Pickart v. Ben-Shahar CA2/2 ( 2013 )

Filed 12/5/13 Pickart v. Ben-Shahar CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
STEPHANIE PICKART, B246826
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC117538)
v.
ABI BEN-SHAHAR,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County. Norman P.
Tarle, Judge. Reversed and remanded with directions.
Rosario Perry and Rosario Perry for Plaintiff and Appellant.
Miller Barondess, Erik S. Syverson and Steven T. Gebelin for Defendant and
Respondent.
******
Plaintiff and appellant Stephanie Pickart filed a complaint against defendant and
respondent Adi Ben-Shahar (Shahar), alleging causes of action for intentional and
negligent infliction of emotional distress stemming from his alleged failure to vacate a
rental property in accordance with a local ordinance. The trial court granted Shahar’s
special motion to strike the complaint pursuant to Code of Civil Procedure
section 425.16, the anti-SLAPP statute.1 It ruled the complaint involved protected
activity because Shahar’s conduct in failing to vacate the property was related to a
pending unlawful detainer action, and appellant failed to establish a probability of
prevailing.
We reverse. Guided by Clark v. Mazgani (2009) 170 Cal. App. 4th 1281, 1284
(Clark), “[w]e conclude [appellant’s] claims did not arise from a protected activity—they
are based on [Shahar’s] violation of rent control laws, not on actions in furtherance of the
right of free speech or petition.”
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and her husband Daniel Pickart (Pickart) purchased a unit located at
202 Bicknell Avenue in Santa Monica (Property) with the intent to relocate and reside
there. Since 1989, Shahar had been a tenant at the Property. During his tenancy, he
made improvements to the Property he valued at $225,000 and had an arrangement with
the prior owner of the Property that he would be compensated for those improvements
before leaving the Property.
The Property was subject to the Santa Monica Rent Control Charter Amendment
(SMRCCA). According to section 1806(a)(8) of the SMRCCA, a housing provider may
terminate a tenancy and obtain possession of the premises when he or she seeks to
recover possession in good faith for his or her own use and occupancy or that of his or
her children. On March 16, 2012, Pickart served Shahar with a 60-day notice to quit,
indicating that he and appellant intended to occupy the Property in accordance with
1 SLAPP is an acronym for strategic lawsuits against public participation. (City of
Alhambra v. D’Ausilio (2011) 193 Cal. App. 4th 1301, 1303, fn. 1.) Unless otherwise
indicated, all further statutory references are to the Code of Civil Procedure.
2
SMRCCA section 1806(a)(8). According to Pickart, approximately one week later,
Shahar requested payment of $210,000 in order to vacate the premises.
When Shahar ultimately refused to vacate at the end of the 60-day period,
appellant and Pickart found temporary housing and, on May 22, 2012, Pickart filed an
unlawful detainer action against Shahar, alleging that he had failed to comply with the
60-day notice to quit. Shahar answered, denying the key allegations of the complaint. As
an affirmative defense, Shahar conceded the Property was subject to the SMRCCA and
alleged that Pickart had not acted in good faith because he was “not a bona fide 50%
owner of the subject property,” as he and his partners routinely bought properties for the
purpose of refurbishing and reselling them. According to Shahar, his request for payment
of over $200,000 occurred in an effort to resolve the unlawful detainer action.
On June 25, 2012, appellant filed a complaint against Shahar alleging causes of
action for intentional and negligent infliction of emotional distress. She alleged that on
March 12, 2012, she had served a 60-day notice to quit pursuant to SMRCCA
section 1806(a)(8), requesting that Shahar vacate the premises. She further alleged that
Shahar was aware of her family’s plans to occupy the Property and knew of the actions
they had undertaken to facilitate their occupancy. She alleged she had suffered and
would continue to suffer emotional distress as a result of Shahar’s failure to vacate the
Property and was forced to seek temporary housing because Shahar did not comply with
the 60-day notice. She further alleged that Shahar attempted to extort $210,000 from her
by refusing to vacate unless he was paid such a sum.
