Filed 5/26/20 Hennessey’s Tavern v. Nehrenheim CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

HENNESSEY’S TAVERN, INC.,

Plaintiff and Respondent,

v.

NILS NEHRENHEIM,

Defendant and Appellant.

B295380

(Los Angeles County

Super. Ct. No. YC072977)

APPEAL from an order of the Superior Court of Los Angeles County. Deirdre H. Hill, Judge. Affirmed.

Leech Tishman Fuscaldo & Lampl, Inc., Philip A. Toomey and Fadi K. Rasheed for Defendant and Appellant.

Tucker Ellis, Traci L. Shafroth, Carmen A. Trutanich, and Edward W. Racek for Plaintiff and Respondent.

______________________________

Defendant and appellant Nils Nehrenheim (Nehrenheim) challenges a trial court order denying his motion to strike plaintiff and respondent Hennessey’s Tavern, Inc.’s (the Tavern) complaint pursuant to Code of Civil Procedure section 425.16, California’s anti-SLAPP statute. Because the Tavern’s claims do not arise from Nehrenheim’s protected activity, we affirm the trial court order.

FACTUAL AND PROCEDURAL BACKGROUND

Factual background

Paul Hennessey (Hennessey) owns the Tavern, Rebel Hospitality Group, Inc., doing business as Rebel Republic Social House (Rebel Republic), and H.T. Grill, all located in the City of Redondo Beach (the City). In 2016, the City initiated a dining deck program. In accordance with that program, Rebel Republic obtained permits and built a dining deck.

On November 21, 2017, the City Council voted to terminate the dining deck program and provided notice to Rebel Republic to remove its dining deck by June 1, 2018. Nehrenheim, a City councilmember, among others, voted in favor of terminating the program.

On May 23, 2018, Rebel Republic challenged the City Council’s decision to require destruction of its dining deck by filing a verified petition for writ of mandamus against the City.

On April 15, 2018, Hennessey received a report that Nehrenheim had been belligerent, abusive, and disruptive while drinking at the Tavern. Hennessey felt that Nehrenheim’s behavior “interfer[ed] with other patrons’ ability to enjoy their time in [the] establishment and interfer[ed] with [the] employees’ abilities to do their jobs without harassment.” Hennessey also felt that Nehrenheim’s behavior interfered with the Tavern’s “success as a business” and that Nehrenheim “would likely repeat this type of conduct whenever he c[a]me to any one of [Hennessey’s] restaurants” in the future. For these reasons, Hennessey resolved to tell Nehrenheim that he was no longer welcome at any of Hennessey’s restaurants, including the Tavern.

On April 18, 2018, at a charity event Hennessey hosted at H.T. Grill, Nehrenheim entered the restaurant and, before Hennessey could inform him of his decision, the two had a disagreement in front of customers and other attendees. At that point, Hennessey informed Nehrenheim that, from that day forward, he was not allowed at any of Hennessey’s establishments.

Hennessey never gave Nehrenheim permission or an invitation to enter the Tavern or any of Hennessey’s other restaurants after April 18, 2018.

Nevertheless, on June 10, 2018, Nehrenheim went to the Tavern. When the manager on duty asked Nehrenheim to leave, he refused, raising his voice and accusing the staff of illegally refusing to serve him. When Nehrenheim finally left, he tore a sign off the wall and took it with him.

The complaint

On June 28, 2018, the Tavern filed the instant action against Nehrenheim for (1) trespass to property, and (2) conversion, trespass, and destruction of personal property. According to the complaint, on or about April 18, 2018, Hennessey told Nehrenheim that he did not have permission to enter the Tavern. “Despite having full knowledge that he did not have permission or consent and was not welcome to enter [the Tavern], on or about . . . June 10, 2018 . . . . Nehrenheim intentionally entered the premises.” A Tavern employee asked him to leave, but “Nehrenheim refused to leave, continued to occupy the premises, began to raise his voice and berate the employees of the] Tavern in front of customers and guests.” “When he finally stormed out of the premises, Nehrenheim tore down signs owned by [the] Tavern posted inside of the establishment on a wall which invited customers who supported Rebel Republic[’s] dining deck to call Councilperson Nehrenheim and Mayor [William] Brand to express their support.” In addition, “Nehrenheim loudly stated that he could not wait to have a bulldozer destroy Rebel Republic’s dining deck.”

