Haida Group v. Regency Centers CA4/1 ( 2021 )

Filed 11/17/21 Haida Group v. Regency Centers CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HAIDA GROUP LLC, D078662
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2020-00027032-
CU-BC-CTL)
REGENCY CENTERS, L.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed.
Hodel Wilks, Matthew A. Hodel and Frederick L. Wilks for Defendant
and Appellant.
Sarkissian Law Group, Areg A. Sarkissian and Konstantinos Zinas for
Plaintiff and Respondent.
We decide this appeal from the denial of an “anti-SLAPP” motion (Code
Civ. Proc., § 425.16) by applying the well-settled rule that a plaintiff may not
avoid a special motion to strike through artful pleading.1 Plaintiff Haida
Group LLC (Haida) admitted in its opposition brief to the anti-SLAPP motion
filed by defendant Regency Centers, L.P. (Regency) that its claims against
Regency rest on Regency’s failure to name and serve it as a party in the
underlying unlawful detainer proceeding. The trial court nonetheless denied
Regency’s motion, crediting vague allegations in the complaint to conclude
that Haida’s claims rested on Regency’s failures to provide proper notice
under a contract or statute.
On appeal, we agree with Regency that Haida’s causes of action against
it target protected petitioning activity and lack minimal merit. As Haida’s
own briefs explain, the claims rest on Regency filing an unlawful detainer
complaint that did not name Haida as a defendant, but nonetheless serving
process on Haida as an unnamed occupant rather than as a party. This
conduct by Regency plainly amounts to protected petitioning activity
(§ 425.16, subd. (e)(1)‒(2)), and the litigation privilege prevents Haida from
establishing the minimal merit required to proceed. Therefore, the anti-
SLAPP motion should have been granted, and the claims against Regency
should have been stricken.
FACTUAL AND PROCEDURAL BACKGROUND
1 Further undesignated statutory references are to the Code of Civil
Procedure. The “anti-SLAPP” statute, section 425.16, provides a procedure
for litigants seeking to strike at an early stage of proceedings strategic
lawsuits against public participation, or SLAPP suits.
2
A. Background
Commercial landlord Regency owns a shopping center located on
Pomerado Road in Poway. In 2016, it leased the property to Whole-Mart
Grocery, LLC (Whole-Mart) to operate an international market offering
groceries, dining options, a pharmacy, and bakery. The lease authorized
Whole-Mart to sublease parts of the premises to create “up to four food
stations for Asian food/sushi, Indian food, Italian food/pizza and
Mediterranean/Persian food.”
In February 2020, Regency commenced unlawful detainer proceedings
against Whole-Mart and its pharmacy sublessee, Poway Pharmacy LLC.
Other potential occupants in the building were not named in the complaint
but received notice of the unlawful detainer action pursuant to section 415.46
(discussed post). Haida, which ran a pizza and sandwich shop in Whole-
Mart’s food court, was among those so notified. The court ultimately issued a
judgment in Regency’s favor that bound Whole-Mart, Poway Pharmacy, and
all unnamed building occupants. This precipitated Haida’s lawsuit against
Whole-Mart and Regency for failing to provide proper notice before shutting
down the market.
B. Haida’s Lawsuit
Food vendor Haida signed a two-year rental agreement with Whole-
Mart in 2018.2 For a monthly fee of $4,000, Haida was permitted to use a
designated area within the market to sell sandwiches and pizza. The rental
2 Haida alleged in its complaint that it signed a sublease with Whole-
Market. But a legible copy of the agreement, incorporated by reference in the
complaint, reflects that Whole-Market agreed to provide a license to Haida to
use the space for approved food vending purposes. To avoid confusion, we
refer to the arrangement simply as a rental agreement.
3
period ran through December 2020 and included a three-year option to
renew.
Haida knew Whole-Mart was renting the premises from Regency and
believed Whole-Mart was meeting its rent obligations under the master lease.
But in February 2020, Regency informed Haida that Whole-Mart was months
behind on rent and subject to an unlawful detainer action. Haida
nevertheless continued to pay rent to Whole-Mart until July 2020 when,
following an unlawful detainer judgment against Whole-Mart, Regency closed
the market, preventing Haida from continuing its operations.
On August 3, 2020, Haida sued Whole-Mart and Regency for
constructive eviction and negligence, alleging defendants had provided
insufficient notice before closing the premises. According to Haida, Regency
had contractual and common law duties to notify its tenants of a planned
closure and by breaching these duties, deprived Haida of quiet possession.
