Opinion
A163662
12-19-2022
KARLE FRIED, Cross-complainant and Respondent, v. BELLE ROSE CLAREMONT, LLC et al., Cross-defendants and Appellants.
NOT TO BE PUBLISHED
Order Filed Date 12/21/22
(Alameda County Super. Ct. Nos. RG18898140, RG18923811)
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on December 19, 2022, be modified as follows:
1. On page 1, in the case title, delete "Super. Ct. No. RG18923811" and replace it with "Super. Ct. No. RG18898140."
There is no change in the judgment. Dated:
MARGULIES, ACTING P.J.
Cross-complainant Karle Fried filed a first amended cross-complaint against Belle Rose Claremont, LLC, Stonewall Holabird, LLC, Steve Davis, and Kristin Personett (jointly, cross-defendants) alleging violations of the just cause for eviction and tenant protection ordinances, breach of the covenant of quiet use and enjoyment, and negligence. Cross-defendants appeal from the trial court's order denying their special motion to strike under California's anti-SLAPP statute, Code of Civil Procedure section 425.16. We reverse the order as to paragraph 35, but otherwise affirm the order.
Such a motion is referred to as an anti-SLAPP motion. "An anti-SLAPP motion seeks to strike a '[s]trategic lawsuit against public participation,' that is, a 'SLAPP.'" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 882, fn. 2.) All undesignated statutory references are to the Code of Civil Procedure.
I.
BACKGROUND
This is the third appeal in this case. As described in more detail in a prior opinion of this court (Belle Rose Claremont, LLC v. Fried (Dec. 22, 2020, A159836) [nonpub. opn.]), Fried was a tenant on property purchased by cross-defendants. The cottage in which Fried resided was part of three adjacent parcels of land.
We take judicial notice of our prior decision. (Evid. Code, § 452, subd. (d).)
A disagreement arose between the parties when cross-defendants indicated an intent to sell some of the parcels. Fried initially informed crossdefendants she wished to purchase her cottage but, when she was unable to do so, she then asserted the parcels could not be sold separately. Crossdefendants disputed Fried's position.
In October 2017, cross-defendants served Fried with a "Sixty-Day Notice of Change of Monthly Rent." Despite a one-year lease renewal executed in September 2017, which set forth a rental amount of $959.67, this notice stated Fried's rent would increase to $2,250.
In November 2017, Fried filed a petition with the Oakland Rent Adjustment Program (hereafter Rent Board) challenging the rent increase notice. The petition also identified various habitability issues and asserted those issues should reduce her rent by 25 percent.
Cross-defendants filed a complaint against Fried, alleging trespass, slander of title, and tortious interference with prospective economic gain. In response, in May 2018, Fried filed a cross-complaint against crossdefendants, alleging (1) violation of Oakland's Just Cause for Eviction Ordinance (Oak. Mun. Code, § 8.22.370), (2) violation of Oakland's Tenant Protection Ordinance (Oak. Mun. Code, §§ 8.22.600-8.22.670), (3) extortion, (4) intentional infliction of emotional distress, (5) violation of Civil Code section 1942.4, and (6) breach of the covenant of quiet use and enjoyment. John Gutierrez, a former cross-defendant who was subsequently dismissed, filed a successful anti-SLAPP motion to the cross-complaint. Nothing in the record indicates cross-defendants joined that motion or filed a separate anti-SLAPP motion as to the original cross-complaint.
An amended complaint added claims for promissory estoppel, breach of contract, and negligent misrepresentation.
In response to Gutierrez's successful anti-SLAPP motion, crossdefendants moved to strike certain allegations in the cross-complaint related to his conduct. The court granted the motion as to two paragraphs, and provided Fried with leave to amend.
In April 2021, Fried filed her first amended cross-complaint, alleging (1) violation of Oakland's Just Cause for Eviction Ordinance (Oak. Mun. Code, § 8.22.360 et seq.), (2) violation of Oakland's Tenant Protection Ordinance (Oak. Mun. Code, § 8.22.640), (3) breach of the covenant of quiet use and enjoyment, and (4) negligence.
Cross-defendants filed an anti-SLAPP motion in response to the first amended cross-complaint, specifically as to paragraphs 20, 22-27, 29, 34-35, 39 and 40. Fried opposed the motion, arguing in relevant part that the motion was untimely. It noted cross-defendants' anti-SLAPP motion acknowledged it is" 'virtually identical . . . to the one previously brought by John Gutierrez, and granted by this court.'" Fried's opposition also disputed the merits of cross-defendants' anti-SLAPP motion.
