Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-06-448545
STEIN, J.
Plaintiff Gina Bui appeals from an order granting a special motion to strike her complaint. We affirm.
Background
On January 13, 2006, plaintiff filed a complaint against defendants LSL Property Holdings II LLC (LSL) and Citiapartments, Inc., asserting a number of causes of action arising out of plaintiff’s tenancy in a residential apartment building owned by LSL and managed by Citiapartments. As supporting facts, plaintiff alleged the residential property manager had rented a unit to plaintiff at a monthly rate of $1,800. In mid-2004, plaintiff learned that the manager’s son was the named tenant of the unit under a rental agreement requiring the son to pay $700 per month. The manager had been collecting $1,800 from plaintiff, remitting $700 to the property owner in her son’s name and pocketing the remaining $1,100. After plaintiff confronted the manager about the situation, the manager began contacting plaintiff’s family, accusing plaintiff of having a drug habit. Plaintiff contacted defendants, telling them about the manager’s actions. Andrew Hawkins, who worked for defendants, visited plaintiff and requested proof of her tenancy and rent payments. He offered to relocate plaintiff to a comparable apartment in the neighborhood, but also told her if she sought legal counsel she would be “ ‘slammed with a 3-day notice’ ” as the manager’s coconspirator. On January 14, 2005, plaintiff was served with a three-day notice to quit. Plaintiff alleged she felt threatened, intimidated and harassed, and therefore surrendered possession of the unit.
Plaintiff sought damages on theories of violation of San Francisco’s rent ordinance, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, breach of contract and unfair competition.
Defendants responded by filing a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. Defendants supported the motion, in part, with Andrew Hawkins’s affidavit. Mr. Hawkins declared plaintiff had called him in January 2005, telling him about the property manager’s scheme. Plaintiff explained she had learned of the scheme in March or April 2004, and had confronted the manager, with the result the manager had lowered plaintiff’s rent to $742 per month. Plaintiff complained the manager was harassing her. Mr. Hawkins offered to help plaintiff find a new apartment. Plaintiff refused the apartments he showed her, refused to vacate the premises and refused to pay rent. Defendants also submitted the affidavit of an attorney that on January 10, 2005, he filed a three-day notice on plaintiff and on the master tenant (the manager’s son) based upon illegal subletting, in anticipation of filing an unlawful detainer action. Plaintiff filed a declaration in opposition to the motion to strike that essentially repeated the allegations of her complaint.
The attorney also declared he had been contacted by plaintiff’s attorneys and had negotiated an agreement under which LSL would forgo an unlawful detainer action, waive plaintiff’s back rent and return plaintiff’s security deposit. Plaintiff would vacate the premises by January 31, 2005, and agreed to release any claims against LSL and related entities and individuals. Defendants submitted as exhibits two letters from plaintiff’s attorney. The first confirmed plaintiff would have until January 31, 2005, to vacate the premises. The second confirmed a conversation during which LSL’s attorney agreed to extend the time for plaintiff to vacate to February 14, 2005. Defendants also submitted a check from LSL to plaintiff in the amount of $1,000, and a letter from LSL’s attorney to plaintiff’s attorney referencing a second check in the amount of $250. As we decide the appeal on other grounds, we do not decide here if defendants presented evidence of a settlement agreement that plaintiff violated when she filed her complaint.
On May 24, 2006, the court granted defendants’ motion.
Discussion
The Legislature enacted Code of Civil Procedure section 425.16—the anti-SLAPP statute—to provide a means of disposing of lawsuits brought to chill the valid exercise of constitutional rights. In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity; i.e., from any act of that person in furtherance of the person’s right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (b)(1); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “ ‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a [Code of Civil Procedure] section 425.16 motion to strike.’ [Citation.] ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] . . . [¶] If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.] ‘In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must “ ‘state[] and substantiate[] a legally sufficient claim.’ ” [Citations.] Put another way, 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.” [Citations.]’ [Citation.]” (Id. at p. 1056.)
“A cause of action does not ‘arise from’ protected activity simply because it is filed after protected activity took place. [Citation.] Nor does the fact ‘[t]hat a cause of action arguably may have been triggered by protected activity’ necessarily entail that it arises from such activity. [Citation.] The trial court must instead focus on the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to strike. [Citations.] In performing this analysis, the Supreme Court has stressed, ‘the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]’ [Citation.] In other words, ‘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. [Citation.]’ [Citation.] [¶] ‘In deciding whether the “arising from” requirement is met, a court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” [Citation.]’ [Citation.] On appeal, we independently determine whether this material demonstrates that the cause of action arises from protected activity. [Citation.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669-670.)