Shahar filed a special motion to strike the complaint pursuant to section 425.16,
asserting that appellant’s claims arose out of acts in furtherance of his right to petition in
a matter under consideration by a judicial body and that she could not demonstrate a
probability of prevailing. As evidence in support of the motion, he offered his own
declaration and pleadings in the unlawful detainer action.
Appellant opposed the motion, arguing her claims did not arise from protected
activity and were unrelated to any defenses Shahar asserted in the unlawful detainer
action. She further argued that even if her lawsuit arose out of protected activity, she
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could establish a probability of prevailing. She submitted her own declaration and
Pickart’s declaration.
While the motion was pending, the trial court in the unlawful detainer action ruled
in favor of Pickart, finding no merit to Shahar’s defenses. The court found, however, that
Shahar did not act maliciously.2
At the conclusion of an initial hearing on the motion, the trial court permitted
supplemental briefing on a sentence in the trial court’s tentative ruling granting the
motion, which provided “defendant’s failure to leave the apartment was conduct related
to the impending [unlawful detainer] litigation.” Following a subsequent hearing, the
trial court adopted its initial tentative ruling as its order. The trial court ruled that
Shahar’s failure to vacate the Property within 60 days after the notice to quit and his
attempt to “extort” $210,000 from appellant constituted pre-litigation activity protected
by section 425.16. Finding Shahar met his burden to show appellant’s complaint
involved protected activity, the trial court further ruled appellant failed to meet her
burden to show a probability of success on the merits. It ruled she failed to show Shahar
engaged in extreme and outrageous conduct required for her cause of action for
intentional infliction of emotional distress, and she failed to show a breach of duty
sufficient to support her claim for negligent infliction of emotional distress.
This appeal followed.
DISCUSSION
Appellant contends the trial court erred in concluding her claims arose from
protected activity under section 425.16 and alternatively maintains she met her burden to
show a probability of prevailing. Because we agree with her first contention, we need not
address the second. (See Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102
2 The only evidence in the record of the ruling in the unlawful detainer action is a
recitation in the trial court’s ruling granting the motion to strike. It appears the parties
submitted additional evidence via requests for judicial notice that are not included in the
record.
4
Cal. App. 4th 1388, 1396 [“the plaintiff, however, has no obligation to demonstrate such
probability of success if the defendant fails to meet the threshold burden”].)
I. The Anti-SLAPP Statute and the Standard of Review.
The anti-SLAPP statute is designed to curb “‘lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.’ (§ 425.16, subd. (a); see Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal. 4th 728, 738–739.)” (City of Alhambra v. D’Ausilio, supra, 193
Cal.App.4th at p. 1305.) In relevant part, the statute provides: “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.” (§ 425.16, subd. (b)(1).) The statute defines an act
“‘in furtherance of’” the right of petition or free speech to include “any written or oral
statement or writing made before a . . . judicial proceeding”; “any written or oral
statement or writing made in connection with an issue under consideration or review by a
. . . judicial body”; “any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest”; or “any other
conduct in furtherance of the exercise of the constitutional right of petition . . . of free
speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e)(1)-(4).)
There are two components to a motion to strike brought under section 425.16.
First, the moving defendant bears the burden of establishing the claim arises from the
exercise of the constitutional right to free speech. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal. 4th 53, 68.) Second, if the defendant satisfies that burden, the
plaintiff bears the burden of showing there is a reasonable probability of prevailing on the
merits of the claims. (§ 425.16, subd. (b)(1); Zamos v. Stroud (2004) 32 Cal. 4th 958,
965; City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76.)
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“We independently review the record to determine whether the asserted causes of
action arise from the defendant’s free speech or petitioning activity, and, if so, whether
the plaintiff has shown a probability of prevailing. [Citations.] We consider ‘the
pleadings, and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.’ [Citations.]” (City of Alhambra v. D’Ausilio, supra, 193
Cal.App.4th at p. 1306; Guessous v. Chrome Hearts, LLC (2009) 179 Cal. App. 4th 1177,
1183.) “We do not weigh the evidence; rather, we accept as true evidence favorable to
[the plaintiff], and evaluate evidence favorable to the moving parties, to determine
whether as a matter of law, it defeats [the plaintiff’s] evidence. [Citations.]” (Chodos v.
