Alfaro v. Waterhouse Management Corp. ( 2022 )

Filed 8/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ALMA ALFARO et al., 2d Civil No. B313842
(Super. Ct. No. 17CV02185)
Plaintiffs and Respondents, (Santa Barbara County)
v.
WATERHOUSE
MANAGEMENT CORP. et al.,
Defendants and Appellants.
This case illustrates the principle that an anti-SLAPP
motion lies only as to “allegations of protected activity that are
asserted as grounds for relief.” (Baral v. Schnitt (2016) 1 Cal.5th
376, 395 (Baral).) Here, the targeted cause of action mentions
protected activity – the filing of a malicious prosecution action –
but this activity is not asserted as a ground for relief. The
grounds for relief are based on the violation of a statute – Civil
Code section 1942.5, subdivision (d). The trial court properly
denied appellants’ anti-SLAPP motion and did not abuse its
discretion in imposing sanctions for making a frivolous motion.
Appellant Waterhouse Management Corp. is the property
manager of Nomad Village Mobile Home Park (the Park), a 150-
space mobile home park in Santa Barbara. Appellant Lazy
Landing MHP, LLC, owns the long-term ground lease for the
Park. Respondents are current and former lessees of mobile
homes in the Park. They initially sued appellants for violations
of the Mobilehome Residency Law (Civ. Code, § 798 et seq.) and
the Mobilehome Parks Act (Health & Saf. Code, § 18200 et seq.),
alleging failure to properly maintain the Park. While
respondents’ lawsuit (the original lawsuit) was pending,
appellants filed a malicious prosecution action against
respondents. (See post at pp. 4-5 and fn. 2.)
After the filing of appellants’ malicious prosecution action,
respondents amended their complaint in the original lawsuit to
add an eleventh cause of action for unlawful retaliation in
violation of Civil Code section 1942.5, subdivision (d). This cause
of action alleged appellants had committed various acts in
retaliation for respondents’ participation in the original lawsuit
and the exercise of their rights as lessees.
One of the mentioned acts was appellants’ filing of the
malicious prosecution action. Seizing on this reference to
protected activity, appellants filed a special motion to strike
respondents’ entire eleventh cause of action as a SLAPP
(Strategic Lawsuit Against Public Participation). (Code Civ.
Proc., § 425.16.)1 Appellants contended the cause of action arose
out of respondents’ allegations concerning the malicious
prosecution action. As we will explain, these allegations “merely
provide context, without supporting a claim for recovery . . . .”
(Baral, supra, 1 Cal.5th at p. 394.) Respondents’ claim for
recovery arises out of their allegations of retaliation in violation
1Unless otherwise stated, all statutory citations are to the
Code of Civil Procedure.
2
of Civil Code section 1942.5, subdivision (d), which does not apply
to a lessor’s retaliatory malicious prosecution action against a
lessee. Accordingly, we affirm.
The Anti-SLAPP Statute
“A court evaluates an anti-SLAPP motion in two steps. . . .
[¶] . . . The defendant’s first-step burden is to identify the activity
each challenged claim rests on and demonstrate that that activity
is protected by the anti-SLAPP statute.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) “A defendant
satisfies the first step of the analysis by demonstrating that the
‘conduct by which plaintiff claims to have been injured falls
within one of the four categories described in subdivision (e)
[of section 425.16]’ [citation], and that the plaintiff's claims in
fact arise from that conduct [citation]. The four categories in
subdivision (e) describe conduct ‘“in furtherance of a person’s
right of petition or free speech under the United States or
California Constitution in connection with a public issue.”’ (§
425.16, subd. (e).)” (Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 619-620.) “At this stage, the question is
only whether a defendant has made out a prima facie case that
activity underlying a plaintiff's claims is statutorily
protected . . . .” (Wilson, supra, at p. 888.)
This is a “first-step” case. Because appellants failed to
carry their first-step burden, we do not reach the second step.
