Case Name: Bill Tang, et al. v. Rita Lee, et al.
Case No.: 1-14-CV-274199

After full consideration of the arguments, authorities, and papers submitted by each party , the Court makes the following rulings:

Currently before the Court is the following motion: (1) defendants Rita Lee and Stanley Lee’s (collectively, the “Lees” or “Defendants”) special motion to strike the first amended complaint (“FAC”) of plaintiffs Bill Tang (“Tang”) and Hung Lu (“Lu”) (collectively, “Plaintiffs”).

The Lees’ requests for judicial notice are GRANTED. (See Evid. Code, § 452, subd. (d) [court may take judicial notice of records of state or federal court].)

A defendant may bring a special motion to strike a cause of action “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.” (Code Civ. Proc., § 425.16, subd.(b)(1).) “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. 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. 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.)

A. Causes of Action Arising Out of Protected Activity

First Cause of Action: With regard to the first cause of action for malicious prosecution, Defendants persuasively argue that all malicious prosecution actions arise out of protected activity. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [“[E]very Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute.”].)

In opposition, Plaintiffs contend that the malicious prosecution action is based on perjury and therefore does not constitute protected activity. They reason that Defendants’ committed perjury because they did not disclose in the unlawful detainer complaint that the parties had entered into an agreement extending the amount of time to vacate the premises until the end of September (the “Extension Agreement”). This argument lacks merit because Defendants do not concede that the failure to disclose the existence of the Extension Agreement was unlawful and the uncontroverted evidence does not conclusively show that this omission constituted perjury. (See Dwight R. v. Christ B. (2013) 212 Cal.App.4th 697, 711-712 [defendants may invoke anti-SLAPP statute unless defendant does not dispute activity was unlawful or uncontroverted evidence conclusively shows the activity was unlawful].)

While Plaintiffs contend that Defendants’ failure to disclose the existence of the Extension Agreement constituted a willfully false statement, silence may only constitute a statement if the circumstances of the proceeding suggest that the silence is to be taken for an answer. (See People v. Meza (1987) 188 Cal.App.3d 1631, 1647 [finding that silence effectively means “no” during collective voir dire of prospective jurors].) In the present context, the verification of the complaint and omission of allegedly material information does not constitute a “false statement” because the verification merely indicates that the information provided in the unlawful detainer complaint was true and does not state that the complaint contained all material information concerning the action. Accordingly, Plaintiffs’ claim that Defendants committed perjury does not render the filing of the complaint unlawful as a matter of law and outside the protection of Code of Civil Procedure section 425.16.

Second Cause of Action: With regard to the second cause of action for intentional infliction of emotional distress, Plaintiffs allege that Defendants’ liability stems, in part, from the filing of the unlawful detainer complaint. (See FAC, p. 6:22-24.) As filing a lawsuit is protected activity under section 425.16. (see Jarrow Formulas, Inc., supra, 31 Cal.4th at p. 735), Defendants establish that this cause of action arises from protected activity. (See Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1551 [mixed cause of action subject to section 425.16 unless protected conduct merely incidental to unprotected conduct].)

Third Cause of Action: With regard to the third cause of action for libel per se, the FAC alleges that Defendant falsely accused Plaintiffs of illegally remaining on the leased property in a complaint, which is a public record. (See FAC, p. 7:12-14.) As filing a lawsuit is protected activity under section 425.16 (see Jarrow Formulas, Inc., supra, 31 Cal.4th at p. 735), Defendants establish that this cause of action arises from protected activity.

Accordingly, Defendants establish that each of Plaintiffs’ claims arise from protected activity and the burden shifts to Plaintiffs to show a probability of prevailing on the merits. (See Oasis West Realty, LLC, supra, 51 Cal.4th at pp. 819-820.)

B. Probability of Prevailing on the Merits

First Cause of Action: With regard to the first cause of action for malicious prosecution, Defendants persuasively contend that Plaintiffs cannot demonstrate a probability of prevailing on the claim because Paris brought the action with probable cause and the Lees did not initiate the action for an improper purpose. Plaintiffs provide no evidence indicating that Defendants possessed a subjective intent to institute the unlawful detainer action for an improper purpose. (See Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407 [malice element of malicious prosecution tort goes to defendant’s subjective intent in initiating prior action].) Defendants explain that, after receiving a notice from the Housing Authority of Santa Clara indicating that it would not approve the Extension Agreement, they thought the Extension Agreement was void. (See Rita Decl., ¶¶ 12-13.) Even so, they only decided to reach out to an eviction service on September 12, 2014 after Tang failed to pay the September rent. (See Rita Decl., ¶ 13.) Thus, the evidence suggests that Defendants fully believed they would prevail on the unlawful detainer complaint. Accordingly, Plaintiffs fail to make a prima facie showing that the unlawful detainer complaint was initiated with malice.

Second Cause of Action: With regard to the second cause of action for intentional infliction of emotional distress, Defendants contend that the communications that form the basis of the claim are protected by the litigation privilege. (See Action Apartment Assn. v. City of Santa Monica (2007) 41 Cal.4th 1432, 1241 [privilege applies to communications made in judicial proceedings by litigants to achieve the objects of the litigation that have some connection or logical relation to the action].) Here, the conduct that forms the basis of this cause of action is: (1) the filing of a purportedly untenable complaint; (2) the Lees’ assertion that Defendants would return Plaintiffs’ rent check; and (3) the Lees’ threat to have the police remove Plaintiffs from the property.

While the filing of the unlawful detainer complaint clearly falls within the scope of the litigation privilege (see Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1486), the Lees make no attempt to demonstrate that their assertion concerning the return of the rent check or the threat to have the police remove Plaintiffs from the property falls within the scope of the litigation privilege. Accordingly, the litigation privilege does not prevent the maintenance of this cause of action against the Lees. Plaintiffs make a prima facie showing of facts in support of their second cause of action as to the Lees.

Third Cause of Action: With regard to the third cause of action for libel per se, Defendants persuasively contend that Plaintiffs cannot overcome the litigation privilege with respect to this claim. Here, the conduct that forms the basis of this cause of action is the Defendants’ filing of the unlawful detainer complaint, which falls squarely within the scope of the privilege. (See Feldman, supra, 160 Cal.App.4th at p. 1486.) While Plaintiffs argue that the litigation privilege does not apply because Defendants purportedly committed perjury, the litigation privilege is absolute and extends to civil actions based on perjury. (See Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956 [“The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.”].) Accordingly, as Plaintiffs cannot overcome the litigation privilege as to the third cause of action for libel, they cannot demonstrate a probability of prevailing on the merits.

C. Conclusion

In light of the foregoing, the Lees’ special motion to strike is GRANTED IN PART and DENIED IN PART. The Lees’ motion is GRANTED as to the first and third causes of action for malicious prosecution and libel per se. The Lees’ motion is DENIED as to the second cause of action for intentional infliction of emotional distress.

Any request for attorney fees by the Lees shall be made by separately noticed motion. As Plaintiffs did not prevail on this motion, any request for fees by the Plaintiffs associated with the motion is DENIED.

The Court will prepare the Order.