Zarate v. McDaniel CA2/3 ( 2021 )

Filed 5/25/21 Zarate v. McDaniel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARIA ZARATE et al., B302531
Plaintiffs and Respondents, Los Angeles County
Super. Ct. No.
v. 19PSCV00306
ADAM MCDANIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Peter A. Hernandez, Judge. Affirmed.
Law Offices of Robert A. Brown and Robert A. Brown for
Defendant and Appellant.
Quadros & Cuellar, Micheli Quadros and Sarah Cuellar for
Plaintiffs and Respondents.
_______________________________________
INTRODUCTION
Defendant Adam McDaniel appeals from the trial court’s
order denying his special motion to strike the complaint filed by
plaintiffs Maria Zarate and Jose Lopez1 (Code Civ. Proc.,2 §
425.16; anti-SLAPP motion). McDaniel contends the court erred
in denying his motion because all of plaintiffs’ claims arose out of
his status as co-defendant Lauren Torres’s boyfriend and his
protected activity of threatening to evict plaintiffs from rental
property owned by Torres. As we explain, McDaniel failed to
show any of plaintiffs’ claims arose out of his alleged protected
activity. We therefore affirm the court’s order denying McDaniel’s
anti-SLAPP motion.
FACTS AND PROCEDURAL BACKGROUND
1. The Rental Property Dispute
Plaintiffs are married and have four children. They speak
only Spanish. Torres owns a home in Baldwin Park that she
leases out. McDaniel is Torres’s boyfriend.
In 2013, plaintiffs entered into an oral lease agreement to
rent from Torres the Baldwin Park home for $1,250 per month.
As part of the agreement, plaintiffs were provided three parking
spots and the right to use the home’s backyard. Plaintiffs gave
Torres and McDaniel a $1,200 security deposit.
In June 2016, plaintiffs and Torres executed a new lease
agreement. The agreement was presented to plaintiffs in English
1 We collectively refer to Zarate and Lopez as “plaintiffs.”
2All undesignated statutory references are to the Code of Civil
Procedure.
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only, and they never read or signed a Spanish-language version
of the agreement. Plaintiffs agreed to pay Torres $1,200 per
month in rent, along with another $1,200 security deposit to be
paid over six payments of $200. As part of the new lease
agreement, Torres and McDaniel agreed to provide plaintiffs a
shed for storage.
After plaintiffs signed the 2016 lease agreement, Torres
and McDaniel prohibited them from using one of the three
parking spots and the entire backyard, and Torres and McDaniel
failed to provide them a shed. Once plaintiffs made all of the
security deposit installment payments, Torres and McDaniel
demanded that they continue to pay $1,400 per month to rent the
home.
Immediately after plaintiffs moved into the home, they
discovered it was infested with cockroaches. Plaintiffs repeatedly
asked Torres to hire an exterminator to eliminate the
cockroaches, but Torres ignored their requests. Because of the
cockroaches, plaintiffs couldn’t store any dried food in their home
or use their kitchen cabinets, drawers, or refrigerator. Plaintiffs
also couldn’t use their bathroom’s cabinets because “holes in the
walls and cabinets allow for cockroaches to infest the bathroom
area.” Each morning, plaintiffs would shake cockroaches out of
the family’s clothes, and their children often woke up in the
middle of the night “to kill the cockroaches running on the walls
and on their bed.” Plaintiffs once had to take their youngest child
to the doctor because he had cockroach bites “all over his body.”
In April 2017, Torres served plaintiffs with a “notice of
change in terms of tenancy” that increased the price of their rent
to $1,400 per month. Torres and McDaniel claimed the increase
in rent was to account for plaintiffs’ use of a shed.
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Throughout plaintiffs’ tenancy, Torres and McDaniel
“repeatedly took steps to make [the family] uncomfortable.”
Torres and McDaniel would enter plaintiffs’ home without first
providing proper notice, and they allowed the premises to become
“uninhabitable.” Torres and McDaniel also threatened to evict
plaintiffs for failing to pay a $75 late fee that plaintiffs withheld
due to the poor condition of the home. McDaniel claimed he
would “proceed with an eviction” and refused to accept plaintiffs’
rent payments.
Torres and McDaniel eventually gave plaintiffs a 60-day
notice to move out in response to plaintiffs’ “repeated requests
and demands for the conditions at the premises to be remedied.”
Torres and McDaniel also filed three eviction lawsuits, the first
two of which they later dismissed.
