Opinion
B316235 B319104
04-16-2024
SPENCER S. MAYS, Plaintiff and Appellant, v. IH4 PROPERTY WEST, LP et al., Defendants and Respondents
Lorden & Reed and Zshonette L. Reed for Plaintiff and Appellant. Olson Law Group, Sonali Olson and Sherri E. Matta for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21STCV23662, Michael P. Linfield, Judge. Affirmed.
Lorden & Reed and Zshonette L. Reed for Plaintiff and Appellant.
Olson Law Group, Sonali Olson and Sherri E. Matta for Defendants and Respondents.
ASHMANN-GERST, J.
Plaintiff and appellant Spencer S. Mays (Mays) challenges the trial court order granting the special motion to strike her complaint filed by defendants and respondents IH4 Property West, LP (IH4) and IH2 Property West LP (IH2) pursuant to Code of Civil Procedure section 425.16, California's anti-SLAPP statute. Because each of the stricken claims arose from protected activity and lacked minimal merit, we affirm the trial court's order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 813, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
BACKGROUND
Underlying unlawful detainer action
According to the allegations of the complaint, Mays became a resident at 4011 Hubert Avenue (the property) in August 2011 pursuant to a lease. She allegedly renewed her lease annually.
IH4 eventually acquired title to the property. After acquiring title to the property, "IH2 and/or IH4" filed an unlawful detainer action against the property's former owner and all occupants. Mays was not named as a defendant.
IH2 originally filed the unlawful detainer action. At some point, defendants realized that the true property owner was IH4, and IH4 was substituted in as the unlawful detainer plaintiff- before Mays became a defendant in that action.
On November 17, 2014, IH4 obtained a judgment against the persons named in the unlawful detainer proceeding. On January 13, 2017, Mays filed a claim to right of possession of the property. (See § 1174.3; Crescent Capital Holdings, LLC v. Motiv8 Investments, LLC (2022) 75 Cal.App.5th Supp. 1, 7-8.) IH4 successfully moved for summary judgment against Mays, and Mays appealed. While that appeal was pending, on May 21, 2017, IH4 evicted Mays from the property.
Approximately two years later, the appellate division of the superior court reversed the order granting IH4's summary judgment and remanded the matter for a trial on the merits. The matter never went to trial because on May 14, 2021, IH4 dismissed its action against Mays.
The instant lawsuit
Mays then filed suit against defendants for violation of the Los Angeles Rent Stabilization Ordinance (LARSO) (L.A. Mun. Code, § 151.09) and intentional infliction of emotional distress. Defendants' anti-SLAPP motion
During oral argument, counsel stressed that Mays's claim was one for breach of contract. No breach of contract claim is alleged in the complaint.
In response, defendants filed an anti-SLAPP motion. They argued that Mays's two causes of action arose directly from their prosecution of the underlying unlawful detainer action and therefore fell within the scope of section 425.16.
Mays's opposition
Mays opposed the anti-SLAPP motion asserting that her claims were not based upon the underlying unlawful detainer action, but upon defendants' "violation of the [LARSO]." "While the unlawful detainer action triggered [Mays's] complaint, the unlawful detainer action was not the basis."
Furthermore, Mays argued that she demonstrated a probability of prevailing on her claims against defendants. Because defendants "brought their unlawful detainer action against Ms. Mays pursuant to a foreclosure where Ms. Mays was a tenant with a lawful lease," defendants were not permitted to evict her. Defendants "did not honor [Mays's] lease; instead [they] obtained summary judgment and evicted Ms. Mays. The Court of Appeal reversed summary judgment with directions that Defendants be required to take their claims before a trier of fact. Instead of going to trial, Defendants dismissed their action effectively, giving up their right to challenge Ms. Mays's tenancy. Accordingly, Ms. Mays is entitled to restitution damages, and all other damages."
Defendants' reply
In their reply brief, defendants argued that Mays's claims against them fell within the scope of the anti-SLAPP statute because "[t]he only conduct alleged . . . is their pursuit and enforcement of judgment for possession in the unlawful detainer action on grounds that Plaintiff believes to be unmeritorious."
