Case Number: BC663394 Hearing Date: November 28, 2018 Dept: S27

INTRODUCTION

Defendant and Cross-Complainant AF Properties 2015, LLC (“AF”) brings a Special Motion to Strike (CCP §425.16 “Anti-Slapp”) the 7th cause of action for constructive eviction in Plaintiff Marilee Bearden’s 2nd Amended Complaint.

ALLEGATIONS

Plaintiff Marilee Bearden entered into a commercial lease with Defendant AF Properties’ predecessor (Alvey & Associates) to rent the subject premises (630 Quay Avenue, Long Beach) for a ten year term in 2005. Plaintiff used the premises as an “Official Police garage” — a vehicle tow and impound yard pursuant to a contract between Plaintiff and the Los Angeles Police Department (“LAPD”).

The complaint has many allegations about contract breaches and broken promises during the lease’s first term which are not relevant to the 7th cause of action.

The original lease expired in February, 2016. Plaintiff’s contract with LAPD expired as well.

Plaintiff wanted to continue the tenancy and negotiated a new lease with a five year term, but informed AF she could not “physically sign the lease” until the new LAPD agreement was finalized. (The court interprets this allegation as meaning she would not sign the lease until the new LAPD agreement was in place – not that she had an impairment that prevented her from physically signing.) Despite her admission that the lease was not executed, she nevertheless alleges that there was a “completed deal.”

Plaintiff enquired whether Plaintiff could remain in a month-to-month tenancy until the LAPD agreement was in place, at which time she would sign the “lease amendment.” Defendant’s representative David Kracoff orally agreed to this arrangement.

Plaintiff “continued to expend significant resources” to obtain the LAPD contract in reliance on an agreement that another lease would be executed.

On February 15, 2017, Defendant served Plaintiff with a Notice to Terminate Tenancy. Defendant continued accepting rent checks from Plaintiff.

On May 2, 2017, Defendant served Plaintiff with a second 30 day Notice to Terminate. Defendant filed an Unlawful Detainer action but dismissed it upon being served with a demurrer.

On July 6, 2017, Defendant served Plaintiff with another Notice to Terminate. Plaintiff sent a check to Defendant for rent through August 2017 which was deposited.

Plaintiff sent rent checks for September 2017, November 2017, December 2017, and January 2018. Defendant did not deposit these checks and returned the checks for December 2017 and January 2018 on January 11, 2018.

Plaintiff’s alleges she was “forced” to vacate the premises on May 1, 2018 because Defendant’s conduct “rendered Tenant’s tenancy so uncertain as to cause harm to Tenant’s business.” The court disregards the allegation that this was constructive eviction “as a matter of law.” That is not a fact which must be deemed true – it is a contention or a conclusion of law.

Paragraph 47 identifies the conduct constituting constructive eviction as serving termination notices, holdover penalty notices, failing to perform promised work, retaining the September through November 2017 checks creating uncertainty as to whether they would be cashed, representing through counsel that holdover damages would be sought, filing a 2nd amended complaint and a cross-complaint, and sending letters stating Defendant had received another lease proposal and demanding relinquishment of the premises.

THE PROCEDURE FOR ANTI-SLAPP ANALYSIS

“Section 425.16 posits instead a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1 . . . .” (Navellier v. Sletten, (2002) 29 Cal. 4th 82, 88)

“In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must ‘“state[] and substantiate[] a legally sufficient claim.” ’ (Briggs v. Eden Council for Hope & Opportunity[, supra,] 19 Cal.4th 1106, 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., (2006) 136 Cal. App. 4th 464, 476

ARGUMENT

As an initial matter, Plaintiff contends the motion should be denied as untimely. CCP §425.16 requires the motion to be filed within 60 days of service of the complaint “or, in the court’s discretion, at any later time on terms it deems proper.” Plaintiff served the 2nd Amended Complaint by overnight mail on June 7, 2018. This motion was filed on August 9 which Plaintiff calculates as beyond the 60 day deadline.

The court exercises it discretion and will resolve the motion on the merits. The delay was minimal and Plaintiff failed to file a timely opposition to the original hearing and the parties stipulated to continue the hearing as well as trail and related cut-off dates. The motion will not be denied on the ground of untimeliness.

AF contends all of the grounds relied upon for constructive eviction implicate the protected activity in furtherance of the right to petition.