Cole (2012) 210 Cal. App. 4th 692, 698–699.)
II. Appellant’s Claims Did Not Arise from Protected Activity.
“[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the
defendant’s act underlying the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context,
the critical point is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.” (City of Cotati v.
Cashman, supra, 29 Cal.4th at p. 78.) The “‘arising from’ requirement is not always
easily met.” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 66.)
“‘[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. . . .’
[Citation.]” (Episcopal Church Cases (2009) 45 Cal. 4th 467, 477.) Stated another way,
“[a] cause of action may be ‘triggered by’ or associated with a protected act, but it does
not necessarily mean the cause of action arises from that act.” (Kolar v. Donahue,
McIntosh & Hammerton (2006) 145 Cal. App. 4th 1532, 1537.) “‘“[T]he [anti-SLAPP]
statute’s definitional focus is . . . [whether] the defendant’s activity giving rise to his or
her asserted liability . . . constitutes protected speech or petitioning. [Citation.]” . . .’
[Citation.]” (Id. at p. 1538; see also City of Cotati v. Cashman, supra, at p. 77
[“California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to
be one “arising from” an act in furtherance of the rights of petition or free speech as long
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as suit was brought after the defendant engaged in such an act, whether or not the
purported basis for the suit is that act itself’”].)
Moreover, “[i]t is ‘the principal thrust or gravamen of the plaintiff’s cause of
action that determines whether the anti-SLAPP statute applies [citation], and when the
allegations referring to arguably protected activity are only incidental to a cause of action
based essentially on nonprotected activity, collateral allusions to protected activity should
not subject the cause of action to the anti-SLAPP statute.’ [Citation.]” (Freeman v.
Schack (2007) 154 Cal. App. 4th 719, 727.) “We assess the principal thrust by identifying
‘[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation
for the claim.’ [Citation.]” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal. App. 4th
1264, 1272.) “If the core injury-producing conduct upon which the plaintiff’s claim is
premised does not rest on protected speech or petitioning activity, collateral or incidental
allusions to protected activity will not trigger application of the anti-SLAPP statute.
[Citation.]” (Ibid.)
Here, appellant alleged in her complaint and she and Pickart averred in their
declarations that Pickart served a 60-day notice to quit on Shahar in accordance with
SMRCCA section 1806(a)(8), requesting that he vacate the Property so that appellant and
her family could reside there. Approximately one week later, Shahar told Pickart he
would vacate if appellant and Pickart paid him $210,000. Pickart refused, and Shahar did
not vacate the Property. As a result of Shahar’s refusal to move from the Property,
appellant and her family moved into high-cost, temporary housing. Appellant contends
she has suffered emotional distress and worries about the effect on her family of the
displacement and lack of permanence associated with temporary housing. Shahar did not
dispute appellant’s evidence, but rather added information that he had made
improvements to the Property at a value of approximately $225,000 and provided the
complaint and answer in the unlawful detainer action.
In its order granting the motion, the trial court identified the two acts giving rise to
the complaint: Shahar’s “failure to vacate within 60 days after notice was given, and
attempt to ‘extort’ $210,000 from Plaintiff and her husband.” It then focused on the
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relationship between Shahar’s conduct and the unlawful detainer action: “The conduct at
issue clearly occurred prior to the filing of the UD [unlawful detainer action]. The
threshold issue, therefore, is whether the anti-SLAPP statute covers pre-litigation activity
such as activity in connection with a 60-day notice to vacate. Pursuant to Neville v.
