Filed 11/22/19 Aguilar v. Tahoe Verde Partners CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

—-

MARIA AGUILAR et al.,

Plaintiffs and Respondents,

v.

TAHOE VERDE PARTNERS,

Defendant and Appellant.

C087514

(Super. Ct. No. SC20180026)

Defendant Tahoe Verde Partners (Tahoe Verde) appeals the trial court’s order denying its special motion to strike Plaintiffs’ 11th cause of action pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. The court concluded this cause of action for unlawful retaliation by a landlord arises from protected activity, but denied Tahoe Verde’s motion on the basis that Plaintiffs had established a probability of prevailing on the claim. Tahoe Verde contends the trial court erred by denying the anti-SLAPP motion based on inferences that are not supported by admissible evidence. Tahoe Verde also raises several alternative arguments based on the theory that the trial court was obligated to analyze various allegations within the 11th cause of action individually, and strike those allegations if unsupported. We affirm.

I. BACKGROUND

A. The Complaint

Plaintiffs are current and former residents of and/or owners of mobile homes located in the Tahoe Verde Mobile Home Park (the Park). On January 30, 2018, they filed a complaint alleging 11 causes of action against Tahoe Verde—the owner of the Park—regarding its maintenance. Plaintiffs’ 11th cause of action is for unlawful retaliation by a landlord. It alleges Plaintiffs organized and participated in an association or organization to exercise their legal rights regarding their living conditions, and Tahoe Verde retaliated against Michelle Williams, in violation of Civil Code section 1942.5, subdivision (d) and her common law rights, for assembling to protect her rights. Two paragraphs in the complaint are numbered 124. One of them alleges Tahoe Verde violated Civil Code section 1942.5 and the common law by interfering with Williams’s “ability to use and enjoy her home and common areas of the Park, attempting to cause her to quit involuntarily, bringing an action to recover possession, and/or by threatening to do these acts in retaliation for her peacefully and lawfully exercising her legal rights under the law. This includes, but is not limited to the following actions by [Tahoe Verde]: (1) issuance of 7-day notices for purported violations of Park rules and regulations to Plaintiff MICHELLE WILLIAMS, without basis; (2) seeking temporary restraining orders without justification; (3) making false reports to police regarding purported unlawful conduct by her; and/or (4) interference with her peaceable enjoyment of her home and leasehold.”

B. Tahoe Verde’s Anti-SLAPP Motion

Tahoe Verde filed a special motion to strike Plaintiffs’ 11th cause of action pursuant to the anti-SLAPP statute. Tahoe Verde argued issuance of seven-day notices, seeking temporary restraining orders, and making false police reports all constitute protected conduct. Tahoe Verde also contended that neither it nor any of its management ever sought a restraining order against Williams or made any police reports, though Park residents did so in their individual capacities.

Under the Mobilehome Residency Law (Civ. Code, § 798 et seq.), a tenancy may be terminated for conduct by the homeowner or resident “that constitutes a substantial annoyance to other homeowners or residents.” (Civ. Code, § 798.56, subd. (b).) A tenancy may also be terminated for failure to comply with a reasonable rule or regulation of the mobilehome park that is part of the rental agreement, so long as management gave “the homeowner written notice of the alleged rule or regulation violation and the homeowner or resident has failed to adhere to the rule or regulation within seven days.” (Id., subd. (d).) Tahoe Verde submitted a declaration from the off-site property manager for the Park attaching five 7-day notices that were served on Williams between February 22, 2016, and January 23, 2018.

The February 22, 2016, notice was based on debris and clutter in Williams’s carport. A March 11, 2016, notice demanded Williams clean up her entire homesite and meet with management to complete a rental agreement. She was accused of not listing all the occupants of her mobilehome on her rental agreement, and also of not signing one. The property manager claimed the purpose of these first two notices was to have Williams clean up her carport and homesite.

On August 16, 2016, Tahoe Verde issued Williams a seven-day notice to cease all substantially annoying conduct, clean up her homesite, and remove an unauthorized occupant—her daughter—from her home. Regarding substantially annoying conduct, the notice set forth numerous alleged complaints, including allegations that Williams interfered with the work of Park employees, allegations that Williams took pictures of other residents and their homes, and complaints regarding the manner in which Williams solicited attendance for a homeowners’ association meeting. With respect to the latter, the notice includes an allegation that “[m]anagement received a resident complaint dated July 28, 2016[,] stating that at midnight the night before, you were putting notices on residents’ doors.” Additionally, “[a]nother resident complaint dated August 4, 2016[,] states that he feels that you and your unauthorized occupant . . . are ‘poison’ to the park because you go around door to door to every residents’ home to try to turn the residents against management.” The notice closed by noting that failure to comply with the notice would put Williams’s tenancy in jeopardy and “management may elect to serve you a ‘Sixty (60) Day Notice of Termination of Tenancy,’ pursuant to [] Civil Code [section] 798.56[, subdivisions] (b) and (d).” The property manager declared that the purpose of the August 16, 2016, notice “was to have Ms. Williams cease substantially annoying numerous other residents (who had been making complaints to management)” and to clean up her carport.