Defendants further asserted that Mays could not demonstrate a probability of prevailing on her claims.
Trial court order
On September 10, 2021, the trial court granted defendants' special motion to strike. First, it found that Mays's claims against defendants arose from petitioning activity. "[T]he Complaint's own allegations provide that its two causes of action arise from Defendants' constitutional right to petition, i.e., the Defendants' prior unlawful detainer action." Second, it determined that Mays failed to establish a probability of prevailing on her claims because she failed to offer any supporting evidence.
Defendants were awarded attorney fees in the amount of $26,810.
Appeal
Mays's timely appeal ensued.
DISCUSSION
I. Standard of review
"We review the trial court's rulings on a SLAPP motion independently under a de novo standard of review. [Citation.]" (Kajima Engineering &Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
II. The anti-SLAPP statute
"A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so." (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) "In 1992, out of concern over a 'disturbing increase' in these types of lawsuits, the Legislature enacted section 425.16, the anti-SLAPP statute." (Ibid.; see § 425.16, subd. (a).) Section 425.16, subdivision (b)(1), provides: "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 shall be 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." An act "in furtherance of" the right to petition includes "any written or oral statement or writing made before a . . . judicial proceeding"; "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . "; and any "conduct in furtherance of the exercise of the constitutional right of petition...." (§ 425.16, subd. (e)(1), (2), (4).)
The statute "posits . . . a two-step process for determining whether an action is a SLAPP." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant bringing the special motion to strike must make a prima facie showing that the anti-SLAPP statute applies to the claims that are the subject of that motion. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819.) In other words, the moving defendant must make a threshold showing that the challenged causes of action arise from protected activity, that is, by demonstrating that the acts underlying the plaintiff's complaint fit one of the categories spelled out in section 425.16, subdivision (e). (Navellier v. Sletten, supra, at p. 88.) "To determine whether defendant has met its burden we must look at the 'gravamen of the lawsuit.'" (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 715.) "[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
Only once a moving defendant has met its burden, will the motion be granted (and the claims stricken) unless the court determines that the plaintiff has established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)
In order to establish a probability of prevailing, a plaintiff must substantiate each element of the alleged cause of action through competent, admissible evidence. (DuPont Merck Pharmaceutical Co. v. Superior Court, supra, 78 Cal.App.4th at p. 568; see also Navellier v. Sletten, supra, 29 Cal.4th at pp. 8889 [reiterating that "'the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited"'"].) "This requirement has been interpreted to mean that (1) when the trial court examines the plaintiff's affidavits filed in support of the plaintiff's second step burden, the court must consider whether the plaintiff has presented sufficient evidence to establish a prima facie case on his causes of action, and (2) when the trial court considers the defendant's opposing affidavits, the court cannot weigh them against the plaintiff's affidavits, but must only decide whether the defendant's affidavits, as a matter of law, defeat the plaintiff's supporting evidence." (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184.) Only if the plaintiff fails to meet this burden should the motion be granted. (Mattel, Inc. v. Luce, Forward, Hamilton &Scripps (2002) 99 Cal.App.4th 1179, 1188-1189.)
III. The trial court properly granted defendants' anti-SLAPP motion
A. Mays's causes of action are based on protected activity
"The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16." (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner); see also Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1182-1183 (Wallace), disapproved in part on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.)
In her complaint, Mays alleges that defendants caused her injury by filing a motion for summary judgment against her in the unlawful detainer action. This allegation forms the basis for the alleged liability for the two causes of action: The successful motion for summary judgment caused Mays's "wrongful eviction" and emotional distress. It follows that Mays's claims against defendants arise from protected activity and therefore fall within the scope of the anti-SLAPP statute.
As set forth above, IH4 (not IH2) sought and obtained summary judgment, and IH4 effected the eviction. But on appeal, when discussing Mays's claims against "defendants," the parties often lump them together instead of distinguishing between IH4 and IH2. Only where it matters to our analysis do we differentiate between the two defendants.