The Eleventh Cause of Action
“‘As is true with summary judgment motions, the issues in
an anti-SLAPP motion are framed by the pleadings.’ [Citations.]
Thus, the act or acts underlying a claim for purposes of an anti-
SLAPP statute is determined from the plaintiffs’ allegations.”
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(Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46
Cal.App.5th 869, 883.)
The eleventh cause of action is entitled, “UNLAWFUL
RETALIATION.” It alleges that appellants “have violated Civil
Code section 1942.5(d) by decreasing services, increasing rent,
causing [respondents] to quit involuntarily by interfering with
their peaceable enjoyment of their home and leasehold, bringing
an action to recover possession, and/or by threatening to do these
acts in retaliation for [respondents’] peaceful and lawful exercise
of their legal rights under the law.” (Italics added.) Civil Code
section 1942.5, subdivision (d) provides: “[I]t is unlawful for a
lessor to increase rent, decrease services, cause a lessee to quit
involuntarily, bring an action to recover possession, or threaten
to do any of those acts, for the purpose of retaliating against the
lessee because the lessee has lawfully organized or participated
in a lessees' association or an organization advocating lessees'
rights or has lawfully and peaceably exercised any rights under
the law.” (Italics added.)
The eleventh cause of action further alleges that, “in
retaliation” for respondents’ filing “their original Complaint in
[the present] action,” appellants “filed a separate malicious
prosecution action against” respondents.2 (Italics added.)
Appellants “(1) served [respondents] with [section] 998 offers to
2 Appellants’ malicious prosecution action consisted of four
causes of action. Appellants appealed from the trial court’s order
granting respondents’ anti-SLAPP motion as to the fourth cause
of action, which “alleged that [respondents] had maliciously
prosecuted an administrative proceeding before the California
Public Utilities Commission . . . .” (Waterhouse Management
Corp. et al. v. Arthur A. Allen et al. (Jan. 20, 2021, B303365), slip
opn. at pp. 1-2 [nonpub. opn].) We affirmed the order.
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dismiss [the malicious prosecution] action for a waiver of fees and
costs, and (2) offered to dismiss [the] action in exchange for a
dismissal of [respondents’] claims . . . . [¶] . . . If [respondents]
refused to dismiss their claims . . . , [appellants] would not
dismiss their malicious prosecution action . . . and [they] would
continue diverting resources intended for improving Park
conditions and operations to litigation against [respondents]
instead.” Appellants “expressly threatened to evict” three
respondents “in the event they did not dismiss their claims
against [appellants] . . . .”
Appellants’ Anti-SLAPP Motion
“[A]n anti-SLAPP motion may be directed to specific
allegations of protected activity [within a cause of action] which
constitute claims for relief but do not constitute an entire cause of
action as pleaded.” (Newport Harbor Offices & Marina, LLC v.
Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 48.)
Appellants’ anti-SLAPP motion was not directed to specific
allegations of protected activity within the eleventh cause of
action. They moved “for an order striking the Eleventh Cause of
Action . . . in its entirety under the Anti-SLAPP statute.”
Appellants argued: “[T]he entire bas[i]s of [respondents’] claims
against [appellants] arise[s] from the filing of [the malicious
prosecution] lawsuit against [respondents] and alleged
settlement communications . . . .” Therefore, “the conduct alleged
in the [eleventh cause of action] falls squarely within the conduct
protected under [the anti-SLAPP statute], as protected activity in
a judicial proceeding.”
Trial Court Ruling
The trial court acknowledged “that the filing of a malicious
prosecution action is protected activity” under the anti-SLAPP
5
statute. (See Area 55, LLC v. Nicholas & Tomasevic, LLP (2021)
61 Cal.App.5th 136, 151 [“‘“‘every claim of malicious prosecution
is a cause of action arising from protected activity . . .’”’”].)
