Opinion
H043970
06-29-2018
ALEXANDER JACK BARSS, JR., et al., Plaintiffs and Respondents, v. CATHERINE M. VIEIRA, as Trustee, etc., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CV00337)
In this action defendants—a living trust, its trustee, the mobile home park it operates, and the manager of the park—seek review of an order denying their motion to strike a complaint under the anti-SLAPP law, Code of Civil Procedure section 425.16. On appeal, defendants contend that the trial court erred by weighing evidence and making factual and legal findings, "thereby hindering [defendants'] ability to properly defend the action." Defendants also attack the order on its merits, arguing that (1) the claims of the plaintiffs, Alexander Jack and Ashley Barss, all arose from protected activity and (2) plaintiffs cannot meet their burden to show a probability of prevailing at trial. We will affirm the order.
All further statutory references are to the Code of Civil Procedure except as otherwise indicated.
Background
The history of the parties' dispute is recounted in the operative pleading, the second amended complaint, supplemented by plaintiffs' declarations. Plaintiff Alexander Jack Barss (AKA John), doing business as "Ideal Homes, LLC," rented space No. 47 at Ocean Breeze Mobile Home Manor (Ocean Breeze or the Park) John then signed an agreement allowing Ideal Homes to place a new mobile home on that space. Both agreements were signed on behalf of Ocean Breeze by its manager, defendant Manuel A. Vieira (Vieira). Ocean Breeze was operated by the Albert and Catherine Vieira Living Trust, a defendant in this case along with Manuel Vieira and the trustee, Catherine Vieira. Toward the end of 2012 the California Department of Housing and Community Development (HCD) granted a permit allowing Ideal Homes to install the new home, and in January 2013 the agency issued a certificate of occupancy for the home. Plaintiffs then executed a month-to-month rental agreement with the Park and thereafter occupied the home as their principal residence.
On April 22, 2015 plaintiff Ashley Barss notified Ocean Breeze that plaintiffs intended to sell their mobile home. Ashley acknowledged that the Park had the right to approve the purchaser, who also had to sign a rental agreement. On April 24 she asked that Vieira perform an inspection as soon as possible.
Under Civil Code section 798.73.5, subdivision (b), Ocean Breeze had 10 business days—until May 8, 2015—to provide plaintiffs with a written summary of repairs it required before the sale could be effected. Plaintiffs did not receive the written summary, however, until June 8, 2015. In the letter Vieira listed seven items that "must be completed prior to the approval of the sale."
Vieira told plaintiffs that they must ensure that the front and rear stairs be "up to [C]ode," reduce the height of the fence to six feet, remove weeds and dead vegetation around the home, "trim" the landscaping, and provide proof of HCD approval of several structural items.
On June 15, 2015, Ashley entered into a written agreement to sell plaintiffs' home to Marcel Cathrein. Plaintiffs advised Cathrein that he would need to be approved for tenancy at Ocean Breeze before the sale could be completed. Cathrein's application was approved on July 24, 2015; he was told, however, that the seller had to complete the items listed in the June 8 letter to plaintiffs before the sale could be approved. Plaintiffs requested an inspection from HCD, which found no violations on July 29, 2015. John gave a copy of the HCD report to Vieira the next day.
Two weeks later, on August 13, 2015, defendants sent plaintiffs the first of three seven-day notices to comply with Park rules and regulations and state law and regulations. On August 18 plaintiffs responded to each allegation in the first notice, pointing out the absence of violations and the remediation of other issues. The fence, for example, had been lowered to six feet to comply with defendants' condition.
Defendants, however, refused to execute the documents required for completion of the sale. They sent a second seven-day notice to comply on August 27 and a third on September 8, 2015, alleging the same violations. Meanwhile, on August 31, 2015, the local utility company, PG&E, notified plaintiffs that their mobile home had been installed over a PG&E gas main line. PG&E intended to relocate the line at no expense to plaintiffs; but according to the complaint, Vieira objected, insisting that PG&E require plaintiffs to pay for the work.