Urging us to reverse, Mays argues that her claims are based upon defendants' "wrongful eviction," which is not the same as a wrongful eviction proceeding. (See, e.g., Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276 ["Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination"].) But as the trial court correctly noted at the hearing on defendants' special motion to strike, defendants' eviction of Mays was not wrongful because it was based upon a valid trial court order granting their motion for summary judgment. (See Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655 [landlord was not blameworthy when he obtained a valid writ of possession based on a judgment awarding him such possession and writ was executed before the judgment was reversed].) There is no indication that Mays requested, let alone obtained, a stay of execution that defendants violated. (§ 1176.) And Mays offers no legal authority to support her implicit proposition that the subsequent reversal of the trial court's order somehow rendered the eviction wrongful.
Mays did not allege a cause of action for wrongful eviction or malicious prosecution. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1040-1042 [California recognizes the tort of wrongful eviction, which requires proof of the plaintiff's peaceable possession of the premises and their dispossession without judicial processes]; Gause v. McClelland (1951) 102 Cal.App.2d 762, 764 ["Where the eviction arises from the wrongful use of judicial processes the cause of action is one for malicious prosecution," not "unlawful or malicious eviction of a tenant"].)
Citing Los Angeles Municipal Code (LAMC) section 151.09, Mays alleges that defendants wrongfully evicted her because the LARSO does not allow a landlord to evict a tenant on the grounds of foreclosure. But IH4 did not evict Mays because of the foreclosure; it evicted her after it had obtained a valid judgment against her claim of possession.
It follows that Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1289 (Clark) is readily distinguishable. In Clark, "[a] landlord successfully evicted a long-term tenant from a rent-controlled apartment, ostensibly to free the unit for occupancy by the landlord's daughter. The landlord's daughter never moved in, and the tenant sued the landlord for . . . unlawful eviction," namely "the landlord's violation of rent control laws." (Clark, supra, at p. 1284.) The landlord filed an anti-SLAPP motion, which the trial court granted. (Ibid.) The Court of Appeal reversed, reasoning that the tenant's complaint was "not premised on [the landlord's] protected activities of initiating or prosecuting the unlawful detainer action, but on her removal of the apartment from the rental market and fraudulent eviction of [the tenant] for the purpose of installing a family member who never moved in. 'Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.' [Citations.]" (Clark, at pp. 1286-1287; see also Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 161-162 [complaint did not fall within the scope of section 425.16 because it was based on the allegedly unauthorized termination of the tenancy, not based on the filing and service of the notices].)
Mays further argues that the anti-SLAPP statute does not apply because defendants acted illegally. "[S]ection 425.16, by its express terms, does not apply to any activity that can conceivably be characterized as being '"in furtherance"' of a defendant's protected speech or petition rights if, as a matter of law, that activity was illegal and by reason of the illegality not constitutionally protected. [Citation.] In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied." (Flatley v. Mauro (2006) 39 Cal.4th 299, 316; see also City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 423.)
Mays has not, and cannot, establish that defendants acted illegally as a matter of law. The fact that the appellate division reversed the order granting IH4 summary judgment does not establish that they acted illegally. (PSM Holding Corp. v. National Farm Financial Corp. (C.D. Cal. 2010) 743 F.Supp.2d 1136, 1142-1143.)
During oral argument, counsel asked that we declare that Mays is entitled to restitution as a matter of law. (See, e.g., Munoz v. MacMillan, supra, 195 Cal.App.4th at p. 657.) But "[t]here is no freestanding cause of action for 'restitution' in California." (Id. at p. 661.) And Mays has not explained how she is entitled to restitution given that her asserted causes of action are barred by the anti-SLAPP statute.
Mays further argues that defendants intentionally violated the LARSO (thereby taking her claims outside the scope of the anti-SLAPP statute) because (1) IH2 filed the unlawful detainer complaint even though it lacked ownership of the property and standing to sue, and (2) IH4 had no right to procure a judgment in an unlawful detainer action filed by IH2. There are at least three problems with this argument. First, Mays did not allege this theory in her complaint. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883 [anti-SLAPP motion determines issues as framed by the pleadings].) Second, IH2's name in the original unlawful detainer complaint was a typographical error, and IH4 was substituted in as plaintiff before Mays became a party to the unlawful detainer action. Third, there is no legal authority to support Mays's contention that pursuing litigation in the name of the wrong party is illegal as a matter of law. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 81.)
