Filed 3/4/20 Sarao v. Barker CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.CL.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

NORMA SARAO et al.,

Cross-complainants and Appellants,

v.

JOHN BARKER et al.,

Cross-defendants and Respondents,

B294816, B296391

(Los Angeles County

Super. Ct. No. YC072354)

APPEALS from orders of the Superior Court of Los Angeles County, Robert Broadbelt, Stuart M. Rice, and Deirdre Hill, Judges. Affirmed in part and reversed in part with instructions (B294816); affirmed in part and reversed in part with instructions (B296391).

JDavid Law Practice and Jill S. David for Cross-complainants and Appellants.

Law Offices of Cedric Severino and Cedric Severino for Cross defendants and Respondents.

Respondents John Barker (Barker), an attorney, and Barker’s law firm, Krohn & Moss, Ltd. (K&M), represented Adam Krohn, who is not a party to this appeal, during a dispute between Krohn and appellants Norma Sarao and Fidelis Caso, the owner and manager of the rental property at issue, respectively (collectively, Landlords). The dispute concerned Krohn’s improvements to the property and related allegations of theft and property damage. Krohn sued Landlords, and Landlords filed a cross-complaint against Krohn, Barker, and K&M, alleging that Barker and K&M (collectively, K&M cross-defendants) had “directed a course of conduct” that damaged Landlords, and also that K&M cross defendants had themselves engaged in some of this conduct. K&M cross-defendants filed a special motion to strike all the cross complaint’s causes of action against them under the anti SLAPP statute, Code of Civil Procedure section 425.16. The court granted the motion, and the Landlords now appeal that ruling.

The court based its anti-SLAPP ruling in part on the conclusion that K&M cross-defendants’ alleged conduct constituted protected “litigation activity,” in that it was undertaken on behalf of their client, Krohn, and that it was preparatory to or in anticipation of litigation on Krohn’s behalf.

We agree that the alleged conduct underlying the intentional interference with contract claim is protected on this basis, that the claim is barred by the litigation privilege, and that it should therefore be stricken. We disagree, however, that K&M cross defendants’ alleged participation in theft and property damage or their allegedly directing Krohn to do so constitutes litigation activity or is otherwise protected conduct. The intentional infliction of emotional distress, conversion and Penal Code section 489 causes of action against K&M cross defendants that arise from such unprotected activity should not have been stricken. We therefore reverse the trial court’s order and instruct the court to enter a revised order that only partially grants the anti-SLAPP motion and strikes the portions of the cross complaint we identify in the disposition below.

Landlords further appeal the trial court’s order awarding K&M cross-defendants’ attorney fees for work associated with their anti-SLAPP motion, challenging the reasonableness of the amount the court awarded. These arguments are mooted by our reversal of the anti-SLAPP ruling and the resulting need for the trial court to recalculate the amount of fees attributable to the successful portions of the motion. We therefore reverse the trial court’s award of fees and instruct the trial court to determine what amount of attorney fees is reasonable under the anti-SLAPP fee provision in light of the disposition of this appeal.

PROCEDURAL AND FACTUAL SUMMARY

Krohn is an attorney and the “owner” of K&M, a law firm where Barker is employed as an associate. Krohn leased from Landlords a two-bedroom apartment (the Property), located near K&M’s offices. The Property is part of a homeowners association (HOA), which subjects its residents to certain rules and regulations.

A. Krohn’s Repairs and Adjustments to the Property

Krohn made several repairs and adjustments to the Property, including several visible from the exterior. The HOA took note of these repairs and reported them to Landlords, who reached out to Krohn. In a series of communications and interactions that followed, the relationship between Krohn and Landlords became increasingly contentious. Caso, Sarao’s daughter, managed the Property and was the primary point of contact for Krohn in these communications.

Landlords commissioned an inspection of the Property to investigate the HOA’s concerns. The resulting report revealed various undisclosed improvements, including an unpermitted ceiling fan, tinted windows, a converted garage apparently used as living quarters, new front door locks with no keys, and non-HOA approved security cameras on the exterior. Krohn claimed that these changes were necessary as a result of Landlords’ breach of the lease and improved the value of the Property, while Landlords maintained that Krohn’s alterations were impermissible and, in some instances, damaged the Property.

In March 2017, Krohn wrote to Landlords on K&M letterhead, requesting that Landlords and Krohn “mediate the issues related to the . . . lease,” and demanding Landlords reimburse Krohn for his alterations to the Property.