By closing the market before Haida’s rental term ended, Haida alleged
months of lost income, a lost renewal opportunity, and forfeited equipment.3
C. Regency’s Anti-SLAPP Motion
Regency filed a special motion to strike, claiming the two causes of
action against it arose entirely from protected petitioning activity in
prosecuting the unlawful detainer lawsuit. Laura Borenstein-Hofman,
Regency’s property manager, submitted a declaration describing the master
lease. She explained that while Regency was aware of a formal sublease
between Whole-Mart and Poway Pharmacy, it was unaware of any other
sublease or license agreements by Whole-Mart. Regency knew Whole-Mart
operated a food court but “had no knowledge whether the food stands were
3 Haida’s breach of contract cause of action, asserted solely against
Whole-Mart, is not relevant to this appeal.
4
operated by Whole-Mart itself (by its own employees as part of its grocery
store operations) or by separate business entities or sole proprietors.”
There was no agreement between Regency and Haida, and until Haida sued
it, Regency was unaware of any relationship between Whole-Mart and Haida.
The only communication at any point in time between Regency and Haida
occurred in the context of the unlawful detainer action.
Regency’s attorney Frederick Wilks submitted another supporting
declaration describing the underlying unlawful detainer case. With Whole-
Mart falling $863,124 behind in rent, Regency brought an unlawful detainer
action against Whole-Mart, Poway Pharmacy, and Doe defendants in
February 2020. (Regency Centers L.P. v. Whole-Mart Grocery, LLC, et al.
(Super. Ct. San Diego County, 2020, No. 37-2020-00008528-CU-UD-CTL).)
Regency did not name any food vendors as defendants because it “had no
knowledge whether any of them were separate businesses, or merely
operated by Whole-Mart’s employees as part of its grocery store operations.”
To account for the possibility that some of the food vendors were separate
business entities, Regency sent a process server to the premises to serve a
“prejudgment claim of right to possession” under section 415.46.4 The
printed judicial council form (CP10.5) notified potential occupants that if
their names did not appear in the attached summons and complaint, they
4 Section 415.46 provides a procedure to notify unnamed potential
occupants of eviction proceedings. Once served under section 415.46 with a
notice of prejudgment claim of right to possession and a copy of the unlawful
detainer complaint and summons, the burden shifts to the unnamed occupant
to file a prejudgment claim of right and ask the court to join it as a defendant
in the pending unlawful detainer action. Failure to do so could result in
eviction without further hearing. Upon service under section 415.46, “no
occupant of the premises, whether or not that occupant is named in the
judgment for possession, may object to the enforcement of that judgment as
prescribed in Section 1174.3.” (§ 415.46, subd. (e)(1).)
5
had 10 days to file a claim of right to possession to be added by the court as a
defendant to the unlawful detainer action. The form indicated that a failure
to respond could result in eviction of all occupants without further hearing.
Copies of the complaint and summons directed at Whole-Mart and Poway
Pharmacy were attached to the notice. “Caya K[.] - Manager at Haida Pizza”
accepted service. Notice was also publicly posted at the premises. Haida did
not respond or file a claim of right pursuant to the procedures outlined in
section 415.46.
Wilks explained that Whole-Mart admitted to owing Regency $871,243
in rent. The parties stipulated to a judgment, and Regency informed the trial
court that other potential unnamed occupants had been notified of their right
to make a prejudgment claim of right to possession. Accordingly, on July 22,
2020, the trial court entered a judgment of unlawful detainer in Regency’s
favor that applied “to all occupants of the premises including tenants,
subtenants if any, and named claimants if any . . . .” The court issued a writ
of possession on August 11, but no sheriff was called as Whole-Mart
voluntarily turned over possession on August 15.
In its opening brief on the anti-SLAPP motion, Regency claimed that
Haida’s action rested entirely on Regency’s litigation-related conduct, namely
its “pursuit of an unlawful detainer action against defendant Whole-Mart.”
In its view, it had been sued “for pursuing the right to regain possession of
the Premises in an unlawful detainer action,” as it had “followed the
statutory procedure for notifying unnamed occupants” under section 415.46.