Wrongful Eviction
Plaintiff characterizes her main claim as a cause of action for wrongful eviction, and contends that such a claim is based on wrongful conduct, not communication, and therefore is not covered by the litigation privilege set forth in Civil Code section 47, subdivision (b). It follows, in plaintiff’s opinion, defendants did not make the necessary threshold showing that her cause of action for wrongful eviction arose from protected activity.
Civil Code section 47, subdivision (b) provides, with certain exceptions not relevant here, that a privileged publication or broadcast is one made “[i]n any (1) legislative proceeding, (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 . . . .”
Special motions to strike are not confined to activity covered by the litigation privilege. Nonetheless, communications made in anticipation of litigation are entitled to protection under Code of Civil Procedure section 425.16, and “ ‘[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of [Code of Civil Procedure] section 425.16.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1006, 1115.) Communications preparatory to or in anticipation of the bringing of an action are within the protection of the litigation privilege. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1126.) It is necessary only that the communication bear “some relation” to an anticipated lawsuit. (Ibid.) The privilege accordingly has been broadly applied to demand letters and other prelitigation communications by attorneys. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919.) It applies to mechanic’s liens and to stop notices as each is authorized by law and related to an action to foreclose or to collect. (A.F. Brown Electrical Contractor, Inc., supra, at pp. 1127-1128.) The alleged actions of asking plaintiff about her tenancy, threatening to file a three-day notice, and filing the three-day notice, are activities authorized by law and related to an action for unlawful detainer. Plaintiff’s claim for wrongful eviction, accordingly, arises out of activity protected by Code of Civil Procedure section 425.16. (And see Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [acts of negotiating a stipulated settlement of a pending unlawful detainer action and of writing and publishing a letter referring to the action and related issues are acts protected by Code Civ. Proc., § 425.16].)
Assuming, for purposes of argument, plaintiff is correct in insisting her complaint alleges wrongful conduct and not wrongful communications, it makes no difference. As explained by the court in Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19, “To begin with, Civil Code section 47 expressly applies its privilege only to a ‘publication or broadcast’ made in specified circumstances, which include, under subdivision (b), judicial, legislative, and other official proceedings. Code of Civil Procedure section 425.16 is not so limited; it extends to ‘any act . . . in furtherance of the . . . right [to] petition. . . .’ ” Here, the allegedly wrongful actions, whether characterized as communications or conduct, were done in furtherance of the right to seek relief for unlawful detainer by means of court action. In any event, even if in the abstract a claim for wrongful eviction might arise from noncommunicative conduct, plaintiff cannot avoid the litigation privilege simply by the label she attaches to her cause of action. As noted above, we look beyond the cause of action alleged to the defendant’s activity, which, here, was communicative. Plaintiff’s claim of wrongful termination arises from defendants’ communications.
The burden therefore did indeed shift to plaintiff to show a probability of prevailing, a burden that required her to establish her claim had at least “minimal merit.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. Plaintiff contends she made such a showing because defendants, through the property manager, leased the unit to her. In her view, this means defendants had no right to evict her as an unauthorized occupant. The initial flaw in this contention is that the allegations and evidence demonstrate that the property manager most definitely was not acting as the defendants’ agent when she leased the unit to plaintiff. Even if the property manager was defendant’s ostensible agent with respect to the original lease agreement, the undisputed evidence is that plaintiff learned of the property manager’s scheme and took advantage of the situation when she renegotiated her lease with the property manager to reduce her rent to $742 per month. “A principal is bound by acts of his agent under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.” (Civ. Code, § 2334.) By the time defendants became aware of the situation, plaintiff not only was an unauthorized occupant, but also knew she was an unauthorized occupant, taking advantage of the property manager’s scheme to prevent defendants from collecting the rent to which they were entitled. Plaintiff made no showing she would obtain a favorable judgment on her cause of action for wrongful eviction.
A person seeking to recover against a principal for the act of an ostensible agent must reasonably have believed in the agent’s authority. (Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399-400.)
Remaining Causes of Action
Plaintiff’s remaining claims and causes of action were based on the property manager’s harassing conduct. That conduct took place after plaintiff learned of the property manager’s scheme, after she renegotiated the lease and before plaintiff informed defendants about the situation. It was not chargeable to defendants. Plaintiff can base her claims against defendants only on the activity that is chargeable to them, and as that activity is protected, the special motion to strike properly was granted as to all of plaintiff’s claims.
Disposition
The order granting the special motion to strike, and striking the complaint in its entirety, is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.