Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2009-00312747, Luis A. Rodriguez, Judge.
Law Offices of Kennith L. Peterson and Maureen A. Hatchell Levine for Defendant and Appellant.
Law Office of Paul S. Sienski and Paul S. Sienski for Plaintiffs and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
Appellant Green Lantern Village (GLV), a limited partnership, appeals from an order denying its motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. GLV, which operates a mobilehome park in Westminster, was informed by its landlord in early 2008 that the park’s long-term ground lease would not be renewed when it expired in 2013. Believing it had an obligation under the Mobilehome Residency Law, Civil Code sections 798 et seq., to inform its tenants of a “change in the lease,” GLV sent each tenant a letter passing on this information.
In October 2009, seven mobilehome owners residing in the park sued GLV, alleging the notice rendered their trailers unsalable. They asked for damages for negligence and for intentional infliction of emotional distress.
GLV moved to dismiss the complaint under the anti-SLAPP statute. It claimed giving the notice was protected free speech and petitioning activity, in light of the subsequent disputes it had with both the landlord and with the City of Westminster over the park. In April 2010, the trial court denied the motion without explanation.
We reverse the trial court as to the three negligence causes of action. These claims all implicate GLV’s right to communicate with its tenants on an issue of public interest and are therefore subject to the anti-SLAPP statute. Respondents did not carry their burden to show they were likely to prevail. The fourth cause of action, however, is not based on protected activity, and we affirm the trial court’s ruling as to that claim.
FACTS
GLV operated Green Lantern Village, a mobilehome park for seniors in Westminster. The park occupied land leased from Mr. and Mrs. Walsh in the 1960’s. After their deaths, a limited liability company, Walsh Properties, LLC (Walsh) assumed ownership of the land.
In January 2008, Walsh informed GLV’s general partner by letter that it would not be renewing the park’s ground lease, which was set to expire five years later, in January 2013. Walsh demanded GLV commence closing the park and removing the improvements so the property could be returned to the owner as vacant land. GLV protested this action as premature and evidently believed it might negotiate an extension or renewal so it could continue to operate the park. An all-hands meeting in early April 2008, however, convinced GLV that Walsh really would not extend the lease. Accordingly, GLV believed it had to notify the park’s tenants of “a change... concerning a lease in which the management is a lessee” under Civil Code section 798.27, subdivision (b), part of the Mobilehome Residency Law. GLV sent a notice to the tenants dated April 29, 2008, stating, “This notice is a reminder that Green Lantern Village is located on land which the Park Owner leases from the landowner under a ground lease, which is scheduled to terminate on January 15, 2013. The property is zoned ‘C-1-Commercial District.’ [¶] This notice is also to inform you that on April 3, 2008, the landowner informed the Owner and Management of Green Lantern Village that the landowner will not extend or renew the ground lease. [¶] We wanted you to be informed of this important information as soon as possible. We will be contacting you in the future with updates as additional information becomes available.” The notice did not mention closing the park, although Walsh had represented that it wanted the land back with nothing on it.
GLV believed that Walsh was not sincere in this position, because it kept demanding information about the park’s operations that would matter only if it contemplated keeping the park open. Ultimately, the park did remain open, as part of the settlement of the subsequent Walsh/GLV lawsuit.
In the meantime, GLV found itself in trouble with the City of Westminster. Westminster had an ordinance forbidding the issuance of “arbitrary notices or letters to the residents concerning the intention to convert or close the park.” An “arbitrary notice” was one not followed up within 30 days by filing an application for conversion. If the application was not timely filed, the city would impose a fine of $200 per day for a maximum of 60 days. GLV corresponded with a city planning manager in hypothetical terms in mid-April 2008 regarding giving notice to tenants about the non-renewal. The manager responded that such a notice would trigger the 30-days-or-else clock. There was more correspondence about the notice and a potential closing of the park, and a meeting of the parties with the city attorney in January 2009, but the city ultimately did not press this position, and it levied no fines against GLV.