Relying on cases such as Birkner v. Lam (2007) 156 Cal.App.4th 275(Birkner), Regency asserted that prosecuting an unlawful detainer action was
protected petitioning activity, thus satisfying the first prong of the anti-
SLAPP statute.
6
Addressing the second prong of the anti-SLAPP analysis, Regency
contended that Haida could not show a probability of prevailing on its claims
of constructive eviction and negligence. It maintained that both claims were
absolutely barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) The
constructive eviction claim additionally failed for lack of a contractual
relationship between Regency and Haida, and because Haida had no right to
possession once the unlawful detainer judgment was entered. Regency
likewise argued that Haida’s negligence claim failed for lack of duty, breach,
causation, or damages.
D. Haida’s Opposition
Haida substantially clarified the nature of its claims in its opposition
brief. It indicated that the gravamen of its claims against Regency was not
the unlawful detainer action itself, but rather Regency’s failure to effect
proper service on Haida, a known subtenant, in pursuing that action. Haida
asserted that although it was served pursuant to section 415.46, “all
occupants known to the landlord should be named as defendants in the
complaint,” and it would violate public policy to permit landlords to use
section 415.46 “as a tactic to shift the burden to known occupants.” Haida
explained how Regency should have known about its rental agreement—the
master lease with Whole-Mart authorized subleases with food-court vendors,
and Regency served Haida’s manager pursuant to section 415.46. In other
words, Haida made clear that it challenged Regency’s failure to name it as a
defendant in the unlawful detainer complaint and effectuate service on Haida
as a party pursuant to section 11645 rather than as a mere unnamed
occupant pursuant to section 415.46. And despite receiving notice pursuant
5 Section 1164 states that essential defendants to an unlawful detainer
action are tenants and subtenants “in the actual occupation of the premises
when the complaint is filed.”
7
to section 415.46, Haida claimed it “had no reason to believe that Regency
would shut down Haida’s business operations given that Haida was still
paying its rent and was not a party in the notice received by Haida in
February.”
Distinguishing cases cited by Regency, Haida maintained that although
Regency’s pursuit of the unlawful detainer action may have triggered its
claims, it did not form the basis of those claims. In its view, it “[was] not
challenging the unlawful detainer action,” but rather “Regency’s purposeful
omission of service to Haida” in breach of its duties owed to “a valid paying
tenant with a clear relationship existing between the parties.”
Haida spent less time defending the challenged claims on the merits. It
argued that Regency did not “properly assert what it seeks to bar” by the
litigation privilege and maintained that it “[stood] by its claims and
reassert[ed] that proper notice was never served.” In describing the
negligence claim, Haida asserted that Regency was obligated under section
1164 to name it as a party but chose instead in “bad faith” to serve notice
under section 415.46. While Regency did name Doe defendants in its
unlawful detainer complaint, it failed to amend the pleading once the true
names were known as required under section 474. Similarly, in describing its
constructive eviction claim, Haida said it surrendered possession only
because of Regency’s breach toward known subtenants like Haida consisting
of “pursuing an action to lockout Haida without affording Haida any rights or
say in the matter.”
Haida offered one supporting declaration to its opposition brief. Owner
Arabo Sarkesyan attached a copy of the lease between Regency and Whole-
Mart and excerpted portions authorizing Whole-Mart to sublease to selected
food vendors. Sarkesyan explained that Haida paid $4,000 each month
8
through March 2020 to operate its restaurant. It negotiated reduced
payments of $2,000 per month thereafter due to closures associated with
COVID-19. Although Sarkesyan acknowledged that Regency notified Haida
about the unlawful detainer suit in February, he relied on that the fact that
Haida “was not [identified as] a party in the notice” and concluded he “had no
reason to believe that Regency would shut down Haida’s business operations
given that Haida was still paying its rent.” Whatever the state of Whole-
Mart’s relationship with Regency, Sarkesyan thought Haida could continue
its operations so long as it continued to pay monthly rent.
E. Reply Brief, Hearing, and Order
Regency filed a reply brief highlighting that Haida’s claims rested on
Regency’s alleged failure to prosecute the unlawful detainer action in a
manner Haida believed was proper. In Regency’s view, not only was the
challenged conduct protected petitioning activity, but the claims based on it
were barred by the absolute litigation privilege.
The parties appeared telephonically for a hearing before Judge
Whitney on January 19, 2021, where the court issued a tentative ruling
denying the motion. Apparently relying on allegations in the complaint, the
tentative determined that Haida’s claims challenged a breach of contractual
duties to notify Haida that the premises would be closing, rather than any
steps taken in prosecuting the unlawful detainer action itself.
