Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge, No. S-1500-CV-261039 WDP
Law Offices of Ralph B. Wegis, Ralph B. Wegis and Michael J. Stump, for Plaintiff and Appellant.
Lebeau, Thelen, and Bob H. Joyce; Wall, Wall & Peake, and Larry F. Peake; McCormick, Barstow, Sheppard, Wayte & Carruth, and Todd W. Baxter for Defendant and Respondent.
Ardaiz, P.J.
INTRODUCTION
Bakersfield Entertainment, LLC (B.E.) appeals from an order granting Olive Drive Partners’ (ODP’s) special motion to strike pursuant to California Code of Civil Procedure section 425.16. B.E. contends that the trial court erred in dismissing its causes of action for breach of lease agreement and breach of the covenant of quiet enjoyment. For the following reasons, we affirm.
All further section citations are to the Code of Civil Procedure, unless otherwise stated.
STATEMENT OF THE CASE
On June 11, 2007, B.E. filed a complaint against ODP, asserting causes of action for breach of lease agreement and breach of the covenant of quiet enjoyment. ODP demurred to the complaint, contending that, on the first cause of action for breach of the lease agreement, the attached lease agreement was “incomplete and/or illegible,” and that, on the second cause of action for breach of the covenant of quiet enjoyment, B.E. had not pled that it was wrongfully evicted. On September 6, 2007, the demurrer was overruled as to the first cause of action and sustained as to the second cause of action.
On October 29, 2007, B.E. filed a first amended complaint (FAC) asserting causes of action for breach of the lease agreement, breach of the covenant of quiet enjoyment, abuse of process, and constructive eviction. ODP again demurred to the FAC, and the demurrer was sustained in part and overruled in part on January 3, 2008.
On January 9, 2008, ODP filed a motion for an undertaking pursuant to section 1030 seeking to secure $140,000 in estimated attorney fees.
On January 17, 2008, B.E. filed a second amended complaint (SAC) asserting causes of action for breach of lease agreement, breach of the covenant of quiet enjoyment, and abuse of process. B.E. alleged that it had a lease agreement with ODP under which B.E. leased the property where the Rockin’ Rodeo bar/nightclub was located. B.E. alleged that ODP served B.E. with a “Notice to Quit - Breach of Covenant” even though ODP did not have grounds under the lease agreement to do so. This “wrongful act” resulted in the loss of B.E.’s Rockin’ Rodeo business and damages in excess of $2 million.
On the first cause of action for breach of lease agreement, B.E. alleged that ODP “breached the lease agreement by invoking Section 2.04(b) without justification to do so.” Section 2.04(b) of the lease agreement provides that “Tenant shall conduct its business in the premises in good faith and will not do any act tending to injure the reputation of the Shopping Center as determined by the Landlord.” B.E. also alleged that ODP “had no first hand knowledge of what had or had not occurred at Rockin’ Rodeo, nor did [ODP] allow [B.E.] any opportunity to cure any alleged violation of Section 2.04(b).”
On the second cause of action for breach of the covenant of quiet enjoyment, B.E. alleged that ODP breached this covenant by: “(a) Wrongfully invoking Section 2.04(b) of the lease agreement without any first hand knowledge that this section was applicable…; (b) Failing to allow [B.E.] any opportunity to cure the alleged violations…;” and “(c) Wrongfully issuing the Notice to Quit - Breach of Covenant….”
On the third cause of action for abuse of process, B.E. alleged that ODP “willfully used a civil legal process to accomplish an improper purpose.” According to B.E., ODP filed an unlawful detainer action because B.E. remained in possession of the leased premises after ODP served the Notice to Quit – Breach of Covenant. B.E. concedes that “service of a Notice to Quit is a legal prerequisite for bringing any unlawful detainer action under these circumstances.”
B.E. further alleged that ODP “acted with bad faith and with malice in that it issued the Notice to Quit - Breach of Covenant not based upon any breaches of the covenant (which had not occurred) but based upon conflicts between the nature of the Rockin’ Rodeo business with the personal beliefs of individuals within [ODP].”
ODP filed its answer to B.E.’s complaint on February 5, 2008.
On February 11, 2008, ODP moved for summary judgment pursuant to section 437c. The hearing was set for May 2, 2008.