Nevertheless, it denied the motion to strike because the eleventh
“cause of action . . . [did] not arise from the malicious prosecution
action.” Instead, it arose from the alleged violation of Civil Code
section 1942.5, subdivision (d), and “[t]he filing of a malicious
prosecution action is not conduct that leads to liability under
Civil Code section 1942.5.” Thus, appellants failed to satisfy
their “first-step burden” of demonstrating that the “challenged
claim rests on . . . activity [that] is protected by the anti-
SLAPP statute.” (Wilson, supra, 7 Cal.5th at p. 884.)
The trial court reasoned: “[T]he conduct that leads to
liability [under Civil Code section 1942.5, subdivision (d)] is
actual or threatened increases in rent or decreases in services;
conduct that cause[s] a lessee to quit involuntarily; or bringing an
action to recover possession.” “While the existence of the
malicious prosecution action will undoubtedly provide
evidentiary support for the claim [of unlawful retaliation in
violation of Civil Code section 1942.5, subdivision (d)] . . . , an
anti-SLAPP motion should be granted only if liability is based on
speech or petitioning activity itself.” “[N]either the malicious
prosecution [action] nor the settlement discussions are liability
producing activities under the [eleventh] cause of action.”
Standard of Review
“A ruling on a section 425.16 motion is reviewed de novo.
[Citation.] We review the record independently to determine
whether the asserted cause of action arises from activity
protected under the statute . . . .” (Stewart v. Rolling Stone LLC
(2010) 181 Cal.App.4th 664, 675.)
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Appellants’ Theory
Appellants contend: “Respondents’ Eleventh Cause of
Action . . . is based upon [appellant’s] alleged conduct in this
litigation, their filing the malicious prosecution lawsuit against
Respondents, and their alleged settlement communications in
both actions. This is exactly the type of activity that the
California Supreme Court has unequivocally held that the anti-
SLAPP statute is meant to protect.” “Without the allegations of
protected conduct, Respondents have no claim.”
Litigation-Related Activity is Protected Activity
“The anti-SLAPP protection for petitioning activities
applies not only to the filing of lawsuits, but extends to conduct
that relates to such litigation, including statements made in
connection with or in preparation of litigation. [Citation.]
Indeed, courts have adopted ‘a fairly expansive view of what
constitutes litigation-related activities within the scope of section
425.16.’” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145
Cal.App.4th 1532, 1537; see also Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1024 (Bonni) [“claims that arise
out of the filing of a suit arise from protected activity for purposes
of the anti-SLAPP statute”].) “Settlement negotiations while a
suit is pending are likewise protected; they involve
communications in connection with a matter pending before or
under consideration by an official body, and so fall within the
scope of section 425.16, subdivision (e)(2).” (Ibid.)
Respondents’ Claim for Relief in the Eleventh Cause of
Action Does Not Arise from Litigation-Related Activity
“Although litigation-related activities constitute protected
activity, ‘it does not follow that any claims associated with those
activities are subject to the anti-SLAPP statute. To qualify
7
for anti-SLAPP protection, the moving party must [also]
demonstrate the claim “arises from” those activities.’”
(ValueRock TN Properties, LLC v. PK II Larwin Square SC LP
(2019) 36 Cal.App.5th 1037, 1046.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim. [Citations.] . . . [T]he
focus is on determining what ‘the defendant’s activity [is] that
gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.’ [Citation.]”
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1062-1063.)
“A claim does not arise from constitutionally protected
activity simply because it is triggered by such activity or is filed
after it occurs.” (World Financial Group, Inc. v. HBW Ins. &
Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1568.) “To
focus on [the plaintiff’s] litigation tactics, rather than on the
substance of [the plaintiff’s] lawsuit, risks allowing [the
defendant] to circumvent the showing expressly required
by section 425.16, subdivision (b)(1) that an alleged SLAPP arise
from protected speech or petitioning.” (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78.)