Arguing against the tentative, Regency’s counsel stated the only
evidence of a contractual relationship was declaration testimony by Regency
that there was none. In any event, Haida’s own opposition made clear that
the basis of Haida’s claims was that Regency “should have served [Haida]
with the summons and complaint as a defendant and . . . should have named
9
them in the complaint.” Those litigation choices by Regency were inherently
a part of its protected petitioning activity.
Haida’s counsel offered a different view, explaining that that the claims
against Regency stemmed from breach of contract. Notwithstanding
Regency’s assertion that there was no contract between the parties, Regency’s
lease with Whole-Foods authorized subleases with food vendors. Thus, there
was “a constructive contract of some sort through either actual or
constructive knowledge” that Whole-Market would enter subleases with
vendors like Haida.
Regency’s counsel replied that although the complaint alleged “a
contractual obligation,” the only contract attached to the pleading was
between Whole-Mart and Haida. Haida produced no evidence to counter
Regency’s proffer that there was neither a contract between Regency and
Haida, nor any provision in the Regency/Whole-Mart lease by which Regency
assumed any contractual obligations to Haida. This was no surprise—the
basis of Haida’s claims against Regency was not a contractual breach, but
rather (as admitted in its opposition brief) alleged procedural errors in
drafting and serving the summons and complaint.
Shortly after the hearing, the court denied Regency’s motion. Adopting
the tentative, the court concluded that Regency failed to show that Haida’s
claims were based on (and not just triggered by) protected petitioning
activity. In the court’s view, the case was similar to Copenbarger v. Morris
Cerullo World Evangelism (2013) 215 Cal.App.4th 1237 (Copenbarger), where
a lawsuit triggered by an unlawful detainer action instead arose from the
parties’ respective lease obligations. The court believed Haida’s claims
turned on an alleged contractual obligation for Regency to notify Haida that
the premises would be closing. Regency disputed that it owed a contractual
10
or other duty to provide the notice to which Haida believed it had a right.
Haida’s claims thus rested on purported contractual duties and duties
imposed on landlords, not on Regency’s litigation activity. Whether such
duties existed went to the merits of Haida’s claims, which was irrelevant to
prong one of the anti-SLAPP inquiry.
Because the court found Regency failed to meet its threshold burden, it
did not reach the prong two of the anti-SLAPP inquiry to decide whether
there was a reasonable probability Haida would prevail on its constructive
eviction and negligence claims against Regency. However, it noted in passing
that the litigation privilege codified in Civil Code section 47, subdivision (b)
would likely bar those claims on the merits. There appeared a clear logical
relationship between Regency’s purported failure to properly serve Haida and
its litigation of the unlawful detainer action. (See Silberg v. Anderson (1990)
50 Cal.3d 205, 212 (Silberg).)
DISCUSSION
Regency argues the court erred in denying its anti-SLAPP motion.
Based largely on admissions in Haida’s own briefs, we agree. “It is settled
that ‘a plaintiff cannot avoid operation of the anti-SLAPP statute by
attempting, through artifices of pleading, to characterize an action as a
“garden variety” tort or contract claim when in fact the claim is predicated on
protected speech or conduct.’ ” (Contreras v. Dowling (2016) 5 Cal.App.5th
394, 413 (Contreras).) Regency met its moving burden to show Haida’s claims
against it arise out of its protected petitioning activity in the underlying
unlawful detainer action, and Haida failed to show that the litigation
privilege would not bar those claims. Accordingly, the anti-SLAPP motion
should have been granted.
11
A. Threshold Procedural Challenge
We must at the outset address Haida’s procedural challenge to
Regency’s anti-SLAPP motion. Regency filed its motion in October 2020, but
the hearing did not take place until January 2021. Haida reasserts its
argument on appeal that Regency’s motion should be denied because it was
not heard within the statutorily required 30 days. The trial court properly
rejected this claim. Section 425.16, subdivision (f) provides that an anti-
SLAPP motion “shall be scheduled by the clerk of the court for a hearing not
more than 30 days after the service of the motion unless the docket
conditions of the court require a later hearing.” As the court reasoned, “ ‘the
burden is on the court clerk, not the moving party’s counsel, to explain why it
is necessary to schedule a later hearing date.’ ” Greka Integrated, Inc. v.