Chudacoff (2008) 160 Cal. App. 4th 1255, 1268, the answer is yes, pre-litigation notices
and statements are covered. Additionally, per Seltzer v. Barnes (2010) 182 Cal. App. 4th
953, 963, this includes pre-litigation settlement discussions. Plaintiff argues the
$210,000 demand was not a ‘settlement offer’ but was instead an ‘extortion attempt.’
However, Seltzer v. Barnes makes clear that even a bad faith settlement offer is covered
by the statute. (Id. at 964–967.) [¶] Defendant’s failure to leave the apartment was
clearly conduct related to the impending UD litigation. His decision to make a settlement
offer, even if in bad faith, is covered and protected conduct as well.” Accordingly, the
trial court ruled Shahar met his burden to show appellant’s claims arose from protected
activity, and proceeded to analyze whether appellant met her burden to establish a
probability of success on the merits.
On the basis of the allegations and evidence, we conclude the trial court erred in
characterizing Shahar’s conduct as pre-litigation activity. Rather, we find applicable the
numerous cases that have addressed anti-SLAPP motions in the context of landlord-
tenant disputes. That authority unambiguously holds: “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.” (Copenbarger v. Morris Cerullo World Evangelism (2013) 215
Cal. App. 4th 1237, 1245.)
Clark, supra, 170 Cal. App. 4th 1281, is “perhaps the most pertinent of the
appellate decisions discussing the application (or lack thereof) of the SLAPP statute to
landlord-tenant disputes . . . .” (Delois v. Barrett Block Partners (2009) 177 Cal. App. 4th
940, 951.) In Clark, a landlord owned a rental unit subject to a local ordinance that
restricted the bases for an eviction. The landlord filed an unlawful detainer action against
a long-term tenant, and successfully evicted her to make the unit available to her own
daughter—a permissible purpose for eviction under the ordinance. (Clark, supra, at
8
p. 1284.) The tenant sued the landlord for fraud and unlawful eviction after the daughter
failed to move in. The trial court granted the landlord’s special motion to strike,
reasoning the tenant’s complaint was essentially based on the landlord’s privileged
communications. (Id. at p. 1285.)
The Court of Appeal reversed, finding the complaint did not arise from protected
activity: “There is no question that the prosecution of an unlawful detainer action is
indisputably protected activity within the meaning of section 425.16. [Citations.] [¶]
[The tenant’s] complaint, however, is not premised on [the landlord’s] protected activities
of initiating or prosecuting the unlawful detainer action, but on her removal of the
apartment from the rental market and fraudulent eviction of [the tenant] for the purpose
of installing a family member who never moved in. ‘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.’ [Citations.] ‘“[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.”’ [Citations.] The pivotal
question ‘“is whether the cause of action is based on the defendant’s protected free
speech or petitioning activity.”’” (Clark, supra, 170 Cal.App.4th at pp. 1286–1287.)
Further explaining why the complaint was not based on protected activity, the Clark court
noted that the tenant’s “action against [the landlord] is not based on [the landlord’s] filing
or service of the notices of intent to evict, it is not based on anything [the landlord] said
in court or a public proceeding, and it is not based on the fact that [the landlord]
prosecuted an unlawful detainer action against her. The complaint is based on [the
landlord’s] allegedly unlawful eviction, in that she fraudulently invoked the [ordinance]
to evict [the tenant] from her rent-controlled apartment as a ruse to provide housing for
her daughter, but never installed her daughter in the apartment as required by that
ordinance, and also that she failed to pay [the tenant’s] relocation fee.” (Id. at p. 1288.)
The Clark court relied on a series of cases likewise involving landlord-tenant
disputes, each of which concluded that the gravamen of the suit did not involve protected
activity. For example, in Marlin v. Aimco Venezia, LLC (2007) 154 Cal. App. 4th 154, a
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landlord filed notices of intent to go out of business as permitted by a Government Code
provision and local ordinance. The trial court granted the landlord’s special motion to
strike a declaratory relief complaint filed by tenants and the appellate court reversed,
reasoning that while the filing and service of the notices may have triggered the tenants’
complaint, the cause of the complaint was the landlord’s allegedly wrongful reliance on
the Government Code as authority permitting termination of the tenancies. (Marlin v.
