Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2007-99616740, Duncan S. Werth II, Commissioner, and Hon. John S. Meyer, Judge.
BENKE, Acting P. J.
The performance or promotion of acts of prostitution is not protected by either the free expression provisions of the state Constitution or the free speech provisions of the federal Constitution. Thus, the unlawful detainer action the plaintiff and respondent in this case, a commercial landlord, brought against its tenant on the grounds the tenant had been operating a house of prostitution on the leased premises was not subject to a motion to strike under our anti-SLAPP statute, Code of Civil Procedure section 425.16. Accordingly, we affirm the trial court's order denying defendant and appellant's motion to strike.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and respondent 2705 Garnet, LLC (2705 Garnet), owns an office building in Pacific Beach. Defendant and appellant Yumi Ito, doing business as Ginza Spa, leased two suites in the building from 2705 Garnet and operated a massage and holistic health services business from the leased premises. Under the terms of Ito's lease, Ito was required to conduct her business "in a lawful manner and shall not use or permit the use of the Premises or the Common Areas in any manner that will tend to create waste or a nuisance or shall tend to disturb other occupants in the Office Building Project."
In the fall of 2006, undercover police officers, responding to a citizen complaint, discovered Ito was engaged in acts of prostitution on the leased premises. This discovery led to a number of proceedings against Ito.
On October 11, 2006, the City of San Diego revoked Ito's massage and holistic health practitioner's license. Ito challenged the revocation administratively.
On February 16, 2007, the San Diego City Attorney gave 2705 Garnet notice Ito was operating a brothel on its premises and 2705 Garnet was subject to the penalties set forth in the Red Light Abatement Law, Penal Code section 11225, subdivision (a). The city attorney directed 2705 Garnet to remove Ito's business from its property.
On February 23, 2007, the city attorney filed a criminal complaint against Ito and two other people associated with her business. The complaint alleged Ito and the other defendants engaged in acts of prostitution and operated a house of prostitution.
On March 7, 2007, 2705 Garnet served a notice to quit on Ito, and on March 13, 2705 Garnet filed an unlawful detainer action against Ito. The unlawful detainer action alleged Ito had performed acts of prostitution on the premises in violation of the terms of her lease.
The trial court denied the motion to strike, and Ito filed a timely appeal. While Ito's appeal has been pending, Ito has continued to pay $3,150 a month in rent for the premises under the provisions of a stipulation between the parties under which they agreed neither the payment of rent nor its acceptance would waive either party's rights. Under the terms of the lease, in January 2008 the rent increased by $125 a month; Ito paid the increased rent, and 2705 Garnet accepted it.
Ito brought the stipulation and her rental payments to our attention by way of a motion to augment, which we grant.
DISCUSSION
I
Because the stipulation executed by the parties with respect to rent does not expressly include the rent increase provided for under the terms of the lease, Ito argues that in accepting the increased rent in January 2008, 2705 Garnet has waived any alleged breach of the lease and we should reverse the trial court's order with directions to enter judgment in her favor in the unlawful detainer action. (See Salton Community Services Dist. v. Southard (1967) 256 Cal.App.2d 526, 533.) We find no waiver by 2705 Garnet. The stipulation clearly covers rent due under the lease. The fact the stipulation does not expressly mention the rent increase set forth in the lease does not suggest 2705 Garnet knowingly and intentionally waived its right to pursue the underlying unlawful detainer action when it began accepting the increased rent in January 2008. In order for a waiver to arise, the stipulation would have to clearly and explicitly exclude any increases otherwise due under the lease.
II
We affirm the trial court's order denying Ito's motion to strike because the violation of the terms of the lease which 2705 Garnet has alleged in its unlawful detainer action is not protected activity within the meaning of the anti-SLAPP statute.
"The anti-SLAPP statute was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims 'arising from any act' of the defendant '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 . . . .' (§ 425.16, subd. (b)(1).) To achieve this objective, the Legislature authorized the filing by a defendant of a special motion to strike those claims within 60 days after service of the complaint. (§ 425.16, subds. (b)(1), (f).) An anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds [that] such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) The trial court's determination of each step is subject to de novo review on appeal. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186.)
In determining whether the defendant's act underlying the plaintiff's cause of was an act in furtherance of the right of petition or free speech, "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 (2002) 29 Cal.4th 69, 78.) "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 to his or her asserted liability-and whether that activity constitutes protected speech or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) Thus, a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting to characterize an action as a "garden variety breach of contract [or] fraud claim" when in fact the liability claim is based on protected speech or conduct. (Navellier, supra, 29 Cal.4th at pp. 90-92.) On the other hand, "a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. [Citation.]" (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 188; see also Paul v. Friedman (2002) 95 Cal.App.4th 853, 866, ["[t]he statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding"].)
Here, the record unequivocally shows 2705 Garnet's unlawful detainer action is based on Ito's alleged use of the leased premises for acts of prostitution in violation of the terms of the lease. Acts of prostitution are not in any way related to the right of free expression protected by the state and federal Constitutions. (See Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 17 [" 'on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression' "].) The fact Ito's alleged acts of prostitution, in addition to giving rise to the unlawful detainer action, made Ito subject to administrative and criminal proceedings did not bring the unlawful detainer action within the scope of the anti-SLAPP statute. Whatever impact the unlawful detainer action had on the other proceedings was indirect and remote.
III
In sum the trial court did not err in denying Ito's motion to strike. Order affirmed. Respondent to recover its costs of appeal.
Respondent requests that we order Ito to pay its attorney fees on appeal. (See § 425.16, subd. (c); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) We decline to do so. The motion and appeal, while unsuccessful, do not appear to be frivolous or designed solely for the purpose of delay.
WE CONCUR: McDONALD, J., McINTYRE, J.