Scallon v. Arche CA2/2 ( 2023 )

Filed 12/6/23 Scallon v. Arche CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JAMES SCALLON, B325927
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22LBCV00168)
v.
LORI ARCHE et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed.
Weeks Law Firm and Stephen Weeks for Plaintiff and
Appellant.
Marchetti Law, Frank E. Marchetti; Manning & Kass,
Ellrod, Ramirez, Trester, Sharon S. Jeffrey and Lacey N. Sipsey
for Defendants and Respondents.
_______________________
Plaintiff and appellant James Scallon challenges the order
granting the special motion to strike (anti-SLAPP)1 made by
defendants and respondents Lori Arche and Daniel Arche. The
order struck the fourth, seventh, eighth, and ninth causes of
action from Scallon’s first amended complaint. We conclude the
Arches showed the claims in these causes of action arose from
conduct protected by Code of Civil Procedure section 425.16, and
appellant failed to establish there was a probability he would
prevail on the claims.2 We affirm the order.
BACKGROUND
Scallon entered into a residential rental agreement with
Christopher Spencer for the property located on Rivo Alto Canal,
Long Beach, California. The agreement was to terminate on
October 15, 2020. Following the termination Scallon remained in
possession on a month-to-month tenancy per the agreement.
Approximately one year later the Arches purchased the
property from Spencer, intending to use it as their family home.
The Arches had been told Scallon had agreed to a buy-out offer of
$21,000. However, when the money was tendered Scallon refused
it and did not vacate the residence. The Arches raised the offer to
$30,000, but Scallon declined and informed them he did not
intend to leave.
The Arches were unable to evict Scallon due to the eviction
moratorium issued because of the COVID-19 outbreak. Due to
1 SLAPP stands for strategic lawsuit against public
participation.
2 All further unattributed code sections are to the Code of
Civil Procedure.
2
the inability to move into the home, the Arches rented various
locations. Consequently the Arches lobbied for legislative changes
and started a Change.org petition to obtain support for amending
the eviction moratorium.
The Arches also spoke to news reporters about the eviction
moratorium and their lobbying efforts. On April 16, 2021, CBS
Broadcasting Inc. (CBS) interviewed the Arches about their
inability to move into their home because of the eviction
moratorium. The segment was posted online and included a news
story with the title Long Beach Couple Buys Multi-Million Dollar
Home, But Can’t Get Former Tenant to Leave. The news article
and broadcast referred to the neighborhood but did not identify
Scallon by name or address.
After the news story, the Arches were contacted by lawyers
and advised they had a right to occupy their property. Since
Scallon would not voluntarily leave, the Arches served him with a
60-day notice to quit for owner occupancy. Scallon refused to
move and claimed the eviction moratorium barred their efforts.
The Arches continued to lobby for changes that would allow
them to evict Scallon from the property. They were again
interviewed by CBS for a follow-up story that was published on
June 21, 2021, titled Some Homeowners Say They’re Victims of
Eviction Moratorium Rules as LA County Considers Extension.
The article did not refer to Scallon or his address.
Scallon filed this action on April 12, 2022, claiming the
Arches and CBS had engaged in tenant harassment and invaded
his privacy. The operative pleading is his first amended
complaint (FAC), in which he alleges the Arches contacted
multiple news agencies to run a story against him, provided CBS
with his home address, posted the CBS story on multiple Web
3
sites, made comments supporting the CBS story, and commenced
a meritless unlawful detainer action against him.
CBS and the Arches filed anti-SLAPP motions. The trial
court granted CBS’s motion and struck all claims directed at
CBS. Judgment was entered in its favor on December 23, 2022.
The trial court granted the Arches motion and struck the fourth,
seventh, eighth, and ninth causes of action of the FAC on
October 17, 2022.
Scallon filed a timely notice of appeal. While the appeal is
pending the remaining claims against the Arches are stayed by
stipulation and court order.
CONTENTIONS ON APPEAL
Scallon challenges the order granting the Arches’ anti-
SLAPP motion on two grounds. First, he argues the Arches’
speech was unlawful and not protected by the anti-SLAPP
statute. Second, he argues the trial court erred by finding he had
no probability of success on his claim of invasion of privacy by
disclosing his home address.
DISCUSSION
I. Applicable law and standard of review
A special motion to strike under section 425.16, also known
as the anti-SLAPP statute, allows a defendant to seek early
dismissal of a lawsuit involving 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.” (§ 425.16, subd. (b)(1).)
4
Actions subject to dismissal under section 425.16 include
those based on “(1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) 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 (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).)
“A SLAPP is 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).) Thus, evaluation of an anti-SLAPP motion requires
a two-step process in the trial court. ‘First, the court decides
whether the defendant has made a threshold showing that the
challenged cause of action is one “arising from” protected activity.
(§ 425.16, subd. (b)(1).) If the court finds such a showing has been
made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.’” (Nygård,
Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035
(Nygård).) “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 v. Sletten (2002) 29
Cal.4th 82, 89.)
5
“‘Review of an order granting or denying a motion to strike
under section 425.16 is de novo. [Citation.] We consider “the
pleadings, and supporting and opposing affidavits . . . upon which
the liability or defense is based.” (§ 425.16, subd. (b)(2).)
However, we neither “weigh credibility [nor] compare the weight
of the evidence. Rather, [we] accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.”’” (Nygård, supra, 159
Cal.App.4th at p. 1036.)
II. The Arches’ conduct was protected under section
425.16
The threshold question in evaluating the anti-SLAPP
motion here is whether the claims against the Arches in the FAC
arise from protected activity. (Nygård, supra, 159 Cal.App.4th at
p. 1035.) In making this determination, the trial court may
consider the pleadings and supporting and opposing affidavits
setting forth the facts upon which the liability or defense is
based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.)
Since the Arches requested the court strike the fourth,
seventh, eighth, and ninth causes of action in Scallon’s pleading,
they had the initial burden of showing these causes of action
arose from protected activity. (§ 425.16, subd. (e).)
Scallon pleads in the fourth cause of action that the Arches
violated Civil Code section 1940.2 by using menacing conduct
that interfered with his quiet enjoyment of the premises. The
purpose of this section is to prohibit a landlord’s use of theft,
extortion, interference with a tenant’s quiet enjoyment, or
trespass “‘for the purpose of influencing a tenant to vacate a
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dwelling.’” (Erlach v. Sierra Asset Servicing, LLC (2014) 226
Cal.App.4th 1281, 1300, quoting Civ. Code, § 1940.2, subd. (a).)
Scallon does not specifically identify the conduct that
violated Civil Code section 1940.2; instead, he incorporated all
his prior allegations. In these prior allegations, Scallon alleges
the Arches harassed him by starting a petition on Change.org to
obtain support for evicting him and by contacting reporters to
write stories about his refusal to leave the premises. Scallon also
alleges the Arches knew they were not permitted to evict him due
to the moratorium that existed because Los Angeles County and
the State of California had enacted protections against certain
evictions in response to the COVID-19 pandemic. In their motion,
the Arches provided facts explaining they started the petition and
made statements to reporters to support an effort to lobby public
officials for amendments to the eviction moratorium.
Scallon’s allegations and the Arches’ evidence demonstrate
that Scallon’s claims arise from the written and oral statements
made by the Arches in a place open to the public or a public
forum, i.e., statements in a petition made on a public Web site
and statements made to reporters for broadcast on public
airwaves or publication on a Web site open to the public. The
statements were made in connection with the eviction
moratorium, an issue of public interest as the efforts by public
entities to prevent eviction of tenants during the pandemic had
unintended economic consequences for landlords and property
owners. Their statements were open to the public or a public
forum. Therefore the statements were made in connection with
an issue of public interest and are protected speech, as defined by
section 425.16, subdivision (e)(3).
7
Additionally, the claims arise from the Arches’ efforts to
persuade public officials to allow tenant evictions by owners
seeking to occupy a single-family residence. This is conduct in
furtherance of their constitutional right to petition or their right
to free speech in connection with the public issue of balancing
protections for tenants and landlords’ rights during a pandemic.
The Arches’ statements are protected speech as defined by
section 425.16, subdivision (e)(4). Therefore, the claims in the
fourth cause of action arise from speech protected by the anti-
SLAPP statute.
As to the seventh, eighth, and ninth causes of action, each
is based on claims the Arches invaded Scallon’s privacy by
disclosing his address, providing photographs of his home, and
identifying him as a “former tenant” in the statements made on
public Web sites and to the CBS reporters.These are written and
oral statements made in a public forum on the public issue of
eviction moratoriums as well as conduct in furtherance of the
rights of petition and to free speech. Thus, the claims in the
seventh, eighth, and ninth causes of action also arise from speech
protected under section 425.16, subdivision (e)(3) and (4).
Scallon counters that the speech here is not protected
under section 425.16 because it was illegal. A defendant is
precluded from using a motion to strike under section 425.16
when that defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition
activity was illegal as a matter of law. (Flatley v. Mauro (2006) 39
Cal.4th 299, 320 (Flatley).) In Flatley, the speech was a
communication via letter that the defendant would accuse Flatley
of crimes unless he paid a minimum of $1 million. (Id. at p. 330.)
The court concluded this constituted criminal extortion as a
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matter of law and was not protected by the anti-SLAPP statute.
(Ibid.)
This exception is limited because the term “illegal” in
Flatley was intended to mean criminal conduct, not merely
violations of any statute. (Mendoza v. ADP Screening & Selection
Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Further, it
applies only when there is uncontroverted evidence that the
conduct was illegal. (Dwight R. v. Christy B. (2013) 212
Cal.App.4th 697, 711.)
Scallon claims the Arches violated Penal Code section
653.2.3 Nothing in the record conclusively establishes that the
Arches had the necessary mental state of intending to place
Scallon in fear of his safety when they made their petitioning
efforts. On the contrary, the evidence that they made efforts to
seek changes to the eviction moratorium shows that their intent
was otherwise.
Scallon also argues the Arches violated Los Angeles County
Charter, section 8.52.130—Retaliatory Eviction and Anti-
Harassment. Under section 8.52.130, subdivision B.2.i., a
landlord may not “in bad faith” release information protected by
the tenant’s right to privacy, except as required or authorized by
law. Nothing in the record conclusively establishes the Arches
acted in bad faith when they made their petitioning efforts. As
noted above, their intent is controverted because they offer facts
showing they were seeking public support for changes to the
eviction moratorium.
3 Penal Code section 653.2 makes it a misdemeanor to
electronically distribute personal identifying information with
the intent to place another person in reasonable fear for his or
her safety.
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Therefore, Scallon failed to show this limited exception to
section 425.16 applies. As a result, the analysis proceeds to the
second prong.
III. Scallon failed to show there was a probability he
would prevail
Since the Arches met their initial burden, Scallon must
then show a probability of prevailing on his claims. (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) The
Arches’ motion was directed at the fourth, seventh, eighth, and
ninth causes of action. Scallon can satisfy his burden by
demonstrating that each of these causes of action is both legally
sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by
Scallon is credited. (Ibid.)
A. Scallon did not discuss the fourth or ninth
causes of action
Scallon does not show how he met his burden on the fourth
cause of action (violation of Civil Code section 1940.2). This claim
includes allegations that the Arches tried to cause Scallon to
vacate the premises by creating a petition to obtain public
support for his eviction and by contacting reporters to write
stories about Scallon’s refusal to move out. Scallon does not show
the claim was legally sufficient or supported by a sufficient prima
facie showing of facts. He identifies no facts showing the Arches
violated Civil Code section 1940.2. On appeal, he offers no
grounds to find he met his burden on this claim.
Nor does Scallon discuss how he met his burden on the
ninth cause of action, which claims the Arches invaded his
privacy by describing him as a “former tenant.” This is a “false
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light” claim, which is a species of invasion of privacy.4 (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1264.) The claim is
based on publicity that places a plaintiff before the public in a
false light that would be highly offensive to a reasonable person,
and where the defendant knew or acted in reckless disregard as
to the falsity of the publicized matter and the false light in which
the plaintiff would be placed. (Ibid.) Scallon does not show he
pleaded the claim sufficiently or that he has evidence showing it
was offensive to a reasonable person for the Arches to publish he
was a “former tenant.” He does not identify facts showing the
Arches knew or recklessly disregarded the falsity of calling him a
“former tenant” or that using this phrase would place Scallon in a
false light.
Thus, Scallon did not meet his burden under section 425.16
on the fourth or ninth causes of action.
B. Scallon cannot establish the seventh and eighth
causes of action because his residential address
is not protected by the right to privacy
Scallon claims in his seventh and eighth causes of action
that the Arches invaded his right to privacy by disclosing his
home address to CBS, and this information appeared on
Change.org, Facebook, and three Web sites operated by CBS. The
seventh cause of action is a public disclosure claim and seeks
4 California courts have recognized four distinct types of
right of privacy claims: “(1) intrusion upon one’s physical solitude
or seclusion; (2) public disclosure of private facts; (3) false light in
the public eye; and (4) appropriation.” (Forsher v. Bugliosi (1980)
26 Cal.3d 792, 808.) Here, Scallon uses three—public disclosure,
intrusion, and false light—in his seventh, eighth, and ninth
causes of action.
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remedies for the (1) public disclosure (2) of a private fact (3) that
would be offensive and objectionable to the reasonable person and
(4) is not of legitimate public concern. (Jackson v. Mayweather,
supra, 10 Cal.App.5th at p. 1256.) The eighth cause of action is
an intrusion claim and seeks remedies for the (1) intrusion into a
private place, conversation, or matter (2) in a manner highly
offensive to a reasonable person. (Sanders v. American
Broadcasting Companies (1999) 20 Cal.4th 907, 914.)
The “private fact” in Scallon’s claims is his residential
address. He argues this is a “private fact” based on the analysis
in M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 (M. G.).
In M. G., Time Warner’s media organizations used a photograph
of a Little League team, whose coach had pleaded guilty to
molesting children, to illustrate a story about adult coaches who
had sexually abused children. The individuals in the photograph
sued Time Warner for invasion of privacy. Time Warner filed an
anti-SLAPP motion to argue that publishing the photograph was
not a disclosure of a private fact because the photograph had
been taken on a public baseball field and portrayed the plaintiffs’
participation in a public sport. The argument was rejected
because plaintiffs showed the photograph was intended to be
private and only for dissemination among family and friends.
Thus, use of the photograph was disclosure of the private fact
that plaintiffs were members of a team whose coach had pleaded
guilty to molesting children.
Scallon’s residential address is not a private fact like the
photograph of a children’s team in M. G. A residential address is
readily discoverable through searches of phone books or public
Web sites. Scallon’s address was also identified in the lease
agreement. Unlike M. G., where the facts showed an intent to
12
keep the photograph private, Scallon offers no similar evidence
showing he intended to keep his address private, such as
negotiating for a term in the lease to keep his identity private.
In addition the Arches were disclosing the address of
property they had purchased. Scallon offers no authority showing
that his right to privacy prevented the Arches from disclosing
their property’s address to a reporter interviewing them about
the eviction moratorium.
Scallon also sought support in Dziubla v. Piazza (2020) 59
Cal.App.5th 140 (Dziubla) that involved the disclosure of a
residential address in a doxing case.5 In Dziubla, the parties were
involved in two cases. The first concerned a failed loan
agreement. The second arose from defendant’s efforts to obtain
funds for the first case by publishing an “Emergency Action
Alert” to 200,000 members of a gun enthusiast group, claiming
the plaintiff was a “Gun-Grabbing” con man. The publication
identified the plaintiff’s residential address and included pictures
of his house and a close-up image of the plaintiff’s face.
In the second case the plaintiff sought damages for the
“Emergency Action Alert,” pleading theories based on criminal
threats, defamation, false light, negligent infliction of emotional
distress, injunction, and violation of the Ralph Civil Rights Act of
1976, under Civil Code section 51.7, for harassment based on
political affiliations. The defendant filed an anti-SLAPP motion
to strike these claims, arguing they arose from communications
about the first case and were barred by the litigation privilege.
The motion was granted with regard to all claims except the
5 “Doxing” is an Internet-based form of harassment that
involves posting a target’s private personal information online so
it can be used by other parties to attack the targeted individual.
13
injunctive and civil rights claims. The court found the civil rights
claim based on disclosing the plaintiff’s personal information to
harass the plaintiff for his political affiliations was not protected
by section 425.16; i.e., it did not arise from written or oral
statements in the first case, and it had a probability of success
because the litigation privilege did not apply.
Scallon offers no grounds why we should apply these
holdings in the present case. He identified no facts showing the
Arches disclosed his address with an intent to violate his civil
rights or harass him. Further, Dziubla does not hold that a
residential address is a private fact for the purpose of
establishing a right to privacy claim. Scallon, therefore, has failed
to show he has a probability of prevailing on his claim that his
residential address was a “private fact.”
Moreover, Scallon does not show he has a probability of
prevailing on his eighth cause of action for intrusion into his
privacy by disclosing his residential address. To establish this
claim, Scallon must show the Arches “‘penetrated some zone of
physical or sensory privacy surrounding, or obtained unwanted
access to data about, the plaintiff.’” (Sanders, supra, 20 Cal.4th at
pp. 914-915.) The Arches possessed Scallon’s residence address
because they bought the property. Scallon identifies no
allegations or evidence showing the Arches penetrated a zone of
privacy or obtained unwanted access when they obtained the
address of the property they had purchased. Scallon, therefore,
did not meet his burden under section 425.16 of demonstrating a
probability of prevailing on his seventh or eighth causes of action.
As a result, the trial court correctly granted the Arches’
anti-SLAPP motion because the Arches showed that Scallon’s
claims against them arose from their engagement in speech
14
protected by section 425.16 and Scallon did not show he had a
probability of prevailing on his claims.
DISPOSITION
We affirm the trial court’s order. Respondents, Lori Arche
and Daniel Arche, are awarded their costs of appeal.
________________________
CHAVEZ, J.
We concur:
____________________________
LUI, P. J.
____________________________
ASHMANN-GERST, J.
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