Filed 4/28/20 Gianopoulos v. Kemp-Prentice CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

JAMES GIANOPOULOS et al.,

Plaintiffs and Appellants,

v.

DARLENE KEMP-PRENTICE et al.,

Defendants and Respondents.

H044544

(Santa Cruz County

Super. Ct. No. 16CV01196)

After being evicted from their rental home, plaintiffs sued the landlord, property managers, and the landlord’s lawyer. The lawyer brought an anti-SLAPP motion to strike the causes of action against her, which the trial court granted. We conclude the conduct alleged in the complaint is within the scope of the anti-SLAPP law and there is no probability plaintiffs would prevail because their claims are barred by the litigation privilege. We will therefore affirm the order.

I. BACKGROUND
II.
Plaintiffs James Gianopoulos, Lesley Gianopoulos, and Jim Gianopoulos lived in a house in Santa Cruz County. They leased it from the owner through a property management company. The tenancy lasted nearly five years, the last two of which were not amicable. Plaintiffs made numerous complaints about the property and the way it was managed. They felt that the house was uninhabitable and their repeated requests for repairs were ignored.

Representatives from the property management company attempted to conduct an inspection to see what repairs were needed. That led to an altercation where (at least as it was reported to police) one of the plaintiffs refused access and physically pushed someone there to inspect. The property management company at that point retained a lawyer to assist in terminating plaintiffs’ tenancy. The lawyer drafted and served a 60-Day Notice, accompanied by a letter requesting further communication about the tenancy be directed to her.

Plaintiffs did not vacate by the end of the 60-day period, so the landlord retained the same lawyer to bring an unlawful detainer action, and judgment was ultimately entered for the landlord. After plaintiffs moved out, they sued the landlord and property managers for retaliatory eviction, breach of the implied warranty of habitability, fraud, and 11 other causes of action, all relating to the tenancy. Plaintiffs also named as a defendant the lawyer who represented the landlord and property manager. The complaint alleges she assisted the other defendants with “a malicious and incompetent residential real property management scheme,” and aided in an unlawful eviction.

The lawyer moved under the anti-SLAPP law to strike all causes of action against her, arguing that the conduct described in the complaint is constitutionally protected petitioning activity and plaintiffs have no probability of succeeding on their claims. Plaintiffs appeal the order granting that motion.

III. DISCUSSION
IV.
The anti-SLAPP law (Code Civ. Proc., § 425.16) provides a procedure for a defendant to obtain dismissal of a lawsuit that arises from constitutionally protected activity. (Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 1016–1017.) The statute applies when a defendant is sued for conduct in furtherance of the “right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue[.]” (Code Civ. Proc., § 425.16, subd. (b)(1).) Such a lawsuit must be dismissed unless the plaintiff shows a probability of prevailing on the merits. (Ibid.) Our review of an order granting an anti-SLAPP motion is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

Plaintiffs initially contend the trial court erred in granting the motion because it was filed too late––three days after the presumptive deadline in Code of Civil Procedure section 425.16, subdivision (f) (within 60 days of when the complaint is served). We reject that contention because the statute specifically provides that the trial court can allow an anti-SLAPP motion “at any later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) Here, the moving party requested permission for the late filing and, given the minimal delay, the court appropriately allowed it. Plaintiffs also reference Civil Code section 1714.10, which provides a defense for an attorney sued for conspiring with a client that must be raised by demurrer or motion upon the defendant’s first appearance in the action. But the dismissal order here does not implicate Civil Code section 1714.10; the complaint was properly dismissed based on the anti-SLAPP law and the litigation privilege.

The anti-SLAPP law applies to this case because the claims against the lawyer are based on actions she took to represent a client in connection with litigation activity. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [act by an attorney in representing a client in furtherance of litigation is protected petitioning activity].) The parties dispute precisely which causes of action plaintiffs have asserted against the lawyer, and the complaint is unclear about who is being sued for what. What matters for purposes of determining whether the anti-SLAPP law applies, however, is not the label placed on a cause of action but rather the underlying conduct giving rise to the alleged liability. (Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, 402–403.)

We therefore examine the conduct engaged in by the lawyer, as alleged in the complaint, to decide if it constitutes protected petitioning activity. We find that it does. Everything that the complaint alleges the lawyer did is a communication with plaintiffs in connection with the ongoing dispute and in anticipation of litigation. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1481 [attorney’s communications with tenants in anticipation of eviction and unlawful detainer proceeding are protected petitioning activity].) Plaintiffs allege they tried to mediate the dispute with the lawyer and in the course of those discussions she made false statements. They allege she wrote them a letter falsely reporting that repairs had been made and claiming the homeowner intended to move into the property after plaintiffs vacated. And they allege she authored a retaliatory notice terminating their tenancy, filed the unlawful detainer action, and participated in a scheme to unlawfully evict them. All of that activity is communicative conduct engaged in for the purpose of representing a client in a dispute, and is therefore protected petitioning activity under Code of Civil Procedure section 425.16, subdivision (b)(1).

Since the anti-SLAPP law applies, the claims against the lawyer must be dismissed unless plaintiffs show a probability of success on the merits. (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1177.) In this context, that means plaintiffs must present evidence that their claims are both legally sufficient and supported by facts that would sustain a favorable judgment. (Ibid.) Plaintiffs cannot meet that burden, because their claims against the lawyer––arising as they do from her representation of a client in an ongoing dispute––are barred by the litigation privilege.

The litigation privilege is codified in Civil Code section 47, which provides that any “publication” made in a “judicial proceeding” is privileged. The purpose of that privilege is to provide free access to the courts by immunizing lawsuit participants from liability based on communications that were a part of court proceedings. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.) It is therefore applied broadly, to “any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Here, the allegations against the lawyer all describe actions she took to achieve for her client the object of the unlawful detainer litigation: termination of plaintiffs’ tenancy. As a result, those actions are absolutely privileged, and plaintiffs cannot prevail in a lawsuit based on that conduct. (See Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th 1467, 1486 [filing of unlawful detainer action and prelitigation communications in connection with that action are privileged].)

Plaintiffs argue that the lawyer did not actually represent the landlord or property manager, and that she made false representations and terminated the tenancy for her own reasons, without being instructed to do so by a client. But there is no evidentiary support for those arguments. To the contrary, the evidence (including the lawyer’s own declaration) indicates that she represented both the property management company and the landlord, and took the actions described in the complaint on their behalf.

Plaintiffs’ claims arise from communications by a lawyer seeking to achieve her clients’ litigation objectives. The law does not generally allow liability to be imposed in that situation because doing so might hinder free access to the courts. And the anti-SLAPP procedure is available to provide an early dismissal of such a lawsuit. The trial court therefore did not err by granting the lawyer’s anti-SLAPP motion.

V. DISPOSITION
VI.
The order is affirmed. Respondent Darlene Kemp-Prentice is awarded costs on appeal.

____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J.

____________________________

Elia, J.

H044544 – Gianopoulos et al. v. Kemp-Prentice et al.