GLV and Walsh also engaged in litigation over the property. Walsh sued GLV for declaratory relief in May 2008, requesting a judicial determination GLV had to start closing the park. GLV cross-complained in September 2008 for declaratory relief, among other causes of action, requesting a judicial determination it did not have to begin this process so far in advance of the actual expiration of the lease. This litigation settled in 2009; Walsh took over the park with all the trailers on it.
Then the tenants weighed in. In October 2009, seven Green Lantern Village residents sued GLV. The complaint alleged that the notice informed the residents that GLV “would cease to be a Mobile Home Park on January 15, 2013.” The plaintiffs further alleged that the notice had “stigmatized the mobile homes” in the park such that they became unsalable. The complaint asked for damages for negligence and for intentional infliction of emotional distress.
As discussed above, the actual notice said no such thing. It is perhaps significant that the tenants did not attach a copy of the notice as an exhibit to the complaint.
GLV moved to dismiss the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. GLV’s theory was that issuing the notice was “a valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” and was therefore protected. GLV also maintained that plaintiffs could not prevail on their causes of action because of the litigation privilege of Civil Code section 47, subdivision (b).
The court heard oral argument on April 15, 2010. It denied the motion without explanation on April 19. This timely appeal followed.
DISCUSSION
The California Legislature enacted the anti-SLAPP statute to counteract “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The Legislature created a special motion to strike, filed at the outset of litigation, to nip these suits in the bud, before defendants incurred crippling attorney fees and other expenses. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65.) A court may order a cause of action “arising from any act” “in furtherance” of the “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” to be stricken by means of this special motion. (Code Civ. Proc., § 425.16, subd. (b)(1).) We review the order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The trial court uses a two-part test to evaluate an anti-SLAPP motion. First, the court determines whether the complaint or cause of action is “one arising from protected activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) As the Supreme Court has emphasized, “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Id. at p. 89.) The court has also cautioned, “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.) A cause of action “arising from” protected activity “means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (Id. at p. 78.)
If the defendant satisfies the first part of the test, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) Although the plaintiff does not have to prove its case at this juncture, it must present a prima facie case that could sustain a judgment if its evidence is believed. (Id. at pp. 88-89.)
I. Do the Causes of Action Arise from Protected Activity?
Most of the complaint against GLV centers on the April 2008 notice to the park’s tenants. A critical question for anti-SLAPP purposes is whether the Civil Code required GLV to send this notice. If the law required this notice, then GLV was not exercising its constitutional right of free speech; it was, instead, complying with a statute, the Mobilehome Residency Law, that imposed a duty to speak. Such a notice is the opposite of free speech; it is “compelled” speech. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 491 [right to free speech includes right to refrain from speaking]; see also Wooley v. Maynard (1977) 430 U.S. 705, 714 [right to speak and right to refrain from speaking components of First Amendment freedom of speech].) One California case has held a state statute compelling speech violates the person’s free speech rights under the California constitution. (ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1322; see also Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 256 [Florida statute compelling newspaper to print reply restricts freedom of speech]; but see Beeman v. Anthem Prescription Management, Inc. (C.D.Cal. May 4, 2007, No. EDCV 04-407-VAP) 2007 U.S.Dist. LEXIS 39779 [refusing to follow ARP Pharmacy as incorrectly decided].) The exercise of one’s right to speak necessarily includes the right to keep silent (Gerawan Farming, Inc. v. Lyons, supra, 24 Cal.4th at p. 491), but if the Civil Code statute applied, GLV was not free to keep silent.
In some cases, giving statutorily required notice has been held to be an exercise of the defendant’s right to petition for redress. In each instance, however, the notice has been a required prerequisite to a lawsuit. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 and cases cited.) Notice under Civil Code section 798.27 was not required before GLV could file a lawsuit.
We do not here consider whether the notice required by Civil Code section 798.27, subdivision (b), violates anyone’s right of free speech.
Civil Code section 798.27, subdivision (b), requires park management to notify the mobilehome owners “[i]f a change occurs concerning... a lease in which management is a lessee.” This notice must be given within 30 days of the change.
In this case, the lease in which GLV was a lessee did not change within 30 days of either the January 2008 letter from Walsh or the April 2008 meeting between GLV and Walsh. It did not change at all. The lease was always set to expire in January 2013, and it never contained any provision for extension or renewal. Even if Walsh ultimately decided to close the park after the lease expired, this decision did not change the lease. Because nothing had changed, GLV was not obliged to give notice under Civil Code section 798.27, subdivision (b).
Civil Code section 798.55, subdivision (g), required GLV to give notice that it was terminating tenancies pursuant to a change of use, but this notice is triggered by events, such as a request for closure permits, that had not happened as of April 2008.
Accordingly, the communication that GLV made to the tenants in April 2008, and for which respondents now wish to hold it liable, was in reality an act in furtherance of GLV’s free speech right to communicate with its tenants about an issue of public interest. (Code Civ. Proc. § 425.16, subd. (e)(4).) It is not necessary that the “issue” be one of nationwide or even statewide interest. It is enough that the matter be of interest to a “definable portion of the public” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468), as was certainly the case here. Green Lantern Village’s senior tenants, their families, and their caretakers were intensely interested in the expiration of the lease and its consequences. The notice, according to respondents’ declarations, kicked off a “hullabaloo” in the park and numerous discussions among the tenants, as well as an update to the tenants from GLV on the subject. The Westminster ordinance governing mobilehome closures and notices to tenants alludes to the City’s “goals and policies for preservation of housing within the city of Westminster,” underscoring the public nature of this interest.
GLV has argued that the notice was protected because it was given in furtherance of “(1) a matter pending before the City of Westminster, (2) the anticipated litigation in which [GLV] became embroiled with Walsh, or (3) the potential litigation between Appellant and the City.” It was not. To repeat what the Supreme Court stated in City of Cotati, “[T]he critical point is whether the plaintiff’s cause of action was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) The suit between GLV and Walsh did not involve the April 2008 notice; that suit concentrated on if and when Walsh could require GLV to close the park. By its own admission, GLV gave notice because it thought notice was necessary, or at least advisable, under Civil Code section 798.27, not because of any potential litigation with Walsh or with the City of Westminster. (See Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160 [“Defendants have fallen victim to the logical fallacy post hoc ergo propter hoc – because the notices preceded plaintiffs’ complaint the notices must have caused plaintiffs’ complaint. [The notices] may have triggered plaintiffs’ complaint[] and the notices may be evidence in support of plaintiffs’ complaint, but they were not the cause of plaintiffs’ complaint.”]
Respondents have argued that because GLV’s notice violated the Westminster ordinance, as an arbitrary notice, it was illegal and therefore ineligible for anti-SLAPP protection. The California Supreme Court has held speech or petitioning activity that is “illegal as a matter of law” is not shielded by the anti-SLAPP statute. (Flatley v. Mauro, supra, 39 Cal.4th at p. 320.)
But, as the court stated in Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654, “Our reading of Flatley leads us to conclude that the Supreme Court’s use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute.” This division has also recently dealt with this issue. In G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616, we held an attorney who had violated a court rule when submitting papers to be filed with the court did not lose the protection of the anti-SLAPP statute on the ground of “illegal” conduct. “[T]his is not the kind of illegality involved in Flatley v. Mauro....” (G.R. v. Intelligator, supra, 185 Cal.App.4th at p. 616.) A violation of the Westminster ordinance would not preclude anti-SLAPP protection.
The notice was protected speech under Code of Civil Procedure section 425.16 because it arose from GLV’s exercise of its free speech rights to communicate with its tenants on an issue of public interest. It did not forfeit anti-SLAPP protection as being illegal. GLV passed the first prong of the anti-SLAPP test as to the first three causes of action, which are based entirely on the notice.
The fourth cause of action for intentional infliction of emotional distress, however, stands on a different footing. The “principal thrust and gravamen” of this claim is not the notice GLV gave in April 2008, but the notice it allegedly did not give when each tenant moved in. (See, e.g., Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.) Civil Code section 798.27, subdivision (a), required GLV to disclose the duration of the lease to all tenants and prospective tenants. Respondents have alleged in their complaint and asserted in their declarations that GLV never told them before April 2008 either that there was a lease or that it was going to expire in 2013. Respondents have also asserted in their declarations that they would not have moved into Green Lantern Village had they been told the truth.