2. The Lawsuit
Plaintiffs filed a complaint asserting 18 causes of action
against Torres and McDaniel. The first eight causes of action
asserted claims for breach of the lease agreement and various
statutory and common law violations arising out of the
uninhabitable conditions in which Torres and McDaniel
maintained the rental property. The 9th through 17th causes of
action asserted claims for unlawful eviction, retaliation, and
other violations arising out of Torres’s and McDaniel’s attempts
to evict plaintiffs from the rental property. The 18th cause of
action alleged Torres and McDaniel violated the covenant of good
faith and fair dealing by, among other things, misrepresenting
how much plaintiffs were required to pay in rent each month,
failing to provide plaintiffs three parking spots, and maintaining
the property in an inhabitable manner. Plaintiffs alleged that
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McDaniel was the “agent, employee, employer, partner, manager,
or controlling entity of [Torres].”
McDaniel filed an anti-SLAPP motion seeking to strike the
claims asserted against him in plaintiffs’ complaint. McDaniel’s
supporting memorandum of points and authorities spans little
more than three pages. McDaniel asserted plaintiffs’ claims arose
out of his status as Torres’s boyfriend and his threats to
prosecute an unlawful detainer action, both of which McDaniel
claimed were protected activities under section 425.16.
Although McDaniel acknowledged in his motion that
plaintiffs’ complaint asserts 18 causes of action, he did not
individually address any of the claims. He also didn’t discuss the
factual allegations forming the basis for, or identify the elements
comprising any of, plaintiffs’ claims. McDaniel’s argument that
plaintiffs’ claims arose out of his protected status as Torres’s
boyfriend consists of a single sentence: “A defendant cannot be
sued based on his status as another defendant’s boyfriend, as
‘freedom of association’ is constitutionally protected.” McDaniel
made no effort to explain which of plaintiffs’ 18 causes of action
implicate his right to freedom of association. Likewise, McDaniel
didn’t explain which of plaintiffs’ claims arose out of his threats
to file an unlawful detainer action. Nor did McDaniel explain how
his alleged protected activities established the elements of any of
plaintiffs’ claims.
Plaintiffs opposed McDaniel’s anti-SLAPP motion. In their
opposition, plaintiffs argued, among other things, that
McDaniel’s motion was frivolous because it “lack[s] any reasoning
as to how Defendant McDaniel’s conduct amounts to an act in
furtherance of his constitutional right to freedom of speech or
right to petition.” McDaniel didn’t file a reply.
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The court denied McDaniel’s motion.3 The court explained
that McDaniel did not “demonstrate[] that [plaintiffs’] action falls
within the same class of suits subject to the special motion to
strike.” According to the court, McDaniel failed to explain how his
alleged protected activities formed the basis for any of plaintiffs’
claims and failed to address how any of the claims arose out of
protected activity even though plaintiffs alleged McDaniel
engaged in other, non-protected activity.
McDaniel appeals.
DISCUSSION
McDaniel contends the court erred in denying his anti-
SLAPP motion because all of plaintiffs’ claims arose out of
activity that is protected under the anti-SLAPP statute. As we
explain, McDaniel failed to show any of plaintiffs’ claims arose
out of protected activity. Accordingly, the court properly denied
his motion.
Under section 425.16, a defendant may move to strike
claims “ ‘arising from any act … in furtherance of the
[defendant’s] right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a
defendant’s protected speech; rather, it provides a mechanism
“for weeding out, at an early stage, meritless claims arising from”
protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384
(Baral).)
3The record on appeal does not include a reporter’s transcript from the
hearing on McDaniel’s anti-SLAPP motion.
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Courts apply a two-prong test to evaluate an anti-SLAPP
motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the defendant
must establish that the challenged claim arises from activity
protected by section 425.16.” (Ibid.) To determine whether the
plaintiff’s causes of action arise from the defendant’s protected
activity, we look at the “pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2); see also Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant
fails to satisfy the first prong, the court should deny the anti-
SLAPP motion without reaching the second prong. (Symmonds v.
Mahoney (2019) 31 Cal.App.5th 1096, 1103 (Symmonds).)
If the defendant meets his burden under the first prong,
the plaintiff then must “demonstrate the merit of the claim by
establishing a probability of success.” (Baral, supra, 1 Cal.5th at
p. 384.) “The court does not weigh evidence or resolve conflicting
factual claims. Its inquiry is limited to whether the plaintiff has
stated a legally sufficient claim and made a prima facie factual
showing sufficient to sustain a favorable judgment. [The court]
accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law.” (Id. at pp. 384–385.)
We independently review an order granting a special
motion to strike under section 425.16. (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal.App.4th 659, 672.)
McDaniel failed to meet his burden to show any of
plaintiffs’ claims arose out protected activity. As we noted above,
at the first step of the analysis under the anti-SLAPP statute, the
moving defendant carries the burden to establish the plaintiffs’
claims arose out of activity protected. (Baral, supra, 1 Cal.5th at
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p. 384.) To meet that burden, the defendant must identify all
allegations of protected activity in the plaintiff’s complaint and
the claims for relief supported by those allegations. (Id. at p. 396.)