We note cross-defendants failed to include the memorandum of points and authorities in support of their motion in the record submitted to this court.
The trial court denied the anti-SLAPP motion. The court concluded the motion was untimely because the amended cross-complaint was "sufficiently similar" to the prior cross-complaint and did not contain new causes of action. It declined to exercise its discretion to hear the motion outside of the 60-day limit because the parties had "spent significant time and resources on discovery, including motion practice related to the claims," and crossdefendants failed to offer any justification for the delay in bringing the motion. Cross-defendants timely appealed.
II. DISCUSSION
A. Timeliness of Anti-SLAPP Motion
Cross-defendants argue the court abused its discretion in ruling that their anti-SLAPP motion was untimely. On appeal, cross-defendants limit the scope of their challenge to the trial court's ruling denying their anti-SLAPP motion as to paragraphs 34 and 35 in the amended cross-complaint.
Cross-defendants argue striking the allegations as to one party, but refusing to do so for others, "would lead to a procedural absurdity." They further assert the context "is very different" because Fried's petition to the Rent Board has been resolved, and the likelihood of their success on prong two of the anti-SLAPP analysis is "overwhelming." We need not reach these issues.
"An anti-SLAPP motion may be brought within 60 days of service of an amended complaint' "if the amended complaint pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion." '" (Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 206 (Starview Property); Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 641 (Newport Harbor); see § 425.16, subd. (f) [a "special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper"].) "[A]n anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded." (Baral v. Schnitt (2016) 1 Cal.5th 376, 393 (Baral).) However, "[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." (Id. at p. 394.) Prohibiting untimely motions (subject to the trial court's discretion to allow a late motion) "maximizes the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse." (Newport Harbor, at p. 645.)
In assessing whether cross-defendants' anti-SLAPP motion is timely as to paragraphs 34 and 35, we derive guidance from the Supreme Court's holdings in Newport Harbor and Baral. In Newport Harbor, the Supreme Court held "section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion)." (Newport Harbor, supra, 4 Cal.5th at p. 645.) In accordance with Baral, Newport Harbor noted an amended complaint reopens the time to file an anti-SLAPP motion if, as relevant here, it "adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion." (Id. at pp. 641, 646.) The court noted disallowing anti-SLAPP motions in such circumstances might encourage plaintiffs" 'to circumvent the anti-SLAPP law by waiting until an amended complaint to assert its SLAPP allegations.'" (Id. at p. 643.) As explained in Baral, an anti-SLAPP motion does not need to be brought against an entire cause of action but can seek to strike allegations "supporting a claim for recovery." (Baral, supra, 1 Cal.5th at p. 394.) Accordingly, we assess whether these paragraphs raise new allegations that form a substantive basis for an alleged cause of action.
Paragraph 34 of the amended cross-complaint states: "CrossDefendant PERSONETT filed the Property Owners' Response to the Petition. She checked the box to claim that the rent increase was legally justified, in that 'The unit is a single family residence or condominium exempted from the rent control laws by the Costa Hawkins Rental Housing Act CC 1954.50.' This was, and is a false claim as the cottage leased to Plaintiff is one of two cottages on parcel 2 of the property, as was known to PERSONETT, DAVIS and their agent GREG FLOWERS and therefore does not constitute a 'single family residence' under said law. Nor has the cottage been converted into a condominium."
This allegation is substantively identical to paragraph 32 of the original cross-complaint. That paragraph alleged, "Cross-Defendant Kristin Personett filed the Property Owner Response to the Petition in which she checked the box to claim that the rent increase was legally justified, in that 'The unit is a single family residence or condominium exempted from the rent control laws by the Costa Hawkins Rental House Act CC 1954.50.' This is a patently false claim as the cottage leased to Plaintiff is one of two cottages on parcel 2 of the property, and therefore does not constitute a 'single family residence' under said law. Nor has the cottage been converted into a condominium."
Because there is no meaningful difference between these two paragraphs, paragraph 34 does not constitute a "new allegation." Crossdefendants' anti-SLAPP motion as to that paragraph is thus untimely. (See Starview Property, supra, 41 Cal.App.5th at p. 206.) While the trial court has discretion to allow untimely motions, it did not abuse its discretion by declining to allow cross-defendants to challenge this allegation. Crossdefendants have not identified any justification for their delay in filing their anti-SLAPP motion as to this paragraph or their failure to join in Gutierrez's anti-SLAPP motion. Rather, as noted by the trial court, the parties have engaged in extensive litigation over multiple years, including discovery and motion practice. To allow an anti-SLAPP motion at this stage would, in fact, run counter to its purpose of resolving cases promptly and inexpensively. (See Newport Harbor, supra, 4 Cal.5th at p. 645 [" 'An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.' "].)
