Case Name: Eric Vasutin v. Skylars LLC
Case No.: 18CV324137

This is a landlord/tenant action arising from alleged violations of a commercial lease. The Complaint filed by the commercial tenant, Plaintiff Eric Vasutin (“Plaintiff”) on February 28, 2018, states 18 causes of action against Defendant Skylars LLC (“Skylars”): 1) Breach of Lease (denying access to an alleged portion of the rented premises and not recognizing Plaintiff as a Lessee in his individual capacity); 2) Breach of Warranty of Habitability (tearing out a women’s bathroom and an access hallway); 3) Breach of Covenant of Quiet Enjoyment; 4) Breach of Covenant of Good Faith and Fair Dealing; 5) Harassment of Tenant (removal of the bathroom); 6) Negligence (removal of the bathroom); 7) Negligence (“Failure to Acknowledge that Women’s restroom and Hallway were part of Leased Premises”); 8) Negligent Infliction of Emotional Distress (based on destruction of bathroom, “initiating eviction proceedings,” failing to make repairs, etc.); 9) Intentional Infliction of Emotional Distress (same basis); 10) Negligent Misrepresentation (that Defendant would repair or replace damaged portions of premises); 11) Intentional Misrepresentation (same premise) 12) False Promise (same premise); 13) Nuisance (based on “extensive and unwarranted alterations to the Premises”); 14) Declaratory Relief (seeking a declaration that bathrooms and hallway are part of leased premises); 15) Injunctive Relief (seeking order that Defendant repair bathroom and hallway); 16) “Attempted Wrongful Eviction”; 17) Trespass, and; 18) Retaliatory Eviction (alleging that eviction proceedings were in retaliation for Plaintiff informing the San Jose Building Department that Defendant was making alterations to the Premises without permits).

Currently before the Court is the special motion to strike filed by the commercial landlord, Defendant Skylars. Skylars seeks to strike the entire complaint, asserting that “all the claims against defendant arise out of protected petitioning conduct, or the exercise of the right to free speech, or the litigation privilege under Civ. C. § 47, and the claims lack merit.” (Notice of Motion at 1:24-26.) The Court notes that the motion and the supporting declarations do not specifically discuss any of the causes of action alleged in the Complaint. The Court also notes that Plaintiff’s opposition was filed late (on June 4, 2018 rather than June 1 when it was due) and does not comply with Rule of Court 3.1113(f) in that it is over 10 pages but lacks a table of contents. The Court has exercised its discretion to consider the opposition.

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

In support of its motion Skylars has submitted a request for the Court to take judicial notice of four documents (presented as exhibits C-F), all of which are filings from three prior lawsuits that Skylars brought against Plaintiff. Exhibit C is a copy of the Complaint for Declaratory Relief filed by Skylars in case no. 18CV322922 on February 5, 2018. Exhibit D is a copy of an Unlawful Detainer (“UD”) complaint Skylars filed in case no. 18CV323261 on February 13, 2018. Exhibit E is a copy of a demurrer Vasutin filed to that complaint on February 23, 2018. Exhibit F is a copy of another UD complaint filed by Skylars in case no. 18CV325308 on March 22, 2018.

Notice of all three documents is GRANTED pursuant to Evidence Code § 452(d). Notice can only be taken of the existence and filing dates of the documents; their contents cannot be noticed. The Court also on its own authority pursuant to § 452(d) takes notice of the fact that all three of the lawsuits were dismissed by Skylars without any action by the Court. Case no. 18CV322922 was dismissed on February 14, 2018, case no. 18CV323261 was dismissed on March 9, 2018, and case no. 18CV325308 was dismissed on May 18, 2018, after the present motion was filed.

Skylars’ Special Motion to Strike the Complaint
When a special motion to strike is filed, the initial burden rests with the moving party to demonstrate that the challenged pleading arises from protected activity. (Code of Civ. Proc. “CCP” §425.16(e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [CCP] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) That section provides that an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP §425.16(e).) “These categories define the scope of the anti-SLAPP statute by listing acts which constitute an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’” (Collier, supra, at 51, citing CCP §425.16(e).)

As the California Supreme Court has stressed, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In other words, the defendant’s act underlying the plaintiff’s cause of action must itself have been in furtherance of the right of petition or free speech.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding). Emphasis added.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Peregrine Funding, supra, 133 Cal.App.4th at p. 670.) “[H]owever, it is not enough to establish that the action was filed in response to or in retaliation for a party’s exercise of the right to petition. [Citations.] Rather, the claim must be based on the protected petitioning activity.” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804, (Bergstein), citing Navellier v. Sletten (2003) 29 Cal.4th 82, 89.) “[I]f the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 271 (Baharian-Mehr).)

Targeted claims are sometimes “mixed,” involving both protected and unprotected activity. “[I]dentification of causes of action arising from protected activity ordinarily occurs at the first step. For the benefit of litigants and courts involved in this sometimes difficult area of pretrial procedure, we provide a brief summary of the showings and findings required by section 425.16(b). At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. 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, emphasis added.)

Defendant Skylar’s motion is DENIED for failure to meet the initial burden to establish that the targeted claims, in this case every cause of action alleged in the Complaint, are based on Skylar’s protected activity. Last year in a unanimous opinion the Supreme Court reiterated that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060 [emphasis in original].) “A claim arises from protected activity when that activity underlies or forms the basis for the claim. Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ ‘[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.’ . . . In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendants supply those elements and consequently form the basis for liability.” (Id. at 1062-1063, internal citations omitted but citing among others City of Cotati, supra at p. 78.)

Plaintiff’s Complaint (at 22-23) acknowledges two of Skylar’s lawsuits against Plaintiff (the only two filed before the Complaint) and the Notice of Termination of the lease served on Plaintiff, but it is not clear from the Complaint itself or any evidence submitted by Skylars that every cause of action alleged in the Complaint is based on Skylars’ protected activity as opposed to the parties’ underlying dispute over 1) whether the bathrooms and hallway are part of the leased premises and 2) whether Plaintiff as an individual is a party to the lease. Plaintiff alleges that it is Skylars that has breached the lease and committed wrongdoing and the fact that the alleged wrongdoing was, in the words of the Park Court, “thereafter communicated by means of speech or petitioning activity,” does not make the Complaint the proper subject of a special motion to strike.

Even before the Supreme Court’s Park decision it was clear that a landlord bringing a special motion to strike a tenant’s complaint was required to do more than simply establish that it had engaged in some kind of protected activity vis a vis a tenant. “The lesson we learn from this line of authority is that a tenant’s complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant’s complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint. We decline to follow Birkner, supra, and Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, to the extent those opinions suggest a different rule.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1279.)

Because the Court finds that Skylars has not met its burden on the first step of the analysis, it is not necessary for the Court to address the second step. (See Baharian-Mehr, supra.)