“When the Legislature declared [in the anti-SLAPP statute]
that a ‘cause of action’ arising from activity furthering the rights
of petition or free speech may be stricken unless the plaintiff
establishes a probability of prevailing, it had in mind allegations
of protected activity that are asserted as grounds for relief. The
targeted claim must amount to a ‘cause of action’ in the sense
that it is alleged to justify a remedy.” (Baral, supra, 1 Cal.5th at
p. 395.)
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Respondents’ eleventh cause of action is for unlawful
retaliation. The alleged violation of Civil Code section 1942.5,
subdivision (d) “amount[s] to a ‘cause of action’ [for unlawful
retaliation] in the sense that it is alleged to justify a remedy.”
(Baral, supra, 1 Cal.5th at p. 395.) Civil Code section 1942.5,
subdivisions (h)(1) and (2) provide that “[a]ny lessor . . . who
violates this section shall be liable to the lessee in a civil action
for” both actual and punitive damages.
Civil Code Section 1942.5, subdivision (d) does not apply to
a lessor’s retaliation against a lessee where the retaliation takes
the form of the lessor’s filing a malicious prosecution action
against the lessee. The only action mentioned in the statute is
“an action to recover possession . . . for the purpose of retaliating
against the lessee . . . .” (Ibid.)
Civil Code section 1942.5, subdivision (j) provides, “The
remedies provided by this section shall be in addition to any
other remedies provided by statutory or decisional law.”
Appellants have not identified any remedy provided by statutory
or decisional law for a lessor’s retaliation against a lessee based
on the lessor’s filing of a malicious prosecution action against the
lessee.
The eleventh cause of action’s allegations about appellants’
malicious prosecution action and subsequent settlement
negotiations “merely provide context, without supporting a claim
for recovery.” (Baral, supra, 1 Cal.5th at p. 394.) They do not
“amount to a ‘cause of action’ in the sense that [they are made] to
justify a remedy.” (Id. at p. 395.) They do not “supply the
elements of a retaliation claim.” (Bonni, supra, 11 Cal.5th at p.
1012.) Such “[a]llegations of protected activity that merely
provide context, without supporting a claim for recovery, cannot
9
be stricken under the anti-SLAPP statute.” (Baral, supra, at p.
394; see also Bonni, supra, at p. 1012 [“we may consider whether
Bonni’s various allegations supply the elements of a retaliation
claim or merely provide context”].)
The only viable cause of action for unlawful retaliation is
the alleged violation of Civil Code section 1942.5, subdivision (d).
Respondents did not allege, and could not have meritoriously
alleged, that appellants had violated this statute by filing the
malicious prosecution action. Respondents alleged that
appellants had “violated Civil Code section 1942.5(d) by
decreasing services, increasing rent, causing [respondents] to quit
involuntarily by interfering with their peaceable enjoyment of
their home and leasehold, bringing an action to recover
possession, and/or by threatening to do these acts in retaliation
for [respondents’] peaceful and lawful exercise of their legal
rights under the law.”
The trial court therefore did not err in denying appellants’
anti-SLAPP motion even though their filing of the malicious
prosecution action and subsequent settlement negotiations were
protected activity.
The Litigation Privilege is Inapplicable
Appellants assert, “A cause of action brought under Civil
Code section 1942.5 for alleged retaliation is properly stricken as
a SLAPP suit when the conduct complained of is protected by the
litigation privilege under Civil Code section 47.” Appellants
contend that the litigation privilege protects them from liability
for a violation of section 1942.5 based on the conduct complained
of in the eleventh cause of action. In theory, the litigation
privilege may apply to the cause of action’s claim that appellants
violated section 1942.5, subdivision (d) by “bringing an action to
10
recover possession” in retaliation for respondents’ exercise of
their rights.
The litigation privilege is here inapplicable. It does not bar
an action against a landlord for violating Civil Code section
1942.5, subdivision (d). As to such actions, the legislature
created an exception to the litigation privilege. (See Banuelos v.
LA Investment, LLC (2013) 219 Cal.App.4th 323, 332 [“If the
litigation privilege trumped a suit for retaliatory eviction
under section 1942.5 the privilege would ‘“effectively immunize
conduct that the [statute] prohibits”’ [citation] thereby
encouraging, rather than suppressing, ‘“the mischief at which it
was directed . . .”’”]; Winslett v. 1811 27th Avenue, LLC (2018) 26
Cal.App.5th 239, 255 [“To be consistent with the high court's
guidance that we give section 1942.5 a liberal construction
designed to achieve the legislative purpose, we conclude that the
litigation privilege must yield to it”]; Id. at p. 254 [“we agree with
. . . Banuelos . . . that section 1942.5, subdivisions (d) and (h) . . .
create an exception to the litigation privilege”]; Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1247
[“the Legislature remains free to create exceptions to the
litigation privilege”].)
Award of Attorney Fees as Sanction
For making a frivolous anti-SLAPP motion, the trial court
sanctioned appellants by awarding respondents their reasonable
attorney fees of $8,750. “If the court finds that a special motion
to strike is frivolous or is solely intended to cause unnecessary
delay, the court shall award costs and reasonable attorney’s fees
to a plaintiff prevailing on the motion, pursuant to Section
128.5.” (§ 425.16, subd. (c)(1).) “Frivolous in this context means
that any reasonable attorney would agree the motion was totally
11
devoid of merit. [Citation.] An order awarding attorneys’ fees
pursuant to section 128.5, as incorporated in section 425.16,
subdivision (c), is reviewed under the abuse of discretion test.
[Citation.] A ruling amounts to an abuse of discretion when it
exceeds the bounds of reason, and the burden is on the party
complaining to establish that discretion was abused.” (Gerbosi v.
Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
450; see also Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-
1449 [collecting cases and describing the standard of review].)
In its written ruling imposing sanctions (see § 128.5, subd.
(c)), the trial court made clear it was aware of the correct
standard. The court stated, “A determination of frivolousness
requires a finding [that] . . . ‘“any reasonable attorney would
agree such motion is totally devoid of merit.’” Accordingly, we
presume the trial court applied the correct standard in ruling on
the motion for sanctions. (See Denham v. Superior Court (1970) 2
Cal.3d 557, 564 [“[I]t is settled that: ‘A judgment or order of the
lower court is presumed correct . . .’”]; Axis Surplus Ins. Co. v.
Reinoso (2012) 208 Cal.App.4th 181, 190 [“we presume that the
trial court applied the correct standard”].)
For the reasons explained ante, at pages 7-11, the trial
court did not exceed the bounds of reason in finding that any
reasonable attorney would agree that appellants’ anti-SLAPP
motion was “totally and completely without merit.” (§ 128.5,
subd. (b)(2).) The eleventh cause of action for unlawful
retaliation arose from the claim for retaliation in violation of
Civil Code section 1942.5, subdivision (d). It did not arise from
respondents’ allegations that, in retaliation for filing the original
complaint in the present action, appellants had filed a malicious
prosecution action against respondents. “Given the continuous
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flow of unambiguous case law in the past decade, any reasonable
attorney should be aware that a . . . dispute that simply mentions
incidental protected activity is not subject to the anti-SLAPP
statute.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265,
275.)
A Plea for Calm
At the trial level and here on appeal, the parties’ “scorched
earth” postures exude acrimony: There have already been two
appeals from anti-SLAPP rulings. We are hopeful that the law
and motion wars will cease. The case should be settled or be
tried.
Disposition
The orders denying appellants’ special motion to strike the
eleventh cause of action and imposing sanctions of $8,750 for
making a frivolous motion are affirmed. Respondents shall
recover their costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Timothy J. Staffel, Judge
Superior Court County of Santa Barbara
______________________________
James P. Ballantine, for Defendants and Appellants.
Allen, Semelsberger & Kaelin and James C. Allen, Jessica
S. Taylor, for Plaintiffs and Respondents.