B. Krohn and Landlords Employ Legal Counsel

Landlords engaged an attorney, Jill David, who responded to Krohn’s demand letter and assisted Landlords in preparing and sending to Krohn a “[t]hree [d]ay [n]otice to [c]ure or [q]uit.” The notice provided that Krohn’s alterations to the Property constituted breaches of the lease agreement, and that he had three days to cure these breaches.

Krohn retained counsel, who informed Landlords that Krohn had cured the alleged breaches, including removal of the security cameras. Krohn, however, continued to operate the cameras on the Property.

Krohn then replaced his counsel, substituting in his own firm, K&M, and Barker, an associate of the firm. In an email, Krohn noted that he would represent himself “along with his firm” regarding the dispute and threatened litigation. On appeal, Landlords argue that Krohn was “ghost writing” communications from K&M/Barker to Landlords, and that Krohn, who is not a licensed attorney in California, was effectively practicing law through Barker and K&M.

C. Removal of Krohn’s Security Cameras

Later, following another noticed inspection and repair arranged by K&M cross-defendants and David, Landlords removed the security cameras still mounted on the Property’s exterior. Landlords provided Krohn and Barker written notice that Landlords had removed the cameras and intended to return them.

Approximately a month later, Krohn filed a police report stating that his cameras had been stolen. He did not inform the police that he and his counsel had received notice that the cameras were removed for HOA compliance and would be returned.

After Krohn filed this police report, a process server hired by Landlords attempted to return the cameras to Krohn at the Property, but Krohn refused to accept them. The process server then attempted to return them to Barker at the K&M offices, but Barker did not answer the door. The process server ultimately left the cameras at the law firm’s doorstep.

Barker later informed David that Krohn had received the cameras, but noted that this did not “cure the theft” and that Landlords had not returned “the specialized batteries that were inside the cameras.” Barker further accused Landlord’s process server of trespassing by purportedly leaving the cameras inside Barker’s office.

D. Alleged Damages and Missing Property After Krohn Vacates

On August 16, 2017, Barker notified David that Krohn planned to move out, but stated Barker did not know when. On August 31, 2017, Barker informed David that Krohn had moved out the day before. Barker demanded that Landlords return Krohn’s security deposit in full within 21 days of the date Krohn moved out.

When Landlords inspected the Property following Krohn’s departure, they found two doors and a built-in vacuum belonging to Sarao missing. They further noted what they characterized as permanent damage to the Property. Landlords sent invoices for repairing and replacing these items to Krohn and Barker, and returned the balance of Krohn’s security deposit. Neither Krohn nor Barker protested the damages or losses claimed, nor did either request a re itemization of the repairs.

E. Krohn’s Complaint Against Landlords and David

Through K&M cross-defendants, Krohn filed a complaint against Landlords, David, and others seeking the full amount of the security deposit as a bad faith penalty for Landlords’ “untimely” return of Krohn’s security deposit. Krohn also sought damages based on allegations that Landlords had failed to return batteries in the security cameras and Landlords’ general management of the Property and treatment of Krohn during the dispute. The complaint contains causes of action for conversion, violation of Penal Code section 496, and Civil Code sections 1954, 1942.5, 1950.5, and 1940, intentional infliction of emotional distress, breach of implied covenant of quiet enjoyment, and breach of implied covenant of good faith and fair dealing.

F. Landlords’ Cross-Complaint Against Krohn and K&M Cross-Defendants

Landlords filed a cross-complaint alleging causes of action against both Krohn and K&M cross-defendants for conversion of the missing doors and vacuum, in violation of Penal Code section 496, and intentional interference with contract. In addition, it alleges that Caso, who was pregnant during much of Krohn’s actions and verbal abuse in the course of Caso’s efforts to manage the Property, miscarried as a result of stress caused by such conduct and abuse, and asserts an intentional infliction of emotional distress claim against Krohn and K&M cross defendants.

The cross-complaint alleges that K&M cross-defendants “directed a course of conduct”: (1) to “steal . . . Sarao’s vacuum and furnace room door, and to destroy her other personal property before . . . Krohn vacated,” (2) “for . . . Krohn to breach his lease with . . . Sarao,” and (3) to “harass,” “exploit and extort money from [Landlords] during the tenancy” and “to harass and extort money from . . . Sarao.” K&M cross-defendants allegedly directed Krohn to file a false police report regarding the theft of the cameras, and assisted him in doing so. K&M cross-defendants also allegedly “manufactur[ed] claims of theft to the [p]olice in order to file a false police report,” in part by failing to provide the police with the notice of Landlords’ intention to return the cameras.

The cross-complaint further alleges that, in addition to directing such actions, K&M cross-defendants themselves acted alongside Krohn and “stole . . . Sarao’s furnace room door and her custom built-in vacuum cleaner,” “receive[d], conceal[ed], [sold], [and/or] with[e]ld . . . Sarao’s furnace room door and custom built in vacuum” “and/or aid[ed] in” doing so, damaged Landlords’ personal property, “threaten[ed] . . . Caso with prosecution for trespass for leaving a gift at his door,” and “feign[ed] personal injuries on HOA property.”

G. Anti-SLAPP Motion to Strike Cross-Complaint

K&M cross-defendants moved to strike, under section 425.16, the causes of action against them in the cross-complaint (second through fifth causes of action).

Following a hearing, the court (Judge Stuart M. Rice) granted the motion in full, on the grounds that the causes of action against K&M cross-defendants arose from protected activity of counsel acting in preparation for litigation on behalf of their client, and that Landlords had failed to establish a probability of prevailing on the causes of action against K&M cross-defendants, because these causes of action are barred by the litigation privilege. The court (Judge Deirdre Hill) also awarded K&M cross-defendants attorney fees and costs in the amount of $31,990.

Landlords filed timely notices of appeal challenging the trial court’s orders granting the motion to strike and awarding related attorney’s fees. We consolidated the two appeals.

 

DISCUSSION

I.

ANTI-SLAPP MOTION

An anti-SLAPP motion requires a court to engage in a two pronged analysis. First, the court determines whether the complaint alleges protected free speech or petitioning activity, and whether the claims the movant seeks to strike “aris[e] from” such protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral); Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) If so, the burden shifts to the plaintiff to establish in the second prong of the analysis that any such claims are legally sufficient in “a summary judgment-like procedure.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278, 291 (Soukup); Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Any claims and/or allegations as to which the plaintiff fails to make a prima facie showing should be stricken. (Baral, supra, 1 Cal.5th at p. 396.)

On appeal, we review the trial court’s decision regarding an anti-SLAPP motion de novo, “engaging in the same two-step process.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 266–267.) In so doing, we consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)

A. Prong One: Whether Claims Arise From Protected Conduct

The “arising from protected activity” prong of our anti-SLAPP analysis also has two distinct aspects. As a preliminary matter, we determine whether any of K&M cross-defendants’ alleged “act[s] underlying [Landlord’s] cause[s] of action” constitute protected activity. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Next, to the extent we identify any such protected conduct, we determine whether any of Landlords’ claims arise from it—that is, whether the protected conduct provides a necessary element of any claims alleged and thus is necessary to “justify a remedy.” (Baral, supra, 1 Cal.5th at pp. 395–396; see Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).)

1. Some of K&M cross-defendants’ alleged conduct is protected activity

Protected activity under the anti-SLAPP statute includes any “act” that is “in furtherance of ” a defendant’s free speech or petitioning rights, including “any written or oral statement or writing made before a . . . judicial proceeding.” (§ 425.16, subd. (e); see City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) This includes “ ‘communications preparatory to or in anticipation of the bringing of an action or other official proceeding.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs); Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17–19.)

Applying these principles to the conduct of attorneys, the general rule is that “all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding . . . are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479–480 (Cabral).) A limited exception exists where “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petitioning activity was illegal as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley).)

The conduct we analyze under these standards is not just that “alleged” in “the complaint alone[,] but rather . . . the pleadings and the factual material submitted in connection with the special motion to strike” as well. (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408 (Contreras); see § 425.16, subd. (b)(2) [referring to “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based”]; see, e.g., Karnazes v. Ares (2016) 244 Cal.App.4th 344, 353–354 [considering pleadings, a declaration, and emails attached thereto at first step of anti-SLAPP analysis].)

K&M cross-defendants’ conduct alleged in the cross-complaint and reflected in the declarations Landlords offered in support of their motion to strike generally falls into the following categories: (1) communicative conduct in preparation for or anticipation of possible litigation or other official proceedings; (2) conduct related to Krohn’s filing of a police report regarding the security cameras; and (3) damaging, stealing, or directing others to damage or steal Landlords’ property. We consider each of these in turn.

a. K&M cross-defendants’ alleged communicative conduct preparatory to or in anticipation of litigation or other official proceedings

Some of K&M cross-defendants’ alleged conduct is protected under section 425.16, because it constitutes communicative conduct that is “part of their representation of [Krohn] in [an anticipated] judicial proceeding” (Cabral, supra, 177 Cal.App.4th at pp. 479 480), or “ ‘preparatory to or in anticipation of the bringing of an action or other official proceeding.’ ” (Briggs, supra, 19 Cal.4th at p. 1115.) These include: the March 2017 demand letter; alleged threats to prosecute the process server for trespass; notifying Landlords that Krohn was vacating the Property; demanding Landlords return Krohn’s security deposit; and requesting additional repairs on Krohn’s behalf outside the timeline allotted for doing so in the lease. Even if, as Landlords argue, these actions were unethical or undertaken in bad faith, this does not render them “illegal as a matter of law,” such that they might no longer constitute protected conduct under Flatley. (See Flatley, supra, 39 Cal.4th at p. 320.)

Allegations that K&M cross-defendants directed Krohn to breach the parties’ lease agreement also fall within this category, although less obviously so. Whether conduct breaches the agreement is a legal conclusion, over which the parties are unlikely to agree, and nothing in the record identifies what conduct K&M cross-defendants allegedly directed. As such, this allegation, without more, reflects that K&M cross-defendants advised their client regarding his lease, conduct that falls squarely within the scope of legal advice one would expect them to offer when representing Krohn in a dispute about that very lease. (See Contreras, supra, 5 Cal.App.5th at p. 413.) Thus, this conduct is protected communicative conduct as well.

b. K&M cross-defendants’ conduct related to Krohn’s filing a police report

Filing a police report is quintessential petitioning conduct, and it does not lose protection based on the assistance of an attorney, just as such conduct would not lose protection, were it performed by the attorney on behalf of his or her client. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen); Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 478 [“[a]n attorney has standing to bring a special motion to strike a cause of action arising from petitioning activity undertaken on behalf of the attorney’s client”].) Nor is there anything in the record to suggest that the way K&M cross-defendants assisted Krohn with filing a police report was outside the scope of routine legal services, or that K&M cross-defendants had any involvement with Krohn’s filing of the report, other than in their capacities as his attorneys.

As to the adjacent allegation that K&M cross-defendants chose not to provide the police with the Landlords’ notice indicating that Landlords intended to return Krohn’s cameras, legal representation of a client filing a police report in the context of potential litigation may well involve attorney decisions regarding what materials to share with law enforcement. As discussed above, even if K&M cross-defendants’ actions in this respect were unethical or undertaken in bad faith, this does not negate their protected status. (See Discussion ante, part A.1.a.) Nor is the purported illegality of this conduct “established as a matter of law either through the defendant’s concession or because the illegality is conclusively established by the evidence presented in connection with the motion to strike,” such that the conduct might lose protected status under Flatley. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 285; see Flatley, supra, 39 Cal.4th at p. 320.) Moreover, even if the record contained an admission or conclusive proof that Krohn’s filing the police report constituted an illegal act, this would not render the alleged assistance that K&M cross-defendants provided illegal as well —particularly given that nothing suggests how exactly they assisted. (See Contreras, supra, 5 Cal.App.5th at p. 413; see Cabral, supra, 177 Cal.App.4th at pp. 481–482 [“Even if the attorney respondents’ actions had the effect of defeating or forestalling [mother’s] ability to execute her judgment for child support, thereby . . . violating the child support evasion statutes, this is not the kind of illegality involved in Flatley.”].)

As to K&M cross-defendants’ alleged refusal to accept the cameras when Landlords’ process server attempted to return them to K&M’s offices, such refusal was also plainly tied to K&M cross-defendants’ role as Krohn’s attorneys in connection with the brewing dispute, because in no other capacity would they have been permitted to take receipt of cameras belonging to Krohn. Just as K&M cross-defendants would have accepted the cameras in this capacity, their refusal to do so was likewise in their representative capacity and in the context of a brewing dispute (and potential litigation) between their client and Landlords. As such, this is protected conduct as well.

c. K&M cross-defendants’ allegedly damaging or stealing property and directing a course of conduct to accomplish same

K&M cross-defendants also allegedly directed Krohn to engage in misconduct, specifically theft and damaging property, and participated in such misconduct as well. Obviously, theft and property damage are not acts preparatory to litigation and do not constitute petitioning conduct.

Nor do the facts support that K&M cross-defendants took possession of the allegedly stolen property in their capacity as Krohn’s attorneys, as was the case in Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200 (Finton), on which K&M cross defendants rely in their briefing on appeal. (See id. at p. 206 [attorney took possession of allegedly converted hard drive as a result of a “stipulated order that directed the hard drive . . . be turned over to [the] computer expert, who made copies of the hard drive and gave them to [the attorney]” to “be used for the purposes of the pending litigation”].)

Whether there is protected activity in the allegations that K&M cross-defendants “directed a course of conduct” that includes the theft and property damage presents a more difficult question. In Contreras, the complaint alleged that the attorney defendants “aided and abetted” their client’s unlawful entry, but did not allege that the attorneys themselves participated in such unlawful entry, and also did not allege the attorneys engaged in any conduct outside the scope of normal legal services. (Contreras, supra, 5 Cal.App.5th at p. 413.) Under these circumstances, the court concluded that “[c]onclusory allegations of conspiracy or aiding and abetting” could not deprive otherwise protected actions of their protected status. (Ibid.) K&M cross-defendants argue that Landlords’ allegations of “directing a course of ” misconduct are akin to the allegations of “aiding and abetting” misconduct in Contreras, and thus, as in Contreras, these allegations reflect protected activity. But unlike in Contreras, the cross-complaint and declarations do provide that K&M cross defendants “personally took part in the alleged wrongful [conduct],” as opposed to merely providing advice in connection with such conduct. (Ibid.) On these facts, we cannot say that K&M cross-defendants’ only connection with the theft and property damage was their having provided advice (see ibid.), or their representing an individual committing the theft and property damage. (See Finton, supra, 238 Cal.App.4th at p. 210.) Rather, here, K&M cross-defendants are connected with these acts in that they are alleged to have directly participated in them.

d. Miscellaneous conduct

Finally, the cross-complaint contains miscellaneous allegations regarding K&M cross-defendants’ conduct that do not fall into the above categories. Namely, it alleges that K&M cross-defendants “direct[ed] a course of action to exploit and extort money from [Landlords],” and that “[t]heir conduct included . . . feigning personal injuries on HOA property.” Extortion is a conclusory legal characterization; without more, it provides no basis for identifying additional unprotected conduct. (Cf. Flatley, supra, 39 Cal.4th at pp. 330-331 [factual material before the court included a letter and statements of defendant attorney so blatant that they could only be understood as extortion].) “[F]eigning personal injuries” is obviously not within the scope of a lawyer’s role in preparing for litigation, so allegations that K&M cross defendants themselves did so do not reflect protected conduct.

Thus, all the alleged and declared conduct of K&M cross defendants is protected, except for K&M cross-defendants stealing property, damaging property, directing such theft or damage, and “feigning . . . injuries” on the Property.

e. Landlords’ argument that Krohn is acting through K&M cross-defendants, and that their conduct is therefore unprotected

Landlords argue that K&M cross-defendants’ actions cannot constitute protected conduct because Krohn’s actions must be imputed to Barker and K&M. Landlords cite cases involving “[t]he principle of imputed knowledge” in the context of attorney conflicts of interest, as well as cases involving the “loss of independent professional judgment when a firm represents its own member.” But the logic of these cases is entirely inapposite, as they deal with the access to information an attorney necessarily has based on his or her association with a particular firm, and/or with potentially conflicting duties of loyalty. That Krohn, Barker, or any other attorney at K&M may have access to certain information, or that K&M may have had a conflict of interest in representing Krohn, has no bearing on what the cross-complaint alleges K&M and Barker did, or whether those alleged actions were taken on behalf of a client in preparation for potential litigation. In so concluding, we do not, as Landlords suggest, “cleanse[ ]” Krohn’s conduct of illegality because it was done “through the offices of an attorney,” because the claims against Krohn are not the subject of the anti-SLAPP motion.

3. The intentional interference with contract claim against K&M cross-defendants arises from protected activity, but the emotional distress, conversion and Penal Code section 496 claims do not

Having determined that some of the acts and omissions by K&M cross-defendants of “which [Landlords] complain” constitute protected activity (Navellier, supra, 29 Cal.4th at pp. 89–90), we must analyze whether any claims in the cross-complaint “arise from” that conduct. A claim “aris[es] from” protected activity alleged in a complaint if that activity “ ‘gives rise to [the] asserted liability,’ ” (Park, supra, 2 Cal.5th at p. 1063) and thus “is alleged to justify a remedy.” (Baral, supra, 1 Cal.5th at p. 395.)

All actions through which Landlords allege K&M cross-defendants interfered with any contract involve their directing Krohn to breach his lease, to continue breaching his lease, and to terminate his lease. As discussed above, this constitutes protected conduct.

As to Landlords’ conversion and violation of Penal Code section 496 claims against K&M cross-defendants, because Landlords’ cross-complaint could “demonstrate the existence of a . . . controversy between the parties supporting [these] claim[s]” even “without the [protected conduct in the cross-complaint],” they do not arise from protected conduct. (Park, supra, 2 Cal.5th at p. 1064.) The fundamental conduct underlying such claims—that K&M cross defendants stole the furnace door and vacuum, and that they received, took possession of, concealed or withheld such stolen property—is not protected, as discussed above. Although K&M cross-defendants’ attorney-client relationship with Krohn may have provided the context in which they allegedly stole and/or took possession of Landlords’ door and vacuum, unlike in Finton, this did not occur as a result of a court’s order or for purposes of litigation. (Finton, supra, 238 Cal.App.4th at p. 206; Park, supra, 2 Cal.5th at p. 1064.) K&M cross-defendants’ representation of Krohn is not an “activit[y] that form[s] the basis for a claim” but rather an activity “that merely lead[s] to the liability-creating activity.” (Ibid, italics added.)

As to the intentional infliction of emotional distress claim, the cross-complaint identifies much of the protected conduct discussed above as causing Caso distress. But it also alleges that Caso’s emotional distress was proximately caused by K&M cross-defendants “directing the theft of . . . Sarao’s furnace room door and custom built-in vacuum”—which, as discussed above, we conclude is unprotected conduct. Because the cross complaint does not exclusively rely on protected conduct to satisfy this element of the emotional distress claim, it does not arise from protected conduct and should not have been stricken in its entirety. (See Park, supra, 2 Cal.5th at p. 1064.)

B. Prong Two: Probability of Success

Having concluded the intentional interference with contract claim and portions of the emotional distress claim arise from protected conduct, we continue to the second prong of the anti- SLAPP analysis regarding these claims. Landlords must demonstrate that these claims are “legally sufficient.” (Baral, supra, 1 Cal.5th at p. 396.)

With respect to the interference with contract claim, Landlords cannot do so, because the claim is barred by the litigation privilege. (See Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 48–49 (Newport).) The litigation privilege is statutory and prohibits liability—except for malicious prosecution—arising from a publication or broadcast made in a judicial proceeding or other official proceeding. (Ibid.; Civ. Code, § 47, subd. (b).) The privilege encompasses “a lawyer’s discussions with clients about potential litigation, the filing of pleadings, and letters to opposing counsel.” (Contreras, supra, 5 Cal.App.5th at pp. 415–416.) “[W]here the gravamen of the complaint is a [litigation] privileged communication . . . the privilege extends to necessarily related noncommunicative acts.” (Rusheen, supra, 37 Cal.4th at p. 1062.)

Because, as discussed above, the protected conduct that supports the intentional interference with contract claim against K&M cross-defendants constitutes communications with or on behalf of their client preparatory to and/or in anticipation of potential litigation and/or official proceedings, it falls squarely within the ambit of the litigation privilege (see Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th at p. 1288, fn. 23), and bars the claim as a matter of law. (See Newport, supra, 23 Cal.App.5th at pp. 48–49.)

As to the intentional infliction of emotional distress claim, to the extent Caso alleges she suffered severe emotional distress as a result of the manner in which K&M cross-defendants’ gave notice that Krohn would vacate the Property, this conduct is protected by the litigation privilege, as discussed above, and does not constitute a legally cognizable claim for relief.