Mays makes several assertions in her appellate briefs that purportedly support her theory that defendants violated the LARSO. These theories are also not pled in her complaint.
Alternatively, Mays asserts that the anti-SLAPP statute does not apply because defendants' petition activity was merely incidental to their unprotected conduct in evicting her. In the landlord-tenant context, the applicability of the anti-SLAPP statute depends on "whether an actual or contemplated unlawful detainer action by a landlord (unquestionably a protected petitioning activity) merely 'preceded' or 'triggered' the tenant's lawsuit, or whether it was instead the 'basis' or 'cause' of that suit." (Clark, supra, 170 Cal.App.4th at p. 1289.)
"In Birkner, tenants sued their landlord for wrongful eviction in violation of San Francisco's rent control ordinance, negligence, breach of the covenant of quiet enjoyment and intentional infliction of emotional distress. [Citation.] The sole basis for liability was the landlord's service of an eviction notice and his refusal to rescind it after the tenants informed him they were exempt from eviction based on age and length of tenancy." (Clark, supra, 170 Cal.App.4th at p. 1288.) Under these circumstances, "the gravamen of the complaint was the landlord's service of the eviction notice under the rent ordinance and his refusal to rescind it, activities indisputably protected under the anti-SLAPP statute. [Citation.]" (Clark, at p. 1289; see also Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1483 (Feldman); Wallace, supra, 196 Cal.App.4th at p. 1183.)
Birkner, Feldman, and Wallace are squarely on point here. Mays's claims against defendants stem entirely from the unlawful detainer litigation-defendants filed an unlawful detainer action, defendants successfully moved for summary judgment against Mays, and defendants evicted Mays pursuant to that judgment; the unlawful detainer action was not merely incidental to her claims.
Mays's reliance upon Marlin v. Aimco Venezia, LLC, supra, 154 Cal.App.4th 154 is misplaced. In Marlin, "a landlord filed notice under the Ellis Act [citation] of its intention to permanently remove units from the rental market.... Tenants subjected to the notice sued the landlord challenging its right to invoke the Ellis Act. The landlord responded with a SLAPP motion, arguing the tenants' action arose from the landlord's filing and service of the Ellis Act notices. [The Court of Appeal] disagreed[, finding that] the landlord failed to show the lawsuit arose from any protected activity.... '[T]he [plaintiffs'] suit [was] not based on defendants' filing and serving of a notice required under the Ellis Act, it [was] based on the [plaintiffs'] contention "defendants are not entitled to invoke or rely upon the Ellis Act to evict plaintiffs from their home."' [Citation.]" (Clark, supra, 170 Cal.App.4th at p. 1287; see also Department of Fair Employment &Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284, 1287-1288 [defendant was not sued because it undertook the paperwork necessary to remove units from the rental market and filed an unlawful detainer action; rather, the gravamen of the tenant's complaint arose from the landlord's discriminatory failure to accommodate her disability]; Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109-110 [plaintiff's claim was based upon defendants illegally raising the plaintiff's rent].)
In these cases, the plaintiffs' claims did not stem from the protected prosecution of unlawful detainer actions; they arose from alleged misconduct separate and apart from the unlawful detainer. Here, in contrast and as set forth above, Mays's claims arise directly out of defendants' unlawful detainer action.
B. Mays cannot demonstrate a probability of prevailing on her claims
Even though defendants did not raise the litigation privilege below, we may consider it on appeal. (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1139 ["when a defendant raises the litigation privilege for the first time on appeal, the reviewing court may consider it '"when the issue raises a pure question of law"'"].)
"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. [Citations.]' [Citation.]" (Feldman, supra, 160 Cal.App.4th at p. 1485.) Codified at Civil Code section 47, subdivision (b), it provides that "[a] publication or broadcast is one made: [¶] . . . (b) In any . . . judicial proceeding." (See also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)
The litigation privilege is construed broadly and has been held to immunize defendants from claims such as abuse of process and intentional infliction of emotional distress. (Feldman, supra, 160 Cal.App.4th at pp. 1486-1487.)