On October 8, 2015, defendants served a 60-day notice to terminate possession. Beginning in November 2015 defendants consistently refused plaintiffs' tender of the rent on space No. 47. According to an affidavit from Cathrein, Vieira approached him in September 2015, while Cathrein was visiting his mother at space No. 44, and said, "I'm the guy keeping you from moving into your house." Vieira told Cathrein that he would not sign off on the house at space No. 47 because it was unsafe to inhabit; until his safety concerns were addressed, he "would not 'even think' of letting [Cathrein] move in there." According to Cathrein, Vieira said, " 'When I install a house, I do it right and don't need to go back and fix anything.' " Vieira encouraged Cathrein to look at a vacant lot that he owned in the Park.
Plaintiffs initiated this action on November 18, 2015, seeking declaratory and injunctive relief along with damages for "Interference with Mobilehome Resale," negligent infliction of emotional distress, and breach of the covenant of good faith and fair dealing. In their second amended complaint, filed June 13, 2016, plaintiffs added a cause of action for intentional interference with contractual relations.
On August 16, 2016, after filing their answer, defendants filed their motion to strike the second amended complaint under section 425.16. In their opposition, plaintiffs cited section 425.16, subdivision (f), arguing that the motion was untimely, as it had been filed more than 60 days after service of the second amended complaint. In its tentative decision the court agreed with that argument; but plaintiffs withdrew their position and the court did not revisit the issue.
The parties and the court did not have the benefit of our Supreme Court's recent opinion in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 687 (Newport). In that case the Court construed section 425.16, subdivision (f), to prohibit a motion to strike an amended complaint if the motion could have been brought within 60 days of an earlier complaint, subject to the trial court's discretion to permit the late filing. "This interpretation maximizes the possibility [that] the anti-SLAPP statute will fulfill its purpose [of ending litigation early and without great cost] while reducing the potential for abuse." (Newport, supra, at p. 645.) In the instant case, only the fifth cause of action was added to the second amended complaint; consequently, as to the first four causes of action the court could have denied the motion to strike as untimely, based on defendants' failure to make the motion within 60 days of service of the complaint filed on November 18, 2015.
The hearing on defendants' motion took place on September 7 and 9, 2016. The court took judicial notice of the August 31, 2016 judgment in case No. 15CV00487, an unlawful detainer action defendants had unsuccessfully brought against plaintiffs. In ruling on the motion the court found that the seven- and 60-day notices were themselves protected activities, but they were "simply collateral or incidental to the defendants' alleged activities designed to thwart the sale of the mobile home . . . [and] provided a description or context to the overall facts under which the plaintiff[s'] claim arose." The court then stated, "Assuming that these protected activities are not merely collateral or incidental, the Court finds that there's a likelihood that the plaintiff[s] will prevail on the merits."
In ruling on the motion at the September 9, 2016 hearing, the judge directed plaintiffs' counsel to prepare a written order. That order was not filed until October 25, 2016. Defendants, however, filed their appeal on September 14, 2016, from the minute order denying their motion. Defendants' appeal is therefore premature. We will, however, exercise our discretion to treat the appeal as having been filed from the written order. (Cal. Rules of Court, rule 8.104(d)(2).)
Discussion
1. Statutory Framework
"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." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The statute "provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) "Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target" ' [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.] In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; Newport, supra, 4 Cal.5th at p. 642.)
Under subdivision (b)(1) of the statute, "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." Subdivision (e) defines " 'act in furtherance of a person's right of petition or free speech' " to include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" and "(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."
Settled principles govern the determination of an anti-SLAPP motion and appellate review of the ensuing ruling. The moving defendant has the initial burden to show that the lawsuit arises from an act in furtherance of the defendant's right of petition or free speech. (§ 425.16, subd. (b)(1); Navellier v. Sletten (2002) 29 Cal. 4th 82, 88 (Navellier).) "A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, '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.' " (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park), citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) A defendant can meet this initial burden by showing that the underlying conduct fits one of the categories described in section 425.16, subdivision (e). (Navellier, supra, at p. 88.)
In an important clarification, our Supreme Court recently explained that in meeting its initial burden the moving defendant should identify "all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral, supra, 1 Cal.5th at p. 396.)
In this second step of its analysis the court's inquiry "is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] '[C]laims with the requisite minimal merit may proceed.' " (Baral, supra, 1 Cal.5th at pp. 384-385, quoting Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 and Navellier, supra, 29 Cal.4th at p. 94.) "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, supra, at p. 89; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.)