To the extent Caso alleges she was distressed by K&M cross-defendants’ conduct related to Krohn filing a police report, her claim is barred by the litigation privilege as well. “Under the contemporary interpretation of section 47(b),” there exists an “absolute privilege” “shielding a citizen’s report to the police concerning suspected criminal activity of another person.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375 [resolving split among courts of appeal on this issue]; see Williams v. Taylor (1982) 129 Cal.App.3d 745, 753–754 [a police report is litigation privileged as “a communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity.”].) “[T]he critical question” in applying privilege is “the aim of the communication, not the forum in which it takes place. If the communication is made ‘in anticipation of or [is] designed to prompt official proceedings, the communication is protected.’ ” (Hagberg, supra, at p. 368.) Here, Landlords allege that Krohn filed his police report with just such a purpose. K&M cross-defendants’ actions assisting Krohn with this report were thus “preparatory to or in anticipation of the bringing of an . . . official proceeding’ ”—a police investigation—and protected by the litigation privilege. (Briggs, supra, 19 Cal.4th at p. 1115; see Hagberg, supra, at p. 368.) We also note that the privilege “protects any statements or writings that have ‘some relation’ to a lawsuit,” and that Krohn filed the police report in the context of a brewing legal dispute between the parties. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965 [applying litigation privilege to allegedly false police reports “made during the course of and directly related to judicial proceedings”].) For this reason as well, to the extent Caso’s emotional distress claim relies on K&M cross-defendants’ conduct related to the police report, Caso has failed to state a legally cognizable claim for relief.

In sum, the trial court erred in granting the special motion to strike as to the entire emotional distress claim against K&M cross-defendants (rather than only the protected conduct allegations supporting it), and conversion and Penal Code section 496 claims against the K&M cross-defendants. On remand the court should only strike the intentional interference with contract claim and protected conduct allegations supporting Caso’s emotional distress claim. (See Baral, supra, 1 Cal.5th at p. 396 [allegations of protected activity supporting legally insufficient claims should be “eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing”].)

II.

MOTION FOR ANTI-SLAPP MOTION FEES AND COSTS

A “prevailing defendant” on an anti-SLAPP motion is entitled to reasonable attorney fees associated with the motion, even if the defendant’s motion “was granted as to some causes of action but not others.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.) Such a defendant shall recover only those fees and costs incurred in connection with the successful portion of the anti SLAPP motion, however. (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82; Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 605–606.) Thus, upon remand, the trial court shall hold further proceedings it deems necessary to assess the reasonable amount of attorney fees Landlords must pay as a result of K&M cross-defendants’ now partially successful anti SLAPP motion. The arguments Landlords raise on appeal challenging the specific amount of fees and costs the trial court initially awarded are thus moot, and we do not address them.

 

DISPOSITION

The trial court’s order granting Barker and Krohn & Moss, Ltd.’s anti-SLAPP motion is reversed. On remand, the court shall enter a new order partially granting the motion as follows:

Barker and Krohn & Moss, Ltd.’s anti-SLAPP motion to strike the causes of action against them in the cross-complaint is granted in part. The following portions of the cross-complaint are hereby stricken:

• The claim for intentional interference with contract (specifically ¶¶ 80–88, and the heading preceding them that reads:

“SECOND CAUSE OF ACTION

INTENTIONAL INTERFERENCE WITH CONTRACTUAL OBLIGATIONS

(By Cross-Complainant Dr. Sarao against Cross-Defendants John Barker, Krohn and Moss, Ltd., and ROES 1–20)”)

• Paragraph 19;

• In paragraph 57, the language: “with the help of Cross Defendants Mr. Barker and Krohn & Moss”;

• In paragraph 58, the first four sentences and the following language in the fifth sentence: “Mr. Barker, and Krohn & Moss”;

• In paragraph 60, the third and fourth sentence;

• Paragraph 62;

• In paragraph 63, the following language: “Cross-Defendants withheld notice and demanded return within 21-days in order to now manufacture claims of ‘bad faith’ penalties”;

• In paragraph 66, the first sentence;

• Paragraph 116;

• Paragraph 117;

• In paragraph 118, the language: “providing late notification of Mr. Krohn’s vacating the Property, and forcing Cross Complainants to delay in obtaining contractors, bids, and invoices to repair the Property and return Mr. Krohn’s deposit.”

The court’s order awarding Barker and Krohn & Moss, Ltd.’s attorney fees is reversed. On remand, the trial court shall consider the amount of reasonable attorney fees to which Barker and Krohn & Moss, Ltd. are entitled under the anti-SLAPP statute in light of our disposition of the anti-SLAPP appeal and issue a revised order granting such relief.

Parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur.

CHANEY, J.

WEINGART, J.*