On September 21, 2016, Tahoe Verde issued Williams a seven-day notice to cease all substantially annoying conduct, stop interfering with the Park’s ability to conduct business, clean up her homesite, and remove her daughter from her home. The alleged substantially annoying conduct in this notice was interfering with the work of a pest control technician and demonstrating anger and making inappropriate hand gestures because of where a taxi was parked. The property manager declared the purpose of this notice “was to have Ms. Williams cease substantially annoying another resident (who had made a complaint to management), and the pest control technician, in violation of Park Rule 14, and to clean up her carport and front porch, in which she was maintaining debris and clutter in violation of Park Rules 3 and 4. [Citation.] When Ms. Williams stopped the offending conduct, the Park did not pursue eviction. The Park did not serve any of these Seven Day Notices to retaliate against Ms. Williams for lawfully organizing or participating in an association or organization advocating lessees’ rights or for lawfully and/or peacefully exercising any rights under the law.”

On January 23, 2018, Tahoe Verde issued Williams a seven-day notice to cease all substantially annoying conduct and to stop taking pictures of Park management and residents. The property manager declared that this notice was served in response to residents’ complaints and not to retaliate against Williams. Williams “stopped engaging in the conduct described in the Notice. As a result, the Park did not pursue eviction.”

C. Plaintiffs’ Evidence

In connection with their opposition to Tahoe Verde’s special motion to strike, Plaintiffs submitted declarations from various individuals, including Williams and her daughter. Williams declared she had leased a space at the Park since 1998, and her daughter lived there with her until April 2018. Williams stated that, in recent years, she had become increasingly concerned about Tahoe Verde’s failure to maintain the Park and its violations of the Mobilehome Residency Law. In September 2015, she complained to upper management for the Park about a maintenance manager. The following month, Tahoe Verde wrote Williams a letter asking her to remove certain items from her carport that Park managers had previously given her permission to keep there while she obtained a storage unit. Williams was granted extensions to fix the issue, but then received the seven-day notices in February and March 2016 regarding the same issue. Because Williams felt she was being treated unfairly and retaliated against for complaining about Park managers and maintenance staff, she spoke with a mobilehome ombudsman from the Department of Housing and Community Development. She was referred to the Golden State Manufactured-Home Owners’ League (the League), an organization dedicated to protecting the rights, safety, and welfare of mobilehome owners. Williams spoke to the League’s State President and expressed interest in joining the organization and starting a chapter in the Park. The State President volunteered to come to the Park and provide information to residents about the League.

In July 2016, Williams circulated a flyer inviting residents to join her for a meeting on July 30, 2016. She posted the flyer in common areas and went door-to-door with her daughter to invite their neighbors to the meeting. They handed out flyers, and left flyers for those who were not home. Williams declared she was not rude, harassing, or substantially annoying to any of her neighbors, but respectful. Her daughter declared to the same facts. At the meeting, Williams was elected president of the new chapter. On August 1, 2016, she and the vice president drove through the Park and prepared a color-coded map of the Park. They did not take any photographs. Williams denied other allegations made in the August 16, 2016, notice and her declaration set forth her version of events. Williams also denied the allegations in the January 23, 2018, notice. Additionally, Williams declared there were attempts to obtain temporary restraining orders against her and a related police report.

D. The Trial Court Ruling

The trial court determined Tahoe Verde “met its burden of making a threshold showing that plaintiffs’ [11th] [c]ause of [a]ction arises from protected activity and not as retaliation for Williams’s assembling to protect her legal rights.” With respect to whether Plaintiffs demonstrated a probability of prevailing on the claim, the court explained, “Plaintiffs argue that defendant’s stated reasons for its activity are pretext to conceal retaliation against Williams for participating in or organizing a lessees’ association. Having reviewed plaintiffs’ documentary evidence, plaintiffs have demonstrated a probability of prevailing on their claim. It is true that plaintiffs’ evidence relies upon inference. However, the court is not to weigh credibility or the comparative strength of evidence. If plaintiffs’ evidence is credited, looking at the totality of the circumstances and the timing of defendant’s actions, a trier of fact could rule in favor of plaintiffs[] on their [11th] [c]ause of [a]ction.” As a result, the court denied Tahoe Verde’s anti-SLAPP motion.

Tahoe Verde filed a timely appeal.

II. DISCUSSION

A. Standard of Review

Code of Civil Procedure 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 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 analysis of an anti-SLAPP motion involves two steps. “ ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. ([Code Civ. Proc., ]§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 (Oasis).)

Our review of the trial court’s order on an anti-SLAPP motion is de novo. (Oasis, supra, 51 Cal.4th at p. 820.) We “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

In evaluating whether the plaintiff has established a probability of success, “[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ ” (Baral, supra, 1 Cal.5th at pp. 384-385.)