Lowrey (2005) 133 Cal.App.4th 1572, 1577−1578 is inapposite: it was based
on an older version of the statute that provided no leeway for delay based on
docket conditions. Moreover, Regency submitted uncontested evidence that
when it asked to set the hearing in 30 days, the clerk replied that the court
“simply cannot.”
B. Anti-SLAPP Framework
“Enacted by the Legislature in 1992, the anti-SLAPP statute is
designed to protect defendants from meritless lawsuits that might chill the
exercise of their rights to speak and petition on matters of public concern.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (Wilson);
§ 425.16, subd. (a).) To achieve this goal, the statute lets a defendant file a
special motion to strike claims “arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States . . . or California Constitution in connection with a public issue,
. . . unless the court determines that the plaintiff has established that there is
12
a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd.
(b)(1).) Through this summary-judgment-like procedure, the anti-SLAPP
statute aims to weed out meritless or retaliatory litigation at an early stage.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 312.)
Courts use a two-step process to resolve anti-SLAPP motions. In the
first stage, the moving defendant must show the claims against it arise from
the defendant’s protected activity. (Wilson, supra, 7 Cal.5th at p. 884; Baral
v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) The anti-SLAPP statute defines
four protected categories of activity. (§ 425.16, subd. (e).) If the defendant
shows that the claims fall within one of them, the burden then shifts to the
plaintiff to demonstrate that its claims have minimal merit. (Wilson, at
p. 884.) At the second step, “[t]he court, without resolving evidentiary
conflicts, must determine whether the plaintiff’s showing, if accepted by the
trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, at
p. 396.) If not, the court will strike the cause of action. (Ibid.; Wilson, at
p. 884.) A defendant prevailing on an anti-SLAPP motion is generally
entitled to recover attorney’s fees and costs. (§ 425.16, subd. (c)(1).) We
review the grant or denial of an anti-SLAPP motion de novo. (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)
C. Prong One: Protected Activity
The trial court concluded that Haida’s claims against Regency were
based on unprotected activity not covered by the anti-SLAPP statute.
Independently reviewing this question (Wilson, supra, 7 Cal.5th at p. 884),
we reach the opposite conclusion.
As the party moving to strike, Regency bears the burden on prong one
to “make two related showings.” (Wilson, supra, 7 Cal.5th at p. 887.) First it
must show that the conduct by which Haida claims injury falls within one of
13
the four categories of protected activity described in section 425.16,
subdivision (e)—i.e., here, written statements made before a judicial
proceeding and in connection with an issue under consideration by a judicial
body. (§ 425.16, subd. (e)(1)−(2).) Second, Regency must demonstrate that
Haida’s claims arise out of that protected conduct. (See ibid.; Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) “A claim arises
from protected activity when that activity underlies or forms the basis for the
claim.” (Park, supra, 2 Cal.5th at p. 1062.)
Haida’s complaint asserts that Regency breached its contractual
obligations and duties as a landlord by giving Haida inadequate notice that
the Whole-Mart premises would be closing before the rental term ended. In
pleading “constructive eviction,” Haida alleges that Whole-Mart and Regency
“breached their contractual obligations to warn Plaintiff that the premises
would be closing.” It likewise predicates its negligence claim on Regency
breaching “a duty to notify any and all of their tenants of a planned closure of
the premises.” What Haida means by these notice failures is unclear; the
complaint does not identify the conduct or action by Regency giving rise to its
claims.
Filling this void are Haida’s own contentions. As Haida stated in its
opposition brief below and in its nearly verbatim respondent’s brief on
appeal, its claims against Regency rest on Regency’s decision to serve Haida
under section 415.46 as an unnamed occupant rather than to name and serve
it as a defendant in the unlawful detainer action. Haida claims this was
improper because Regency knew or should have known it was Whole-Mart’s
sublessee. Haida does not challenge Regency’s right to pursue an unlawful
detainer action against Whole-Mart, but rather takes issue with its
“purposeful omission of proper service to Haida.” In Haida’s view the service
14
it received pursuant to section 415.46 was deficient because “undoubtedly, all
occupants known to the landlord should be named as defendants in the
complaint.”