Nehrenheim’s anti-SLAPP motion

In response, on October 2, 2018, Nehrenheim filed an anti-SLAPP motion, asking that the trial court strike the Tavern’s complaint on the grounds that the claims infringe upon his constitutionally-protected rights of petition and free speech. According to Nehrenheim, the Tavern’s lawsuit improperly arose from his vote on the dining deck program. In support, Nehrenheim pointed to City Council minutes and agendas that purportedly “confirm[ed] what the Complaint already made clear, that the Tavern’s Complaint against Mr. Nehrenheim ar[o]se[] from Mr. Nehrenheim’s votes, statements and actions within the scope of Mr. Nehrenheim’s duties as a councilmember for the City . . . and as it relates to the Dining Deck Pilot Program. Moreover, while it need not be, the views, statements and votes of Mr. Nehrenheim related to the Dining Deck Pilot Program is in connection with an issue of public interest as it was an issue many members of the public spoke on and expressed concerns during . . . City Council Meetings. Therefore, the conduct cited in the Complaint . . . clearly triggers the anti-SLAPP statute.”

In so arguing, Nehrenheim relied upon Schwarzburd v. Kensington Police Protection & Community Services District Board (2014) 225 Cal.App.4th 1345 (Schwarzburd) and City of Montebello v. Vasquez (2016) 1 Cal.5th 409 (City of Montebello).

The Tavern’s opposition to the anti-SLAPP motion

The Tavern opposed the anti-SLAPP motion, asserting that “Nehrenheim’s anti-SLAPP motion blatantly misse[d] the point and attempt[ed] to equate two separate acts, his vote to demolish a dining deck—for which he is not being sued—and his illegal trespass onto and destruction of property, for which he is. Nehrenheim’s earlier voting activity does not immunize him from liability when he later commits a tort.” The Tavern explained that even if the dispute between Hennessey and Nehrenheim was triggered by Nehrenheim’s vote, his later torts were not somehow converted into protected activities.

Trial court order; appeal

After entertaining oral argument, the trial court denied defendant’s anti-SLAPP motion. In so ruling, it specifically found that the Tavern’s causes of action did “not arise from any act taken by [Nehrenheim] in furtherance of his right of petition or free speech.” Rather, the Tavern’s claims were for trespass and conversion, and Nehrenheim’s protected activity did not “supply the elements of trespass or conversion.” “‘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 other words, “[t]he ‘fact that protected activity may lurk in the background—and may explain why the rift between the parties arose in the first place—does not transform the property dispute into a SLAPP suit.’ [Citation.] As argued by [the Tavern], if [Nehrenheim] had voted as he had but not come to [the] Tavern after being disinvited or tear down a sign, there would be no basis for a lawsuit.”

Nehrenheim’s timely appeal ensued.

DISCUSSION

I. Standard of review

“We review the trial court’s rulings on a SLAPP motion independently under a de novo standard of review. [Citation.]” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)

II. The anti-SLAPP statute

“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) “In 1992, out of concern over ‘a disturbing increase’ in these types of lawsuits, the Legislature enacted section 425.16, the anti-SLAPP statute.” (Ibid.; see § 425.16, subd. (a).) Section 425.16, subdivision (b)(1), 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 statute “posits . . . a two-step process for determining whether an action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant bringing the special motion to strike must make a prima facie showing that the anti-SLAPP statute applies to the claims that are the subject of that motion. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819.) Once a moving defendant has met its burden, the motion will be granted (and the claims stricken) unless the court determines that the plaintiff has established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567–568.)

III. The trial court properly denied Nehrenheim’s anti-SLAPP motion

We agree with the trial court that the Tavern’s claims against Nehrenheim do not trigger the anti-SLAPP statute. The Tavern is suing Nehrenheim for trespass and conversion. “‘Trespass is an unlawful interference with possession of property.’ [Citation.] The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. [Citation.]” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.) “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)

Here, the Tavern’s causes of action for trespass and conversion stem from Nehrenheim’s alleged misconduct on June 10, 2018. His alleged wrongful acts that night are not protected activity, and the causes of action alleged against him do not arise out of protected activity. Thus, Nehrenheim’s alleged wrongful conduct does not fall within the scope of the anti-SLAPP statute.