On February 25, 2008, the Court of Appeal of California, First Appellate District, published its decision in Feldman v. 1100 ParkLane Associates (2008) 160 Cal.App.4th 1467 (Feldman or 1100 Park). In Feldman, the court concluded that the trial court erred in denying a section 425.16 motion to strike “causes of action for … negligence, breach of the implied covenant of quiet enjoyment, wrongful eviction under the Rent Ordinance, breach of contract and unfair business practices” (id. at p. 1498) because the filing of an unlawful detainer action, service of a notice to quit, and statements made by a representative of the landlord about eviction were protected by the civil litigation privilege of Civil Code section 47. (Id. at pp. 1486 -1491.)
On March 17, 2008, ODP filed its Motion to Strike pursuant to section 425.16. The next day, ODP filed its Notice of Stay of Discovery pursuant to section 425.16.
On April 18, 2008, the superior court entered a minute order granting ODP’s Motion to Strike. The superior court stated that it had specifically considered Feldman, and “[t]he Court is thus bound to rule consistent with the 1100 Park decision. Thus the motion must be granted.”
On May 8, 2008, the trial court signed an Order on ODP’s Motion to Strike the Second Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 that was prepared by ODP. In the May 8, 2008 order, the trial court found that: “the First Cause of Action for Breach of Contract and the Second Cause of Action for Breach of the Implied Covenant of Quiet Enjoyment are based entirely upon communicative acts by Olive Drive Partners: (1) the communications by Olive Drive’s attorney to the plaintiff regarding its breach of the lease terms; (2) the service of the notice to quit; and (3) the filing of the unlawful detainer action.” The order noted that, as to the Third Cause of Action for Abuse of Process, “[a]t oral argument, plaintiff conceded that [Feldman] was dispositive … and agreed that the Motion to Strike should be granted as to this Cause of Action.” The order concluded that the Motion to Strike is “granted as to the entirety of the Second Amended Complaint and each cause of action therein and that the same be, and hereby is, stricken.”
On May 9, 2008, B.E. timely filed its Notice of Appeal from the order.
We grant B.E.’s Request for Judicial Notice of specific portions of the Deposition Testimony of Teri Bjorn, former counsel for defendant and respondent ODP, because there are exceptional circumstances. (Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444.) These circumstances include the fact that Bjorn could have modified her deposition testimony during the time B.E. had to respond to the section 425.16 motion, that the deposition testimony is relevant to the arguments on appeal, that the deposition testimony does not contradict any finding of the trial court, and that we review the order granting the section 425.16 motion to strike de novo.
On December 5, 1995, B.E. entered into a 10-year lease agreement with Price Enterprises, Inc. to lease a portion of a building located in the Rosedale Highway Shopping Center (“Shopping Center”) located in Bakersfield, California. The lease agreement contained an option for B.E. to extend the lease for three five-year periods.
B.E. leased the Premises, which was “approximately twenty four thousand three hundred fifty (24,350) square feet of Floor Area,” to operate a bar/nightclub business which was specifically referenced in the lease agreement as the Rockin’ Rodeo.
The Premises did not include the “common areas,” which are specifically defined in the lease agreement to include parking areas, sidewalks, driveways, and landscaped areas. B.E.’s rights to use common areas were non-exclusive to the rights of other tenants and subject to the Landlord’s rights. The Landlord’s rights over the common areas included the right “to establish, modify, or enforce reasonable rules or regulations applicable to all tenants and Landlord with respect to the use of said area, and [B.E.] agree[d] that it and its Permittees shall comply with such rules and regulations upon notice to [B.E.] thereof.”
The lease agreement also included Exhibit E, which detailed the “Rules and Regulations” for the Rockin’ Rodeo. Paragraph 4 of the Rules and Regulations provided “[n]o person shall use any automobile parking areas except for the parking of motor vehicles.” Under paragraph 6 of the Rules and Regulation, the Landlord reserved the right “to remove or exclude from or to restrain (or take legal action to do so) any unauthorized persons” from entering the Shopping Center or any portion thereof, and “to prohibit, abate, and recover damages arising from any unauthorized act.” B.E. agreed to abide by the Rules and Regulations so long as the rule “is enforced equally between all tenants in the Shopping Center, does not discriminate against [B.E.], and does not jeopardize the safety or security of its employees, invitees, customers, and contractors.”
In 1997, ODP purchased the Shopping Center from Price Enterprises, Inc., and assumed the existing lease agreement with B.E.
In late 1999, Rockin’ Rodeo split the theme of its club from purely country western to half country western, and half “top 40” music. Teri Bjorn, who was an ODP attorney during that time period, testified that she believed the Rockin’ Rodeo could be a problem because it was a “big-scale Trout’s,” which meant that it had patrons or “cowboys” who would drink and fight at the bar. B.E.’s decision to split the theme to include “top 40” music raised Bjorn’s “antennas a little bit” because B.E. was “keeping one element there that was already a little bit problematic…” and adding “an entirely new element that was even more potentially problematic, and [B.E.] put the two side by side.” Bjorn thought that the Rockin’ Rodeo did not create a good “tenant mix” for the Shopping Center since the other tenants of the Shopping Center were family-oriented businesses.
On March 18, 2002, the California Department of Alcoholic Beverage Control sent a letter to B.E. stating that “[f]rom August 2001 to the present, the Department has received information from the Bakersfield Police Department concerning shootings, disturbances, fights (assaults and batteries), loitering/large crowds, and patrons being arrested for public intoxication in and around your licensed premises and/or parking lot immediately adjacent to your licensed premises.… [¶] You are formally advised that the above activity constitutes a nuisance.”
In response, on March 22, 2002, B.E. informed the Department of Alcoholic Beverage Control that it posted “No Loitering Signs,” hired independent security services, implemented a stricter dress code, and was using hand held metal detectors upon entry to the club.
In November of 2004, a shooting occurred in the parking lot of the Rockin’ Rodeo. The shooting and the name and location of the Rockin’ Rodeo were widely reported by local television stations and newspapers.
On August 31, 2005, the Rockin’ Rodeo’s Cabaret Permit was revoked for 27 days because of an August 24, 2005 incident in which two individuals participating in a Rockin’ Rodeo-sponsored “wet t-shirt contest” violated local law by “mooning” the audience while wearing thong-style underwear which exposed the buttocks. The revocation of B.E.’s Cabaret Permit generated negative media reports about Rockin’ Rodeo and the Shopping Center.
These incidents caused several of the ODP partners to consider ways to terminate the lease. Besides specific provisions in the lease agreement, ODP partner Randy Steinert testified that there were other criteria that he personally employed in determining whether to terminate the lease agreement after Rockin’ Rodeo lost its Cabaret Permit because of the wet t-shirt contest in 2005. These other criteria included an unwritten moral standard based upon Christian evangelical theology. Nevertheless, despite any concerns among specific ODP partners, B.E. was still a tenant in 2006, which creates an inference that B.E. exercised one of its five-year lease renewal options.
On May 7, 2006, there was another shooting in the parking lot of the Rockin’ Rodeo. That shooting resulted in the death of Meko Seward and seriously injured a bystander, Stacy Pierson. The shooting as well as the name and location of the Rockin’ Rodeo were widely reported in the print and television media.
In the wake of the May 7, 2006, other tenants of the Shopping Center complained to ODP. The tenant immediately adjacent to the Rockin’ Rodeo notified ODP in a May 11, 2006 letter that he found bloodstains on the sidewalk in front of his business and bullet holes in the walls.
Subsequent to the May 7, 2006 shooting, ODP brought in Teri Bjorn to consider the issue of the Rockin’ Rodeo. Bjorn conducted her own independent investigation of the events that had taken place in and around the premises, going back to November of 2004. During the course of this investigation, Bjorn learned that the Bakersfield Police Department responded to calls for incidents at or around the location of the Rockin’ Rodeo over 95 times between January 1, 2005 and May 26, 2006 for incidents including theft, assault, possession of weapons, disorderly conduct, vandalism, DUIs, aggravated assault, auto theft, and criminal threats. Bjorn concluded that the totality of the circumstances evidenced a breach of the lease agreement by B.E., specifically violations of Sections 2.04(b) and 2.08 of the lease agreement, and the Rules and Regulations attached as Exhibit E to the lease agreement.
Section 2.04(b) provided in relevant part that, “Tenant shall conduct its business in the Premises in lawful manner and in good faith, and will not do any act tending to injure the reputation of the Shopping Center as determined by the Landlord.”
Section 2.08 provided that: “Tenant shall not use the Premises in any manner that will constitute waste, a public or private nuisance, or unreasonable annoyance.…”
Finally, paragraph 5(e) of the Rules and Regulations provided that: “No person, without the prior written consent of Landlord, or as otherwise provided in the Lease, shall in or on any part of the Common Area: [¶] … [¶] engage in any conduct that might tend to interfere with or impede the use of any of the Common Area by any customer, business invitee, employee, or tenant of the Shopping Center; create a disturbance, attract attention, or harass, annoy, disparage, or be detrimental to the interest of any of the retail establishments within the Shopping Center.’”
Bjorn advised ODP that it should take steps to terminate the lease. Specifically, section 13.02(C) of the lease agreement provided that the Landlord may terminate the lease on five days notice if the tenant had breached the lease.
Bjorn also recommended that a letter be sent to B.E. detailing the fact that the lease agreement had been incurably breached. She finally recommended to ODP, if necessary, to file an unlawful detainer action to get a court order restoring possession of the premises to ODP.
ODP agreed to follow Bjorn’s advice and recommendations and authorized Bjorn to proceed as recommended. ODP asserts that it did not decide to terminate the lease prior to the recommendation of Bjorn. However, the record indicates that some partners within ODP already had decided that the lease should be terminated.
ODP partner Clyde Barbeau testified that he had made a decision about B.E. after the prior incidents and probably was trying to figure out how to terminate the lease, but that he had not “conveyed my convictions to the partnership when Teri Bjorn was brought in.” Barbeau further testified that prior to hiring Bjorn, the partnership “discussed all phases of our course of action.… ‘Can we buy them out for less money?’ There were all kinds of different conversations that went on. And, ‘Can we terminate the lease?’”
On May 23, 2006, Bjorn wrote a letter to B.E. declaring that the lease had been incurably breached by B.E. Bjorn requested that B.E. agree to vacate the property by June 30, 2006 or ODP would file a legal action to regain possession. Bjorn stated that ODP “is compelled to take [this action] to protect not only the value of [ODP’s] own property investment, but also the lives and property of its other tenants, their employees and customers and the public, as a result of the fatal shooting and critical injury that occurred at the Rockin’ Rodeo on May 7, 2006, and prior incidents. [ODP] is secondarily compelled to take this action to protect the reputation of its partners and the shopping center that it owns, as a result of these incidents and the indecencies that occurred at Rockin’ Rodeo’s wet T-shit contest on August 24, 2005, as well as prior and on-going immoral behaviors that are allowed to be encouraged at the bar.” Bjorn also requested a response in writing by May 31, 2006.
On May 25, 2006, the City of Bakersfield City Council Safe Neighborhood and Community Relations Committee (“Committee”) held a meeting at which the May 7, 2006 shooting was discussed. This resulted in increased negative media attention regarding the Shopping Center and Rockin’ Rodeo. ODP’s decision to terminate the lease of the Rockin’ Rodeo also was discussed. Bjorn told the Committee that the decision to terminate the lease had nothing personally to do with the owner of the Rockin’ Rodeo, but was a solution to a serious problem at the location that endangered other nearby businesses, particularly John’s Incredible Pizza, where children are present.
From May 23, 2006 to June 30, 2006, ODP did not erect any physical barriers or otherwise physically interfere with B.E.’s possession of the premises. However, by late May of 2006, B.E. concluded that the Rockin’ Rodeo was no longer a viable business. Jack Eugene McMurrough, the owner of the Rockin’ Rodeo, testified that, based upon his prior business experience, he concluded that the Rockin’ Rodeo would not be able to survive in the face of opposition from ODP, members of the Bakersfield City Council, and the police department. B.E. decided to close the Rockin’ Rodeo after the last Saturday of May 2006. The Rockin’ Rodeo was not open for business at any time during the month of June 2006.
B.E. did not agree to vacate the property as requested in the May 23, 2006 letter. On June 2, 2006, ODP served B.E. with a Notice to Quit – Breach of Covenant. In the Notice to Quit, Bjorn demanded possession by June 7, 2006 or legal proceedings would follow to recover possession. B.E. did not quit and deliver possession of the property by June 7, 2006.