Haida makes similar statements in detailing each cause of action
against Regency. Haida asserts Regency was negligent because it breached
its “duty to notify Haida and make Haida a party to the unlawful detainer
action”: Haida was a necessary party under section 1164 as a known
subtenant of Whole-Foods. According to Haida, “Regency had a duty of care
to serve Haida in accordance with the proper statues” but breached that duty
when it “negligently applied the inapplicable statute,” section 415.46.
Similarly, Haida represents that its constructive eviction claim is based
“Regency’s breach of obligations toward known subtenants, such as Haida,”
by “pursuing an action to lockout Haida without affording Haida any rights
or say in the matter.”
Simply put, Haida’s briefing elucidates what its complaint does not.
The claims against Regency arise entirely out of Regency’s litigation decision
not to name Haida as a defendant in the unlawful detainer complaint and
instead effect service of process on Haida pursuant to the procedure laid out
in section 415.46 for unnamed occupants. Haida, in essence, alleges that
Regency did not prosecute the unlawful detainer action properly. Although
the trial court focused on how Haida pleaded its claims in its complaint, “the
court is not limited to examining the allegations of the complaint alone but
rather considers the pleadings and the factual material submitted in
connection with the special motion to strike.” (Contreras, supra, 5
Cal.App.5th at pp. 408, 413; Navellier v. Sletten (2002) 29 Cal.4th 82, 92
(Navellier) [“The anti-SLAPP statute’s definitional focus is not the form of the
plaintiff’s cause of action but, rather, the defendant’s activity that gives rise
15
to his or her asserted liability—and whether that activity constitutes
protected speech or petitioning.”]; Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 679 [courts “do not evaluate the first prong of the anti-
SLAPP test solely through the lens of a plaintiff’s cause of action,” but rather
investigate the “acts on which the counts alleged in the complaint are
based”].) In undertaking our prong one analysis, we necessarily consider
statements in Haida’s own briefs clarifying the nature of its claims. (See
Contreras, at p. 412 [considering plaintiff’s briefs and earlier pleadings to
determine that her claim was based on attorney’s protected activity].)
Properly construed, Haida’s claims against Regency rest entirely on
litigation decisions made by Regency’s counsel in prosecuting Regency’s
unlawful detainer action against Whole-Mart. Although Haida finds fault
with what Regency’s counsel failed to do in that proceeding, these failures are
actionable in Haida’s view solely because of what the attorney did do—that
is, file a lawsuit without naming Haida as a party and serve Haida as a
nonparty pursuant to section 415.46. This is the entire basis of Haida’s
claims against Regency—those claims “would have no basis in the absence of”
Regency’s prior litigation activity. (Contreras, supra, 5 Cal.App.5th at
p. 412.) As such, these claims target protected activity within the scope of
the anti-SLAPP statute. (Id. at pp. 412−413; § 425.16, subd. (e)(1)−(2); see
Birkner, supra, 156 Cal.App.4th at pp. 281−282 [filing and prosecuting an
unlawful detainer action “indisputably is protected activity”]; Feldman v.
1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1480 (Feldman) [service
of notice to quit, filling of unlawful detainer action, and threats by landlord’s
agent were protected]; see also Cabral v. Martins (2009) 177 Cal.App.4th 471,
480 (Cabral) [“all communicative acts performed by attorneys as part of their
representation of a client in a judicial proceeding or other petitioning context
16
are per se protected as petitioning activity by the anti-SLAPP statute”].)
Haida’s assertion that Regency violated laws such as section 1164 does not
change our conclusion. (See Cabral, at pp. 480−482 [litigation activity that
allegedly violated child support evasion statutes was nonetheless protected in
prong one]; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612−616 [court
filing that violated court rules was protected activity in prong one].)
The trial court relied on Copenbarger, supra, 215 Cal.App.4th 1237 to
reach a different result. But Copenbarger merely applies the well-settled rule
that where prior unlawful detainer proceedings merely precipitate rather
than underlie plaintiff’s suit, the action does not arise out of protected
activity. (Id. at p. 1247.)6 “ ‘[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.’ ” (Park, supra, 2 Cal.5th at
p. 1063.) Instead, the record must reflect—as it does here—that the action or
cause of action is based on conduct by the defendant that falls into one of the
categories of protected activity in section 425.16, subdivision (e). (See Park,
at p. 1073.)
6 Similar cases are legion, rejecting anti-SLAPP protection where prior
unlawful detainer litigation was merely incidental to a plaintiff’s claims.