However, paragraph 35 of the amended cross-complaint raises a new allegation against cross-defendants. Paragraph 35 states: "Cross-defendant[ ] DAVIS submitted in the RAP hearing on the Petition, what he testified under oath to be 'true and correct copies,' of the Alameda County Tax Assessor Residential Building Records forged or altered by PERSONETT. These forged or altered records purported to show that the 2ndcottage on the same APN as [Fried's] cottage was built on an adjacent vacant parcel. This was done to try and prove that the cottage rented to [Fried] was not rent controlled as it would be a single dwelling on the parcel, and therefor exempt pursuant to Costa Hawkins CC 1954.52(3)(A). The true Residential Building Records on file with the Alameda County Tax Assessor establish that both the cottage that [Fried] lived in, and a second cottage were built on the same parcel and assessed thereto[ ] APN 48H-7672-01-1. This forgery and claim that the documents submitted were true and correct copies of the
Assessor's records were illegal acts done for the purpose of defeating [Fried's] Petition objecting to the rent increase and to make it impossible for [Fried] to remain a tenant." This allegation differs from the original cross-complaint, which merely stated "The Rent Adjustment Program hearing on Fried's protest of the rent increase has not yet been scheduled." Accordingly, crossdefendants are entitled to file an anti-SLAPP motion as to this allegation, provided it supports a claim for recovery and does not "merely provide context." (Baral, supra, 1 Cal.5th at p. 394.)
In considering the causes of action asserted by Fried, it appears-at a minimum-the first cause of action for violation of Oakland's Just Cause for Eviction Ordinance is based in part on the allegation in paragraph 35. This claim contends cross-defendants wrongfully sought to force Fried to vacate her cottage by engaging in various bad acts, including "all of the foregoing alleged acts." Likewise, the second cause of action for violation of Oakland's Tenant Protection Ordinance asserts it is based in part on efforts by crossdefendants to force Fried "to settle the ongoing litigation and give up her Petition against the rent increases before the [Rent Board]" and vacate the unit. While none of the claims discuss the allegations in paragraph 35 specifically, it appears to allege one of a series of unlawful acts that form the basis for Fried's cross-complaint and is not mere context for such claims. The trial court thus erred in finding cross-defendants' anti-SLAPP motion untimely as to paragraph 35.
B. Remand Is Appropriate
In light of the trial court's ruling the anti-SLAPP motion was untimely, it did not engage in the two-step process required by the anti-SLAPP statute. (See § 425.16.) The first step requires the moving party to identify"' "all allegations of protected activity, and the claims for relief supported by them ....If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The 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. If not, the claim is stricken." [Citation.] In making these determinations the court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." '" (Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043.)
While the parties have briefed the merits on appeal, the moving papers filed with the trial court have not been submitted to this court as part of the record. Nor has the trial court had an opportunity to rule on the merits of the anti-SLAPP motion.
In Birkner v. Lam (2007) 156 Cal.App.4th 275, the trial court denied the defendant's anti-SLAPP motion after deciding the defendant had not met its burden of establishing a prima facie case under the first prong of the section 425.16 analysis. The trial court did not address the second prong of that analysis, whether the plaintiffs established a probability of prevailing on the claim at trial. (Birkner, at p. 280.) On appeal, Division Three of this court concluded the trial court erred in determining that the plaintiffs' causes of action did not arise from protected activity under section 425.16. (Birkner, at pp. 278, 283-285.) Although Birkner noted that the parties had extensively briefed the issue of the plaintiffs' probability of prevailing on their causes of action and the validity of the defendant's defenses, it determined that it was more appropriate to remand the issue for the trial court to address in the first instance. (Id. at pp. 286-287.)
Similarly, we conclude it is appropriate to remand the matter to the trial court for a ruling in the first instance on the two-step process set forth in the anti-SLAPP statute as to cross-defendants' motion challenging paragraph 35.
III. DISPOSITION
The order denying Belle Rose Claremont, LLC, Stonewall Holabird, LLC, Steve Davis, and Kristin Personett's special motion to strike is reversed as to paragraph 35 of the first amended cross-complaint. The order is otherwise affirmed. The parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
WE CONCUR: HUMES, P. J. BANKE, J.