The defendant also must identify “the elements of the challenged
claim[s] and what actions by the defendant supply those elements
and consequently form the basis for liability.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1063 (Park).)
In his special motion to strike, McDaniel asserted that
plaintiffs’ claims arose out of his status as Torres’s boyfriend and
his threats to evict plaintiffs from their home. McDaniel failed,
however, to discuss any of the specific allegations in plaintiffs’
complaint, to identify or otherwise address any of plaintiffs’ 18
causes of action, or to explain how any of those claims arose out
of McDaniel’s alleged protected conduct. (See Baral, supra, 1
Cal.5th at p. 396.) McDaniel also failed to identify the elements
for plaintiffs’ 18 causes of action and explain how his alleged
protected conduct established those elements. (Park, supra, 2
Cal.5th at p. 1063.) And, as the court noted, McDaniel didn’t
address the fact that many of plaintiffs’ claims are based, at least
in part, on allegations concerning conduct that is not protected
under the anti-SLAPP statute. (See Baral, at p. 396 [where
complaint includes allegations arising out of protected and
unprotected activity, defendant must show the challenged causes
of action arise out of the protected activity].)
In short, McDaniel filed only a perfunctory anti-SLAPP
motion. By doing so, he failed to meet his burden under the first
prong of the anti-SLAPP statute. The court, therefore, properly
denied his motion. (Symmonds, supra, 31 Cal.App.5th at p. 1103.)
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To be sure, on appeal McDaniel tries to pump some life into
the issues he failed to develop in the trial court. For example, he
identifies, for the first time, each of the 18 causes of action
asserted in plaintiffs’ complaint and briefly discusses some of the
factual allegations that he believes arose out of his protected
activities—i.e., his status as Torres’s boyfriend and his threats to
evict plaintiffs. He also claims that plaintiffs conceded in the trial
court that the gravamen of their claims included his threats to
evict them from their home. These contentions, however, are too
perfunctory and inadequately developed on appeal to merit
consideration. (Placer County Local Agency Formation Com. v.
Nevada County Local Agency Formation Com. (2006) 135
Cal.App.4th 793, 814 [“We need not address points in appellate
briefs that are unsupported by adequate factual or legal
analysis.”].)
We also disagree that, as a general matter, the fact that
plaintiffs’ complaint is based, at least in part, on McDaniel’s
threats of eviction or was filed after Torres and McDaniel filed an
unlawful detainer action means that all of plaintiffs’ claims
target McDaniel’s protected activity. Numerous anti-SLAPP
cases have discussed a landlord’s unlawful detainer action that is
followed by a tenant’s lawsuit. (See, e.g., Birkner v. Lam (2007)
156 Cal.App.4th 275, 281–282 [lawsuit directed solely at the
filing of an unlawful detainer action targets protected activity].)
Where the complaint is predicated upon conduct distinct from the
prosecution of an unlawful detainer action—even though the
complaint is prompted by the unlawful detainer action or arises
from it—the tenant’s action is not targeted at protected activity
and thus does not meet the first prong of the anti-SLAPP
analysis. (See Marlin v. Aimco Venezia, LLC (2007) 154
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Cal.App.4th 154, 161 [In general, “[t]erminating 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.”].) And, as we have said, McDaniel does not differentiate
the claims predicated upon protected activity from those that do
not target protected activity. Put differently, simply concluding
that all of plaintiffs’ claims arose out of protected activity does
not satisfy McDaniel’s burden on appeal. (See City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt”].)
In any event, it is well-established that “ ‘issues not raised
in the trial court cannot be raised for the first time on appeal.’ ”
(Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34
Cal.3d 412, 417.) Likewise, “ ‘[a] party is not permitted to change
his [or her] position and adopt a new and different theory on
appeal.’ ” (In re Marriage of Broderick (1989) 209 Cal.App.3d 489,
501.) To allow a party to raise new arguments or theories on
appeal “ ‘would not only be unfair to the trial court, but
manifestly unjust to the opposing litigant.’ ” (Cable Connection,
Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12.)
These principles apply in appeals challenging orders granting or
denying anti-SLAPP motions. (See, e.g., Roger Cleveland Golf
Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, 684,
fn. 11, disapproved of on another grounds by Lee v. Hanley (2015)
61 Cal.4th 1225, 1239; Hunter v. CBS Broadcasting, Inc. (2013)
221 Cal.App.4th 1510, 1526.) Because McDaniel made no effort to
develop in the trial court any of the arguments he raises in his
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opening brief, we decline to address those arguments any further
on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603
[“ ‘[N]o reason appears why we should not apply the established
rule[] that … issues not raised in the trial court cannot be raised
for the first time on appeal.’ ”].)
DISPOSITION
The order denying McDaniel’s anti-SLAPP motion is
affirmed. Plaintiffs shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
KALRA, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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