"[T]he litigation privilege may extend to steps taken after the trial or other proceeding." (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1256; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1052 [actions taken to collect a judgment, such as obtaining a writ of execution and levying on a judgment debtor's property, are protected by the litigation privilege].)
Simply put, Mays cannot demonstrate a probability of prevailing on her claims because all of defendants' conduct arises from the unlawful detainer action. And, the litigation privilege protects defendants' act of filing the unlawful detainer action, pursuing a motion for summary judgment, and their postjudgment act of evicting Mays from the property. (Feldman, supra, 160 Cal.App.4th at p. 1480; Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1535 [wrongful eviction claim barred by litigation privilege to the extent it is based on landlord's filing of unlawful detainer action]; Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1059-1060.) Because both causes of action alleged in Mays's complaint arise out of defendants' prosecution and enforcement of unlawful detainer proceedings, her claims are barred by the litigation privilege.
2. Mays offered no evidence in support of her two causes of action
Setting aside the litigation privilege, an independent basis for affirming the trial court's order is Mays's failure to present evidence in support of her claims against defendants.(Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 [the party opposing an anti-SLAPP motion "'may not rely solely on its complaint, even if verified; instead, [his] proof must be made upon competent admissible evidence'"].)
We reach this conclusion without the need to address Mays's complaint on appeal that the trial court failed to consider certain evidence. Mays does not explain what evidence exists to support her claims or where that alleged evidence is in these overlooked documents.
a. Violation of the LARSO
At a minimum, and as the parties agree, to prove her first cause of action, Mays was required to produce evidence that she suffered damages as a result of her eviction. Needless to say, she must also produce evidence of defendants' alleged violation(s) of the LARSO. (See, e.g., California Valley Properties LLC v. Berlfein (2020) 48 Cal.App.5th Supp. 1, 8-9; Yanez v. Vasquez (2021) 65 Cal.App.5th Supp. 1, 6.)
Defendants' contention on appeal that there is no evidence that Mays was evicted is ludicrous. They do not dispute that Mays was evicted and we highly doubt that this case would be pending if she had not been evicted.
But Mays offers no evidence to support her claimed damages. Assuming without deciding that she is entitled to restitution damages (Munoz v. MacMillan, supra, 195 Cal.App.4th at p. 657), she was obligated to present evidence as to what those damages are, if any. She utterly failed to do so.
Mays also offers no evidence in support of her allegation that defendants violated the LARSO, specifically LAMC section 151.09, the only provision identified in her complaint. LAMC section 151.09 specifies 14 legal reasons a tenant may be evicted; foreclosure is not one of them. But there is no evidence that IH4 evicted Mays solely because it foreclosed on the property; rather, Mays was evicted in accordance with a trial court judgment denying Mays's claim to right of possession.
b. Intentional infliction of emotional distress
"The elements of a cause of action for intentional infliction of emotional distress are (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) "'Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.' [Citation.] Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"' [Citation.]" (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)
We conclude as a matter of law that defendants did not commit intentional infliction of emotional distress. Rather, they simply filed an unlawful detainer action, successfully filed a motion for summary judgment against Mays, and then proceeded with a lawful eviction following the trial court's judgment. These acts do not constitute outrageous conduct. (See Munoz v. MacMillan, supra, 195 Cal.App.4th at p. 653 [landlord evicting a tenant pursuant to a writ of possession cannot be held liable for damages even if the writ is subsequently deemed invalid because there was no judgment in the unlawful detainer action granting the landlord a right to possession].) IV. Attorney fees
Mays's challenge to the order awarding defendants their attorney fees is based solely on the argument that the anti-SLAPP motion was improperly granted. In light of our conclusion above, the attorney fee award is affirmed. (§ 425.16, subd. (c).)
DISPOSITION
The order granting defendants' anti-SLAPP motion is affirmed. Defendants are entitled to costs and attorney fees on appeal.
We concur:, LUI, P. J., CHAVEZ, J.