One respondent stated she had been informed that the lease expired in 2010, but it could and would be renewed. The lease included no option to renew.
The rudiments of a claim not based on GLV’s right of free speech or of petition are dimly discernable here. GLV’s anti-SLAPP motion was properly denied as to this cause of action, as GLV failed to meet its burden of showing that the cause of action was based on these constitutionally protected rights.
II. Were Respondents Likely to Prevail?
Once the moving party has established that the cause of action “arises from acts in furtherance of its rights of free speech or petition,” the opposing party must then show it is likely to prevail on its causes of action. The plaintiff must make a prima facie showing of fact, such as would sustain favorable judgment if the facts were credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) We discuss each of the three causes of action in turn.
A. First Negligence Cause of Action – Giving Notice
Although the first cause of action is labeled “negligence,” the facts alleged constitute the beginnings of a cause of action for intentional or negligent interference with prospective economic advantage. (See North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.) Respondents alleged they all wanted to sell their trailers, but GLV’s notice caused buyers to cancel their sales contracts and “drove other potential buyers away.”
The elements of an intentional interference claim are (1) probable economic benefit to the plaintiff from an economic relationship between the plaintiff and a third party; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional act designed to disrupt the relationship; (4) actual disruption; and (5) resulting damages. (Youst v. Longo (1987) 43 Cal.3d 64, 71.) The elements of a negligent interference claim are (1) the same type of relationship between the plaintiff and a third party; (2) the defendant’s awareness of the relationship; (3) the defendant’s awareness that a failure to act with due care would deprive the plaintiff of the relationship’s economic benefit; (4) negligence on the defendant’s part; (5) actual disruption; and (6) damages from the disruption. (North American Chemical Co. v. Superior Court, supra, 59 Cal.App.4th at p. 786.) In addition, both the intentional and negligent versions of the tort require the defendant’s conduct to be wrongful in some way other than the interference itself. (Della Penna v. Toyota Motor Sales, USA, Inc. (1995) 11 Cal.4th 376, 392-393.)
Respondents’ declarations gave more details about the notice’s effect on sales. Louise Ropes declared that she had a buyer for her trailer, who withdrew the offer upon learning that “Green Lantern Village would close in 2013.” Deborah Siesser stated that she prepared her trailer for sale, but could not sell it because of the April 2008 notice. (She did not state that she had a specific potential buyer.) Michael Turnbaugh and his wife, Elizabeth Osmer, were “considering” listing their trailer for sale, but changed their minds after the April 2008 notice, because they believed they could not get fair market value for it. David Payne was also “considering” selling his trailer, but did not identify any specific transaction that had been thwarted. John Billingsley and Patricia Berry simply opined that their trailers had lost value; they gave no information about trying to sell them.
Respondents cannot prevail on this cause of action. Only one of them has provided any facts about a specific contract that was canceled. None has stated any facts regarding GLV’s knowledge of a potentially beneficial relationship between one of them and a third party or even any knowledge that respondents wanted to sell their trailers. The act to which they attribute their losses – giving the notice – was not independently wrongful.
Lurking behind this cause of action is respondents’ apparent wish that GLV had kept quiet about the lease’s expiration date so they could unload their trailers on some unsuspecting buyers. We cannot sympathize with this goal. Besides being dishonest, it was impractical; Civil Code section 798.27, subdivision (a), required GLV to inform prospective tenants of the lease’s duration. Even if respondents had withheld this information, GLV could not have done so.
“No reasonable person,” they candidly allege, “will purchase a mobile home in a park that is going to close in five years.”
B. Second Negligence Cause of Action – “Breach” of Westminster Ordinance
The second cause of action alleges GLV “breached” the Westminster ordinance. We infer the breach consisted of sending an “arbitrary” notice, as defined in the ordinance – a notice not followed up within 30 days with an application for a conversion permit.