Aimco Venezia, LLC, supra, at pp. 160–161.) Moreover, evidence showing the complaint
was “‘intertwined’” with other litigation involving the landlord’s right to evict failed to
establish the complaint was based on protected activity. (Id. at p. 162.)
In another case cited by the Clark court, Santa Monica Rent Control Bd. v. Pearl
Street, LLC (2003) 109 Cal. App. 4th 1308, the appellate court reversed an order granting
a motion to strike a complaint filed by a city rent control board against property owners
who allegedly created sham, short-term tenancies to avoid rent restrictions. The court
explained that even though the property owners’ tenancy creation involved administrative
activity that could be characterized as exercise of the right of petition or free speech, they
were not sued for such activity—they were sued to compel their compliance with the rent
control law. (Id. at p. 1318.) The court elaborated: “Thus, while this suit may have been
‘triggered by’ defendants’ submission of such documents to the Board, it is not true that
this suit is based on the filing of such papers. Rather, the suit is based on activity that
preceded the filing of the papers. This suit is based on the Board’s claim that defendants
are charging an illegal rent for units A and C. Not surprisingly, defendants have not
presented any authority for the proposition that their conduct in charging illegal rent is an
act in furtherance of their rights of petition or free speech. If we were to accept
defendants’ argument, then they could preclude any judicial review of their violation of
the rent control law, no matter how egregious, by simply filing a SLAPP motion in
response to any Board complaint. We are confident that the Legislature intended no such
application of this statute.” (Ibid.)
The Clark court also relied on Department of Fair Employment & Housing v. 1105
Alta Loma Road Apartments, LLC (2007) 154 Cal. App. 4th 1273, where the court
10
affirmed the denial of a motion to strike a complaint for disability discrimination brought
by the Department of Fair Employment and Housing (DFEH) against a landlord who
brought an unlawful detainer action to remove a tenant who asserted she had a qualifying
disability that should have extended her tenancy. Again, the court reasoned that even
though the landlord had engaged in petitioning activity in connection with the eviction,
“the communications and the actual eviction itself were not the acts attacked in DFEH’s
complaint. Instead, the allegations of wrongdoing in DFEH’s complaint arose from [the
landlord’s] alleged acts of failing to accommodate [the tenant’s] disability. The letters,
e-mail and filing of unlawful detainer actions constituted DFEH’s evidence of [the
landlord’s] alleged disability discrimination. In other words, DFEH might well have filed
the same lawsuit had [the landlord] simply ignored [the tenant’s] claim of disability and
requests for extension of her tenancy without any communication from it at all and
simply filed a complaint for unlawful detainer.” (Id. at pp. 1284–1285.)
Cases following Clark have similarly been careful to distinguish between conduct
that merely precedes or even triggers protected activity and conduct that forms the basis
or cause of a complaint. (See Copenbarger v. Morris Cerullo World Evangelism, supra,
215 Cal.App.4th at p. 1247 [reversing order granting motion to strike declaratory relief
and breach of contract complaint, as the gravamen of the complaint was a dispute about
rights and obligations under a lease, not the service of a three-day notice to quit and filing
of an unlawful detainer action]; Delois v. Barrett Block Partners, supra, 177 Cal.App.4th
at p. 953 [reversing order granting motion to strike tenant’s complaint alleging multiple
claims arising from landlord’s alleged breach of tenancy termination agreement and
failure to refund deposits, and rejecting trial court’s characterization of termination
agreements as communications preparatory to litigation].)
