Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC391055, Mary H. Strobel, Judge.
Scott Broffman for Plaintiffs and Appellants.
Kenneth C. Simonian for Defendant and Respondent.
JACKSON, J.
INTRODUCTION
Plaintiffs Yesenia Cornejo, Ayesha Balasoori, Edwin Consequera, Dora Cornejo, Maria Flores, Carmelina Lopez, Gloria Navarrete, Maria Rodriquez, Jesus Sanchez and Otto Solis appeal from an order granting the anti-SLAPP motion, that is, the motion to strike plaintiffs’ complaint, brought by defendant Charles Clark, as Trustee of the Clark Trust, under Code of Civil Procedure section 425.16.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
All statutory references are to the Code of Civil Procedure, unless otherwise identified.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs were tenants in an apartment building on North Serrano Avenue owned by the Clark Trust. As trustee, defendant operated the apartments on behalf of the trust. Each plaintiff’s apartment was subject to rent control pursuant to the Los Angeles Rent Stabilization Ordinance (LARSO).
In May 2007, a representative of the City of Los Angeles inspected the apartment building and noted that the placement of washing machines and dryers in some of the apartments restricted access through the apartments’ rear doors. Defendant notified plaintiffs that the washing machines and dryers would have to be removed. Plaintiffs did not remove them.
In September 2007, defendant served each plaintiff a three-day notice to quit for committing or permitting a nuisance (§ 1161, subd. 4; Los Angeles Mun. Code, § 151.09.A.3), in that, without defendant’s knowledge or consent and without permits legally required under the Los Angeles Municipal Code, the plaintiff had installed an air conditioning unit and a washer and dryer in his or her apartment; and for waste, in that the electrical system of the building was overloaded and required repairs costing in excess of $40,000. Two weeks later, defendant filed an unlawful detainer action against each plaintiff.
In the unlawful detainer actions, after receiving defendant’s response to their interrogatories, plaintiffs filed motions for summary judgment. The court denied the motions. At the close of Clark’s case-in-chief, plaintiffs made an oral motion for judgment in their favor pursuant to section 631.8. The court granted the motion as to some claims and denied the motion as to other claims. The unlawful detainer actions terminated in judgments for plaintiffs. In its statement of decision filed May 12, 2008, the court found that there was no nuisance. Having resolved the actions on that basis, the court found it unnecessary to rule on the issue of whether defendant properly used the three-day notice to quit procedure (§ 1161, subd. 4) for termination of each tenancy rather than the three-day notice to cure procedure (Id., subd. 3).
The record on appeal does not contain any of the records of the trial court in regard to plaintiffs’ motions for summary judgment in the unlawful detainer actions. These facts are taken from the statements of the trial court at the hearing on the anti-SLAPP motion, the court’s subsequent written ruling on the motion, and the declaration of plaintiffs’ attorney, under penalty of perjury, in opposition to defendant’s anti-SLAPP motion.
In his brief, defendant referenced plaintiffs’ motion for judgment, but did not provide a citation to the record. The information appears in the record, nevertheless, in the reporter’s transcript of plaintiffs’ counsel’s argument to the trial court during the hearing on defendant’s anti-SLAPP motion.
On May 16, 2008, plaintiffs filed a complaint for damages alleging causes of action for malicious prosecution and unfair business practices (Bus. & Prof. Code, § 17200 et seq.). Defendant filed the anti-SLAPP motion. After a hearing, the trial court granted defendant’s motion. This appeal followed.
DISCUSSION
Section 425.16 “allows a court to strike any cause of action that arises from the defendant’s exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312; § 425.16, subd. (b)(1).) As the statute explains, the Legislature’s intent was to prevent meritless lawsuits brought primarily to chill the valid exercise of such First Amendment constitutional rights by a targeted party, the defendant, by establishing a procedure to end the lawsuits early and without great expense to the party. (§ 425.16, subd. (a); Flatley, supra, at p. 312.) We review the grant of an anti-SLAPP motion de novo, using the same analytical process as the trial court. (Cohen v. Brown (2009) 173 Cal.App.4th 302, 315.)
Code of Civil Procedure section 425.16 provides in pertinent part: “(a) The Legislature finds and declares that there has been 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. [¶] (b)(1) 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 or 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.”
Section 425.16 contemplates a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The first step is to determine whether the defendant as the targeted party has made a threshold showing that the challenged cause of action arises from constitutionally protected activity. (Ibid.; Cohen v. Brown, supra, 173 Cal.App.4th at p. 315.) