court denied the anti-SLAPP motion, concluding that the “unlawful detainer lawsuit arising from [Qureshi’s] alleged failure to pay rent for many months and to regain possession of [Chung’s] real property does not ‘seek to chill or punish [his] exercise of constitutional rights to free speech and to petition the government for redress of grievances.’ ” Finding that the motion was “frivolous and . . . brought for the improper purpose of unnecessarily delaying trial and potential eviction,” the court also awarded Chung $2,000 in sanctions.

II.
DISCUSSION

A. The Anti-SLAPP Motion Was Properly Granted.

Qureshi argues that the unlawful detainer action arose out of his protected activity involving San Francisco’s rent control ordinance. We are not persuaded.

Courts engage in a two-step analysis of an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) Under the first step, a court considers whether the defendant has carried its “burden of establishing that the challenged allegations or claims ‘aris[e] from’ [its] protected activity” (ibid.)—that is, “an act by the defendant ‘in furtherance of the [defendant’s] right of petition or free speech . . . in connection with a public issue.’ ” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) “The ‘principal thrust or gravamen’ of [the plaintiff’s] claim determines whether section 425.16 applies.” (Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1175 (Olive Properties).) If the moving party cannot make the required showing, or “ ‘if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity,’ ” the anti-SLAPP motion must be denied. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1251; see Flatley v. Mauro (2006) 39 Cal.4th 299, 317.) At the second step of the analysis, the burden shifts to the responding party to demonstrate “that there is a probability that [it] will prevail” on the cause of action that is the subject of the anti-SLAPP motion. (§ 425.16, subd. (b)(1).) If the responding party meets its burden, the anti-SLAPP motion must be denied, and the responding party can continue to litigate the cause of action. (See Flatley, at p. 332 & fn. 16.) We independently review the denial of an anti-SLAPP motion. (Park, at p. 1067.)

Although his reasoning is somewhat difficult to follow, Qureshi apparently contends that Chung filed the unlawful detainer action after he stopped paying rent in response to the allegedly illegal tenant relocation agreement and related notice violations. Assuming, without deciding, that Qureshi’s activity related to his rights under the San Francisco rent control ordinance was protected under the anti-SLAPP statute, we conclude that he failed to carry his initial burden to demonstrate that the instant action arose from that activity. (See Park, supra, 2 Cal.5th at p. 1061.) Thus, we do not reach the second step of the analysis involving the action’s merits.

“Unlawful detainer actions are authorized and governed by state statute.” (Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297.) “The purpose of the unlawful detainer statutes ‘ “is to provide the landlord with a summary, expeditious way of getting back his [or her] property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his [or her] tenancy.” ’ ” (Olive Properties, supra, 241 Cal.App.4th at p. 1172.) As a result, unlawful detainer actions are “of limited scope, generally dealing only with the issue of right to possession and not other claims between the parties, even if related to the property.” (Larson, at p. 1297.)

Olive Properties addressed whether a commercial landlord’s unlawful detainer action arose from the tenant’s protected activity of filing an earlier lawsuit against the landlord. (Olive Properties, supra, 241 Cal.App.4th at pp. 1175–1176.) The tenant’s lawsuit “alleg[ed] causes of action for breach of the covenant of quiet enjoyment and negligent interference with prospective economic relations,” based on another tenant’s monopolization of parking spaces. (Id. at p. 1172.) The Court of Appeal observed, “ ‘[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. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ ” (Id. at p. 1176, quoting Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) Thus, “the critical consideration” in the case before it was whether the unlawful detainer action was “based on” the tenant’s protected activity. (Olive Properties, at p. 1176, italics omitted.) The Court of Appeal answered in the negative, concluding the unlawful detainer action was based on the tenant’s “unprotected activity in allegedly failing to pay rent and [common area maintenance] charges” to the landlord. (Id. at pp. 1172, 1176.)

Qureshi does not contest that the instant action is premised on his failure to pay rent. Instead, he argues that Olive Properties is distinguishable because it involved “a commercial tenancy, where no rent control ordinance applied.” He claims that here, in contrast, “a landlord has a duty to provide quiet enjoyment to the tenant . . . [,] and it is an affirmative defense to an unlawful detainer when the landlord’s actions or omissions so interfere with the tenant’s right to ‘peaceful and beneficial possession’ of the rental unit as it does here”—i.e., that he was justified in not paying the rent that Chung now seeks to recover. But as she points out, whatever defenses he may have, his activity associated with them did not “ ‘give[] rise to his . . . asserted liability’ ” in the unlawful detainer action. (Park, supra, 2 Cal.5th at p. 1063.) We agree with Chung that her complaint is based on Qureshi’s unprotected activity of failing to pay rent, not on his exercise of his free speech and petition rights in relying on the San Francisco rent control ordinance. Therefore, the trial court properly denied the anti-SLAPP motion.

B. Qureshi’s Challenges to the Sanctions Award Are Forfeited.

The sanctions award was made under section 425.16, subdivision (c)(1), which provides, “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Section 128.5 defines “frivolous” to mean “totally and completely without merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(1).) We review an order awarding sanctions under these provisions for an abuse of discretion. (Olive Properties, supra, 241 Cal.App.4th at p. 1177.)

Qureshi argues that the order awarding sanctions in insufficiently detailed to satisfy section 128.5, subdivision (c), which requires that an order imposing sanctions “recite in detail the action or tactic or circumstances justifying the order.” There is no indication that Qureshi objected to the order on this basis below, and the argument is therefore forfeited. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275 [same objection to award of sanctions in anti-SLAPP case waived]; see Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1043–1044.)

Qureshi also states that he “seeks reversal” of the trial court’s ruling that “the entire anti-SLAPP motion [was] frivolous,” and he lays out the standards governing frivolousness under section 128.5 in some detail. But he does not actually address why the motion was not frivolous—except to the extent he separately argues that it should have been granted, a claim we have already rejected. Nor does he attack the trial court’s other basis for the sanctions award, its determination that the motion was “brought for the improper purpose of unnecessarily delaying trial and potential eviction.” As a result, his claim that the award of sanctions was unwarranted is also forfeited. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [claim waived when appellant fails to support it with “ ‘reasoned argument and citations to authority’ ”]; see also Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief issue on appeal waives it].)

III.
DISPOSITION

The order denying Qureshi’s anti-SLAPP motion and awarding sanctions to Chung is affirmed. Chung is awarded her costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Chung v. Qureshi A155780