On June 9, 2006, ODP served B.E. with an Unlawful Detainer action, which was supplanted by an amended pleading on June 13, 2006. In the pleading, ODP alleged that “Section 2.08 of the Lease and Exhibit E to the Lease (‘Rules and Regulations’) prohibit conduct by Defendants that constitutes a public nuisance and conduct that is disturbing, annoying, or detrimental to other tenants and the operation of the Shopping Center’s common areas. The Lease also requires Defendants to conduct their business lawfully and in a manner not injurious to the reputation of the Shopping Center, as determined by Plaintiff.” ODP further alleged that B.E. “incurably breached the Lease by conducting their nightclub business in a manner injurious to the reputation of the Shopping Center that created a public and private nuisance and was and is disturbing, annoying, and detrimental to the other tenants of the Shopping Center and the operation of the Shopping Center’s common areas. Defendants’ incurable breaches included holding a ‘wet T-shirt’ contest that included partial nudity in violation of Defendants’ City of Bakersfield business permit and resulted in a 27-day suspension of Defendants’ City cabaret license in 2005, and failing to control their patrons such that Defendants’ patrons have engaged in gunfights and committed multiple shootings in the Property’s parking lot in 2004 and 2006, the most recent of which resulted in a death on the Property, blood stains in the common areas, and bullet holes in the premises of other tenants in the Shopping Center.”
On June 19, 2006, B.E. filed its Answer to the original Complaint in the Unlawful Detainer action. On June 23, 2006, B.E. filed its verified Answer to the amended complaint in the Unlawful Detainer action.
On June 30, 2006, and before trial, B.E. voluntarily vacated the property and surrendered the keys to counsel for ODP. On July 5, 2006, ODP’s counsel filed a Dismissal Without Prejudice of the Unlawful Detainer action.
During this time, ODP received a letter dated June 22, 2006 from Clifford & Bradford Insurance Agency, referencing the insurance difficulties for the Shopping Center supposedly created by Rockin’ Rodeo and stating, “[i]f Rockin’ Rodeo were no longer a tenant, I am confident we would experience an increased number of insurance companies willing to quote and insure you’re shopping center at the policy renewal.”
DISCUSSION
A. Standard of Review
The appellate court reviews de novo a ruling granting a special motion to strike under section 425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) In doing so, we accept as true the evidence favorable to the plaintiff and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Feldman, supra, 160 Cal.App.4th at p. 1478.)
B. The Anti-SLAPP Statute
“A SLAPP suit - a strategic lawsuit against public participation - seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16 - known as the anti-SLAPP statute - to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
Initially, the party challenging the lawsuit has the threshold burden to show that the cause of action arises from an act in furtherance of the right of petition or free speech – i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once the burden is met, the burden shifts to the complaining party to demonstrate a probability of prevailing on the claim. (Zamos, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) To satisfy this prong, 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.’” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056; Feldman, supra, 160 Cal.App.4th at pp. 1477-1478.)
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.)
C. Timeliness of Special Motion
In its Statement of Facts, B.E. contends that the trial court should have denied the section 425.16 motion because it is untimely. B.E contends that the “delay” in waiting to file the motion “after nearly a year of litigation activity including two demurrers, two motions for an undertaking, a MSJ, and a motion to compel discovery responses, with anticipated legal fees of $140,000” alone should have precluded the Motion to Strike. In support, B.E. cites Kunysz v. Sandler (2007) 146 Cal.App.4th 1540 (Kunysz), in which the court stated that “[t]he purpose of the anti-SLAAP statute is to dismiss meritless lawsuits designed to chill the defendant’s free speech rights at the earliest stage of the case… [Citation.] That consideration, obviously, no longer applies once the complaint has been answered and the case has been pending for nearly a year.” (Id. at p. 1543.)
We disagree that Kunysz supports B.E.’s argument. The anti-SLAPP statute provides that a special motion to strike “may be filed within 60 days of the service of the complaint” or amended complaint. (§ 425.16, subd. (f); see also Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283.) In Kunysz, a key issue was the fact that the defendant did not seek leave to file a renewed anti-SLAPP motion until nine months after the filing of the amended complaint and only six weeks before trial. (Id., 146 Cal.App.4th at p. 1543.) Here, in contrast, ODP filed its motion to strike on March 18, 2008, which is 60 days after service of the SAC. Thus, the section 425.6 motion to strike was timely.
D. The Anti-SLAPP Motion
On appeal, B.E. has abandoned its claim to relief for abuse of process – the third cause of action in the SAC. The only matter at issue is whether the trial court properly granted the section 425.16 Motion to Strike as to the breach of lease agreement and breach of the covenant of quiet enjoyment causes of action.
1. The First Cause of Action for Breach of lease agreement
With respect to the breach of lease agreement cause of action, the SAC alleged that “Olive Drive Partners breached the lease agreement by invoking Section 2.04(b) without justification to do so.”