The Westminster ordinance dealt with “conversion of mobile home parks.” “Conversion” included “a change to any other use of land, including vacant land....” The ordinance required the submission of an application for a conversion permit before any conversion could take place and required notice to the park tenants that the permit application was being submitted. The ordinance also penalized sending “arbitrary notices” to tenants, defined as a notice of an “intention to convert or close the park” not followed up within 30 days with an application for a conversion permit. Respondents alleged that GLV sent an “arbitrary notice,” which rendered their trailers worthless.
The cause of action based on violating the Westminster ordinance founders on a basic fact: GLV did not give respondents notice of an “intention to convert or close the park.” The notice merely stated that the lease would expire in January 2013, and the property owner had informed GLV that the lease would not be renewed or extended. The reasonable conclusion to draw from this information was that GLV would no longer manage the park after January 2013, not that the park would inevitably close. Nothing was said about immediately converting or closing the park, and GLV certainly had no intention of converting or closing the park so far in advance. In fact, it was vigorously opposed to the idea. Moreover, GLV had good grounds to suspect that Walsh did not intend to close the park either, suspicions borne out by events a year later. Walsh was insisting on obtaining detailed operational information that would be useless if it truly intended to close the park. And, in fact, the park did not convert or close. It continues to operate, under new management. Respondents cannot prevail on this cause of action.
We are aware that a City of Westminster planning manager opined, in response to a hypothetical query by GLV’s counsel, that such a notice would be “arbitrary” unless followed by the conversion permit application. We disagree with the planning manager and point out that the City of Westminster had a $200-per-day incentive to categorize a notice as arbitrary.
C. Third Negligence Cause of Action – “Breach” of Civil Code
Respondents alleged that the notice “breached” Civil Code section 798.56, which identifies the only permissible reasons for terminating a mobilehome tenancy. Specifically, they alleged that the notice “breached” subdivision (g), which sets out the procedure the park management must use before it can terminate a tenancy for “[c]hange of use of the park or any portion thereof.”
The problem with this cause of action is manifest. GLV could violate this Civil Code subdivision only if it terminated a tenancy without going through the mandated procedures. (See generally Keh v. Walters (1997) 55 Cal.App.4th 1522.) No terminations were alleged, and, from what the record reveals, no terminations ever occurred. Respondents cannot prevail on this cause of action.
DISPOSITION
The order of the superior court denying appellant’s motion to strike under Code of Civil Procedure section 425.16 is reversed as to the first, second, and third causes of action for negligence, and the court is directed to issue an order granting the motion as to these three causes of action and striking these three causes of action. The order is affirmed as to the fourth cause of action.
The court is also directed to determine the issue of attorney fees under Code of Civil Procedure section 425.16, subdivision (c), after appropriate briefing, as to fees incurred both in this appeal and in the trial court. The parties are to bear their own costs, other than attorney fees, on appeal.
WE CONCUR: MOORE, J., IKOLA, J.
We do not hold that the giving of statutorily required notice is not protected or privileged conduct at all, but merely that it is not constitutionally protected free speech eligible for anti-SLAPP protection.
The notice was also not “under consideration or review by a legislative, executive, or judicial body.” (Code Civ. Proc., § 425.16, subd. (e).) Although GLV communicated with the a planning manager and the city attorney for the City of Westminster about the notice, nothing in the record suggests that any city body – such as the city council or a planning commission – was reviewing the notice or its propriety. The city attorney is not a “body,” at least in this sense. Apparently after the January 2009 meeting with the city attorney, nothing more was heard from the City of Westminster.
The litigation privilege of Civil Code section 47 also does not apply. “The litigation privilege does not retroactively protect any and all communications preceding the litigation;...” (Ruiz v. Harbor View Community Assn, supra, 134 Cal.App.4th at p. 1473.) The notice was not given in anticipation of or in preparation for litigation either with Walsh or with the City of Westminster. By GLV’s own account, it was given to fulfill GLV’s statutory duty (as GLV perceived it) under the Mobilehome Residency Law, a duty entirely independent of litigation with Walsh or with the city.