(See Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1281−1282; Ben-
Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1053; Clark v. Mazgani
(2009) 170 Cal.App.4th 1281, 1286; Oviedo v. Windsor Twelve Properties, LLC
(2012) 212 Cal.App.4th 97, 110–111; Department of Fair Employment &
Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th
1273, 1287.)
17
D. Prong Two: Probability of Prevailing
Because Regency met its moving burden to show that the claims
against it arise from protected activity, Haida was required to demonstrate a
probability of prevailing on those claims to survive a motion to strike.
(§ 425.16, subd. (b).) The trial court did not reach this question, ending its
inquiry at prong one, so we address it in the first instance. (See Wilson,
supra, 7 Cal.5th at p. 899.) To meet its prong two burden, Haida must
establish that each cause of action it brings against Regency is legally
sufficient and prima facie factually supported. (Navellier, supra, 29 Cal.4th
at pp. 88−89.) “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.” (Navellier, at p. 89.)
Regency maintains that Haida’s claims lack even minimal merit
because the litigation privilege acts as a complete bar to each of them. “The
litigation privilege is ‘relevant to the second step in the anti-SLAPP analysis
in that it may present a substantive defense a plaintiff must overcome to
demonstrate a probability of prevailing.’ ” (Feldman, supra, 160 Cal.App.4th
at p. 1485.) To overcome this bar, Haida must show that this privilege is
inapplicable as a matter of law or make a prima facie showing of facts that, if
accepted, would negate that defense. (Birkner, supra, 156 Cal.App.4th at
p. 285.)
“The litigation privilege, codified at Civil Code section 47, subdivision
(b), provides that a ‘publication or broadcast’ made as part of a ‘judicial
proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) “The usual
formulation is that the privilege applies to any communication (1) made in
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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
[has] some connection or logical relation to the action.” (Silberg, supra, 50
Cal.3d at p. 212.) “The privilege ‘is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards.’ ” (Action Apartment, at p. 1241.) Where it applies, the privilege
is absolute, providing a defense to all torts except malicious prosecution and
applying “to all publications, irrespective of their maliciousness.” (Silberg, at
pp. 212, 215−216.)
The main purpose behind the litigation privilege is to afford litigants
and witnesses the “utmost freedom of access to the courts without fear of
being harassed subsequently by derivative tort actions.” (Silberg, supra, 50
Cal.3d at p. 213.) To achieve this purpose, “ ‘ “courts have applied the
litigation privilege broadly.” ’ ” (Feldman, supra, 160 Cal.App.4th at p. 1485.)
Its breadth “ ‘cannot be understated. It immunizes defendants from virtually
any tort liability (including claims for fraud) with the sole exception of causes
of action for malicious prosecution. [Citation.]’ [Citation] ‘Any doubt about
whether the privilege applies is resolved in favor of applying it.’ ” (Finton
Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 212;
see also McNair v. City and County of San Francisco (2016) 5 Cal.App.5th
1154, 1162 (McNair) [same].)
The inquiry here is straightforward. Haida challenges its omission as a
party in Regency’s unlawful detainer complaint and argues it did not receive
proper notice when Regency instead served it as an unnamed occupant
pursuant to section 415.46. As framed, all four requirements for the
litigation privilege as laid out in Silberg, supra, 50 Cal.3d at page 212 are
met: (1) Haida’s claims against Regency rest on communications (the
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complaint, summons, and proof of service); (2) these communications were
made in the course of unlawful detainer litigation against Whole-Mart;
(3) Regency was a party to the litigation, and its pleadings and service were
designed to achieve the objects of that litigation (evicting Whole-Mart for
nonpayment of rent); and (4) filing those documents and deciding who to
name and serve as a party clearly bore some logical relation to the
prosecution of an unlawful detainer action. The litigation privilege therefore
applies. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058 [“The
‘[p]leadings and process in a case are generally viewed as privileged
communications.’ ”].)
In erecting an absolute defense against virtually all derivative tort
liability, the litigation privilege plainly bars Haida’s negligence claim against
Regency. (See Silberg, supra, 50 Cal.3d at p. 215.) It further bars Haida’s
constructive eviction claim as framed. Haida asserts that Regency breached
duties imposed on landlords by operation of law in failing to name and serve
it as a party in the unlawful detainer action. These duties consist of the
obligation to add necessary parties to the action under section 1164 and
ensure quiet possession under Civil Code section 1927. While Haida believes
Regency should have known about potential food court sublessees, it does not
allege any express contractual obligation in the master lease was violated by
Regency’s litigation conduct. Under these circumstances, the litigation
privilege properly applies to the constructive eviction claim as well. (See
McNair, supra, 5 Cal.App.5th at pp. 1170−1171 [privilege applied to both tort
and contract claims against a doctor for disclosing patient health information
to the DMV: “none of the documents even potentially identified by [the
patient] as part of the ‘[p]artly written, partly oral, and partly implied’
contract in this matter can be said to ‘clearly prohibit’ [the doctor’s] conduct
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in this case,” and his claims instead turned on whether the doctor’s disclosure
was justified under state or federal law].)7
Feldman, supra, 160 Cal.App.4th 1467 is instructive, applying the
litigation privilege to bar tort and contract claims resting on the same
underlying conduct. A landlord filed an unlawful detainer lawsuit against its
tenant’s sublessees, the Feldmans, for moving into a San Francisco high-rise
without following proper sublet procedures. (Id. at p. 1475.) The Feldmans
asserted several cross-claims based on the landlord serving a three-day notice
to quit, filing an unlawful detainer complaint, and making statements to
them over the phone regarding threatened litigation. (Id. at pp. 1474−1475,
1479, 1483.) The court concluded these claims were all barred by the
litigation privilege because they rested on communications that were logically
related to the unlawful detainer action and made to further the objectives of
that litigation. (Id. at pp. 1486−1491, 1494.) However the claims were
labeled, the Feldmans’ cross-complaint alleged at its core that they were
lawfully in possession as approved subtenants but that the landlord cross-
defendants “harassed them with threats of eviction, initiated an unlawful
detainer action, and forced them to leave.” (Ibid.) The policy behind the
litigation privilege of allowing access to the courts without fear of derivative
suits therefore applied to all the Feldmans’ cross claims, including their
contract-based claims. We reach the same conclusion here.
Haida argues that Regency violated section 1164 by failing to name and
serve it as a party. From Haida’s perspective, it was improper for Regency to
7 Our conclusion should not be read to suggest that the litigation
privilege bars breach of contract claims challenging litigation conduct that is
alleged to violate an express contractual term. (See Wentland v. Wass (2005)
126 Cal.App.4th 1484, 1494 [litigation privilege did not bar cross-claim
alleging that opposing party’s statements in summary judgment briefing
breached the parties’ express confidentiality agreement].)
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serve it as an unnamed occupant under section 415.46 when Regency should
have known about the sublease and served Haida as a party. Even if
accepted, allegations that a defendant violated a statute do not defeat
application of the litigation privilege. (See, e.g., Cabral, supra, 177
Cal.App.4th at pp. 489−490 [litigation privilege barred claims against
attorneys representing plaintiff’s ex-husband in his alleged efforts to violate
child support evasion statutes]; Foothill Federal Credit Union v. Superior
Court (2007) 155 Cal.App.4th 632, 637−638, 643 [litigation privilege barred
claims against credit union that allegedly produced consumer records beyond
the scope of a subpoena in violation of section 1985.3].) Applying the
privilege here furthers its principal purpose of ensuring free access to the
courts without fear of derivative actions. (Silberg, supra, 50 Cal.3d at
pp. 213−214.)
Our conclusion that the litigation privilege applies ends the prong two
inquiry. Because the privilege absolutely bars both of Haida’s claims against
Regency, Haida cannot meet its burden to establish any probability of
prevailing on the merits.8 The anti-SLAPP motion should have been
granted, and the causes of action against Regency stricken. As the prevailing
party, Regency is entitled to an award of attorney’s fees, including fees
incurred in connection with this appeal. (§ 425.16, subd. (c)(1); Contreras,
supra, 5 Cal.App.5th at p. 421.)
8 Indeed, Haida makes no substantive argument to the contrary. It
punts on the issue, faulting Regency for failing to “properly assert what it
seeks to bar using the litigation privilege” and stating simply that it “stands
by its claims and reasserts that proper notice was never served.”
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DISPOSITION
The order denying Regency’s anti-SLAPP motion is reversed; the court
is directed to enter a new order granting the motion and striking the causes
of action brought against Regency. The court shall also award Regency
attorney’s fees as the prevailing party, including fees incurred in connection
with this appeal.
Regency is entitled to costs on appeal.
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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