Case Number: EC063250 Hearing Date: February 13, 2015 Dept: NCD
MOTION TO STRIKE
(SLAPP SUIT)
(CCP §425.16)
TENTATIVE RULING
#5
EC 063250
PERRY v. XENON INVESTMENT CORPORATION

Defendant’s Special Motion to Strike Complaint Pursuant to CCP § 425.16

TENTATIVE:
Defendant’s Special Motion to Strike is GRANTED. Defendants have established that the eighth cause of action for retaliatory eviction arises out of protected activity, that is, conduct pursued act in furtherance of defendants’ right of petition. This shifts the burden to plaintiffs to establish a probability that plaintiffs will prevail on the claims. Plaintiffs have conceded that they entered into an agreement pursuant to which they forfeited the rights sought to be enforced in the cause of action, so they will be unable to establish a probability of prevailing.

MP: Defendants Xenon Investment Corporation, LS2 Properties, LLC, Westside Habitats, LLC, Rohta Mehta and Loren Medina
RP: Plaintiffs Andre Perry and Tiffany Perry .

RELIEF REQUESTED:
Order striking plaintiffs’ eighth cause of action for “Retaliatory Eviction”

CAUSES OF ACTION: from Complaint
1) Breach of Contract
2) Breach of Covenant of Good Faith and Fair Dealing
3) Violation of Business & Professions Code § 17200
4) Negligence
5) Negligent Retention and Supervision
6) Negligent Misrepresentation
7) Conversion
8) Retaliatory Eviction

SUMMARY OF FACTS:
Plaintiffs Andre Perry and Tiffany Perry bring this action against their former residential landlords, defendants Xenon Investment Corporation and LS2 Properties, and the parties who managed the property, defendant Westside Habitats, Rohit Mehta and Loren Medina, alleging that during plaintiffs’ tenancy, plaintiffs requested repairs to their unit, complaining of an expired elevator permit, improperly installed smoke detectors, inoperable magnetic fire doors in the building, a damaged trash chute which caused unsavory odors and insect infestation, and plumbing issues which caused plaintiffs to go for three days without hot water. Plaintiffs also allege that plaintiffs, along with other tenants of the property, signed a petition requesting that defendants evict one of their tenants who possessed a dog with dangerous and violent propensities.

The complaint alleges that on July 15, 2014, Medina served plaintiffs with a 60 day notice to terminate, which plaintiffs believe was served by defendants in retaliation for plaintiffs’ complaints and involvement in the petition. Plaintiffs further allege that on August 16, 2014, plaintiffs discovered that their on-site storage unit had been broken into, and their personal belongings removed, which they believed was an additional retaliatory act by defendants. Plaintiffs contacted the police department and filed a police report. Defendant Mehta admitted to plaintiffs that Mehta was responsible for the incident with the storage unit, and that plaintiffs’ personal belongings had been discarded by defendant Medina, without the authorization of plaintiffs. Plaintiffs shared the information with the police department, which conducted a criminal investigation for the crime of grand larceny.

The complaint alleges that on September 16, 2015, Xenon filed an unlawful detainer action against plaintiffs to recover possession of the rental unit, and that the action was filed in retaliation for plaintiffs’ involvement in the petition to evict another tenant with the dangerous dog, the many complaints they had regarding the unsafe and unsanitary conditions of the property, and the criminal investigation which occurred as the result of plaintiff’s stolen property.

ANALYSIS:
CCP sec. 425.16 provides:
“(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) 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 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

The cause of action asserted here is for retaliatory eviction, based on defendants’ conduct in serving a 60 day notice and an unlawful detainer action. [Paras. 72-74].

In Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, it was held:
“The unlawful detainer action clearly falls within the scope of free speech or petitioning activity protected by the anti-SLAPP statute. “The [*1183] prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 [67 Cal. Rptr. 3d 190] (Birkner).) Furthermore, a notice of eviction or termination of a tenancy is protected activity where, as here, it is a legal prerequisite for bringing the unlawful detainer action. (Id. at pp. 281– 282; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479–1481 [74 Cal. Rptr. 3d 1] (Feldman) [service of a three-day notice to quit, filing of an unlawful detainer action, and threats by the landlord’s agent in connection with the dispute constituted protected activity under § 425.16, subd. (e)].)”
Wallace, at 1182-1183.

Wallace addressed a retaliatory eviction cause of action based on violation of a rent control ordinance, and found that such a cause of action arises from protected activity despite an argument that some of the conduct alleged did not constitute protected conduct, holding broadly:
“Wallace and Owen’s arguments to the contrary are unpersuasive. They contend that the wrongful eviction cause of action does not arise from the three-day notice and unlawful detainer litigation, because those acts are merely incidental to their claim. For purposes of anti-SLAPP analysis, however, an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability. (Haight Ashbury, supra, 184 Cal.App.4th at p. 1550; see Episcopal Church Cases (2009) 45 Cal.4th 467, 477–478 [87 Cal. Rptr. 3d 275, 198 P.3d 66] [allegation that “lurk[s] in the background” to explain why a rift between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1628 [90 Cal. Rptr. 3d 669] [allegations about a law firm’s protected communications for purposes of showing the firm had a conflict of interest]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414–417 [9 Cal. Rptr. 3d 242] [defendant’s advertising activity was merely incidental to plaintiff’s causes of action for personal injury, where liability for those claims was based not on the advertising but on the product’s failure to conform to defendant’s warranties and statements].) It makes no sense for Wallace and Owen to argue that their cause of action for defendants’ attempt to evict them wrongfully is not based on defendants’ alleged attempt to evict them.”
Wallace, at 1187.

Likewise, it is apparent that the retaliatory eviction cause of action alleged here is based on defendants’ alleged attempts to evict plaintiffs. Thus, the Court finds that the cause of action for retaliatory eviction arises from protected activity, satisfying the first prong of the analysis.

This shifts the burden to plaintiffs to establish a reasonable probability of prevailing on their claim.

In making its determination as to the probability of the plaintiff prevailing on its claim, the court does not weigh the evidence, or determine questions of credibility. It merely determines whether plaintiff has established by admissible evidence, a prima facie case, that if believed by the trier or fact, would result in judgment for the plaintiff. Mattel, Inc. v. Lude, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Nagel v. Twin Laboratories (2003) 109 Cal.App.4th 39.

The retaliatory eviction cause of action is apparently based on Civil Code § 1942.5, which provides, in pertinent part:
“(a) If the lessor retaliates against the lessee because of the exercise by the lessee of his rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:
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(f) Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following:

(1) The actual damages sustained by the lessee.

(2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.

(g) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney’s fees to the prevailing party if either party requests attorney’s fees upon the initiation of the action.

(h) The remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law.”

The opposition first makes a weak factual showing to the extent that at the time the 60 day notice was served, plaintiffs cannot establish that they were not in default on the payment of their rent, as they had failed to pay the rent increase being charged by the landlord. [See Perry Decl., paras. 2-6].

Plaintiff then cite to Civil Code § 1942.5(c), which provides:
“(c) It is unlawful for a lessor to increase rent, decrease services, 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. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.”

The theory concerning the petition about the dangerous dog appears to fall within this prohibition.

The fundamental problem with the showing, however, is the concession by plaintiffs in the opposition that they cannot now establish this cause of action because, as argued in the moving papers, it is in fact barred by the fact that plaintiffs in the underlying unlawful detainer action, entered into an Unlawful Detainer Stipulation and Judgment, in which they expressly agreed, “Defendant(s) rights under the lease or rental agreement are forfeited.” [See RFJN, Ex. B].

Plaintiffs argue that the cause of action was not barred at the time they filed their complaint on November 6, 2014, as the stipulation was not entered until November 20, 2014. The argument then seems to be that since the cause of action was not barred at the time the pleading was filed, attorneys’ fees and costs in connection with this motion should not be imposed against plaintiffs.

In sum, the motion is accordingly granted, as plaintiffs have not established a probability of prevailing on this claim, as it is now barred by the stipulated judgment.

The motion seeks attorneys’ fees and cost for prevailing on the motion.

CCP § 425.16 provides mandatory sanctions to a prevailing defendant:
“(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.

Where a defendant brings a successful motion to strike under section 425.16, these fees are considered mandatory. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.

The party seeking fees bears the burden of establishing entitlement to an award and of documenting the appropriate hours spent and hourly rates, and the court may require that party to produce records sufficient to provide a proper basis for that determination. Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.

The trial court’s determination of the amount of a fee award will be upheld on appeal if supported by substantial evidence. Macia v. Hartwell (1997) 55 Cal.App.4th 669, 676.

Here, the moving papers do not specify what costs or fees have been incurred, so no substantial evidence supports an award. No costs or fees shall be awarded.