We find no basis to depart from Clark and its related authority. Shahar failed to
meet his threshold burden of demonstrating that appellant’s complaint arose from his
constitutionally protected speech or petitioning activity. To paraphrase the concluding
remarks in Clark, “[c]ontrary to h[is] contentions, [Shahar] was not sued for exercising
constitutional rights. [H]e was sued to compel compliance with the provisions of the
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[SMRCCA and for damages for emotional distress appellant allegedly suffered as a result
of his noncompliance. Appellant’s] suit was unquestionably ‘triggered by’ [Shahar’s]
statements and the documents []he filed in connection with the unlawful detainer. But
the suit is not based on those statements or filings. It is based on [appellant’s] claim that
[Shahar wrongfully refused to vacate in violation of the SMRCCA and tried to extort
money in exchange for vacating the Property. Shahar’s] eviction notices and the
unlawful detainer action are merely cited as evidence and background to illustrate
[Shahar’s] subsequent violation of the [SMRCCA].” (Clark, supra, 170 Cal.App.4th at
pp. 1289–1290; accord, Copenbarger v. Morris Cerullo World Evangelism, supra, 215
Cal.App.4th at p. 1245.) Further, the court in Delois v. Barrett Block Partners, supra,
177 Cal. App. 4th 940 squarely rejected Shahar’s position that his request for payment of
$210,000 was protected activity as a settlement offer. It held: “[A]n unsuccessful
attempt by landlords to settle a dispute with a tenant does not constitute ‘protected
activity’ under the first prong of section 425.16.” (Id. at p. 955.)
In view of this authority, we do not find that Shahar’s failure to vacate and request
for payment constituted protected, pre-litigation activity. The cases cited by the trial
court for this proposition are inapposite. (See Seltzer v. Barnes, supra, 182 Cal.App.4th
at p. 963 [reversing denial of motion to strike tenant’s complaint against attorney who
represented homeowners association and settled an action against it brought by the
tenant]; Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1268 [affirming grant of a
motion to strike employee’s defamation complaint against employer because evidence
showed employer’s statements were made in good faith contemplation of litigation].)
Nor are we persuaded that the evidence offered here is more akin to the
circumstances in the cases distinguished by Clark and its progeny. (See Wallace v.
McCubbin (2011) 196 Cal. App. 4th 1169, 1182–1183 [reversing denial of motion to strike
wrongful eviction complaint where the alleged wrongdoing was the service of a three-day
notice to quit and filing of an unlawful detainer action]; Feldman v. 1100 Park Lane
Associates (2008) 160 Cal. App. 4th 1467, 1483 [reversing partial denial of motion to
strike cross-complaint brought by subtenants after dismissal of unlawful detainer action
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because the cross-complaint was, “with one exception, based upon the filing of the
unlawful detainer, service of the three-day notice, and . . . statements in connection with
the threatened unlawful detainer”]; Birkner v. Lam (2007) 156 Cal. App. 4th 275, 283
[reversing denial of motion to strike tenants’ complaint against landlord where “‘[t]he
sole basis for liability’ in each of plaintiffs’ causes of action ‘was the service of a
termination notice, pursuant to Rent Ordinance,’ and [landlord’s] ‘refusal to rescind it
after [p]laintiffs informed him that they constituted a protected household’”].) Unlike the
situations in these three cases, appellant’s causes of action do not arise from the filing of
the unlawful detainer action. Indeed, appellant could have alleged the same claims
whether or not Pickart had filed an unlawful detainer action.
Because appellant’s causes of action did not arise from protected activity, the
motion to strike brought pursuant to section 425.16 should have been denied.3 Given that
Shahar did not meet his threshold burden, the burden never shifted to appellant to
demonstrate a probability of prevailing, and we therefore need not address whether she
satisfied that burden. (See, e.g., Smith v. Adventist Health System/West (2010) 190
Cal. App. 4th 40, 64.)
3 Had the trial court awarded attorney fees pursuant to section 425.16,
subdivision (c), we would reverse that order as well. The trial court’s minute order did
not contain an attorney fee award. Instead, it directed counsel for Shahar to submit a
proposed order. The only order in the record, however, is the minute order.
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DISPOSITION
The order granting Shahar’s special motion to strike is reversed, and the matter is
remanded with directions to the trial court to enter a new and different order denying the
motion. Appellant is entitled to her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
* 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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