"We review de novo the grant or denial of an anti-SLAPP motion. [Citation.] We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.] In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) We do not, however, weigh the evidence, but accept plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law. [Citation.]." (Park, supra, 2 Cal.5th at p. 1067.) 2. Factual Findings in the Written Order
Defendants first take issue with the language of the written order (drafted by plaintiffs' attorney) denying their anti-SLAPP motion, because it sets forth unacceptable factual and legal findings. They specifically challenge the following findings of fact: (1) that Ashley Barss gave defendants written notice of her intent to sell and requested a resale inspection and written summary of repairs and improvements defendants required; (2) that defendants failed to provide the requested summary within the 10 business days allowed by Civil Code section 798.73.5, subdivision (b); (3) defendants approved Cathrein's tenancy on July 24, 2015; (4) plaintiffs gave defendants a copy of the July 29, 2015 HCD report finding no violations of law or regulations; and (5) defendants filed their motion to strike on August 16, 2016, three weeks after the judge in defendants' unlawful detainer action orally ruled for plaintiffs. Finally, defendants take issue with the caption of the trial court's order, because it states that the court was not only denying the motion but also granting plaintiffs' motion for attorney fees and costs.
Defendants complain that the court improperly weighed evidence and "essentially declared these findings to be 'law of the case,' making them not only admissible at later stages of the proceeding, but also, directly affecting the burden of proof." Defendants contend that they were prejudiced "because the Park is now denied of [sic] its opportunity to cross-examine the Barss [sic] with respect to these purported 'facts,' and will likewise be denied the opportunity to object to any such 'evidence' at trial, thereby hindering its ability to properly defend the action." Defendants further express dismay that the court "went so far as to declare that the Park violated the Civil Code, when that was not the issue that was briefed or argued on the Anti-SLAPP [m]otion. And, it made that ruling prior to the depositions of the parties or written discovery!"
Defendants do not explicitly suggest that the preclusive use they anticipate would occur through the application of collateral estoppel. We therefore need not undertake such an analysis.
This reference to the Civil Code violation pertained to defendants' failure to comply with Ashley Barss's request within 10 business days.
We first note that defendants did object below to the proposed factual "findings," but not because they were improper in the context of an anti-SLAPP proceeding. Instead, defendants complained only that these written findings had not been made in the court's oral ruling. Nothing in defendants' objections to the proposed order reflected any concern that the findings would be used against defendants at trial. The issue of the evidentiary effect of the factual findings has been forfeited.
In any event, we find no prejudice. Although the phrase "The Court finds" was improvidently used by plaintiffs' attorney in drafting the written explanation of the court's reasoning, the discussion at the September 9, 2016 hearing reflects a proper consideration of whether plaintiffs had "made a prima facie factual showing sufficient to sustain a favorable judgment," without a weighing of the evidence or a resolution of conflicting factual claims. (Baral, supra, 1 Cal.5th at pp. 384-385.) Even if we presume that the wording reflected the court's eventual view, those "findings" are nonetheless confined to the procedural posture of the motion, which permits the acceptance of the plaintiffs' evidence for the purposes of determining whether they made a prima facie showing of the facts necessary to meet their burden in opposition to the motion. Neither that determination nor the "burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding." (§ 425.16, subd. (b)(3).)
In their respondents' brief plaintiffs note that the determination that plaintiffs established a probability of prevailing will not be admissible "at any later stage of the case . . . and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding." (§ 425.16, subd. (b)(3).) As defendants point out, however, this evidentiary restriction specifically refers to the determination, not specific facts within the court's anti-SLAPP ruling.
The superior court properly considered the supporting affidavits offered by plaintiffs and properly took judicial notice of the existence of the judgment in their favor in the unlawful detainer action against them. Defendants cite no authority for their suggestion that they could be bound by any factual statements made by the court. We see no reason to indulge defendants' speculative apprehension of a future proceeding in which the court will improperly restrict discovery, preclude cross-examination of plaintiffs, take judicial notice of the truth of the facts found by the court in the anti-SLAPP ruling (cf. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565), attempt to declare the challenged findings to be law of the case, or invoke any other inapposite procedural principle by relying on the factual findings made here.
It is impossible to imagine the superior court's even attempting to apply "law of the case" to its anti-SLAPP findings; this doctrine "dictates that an appellate court's holding, on a rule of law necessary to an opinion, must be adhered to throughout the case's subsequent progress in the trial court and on subsequent appeal, as to questions of law (though not as to questions of fact)." (City of West Hollywood v. Kihagi (2017) 16 Cal.App.5th 739, 749, italics added.)
Thus, despite the ill-considered wording of the purported factual "findings," they are confined to the court's anti-SLAPP ruling and will not adversely affect the defense of this action. We further find no prejudice from the reference to attorney fees in the caption of the written order. Defendants are correct that no such fees were actually awarded either at the hearing or in the body of the order. 3. Allegations of Protected Activity
The court did not award attorney fees in its oral ruling, either. Instead, it noted that plaintiffs' opposition papers had not requested such fees.
Defendants contend that all of plaintiffs' claims arose out of protected activity—i.e., the seven- and 60-day notices that preceded defendants' unlawful detainer action. In focusing on the allegations regarding those notices, however, defendants overlook the gravamen of plaintiffs' claims. In each cause of action in the second amended complaint plaintiffs alleged various acts that interfered with the sale of their home to Cathrein in addition to the formal notices: refusing to meet with Park management for a timely resale inspection; sending an untimely letter unjustifiably asserting violations of park rules and demanding unnecessary repairs; refusing to provide documents required by escrow to complete the sale; interfering with PG&E's effort to relocate the gas line and meter; and advising Cathrein not to buy plaintiffs' house but to engage Vieira to install a new one. Because the second amended complaint alleged both protected and unprotected activity, we must consider whether the protected conduct "forms the basis for the claim[s]" alleged in the second amended complaint. (Park, supra, 2 Cal.5th at p. 1062; see City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767 ["the question is whether the protected activity is merely an incidental part of the cause of action"].)
Park makes it clear that we must respect the distinction between "activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim." (Park, supra, 2 Cal.5th at p. 1064, italics added; see Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1214-1215 [pointing out distinction "between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity"].) "[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." (Park, supra, at p. 1060; see Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 [defendant's communication to government agency was only evidence plaintiff would need to prove misconduct, not in itself the basis of liability].) "In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability." (Park, supra, at p. 1063.)
As noted, the allegations of plaintiffs' second amended complaint were premised on the defendants' refusal to cooperate in, and interference with, the sale of plaintiffs' mobile home, which additionally constituted a breach of the covenant of good faith and fair dealing and intentional interference with contractual relations, and which caused plaintiffs not only to incur damages but to suffer emotional distress. The notices, in our view, certainly supply evidentiary support for the claims, but they are not themselves the basis of liability. As in Park, plaintiffs " 'could have omitted allegations regarding [the notices] and still state the same claims.' " (Park, supra, 2 Cal.5th at p. 1068.) We therefore conclude, as did the superior court, that the notices preceding defendants' unlawful detainer action "merely provide context" to plaintiffs' claims and did not in themselves trigger application of the anti-SLAPP law. (Baral, supra, 1 Cal.5th at p. 394.) 4. Probability of Prevailing
Assuming arguendo that defendants' notices of violation are essential to plaintiffs' claims, we proceed to the second step of the anti-SLAPP analysis. In that event the burden would shift to plaintiffs "to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Baral, supra, 1 Cal.5th at p. 396; Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 595.)
Defendants maintain that "the Barss [sic] did not meet that burden." We disagree. Ashley Barss stated in her declaration that defendants made demands that exceeded the 10-day statutory deadline for advising prospective sellers of required repairs or improvements before the sale of plaintiffs' mobile home could be completed. Both Ashley and John Barss affirmed that HCD had found no violations on the property, and John noted that the Park had not notified them of any violations until they announced their plan to sell their home. Plaintiffs asserted that their damages included continuing rent, insurance, and property taxes; legal costs; mortgage on their new home, which they had intended to pay off with the sale proceeds; and loss of income from selling the home, all of which they incurred over more than 13 months in which defendants prevented them from completing the sale to Cathrein. Both plaintiffs also stated that defendants' conduct had caused them severe emotional distress. We therefore agree with the superior court that plaintiffs' evidence met the "minimal merit" threshold necessary to withstand defendants' motion to strike. No other showing was necessary for plaintiffs at this stage of the action.
Disposition
The order is affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.