“If the termination notice is a legal prerequisite for bringing an unlawful detainer action, as it is in this case, service of such a notice does constitute activity in furtherance of the constitutionally protected right to petition.” (Birkner v. Lam, (2007) 156 Cal. App. 4th 275, 282 [Internal Citations Omitted])

Therefore any service of notices in connection with an Unlawful Detainer is protected activity.

Institution of an Unlawful Detainer action and service of the summons and complaint are inarguably protected activities. Demand for holdover rent also has a direct relationship to the litigation goals of defendant and qualifies as protected activity.

Plaintiff argues that there is no protected activity and cites the following authority in support:

“Although an unlawful detainer action itself is protected activity under section 425.16, terminating a lease is not. (Clark, supra, 170 Cal.App.4th at pp. 1286–1287; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 158 (Marlin).) A complaint arising out of or based on the dispute or conduct underlying the unlawful detainer action is not subject to a special motion to strike. “ ‘[T]he 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.’ ” (Marlin, supra, at p. 160.) When, as in this case, the challenged lawsuit follows service of a three-day notice to quit, “[t]he pivotal distinction” is “whether an actual or contemplated unlawful detainer action by a landlord (unquestionably a protected petitioning activity) merely ‘preceded’ or ‘triggered’ the tenant’s lawsuit, or whether it was instead the ‘basis’ or ‘cause’ of that suit.” (Clark, supra, at p. 1289.)” (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1245.)

Copenbarger is distinguishable from the allegations in the present case. For instance:

“Respondents did not meet their threshold burden of demonstrating the second cause of action, for breach of contract, arose out of protected activity. The second cause of action alleged Cerullo and Plaza del Sol breached the Sublease by failing to give a 60-day written notice to NHOM as required under the terms of the Ground Lease, which were incorporated into the Sublease. Although the second cause of action was triggered by Cerullo’s commencement of unlawful detainer proceedings that cause of action was based on Cerullo’s alleged breach of the Sublease, not on the notices themselves.

(Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1248.)

Plaintiff argues that the gravamen is not the unlawful detainer but the termination of the tenancy. The court disagrees. Defendant did not terminate the tenancy. Plaintiff resolved to move out due to continued uncertainty whether AF would execute the lease. It was Plaintiff who terminated the tenancy by moving out. The allegations are explicitly based on the service of notices and demands for rent which are protected activities. Were these the only allegations in support of the 7th cause of action the first prong would be completely satisfied.

But the issue of failure to perform repairs is a closer issue. AF presents evidence that as part of on-going negotiations and uncertainty whether Plaintiff would execute a lease there was an agreement to merely do a “patch job” on the asphalt rather than performing an “expensive overhaul.” (Kracoff decl. ¶11) As to upgrades of fencing and corrugated metal, Mr. Kracoff (the property manager at relevant times) avers the parties “agreed to work on those item together” and AF never refused to pay its share.

While this may be true, protected activity is not implicated. These arrangements are not connected to unlawful detainer proceedings.

The 7th cause of action would at first glance appear to be a mix of protected and unprotected activity.

But as Plaintiff points out, it is the gravamen that counts. The court concludes that repair issues are incidental to the 7th cause of action. Plaintiff does not allege that the conditions of the asphalt, fencing or corrugated metal were intolerable and would cause any reasonable tenant to move out. The complaint is clear that it was the uncertainty connected with notices, filings, dismissals, re-filings which were intolerable.

The court concludes that the 7th cause of action arose from protected activity of Defendant’s right to petition. The court finds that Plaintiff does not meet the shifted burden to demonstrate a prima facie case.

As noted above, the allegations about repairs is not by itself a basis for constructive eviction. The balance of the allegations are not only protected activity under CCP §425.16 but privileged under CC §47:

“A privileged publication or broadcast is one made:

. . .

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . .” The exceptions which follow do not apply to this case.

Like protected activity under CCP §425.16, the litigation privilege extends to pre-litigation communications reasonably related to the goals of litigation:

“In furtherance of the public policy purposes it is designed to serve, the privilege prescribed by section 47(2) has been given broad application. Although originally enacted with reference to defamation, the privilege is now held applicable to any communication, whether or not it amounts to a publication

(Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.

The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”

(Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212 [Internal Citations Omitted].)

Other than the repair issues, which the court finds to be incidental, all other alleged conduct was privileged and related to the goals of unlawful detainer litigation.

The motion to strike is granted as to the 7th cause of action for Constructive Eviction. Defendant is ordered to file a responsive pleading within 5 court days. Trial remains as scheduled.