In order to determine whether this cause of action should be dismissed pursuant to the anti-SLAPP statute, we must determine: 1) whether the cause of action arises out of protected activity, and 2) whether the cause of action for breach of lease agreement has any merit.
The anti-SLAPP statute provides a definition for protected activity. Section 425.16, subdivision (e) provides as follows: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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; (4) or 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.”
In connection with our determination on this issue, the California Supreme Court has stated that we may look to the civil litigation privilege of Civil Code section 47. (See Flatley, supra, 39 Cal.4th at 322-323.) Communicative acts that are protected by the civil litigation privilege generally fall within the ambit of section 425.16, subdivisions (e)(1) and (2). (Ibid.) Civil Code section 47, subdivision (b) states in relevant part: “A privileged publication or broadcast is one made: [¶]... [¶] (b) In any … (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law....”
Here, the May 23, 2006 letter from Teri Bjorn to B.E. notifying B.E. that the lease would be terminated and demanding that B.E. vacate the Premises, the comments that Bjorn made during the May 25, 2006 Committee meeting, the June 2, 2006 Notice to Quit - Breach of Covenant, and the filing of the Unlawful Detainer action are all communicative acts protected by Civil Code section 47. They also are protected activities under section 425.16, subdivision (e). (See Feldman, supra, 160 Cal.App.4th at pp. 1486-1491 [the filing of an unlawful detainer action, service of a notice to quit, and statements made by a representative of the landlord about eviction were protected by the civil litigation privilege of Civil Code section 47 and are protected activities under section 425.16].)
However, B.E. contends that it is not suing ODP based upon the latter communicative acts of the May 23, 2006 letter from Teri Bjorn, the Notice to Quit and Unlawful Detainer actions “but rather the primary, internal invocation of an inapplicable lease provision as a tool to a wrongful end.” B.E. contends that this “primary, internal invocation” is not a protected activity under the section 425.16. In support, B.E. cites Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 (Marlin) and Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273.
In Marlin, supra, two tenants brought an action against their landlord for a declaration of the parties’ rights under the Ellis Act, Government Code sections 7060 et seq. The trial court dismissed the action after granting the landlord’s section 425.16 motion to strike. (Marlin, supra, 154 Cal.App.4th at pp. 156-157.) The appellate court reversed, holding that “the cause of plaintiffs’ complaint was defendants’ allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs’ tenancy. 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.” (Id. at pp. 160-161.)
In Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th 1273, the Department of Fair Employment and Housing (DFEH) sued the landlord for disability discrimination arising out of the interaction between the landlord and a disabled tenant. (Id. at p. 1275.) The landlord had decided to remove its apartment building from the rental market, and in response to the required removal notices, a disabled tenant had sought the usual 120-day period for finding alternate housing as provided in state and local law. The landlord had requested confirmation of the disability, and the tenant did not provide confirmation that the landlord found acceptable. (Id. at p. 1276.) After DFEH brought the action, the landlord moved to strike under section 425.16. The trial court denied the motion and the appellate court affirmed. (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, at p. 1276.) The appellate court held that “the gravamen of DFEH’s action against [the landlord] was one for disability discrimination, and was not an attack on any act [the landlord] committed during the rental property removal process or during the eviction process itself.” (Id. at p. 1284.)
We are not persuaded by B.E.’s attempt to analogize its case to that of Marlin, supra, 154 Cal.App.4th 154, and Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th 1273. B.E. has characterized its cause of action for breach of lease agreement as being based upon ODP’s wrongful invocation of section 2.04(b) of the lease agreement, similar to the Marlin plaintiffs’ complaint that their landlord wrongfully relied on the Ellis Act as authority for terminating plaintiffs’ tenancy. However, unlike Marlin, which involved the interpretation of a statute extraneous to the lease agreement, here, the B.E’s complaint puts at issue the interpretation of section 2.04(b) of the lease agreement, which is the crux of the Unlawful Detainer action. Thus, B.E.’s complaint directly arises from a protected activity - the filing of the Unlawful Detainer action.
B.E. also has characterized its complaint as involving the invocation of an inapplicable provision of the lease agreement for an improper purpose. In connection with this argument, B.E. has highlighted ODP counsel Teri Bjorn’s testimony that she was concerned in 1999 about B.E.’s decision to include a “top 40” music mix and ODP partner Randy Steinert’s testimony that he included his unwritten moral code, which is based upon Christian evangelical theology, when determining whether to terminate B.E’s lease in 2005 after the wet t-shirt contest incident. This is apparently an attempt to create an inference that ODP was engaging in some form of racial or religious discrimination, akin to the landlord’s alleged disability discrimination in the Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th 1273 case. However, B.E. does not cite how and when any extrinsic state or local law was violated; rather, B.E. only contends that ODP violated contract law by failing to comply with the lease agreement. Moreover, any alleged improper purpose is irrelevant to B.E.’s breach of lease agreement claim if ODP could terminate the lease under a legal provision of the lease agreement. And whether or not ODP could terminate the lease under such a provision was at the heart of the Unlawful Detainer action. Thus, B.E’s complaint directly arises from protected activity of filing an Unlawful Detainer action. Furthermore, on the merits, the evidence does not support B.E.’s attempt to analogize its case to the Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC case because, despite any ODP attorneys in 1999 or ODP partners in 2005 deciding to terminate the lease because of an improper purpose, B.E. was still a tenant in 2006.
We also are not persuaded that B.E’s cause of action for breach of lease agreement is based upon acts that are separate and distinct from the protected acts such as the filing of the Unlawful Detainer action. Although reaching an internal decision to invoke provisions of the lease agreement is separate and distinct in time from the actual act of carrying out that decision, the act of making that decision is necessarily related to the act of implementing that decision. Thus, the California Supreme Court has held that the civil litigation privilege of Civil Code section 47 extends to noncommunicative acts that are necessarily related to the communicative conduct. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065.) Here, the decision to terminate a lease did not have any legal effect on B.E. until that decision was effectuated by the subsequent act of filing the Unlawful Detainer action. Therefore, we conclude that ODP’s decision to terminate the lease agreement by invoking various provisions of the lease agreement during the consultation with Teri Bjorn is necessarily related to the later communicative acts of serving the Notice to Quit and filing of the Unlawful Detainer action. Thus, there are no independent, noncommunicative acts that form the gravamen of B.E’s cause of action for breach of the lease agreement.
B.E. contends, however, that ODP reached a decision to terminate the lease prior to consulting with Bjorn. If true, this may be a separate and distinct act that is not necessarily related to the subsequent litigation activity. As evidence, B.E. cites the testimony of ODP partner Clyde Barbeau in which he stated that he had reached a decision on B.E. and was trying to look for ways to terminate the lease. Our review of the testimony of Barbeau, however, indicates that, while some of the ODP partners were interested in terminating the lease, the ODP partnership as a whole had not reached a decision to terminate the lease prior to hiring Teri Bjorn to examine the matter. Barbeau testified that he had not “conveyed my convictions to the partnership when Teri Bjorn was brought in.” Barbeau further testified that prior to hiring Bjorn, the partnership “discussed all phases of our course of action” including whether to buy out B.E. or the possibility of terminating the lease. However, Barbeau did not testify that the ODP partnership as a whole reached a decision to terminate the lease. Thus, there is no evidence to support B.E’s contention that ODP had decided to terminate the lease prior to consulting with Bjorn, especially in light of the affidavits and other evidence presented by ODP to the contrary.
We appreciate that it is difficult to draw the line between pre-litigation activities that are necessarily related to communicative conduct and pre-litigation activities that are not necessarily related. It often is also difficult to determine when terminating a tenancy is a protected activity and when it is not protected activity. (See Feldman, 160 Cal.App.4th at p. 1483 [noting that the appellate court in Birkner v. Lam (2007) 156 Cal.App.4th 275, had concluded that, although termination of tenancy is generally not a protected activity, where a termination notice is a legal prerequisite for an unlawful detainer action, it is a protected activity.]) In this case, however, we are persuaded that ODP’s decision to terminate the lease agreement does not constitute a separate, independent wrongful act. Our conclusion on this point is supported by our analysis of the second prong of our review of a section 425.16 motion to strike - whether B.E.’s cause of action for breach of lease agreement has any merit.
As an initial matter, the communications between the ODP partnership and Teri Bjorn relating to the termination of the lease agreement, the subsequent May 23,2006 letter to ODP, the issuing of the Notice to Quit, and the filing of the Unlawful detainer action are protected by the civil litigation privilege of Civil Code section 47. (See Feldman, supra, 160 Cal.App.4th at pp. 1497-1498.) Also privileged is any pre-litigation noncommunicative conduct that is necessarily related to the protected communicative conduct. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065.) Thus, B.E. must plead evidence relating to non-privileged conduct that could support a breach of lease agreement cause of action. An examination of the complaint, however, indicates that B.E. has failed to do so in this case.
In the cause of action for breach of lease agreement, B.E. alleged that ODP “breached the lease agreement by invoking Section 2.04(b) without justification to do so.” However, the invocation of a provision of the lease to terminate a lease agreement is protected by Civil Code section 47 because that invocation is necessarily related to the subsequent filing of the Unlawful Detainer action.
B.E. also alleged that ODP “had no first hand knowledge of what had or had not occurred at Rockin’ Rodeo, nor did [ODP] allow [B.E.] any opportunity to cure any alleged violation of Section 2.04(b).” These allegations, however, do not support a prima facie case that ODP breached the lease agreement. Even if we accept the allegations as true, they are assertions about the allegedly improper “justification” that ODP used to invoke section 2.04(b). As such, these allegations are not about independent wrongdoing but about the same alleged wrongdoing that we have held was privileged under Civil Code section 47 -- the filing of the Unlawful Detainer action. Stated another way, these allegations do not form the basis of a complaint for breach of a lease agreement; instead they are affirmative defenses to the Unlawful Detainer action.
In its appellate brief and at oral argument, B.D. has suggested that it was precluded from raising these affirmative defenses during the Unlawful Detainer action, citing Minelian v. Manzella (1989) 215 Cal.App.3d 457 (Minelian). Our review of that case law shows that there was nothing that precluded B.E. from raising any of the arguments that it has raised in this case to defend against the Unlawful Detainer action. In Minelian, the court affirmed that a defendant can assert any affirmative defenses or cross-claims that are relevant to the right of immediate possession. (Id. at p. 465.) In this case, in defending against the Unlawful Detainer action, B.D. could have raised the claims that it did not breach the lease agreement and that ODP did not have any evidence that B.E. breached the lease agreement. If it had prevailed, ODP would have retained possession of the premises and likely not lost the Rockin’ Rodeo business. Instead, ODP gave up possession of the premises prior to the summary proceeding on the Unlawful Detainer action.
Thus, B.E. has not pleaded any non-privileged conduct that could form the basis for a breach of lease agreement cause of action. Accordingly, B.E. has not made a prima facie case that ODP breached the lease agreement, and B.E.’s first cause of action for breach of the lease agreement lacks merit. Therefore, the trial court was correct in granting the section 425.16 motion to strike and dismissing the first cause of action for breach of the lease agreement.
2. The Second Cause of Action for Breach of Covenant of Quiet Enjoyment
The covenant of quiet enjoyment “insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with the tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mibile Aire Estates (2005) 125 Cal.App.4th 578, 838-839 (internal citations and quotations omitted).) In the complaint, B.E. alleged that “Olive Drive Partners breached this covenant of quiet enjoyment by interfering with Bakersfield Entertainment’s right to use and enjoy the premises for the purposes contemplated by the tenancy. Olive Drive Partners did so by: [¶] (a) Wrongfully invoking Section 2.04(b) of the lease agreement...; [¶] (b) Failing to allow [B.E.] an opportunity to cure the alleged violations of Section 2.04(b);” and “(c) Wrongfully issuing the Notice to Quit - Breach of Covenant.…”
The same analysis applicable to the first cause of action for breach of the lease agreement is applicable to the second cause of action for breach of the covenant of quiet enjoyment. The invoking of section 2.04(b) of the lease agreement is a protected activity because it is a communicative act protected by Civil Code section 47 or a pre-litigation noncommunicative act that is necessarily related to privileged communicative conduct.
Similarly, B.E’s cause of action for breach of the covenant of quiet enjoyment lacks merit because the invoking of section 2.04(b) of the lease agreement and the issuing of the Notice to Quit are privileged under Civil Code section 47. Furthermore, the alleged failure to provide an opportunity to cure is intrinsically linked to these privileged activities. Thus, B.E. has not pleaded a prima facie case for breach of the covenant of quiet enjoyment.
Therefore, the trial court was correct in granting the section 425.16 motion to strike and dismissing the second cause of action for breach of the covenant of quiet enjoyment.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Vartabedian, J., Cornell, J.