B. The Scope of Tahoe Verde’s Anti-SLAPP Motion

Tahoe Verde argues the trial court erred by failing to consider the merits of each retaliation claim within the 11th cause of action individually, such as those based on the temporary restraining orders, police reports, and/or alleging unlawful retaliation under common law, and not striking “those portions upon which Plaintiffs could not meet their burden of proof as a matter of law.” Again, our review is de novo. “If the trial court’s decision denying an anti-SLAPP motion is correct on any theory applicable to the case, we may affirm the order regardless of the correctness of the grounds on which the lower court reached its conclusion.” (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 853.) Further, Tahoe Verde’s argument is based on Baral and an opinion of this court applying Baral. (See Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1164-1165.) These authorities apply “to ‘mixed causes of action,’ that is, causes of action based on both protected and unprotected activity.” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1119, fn. 3.) Our Supreme Court in Baral explained: “the plaintiff must make the requisite showing as to each challenged claim that is based on allegations of protected activity. How the plaintiff does that will vary from case to case, depending on the nature of the complaint and the thrust of the motion. But when the defendant seeks to strike particular claims supported by allegations of protected activity that appear alongside other claims within a single cause of action, the motion cannot be defeated by showing a likelihood of success on the claims arising from unprotected activity.” (Baral, supra, 1 Cal.5th at p. 392.) Tahoe Verde does not argue the 11th cause of action is a mixed cause of action or that Plaintiffs defeated its motion by showing a likelihood of success on claims arising from unprotected activity. In fact, Tahoe Verde agrees with the trial court’s conclusion that the 11th cause of action arises from protected activity, and suggests Plaintiffs are foreclosed from arguing otherwise because they did not file their own appeal. This is not an appeal involving a mixed cause of action, and the scope of our inquiry depends “on the nature of the complaint and the thrust of the motion.” (Id. at p. 392.)

Plaintiffs’ 11th cause of action for retaliation by a landlord alleged alternative theories of recovery. Tahoe Verde moved to strike the entire cause of action and did not, as it suggests, separately request that individual claims of retaliation within the 11th cause of action be stricken. On these facts, “Oasis, not Baral, applies.” (Cuevas-Martinez v. Sun Salt Sand, Inc., supra, 35 Cal.App.5th at p. 1119, fn. 3.) Specifically, “if a single cause of action arising entirely from protected activity asserts ‘a number of acts of alleged misconduct and theories of recovery, . . . for purposes of reviewing the ruling on an anti-SLAPP motion, it is sufficient to focus on just one,’ if that one has the requisite merit.” (Id. at p. 1119, quoting Oasis, supra, 51 Cal.4th at p. 821.) Thus, the trial court did not err in denying Tahoe Verde’s anti-SLAPP motion so long as one theory in the 11th cause of action has merit.

C. Probability of Success on the 11th Cause of Action

As relevant to this proceeding, Civil Code section 1942.5, subdivision (d) provides: “it is unlawful for a lessor to . . . cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law.” Tahoe Verde concedes the litigation privilege of Civil Code section 47, subdivision (b) does not act as a bar to Plaintiffs’ claim for statutory retaliation based on the service of the seven-day notices. Its only challenge to this particular theory of recovery is its claim that there was no admissible evidence from which Plaintiffs could establish a probability of prevailing on this claim. This is the theory we focus on, and the issue we address next.

We must credit all admissible evidence favorable to Plaintiffs and “indulge in every legitimate favorable inference that may be drawn from it.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238.) We agree with the trial court’s conclusion that, in so doing, and looking at the totality of the circumstances and the timing of Tahoe Verde’s actions, a trier of fact could rule in favor of Plaintiffs on their 11th cause of action. Tahoe Verde argues the inference that it retaliated against Williams is not supported by admissible evidence or anything more than speculation. We disagree. Accepting, as we must, Williams’s declaration as true, about two weeks after the meeting of lessees that she organized, Tahoe Verde marshalled up a seven-page notice composed of largely false allegations. Williams’s denial of acts she was accused of in the notice is not speculative or made on information and belief. These aspects of her declaration are based on her personal knowledge of her own actions. Several of the allegations in the notice complain about Williams’s methods of organizing, which she asserts were respectful. Some of the complaints, such as that Williams put notices on doors at midnight and that she tried to turn residents against management, come close to complaining of the mere act of organizing. Under these circumstances, it is reasonable to infer Tahoe Verde decided to level these accusations against Williams in retaliation for her organizing other tenants. The fact Tahoe Verde had previously served seven-day notices designed to get Williams to clean up her site does not negate the possibility that the new and heightened allegations were retaliation for her new activities. Plaintiffs established the minimal merit necessary to proceed under the theory that Tahoe Verde retaliated against Williams in violation of Civil Code section 1942.5, subdivision (d) when it sent her a seven-day notice soon after she organized the other lessees. Consequently, the trial court did not err in denying Tahoe Verde’s anti-SLAPP motion.

III. DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

MAURO, J.