Urging us to reverse, Nehrenheim argues that the Tavern’s complaint wrongfully “arises from Mr. Nehrenheim’s votes, statements[,] views and actions related to the Dining Deck Pilot Program.” We are not convinced. “‘[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.’ [Citation.]” (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)

Here, the Tavern’s claims against Nehrenheim are not based upon his protected speech or petitioning activity. As the trial court aptly noted, had Nehrenheim voted as he had but not gone to the Tavern after being disinvited or tear down a sign, there would be no basis for this lawsuit. In short, the parties’ dispute over Nehrenheim’s alleged conduct on the night of June 10, 2018, “and not any protected activity, is ‘the gravamen or principal thrust’ of the action. [Citation.] The additional fact that protected activity may lurk in the background—and may explain why the rift between the parties arose in the first place—does not transform [this] dispute into a SLAPP suit.” (Episcopal Church Cases, supra, 45 Cal.4th at p. 478.)

Nehrenheim contends that the claims asserted in this lawsuit are no different from those asserted in Rebel Republic’s petition for writ of mandamus asserted against the City. He seems to assert that since those claims certainly fell within the scope of the anti-SLAPP statute—the writ challenges the City’s decision to dismantle the dining deck program—so too must these.

Nehrenheim’s argument fails. The claims in Rebel Republic’s writ of mandamus action differ from those asserted by the Tavern in this action. That action was brought by Rebel Republic, the entity that built a dining deck, against the City, the entity that voted to terminate the dining deck program. This action was initiated by the Tavern after Nehrenheim wrongfully entered and damaged its property. While the two lawsuits may share history, the claims are sharply different. It follows that we reject Nehrenheim’s claim that Rebel Republic’s lawsuit is “definitive proof that the Tavern’s lawsuit stems from Mr. Nehrenheim’s statements, views, actions or votes concerning [the] Dining Deck Pilot Program.”

Schwarzburd, supra, 225 Cal.App.4th 1345 and City of Montebello, supra, 1 Cal.5th 409 do not compel a different result. In Schwarzburd, petitioners challenged the legislative activity of members of a district board (Schwarzburd, supra, at p. 1348); “[t]he gravamen of [their] suit [was] that defendants violated Board policy by voting in a manner inconsistent with Board policy . . . and by discussing and voting on a matter . . . that was not properly noticed. These defendants were not sued simply because they voted, but based on how they voted and expressed themselves at the Board meeting.” (Id. at p. 355.)

Similarly, in City of Montebello, “[t]he City of Montebello sued three of its former council members and a former city administrator, claiming they violated Government Code section 1090 by voting on a waste hauling contract in which they held a financial interest.” (City of Montebello, supra, 1 Cal.5th at p. 413.) Our Supreme Court found that the claims fell squarely within the scope of the anti-SLAPP statute; “the council members’ votes, as well as statements made in the course of their deliberations at the city council meeting where the votes were taken, qualify as ‘any written or oral statement or writing made before a legislative . . . proceeding.’ [Citation.]” (Id. at p. 422.) Moreover, “[t]he council members’ participation in the meeting that preceded the vote was constitutionally protected activity . . . [and] [t]he council member defendants’ votes were cast in furtherance of their rights of advocacy and communication with their constituents on the subject of the [challenged] contract.” (Id. at p. 423.)

In contrast, in this case, the Tavern is not challenging Nehrenheim’s votes, speech, or other activity at City Council proceedings. Rather, the Tavern is challenging his disruptive behavior months later while drinking in its bar area after being specifically told not to go there.

Because we conclude that the Tavern’s lawsuit does not fall within the scope of the anti-SLAPP statute, we need not determine whether the Tavern has demonstrated a probability of prevailing on the merits of its claims. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80–81.)

DISPOSITION

The trial court order denying Nehrenheim’s anti-SLAPP motion is affirmed. The Tavern is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT