Case Number: KC069743 Hearing Date: February 26, 2018 Dept: J

Re: Kenneth Bishop, et al. v. Lawrence Rhodes, et al. (KC069743)

MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

Moving Party: Defendant Michael Tusken, individually and as Trustee of The Rhodes Trust

Respondent: No timely opposition filed (due 2/9/18); Untimely opposition by plaintiff filed on 2/15/18 not considered.

POS: Moving OK

Plaintiffs allege that they have lived at the property located at 418 Notre Dame Road in Claremont (“subject property”) since 7/1/93, when they entered into a one-year lease of same from Defendant Lawrence Rhodes (“Larry”). Upon the expiration of the one-year lease agreement, no new contract was entered into, and the lease converted into a month-to-month tenancy. Plaintiffs last had written contact with Larry on or around 11/13/05. On or around 11/5/10, a woman named Angela Brockus (“Brockus”) contacted plaintiffs in writing and said she was Larry’s granddaughter. Brockus advised plaintiffs to send all future rental payments to a P.O. Box in Susanville, California. Plaintiffs contend that they attempted to make a payment to this P.O. Box in or around 1/11, but the letter containing this payment was returned to them as undeliverable. Plaintiffs last paid rent on the subject property in 8/10, have made all maintenance and repair costs since around that time and have paid all property taxes since 2011. On 8/4/17, a quitclaim deed was recorded from “Richard Rhodes, Successor Trustee of the Rev. Dr. Larry Rhodes Trust” to “Richard Rhodes, Trustee of the Rev. Dr. Larry Rhodes Trust.” On 8/8/17, a grant deed from “Richard Rhodes, Successor Trustee of the Rev. Dr. Larry Rhodes Trust” to “Michael L. Tusken Trustee of Rhodes Trust” was recorded. Plaintiffs further allege that in or around 6/29/17, Defendant Hector Perez (“Perez”) left a note for plaintiffs at the subject property and asserted an ownership interest therein. Perez has since advised plaintiffs that the property was “bought by a relative of the Trust.” On or about 9/28/17, unlawful detainer proceedings were initiated against them. Plaintiffs now seek to quiet title to the subject property. The complaint, filed 10/26/17, asserts causes of action against Defendants Larry, Richard Rhodes, individually and as trustee of the Rev. Dr. Larry Rhodes Trust, Michael Tusken, individually and as trustee of The Rhodes Trust, Brockus, Perez, Does 1-20 and Roe Trusts 1-5 for:

1. Quiet Title

2. Adverse Possession

3. Slander of Title

4. Fraud

5. Negligent Misrepresentation

6. Accounting

7. Unjust Enrichment

8. Constructive Trust

On 11/30/17, the court declined to relate this case to Case No. 17WCUD00111, case styled Tuskin v. Bishop. A Case Management Conference is set for 3/22/18.

Defendant Michael Tuskin, individually and as Trustee of The Rhodes Trust (“defendant”) moves per CCP § 425.16, for an order striking out the first, third and seventh causes of action (i.e., for Quiet Title, Slander of Title and Unjust Enrichment, respectively) in Plaintiffs’ Kenneth Bishop’s and Merryann Bishop’s (“plaintiffs”) complaint, on the basis that each of these causes of action arise from defendant’s protected conduct of filing and maintaining an unlawful detainer action against plaintiffs and it is not probable that plaintiffs will prevail on their claims against him.

REQUEST FOR JUDICIAL NOTICE:

Defendant’s request for judicial notice is ruled on as follows: GRANT as to Exhibit “1” (i.e., grant deed recorded 8/8/17); GRANT as to Exhibit “2” (i.e., Unlawful Detainer Complaint filed 9/28/17 in Case No. 17WCUD00111); GRANT as to Exhibit “3” (i.e., case summary for Case No. 17WCUD00111) and GRANT as to Exhibit “4” (i.e., that plaintiffs named defendant in both his individual capacity and as Trustee of the Rhodes Trust).

“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.” CCP § 425.16(b)(1). Notably, “[t]he express language of section 425.16, subdivision (b)(1) allows a single cause of action to be stricken. The fact that other claims remain does not bar a trial judge from granting a section 425.16 special motion to strike.” Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.

“A SLAPP is 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.’ (§ 425.16, subd. (b)(1).).” Nygard, supra, 159 Cal.App.4th at 1035. The “evaluation of an anti-SLAPP motion requires a two-step process in the trial court.” Id. “Once the party moving to strike a complaint pursuant to subdivision (b) of section 425.16 has made a prima facie showing that the lawsuit arises from an act by the defendant in furtherance of his right of petition or free speech under the United States or California Constitution in connection with a public issue, the plaintiff must establish a ‘probability’ that he will prevail on the merits of the complaint. (§ 425.16, subd. (b).).” Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.

“In analyzing defendant’s burden under the first prong of the section 425.16 analysis, ‘the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ (Navellier [v. Sletten (2002)] 29 Cal.4th [82,] at p. 89). ‘The anti-SLAPP statute’s definitional focus is not on the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ (Id. at p. 92). Defendant does not have to ‘establish [his] actions are constitutionally protected under the First Amendment as a matter of law.’ (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. [(2002)] 29 Cal.4th [53,] at p. 68, fn. 5). The statute requires a defendant to make only a prima facie showing that plaintiffs’ causes of action arise from an act in furtherance of defendant’s constitutional rights of petition or free speech in connection with a public issue. (Wilcox v. Superior Court, supra, at p. 820).” Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.

Defendant has not met his burden with respect to the first, third and seventh causes of action, as they do not “arise out of” defendant’s protected activity.

Admittedly, “[f]iling an unlawful detainer complaint is protected activity under the anti-SLAPP statute, as is service of a notice of termination preceding an unlawful detainer complaint. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282). A cause of action arising from such filing or service is a cause of action arising from protected activity.” Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275. “’But the mere fact an action was filed after protected activity took place does not mean it arose from that activity.’ (City of Cotati v. Cashman [(2002)] 29 Cal.4th [69,] at pp. 76-77). ‘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. [Citations.]’ (Navellier v. Sletten [(2002)] 29 Cal.4th [82,] at p. 89).” Id. Here, the question is whether the first, third and seventh causes of action in plaintiffs’ complaint arise from defendant’s filing of an unlawful detainer action against them. They do not.

In Ulkarim, supra, 227 Cal.App.4th at 1275-1276, the Second District, Division Three Court of Appeal noted that “[t]he fact that such service [of a notice of termination] and filing [of the unlawful detainer lawsuit] preceded the filing of plaintiff’s operative complaint, or even triggered the filing of plaintiff’s complaint, does not compel the conclusion that her complaint is based on [landlord’s] service of the notice of termination or filing of the unlawful detainer complaint. Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Citations omitted).

In Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, after the landlords had served notice under the Ellis Act that they intended to withdraw certain rental units from the market, the tenants of some of those units brought a declaratory relief action to clarify their rights under that statute. The landlords filed an anti-SLAPP motion, arguing that the tenants’ complaint arose from the landlords’ action in filing and serving the Ellis Act notices, and from other litigation involving the removal of the rental property from the market. The trial court granted the anti-SLAPP motion, but was reversed by the Second District, Division 7 Court of Appeal. The court wrote: “Even if we assume filing and serving the Ellis Act notice and the notice to vacate constituted protected petitioning or free speech activity ‘the 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.’ Rather, the critical question in a SLAPP motion ‘is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ Defendants have fallen victim to the logical fallacy post hoc ergo propter hoc—because the notices preceded plaintiffs’ complaint the notices must have caused plaintiffs’ complaint. The filing and service of the notices may have triggered plaintiffs’ complaint and the notices may be evidence in support of plaintiffs’ complaint, but they were not the cause of plaintiffs’ complaint. Clearly, the cause of plaintiffs’ complaint was defendants’ allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs’ tenancy. Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” Id. at 161.

Here, plaintiffs allege an ownership interest in the subject property on the basis that they have lived there since 7/1/93 (but last paid rent in 8/10), that no new contract was entered into with Larry Rhodes (“Rhodes”) upon the expiration of their one-year lease, that they last had written contact with Rhodes on or around 11/13/05 and last saw him on or around 3/14/06, that they “claimed ownership of the Subject Property” in or about 9/10, that they have made all maintenance and repair costs since approximately 8/10 and that they have paid all property taxes since 2011. (Id., ¶¶ 10-14 and 22-25). Plaintiffs contend that defendant has caused to have executed and filed two fraudulent instruments claiming ownership of the subject property, in addition to having instituted unlawful detainer proceedings against them. (Id., ¶ 33 & 34).

Plaintiffs, in their first, third and seventh causes of action, seek a determination and declaration that they have a 100% ownership interest in the subject property in fee simple through adverse possession and that none of the defendants have any legal or equitable interest therein. (Id., ¶¶ 59, 77 and 113). They are not based on defendants’ institution of the unlawful detainer proceedings.

Accordingly, defendant’s motion is denied.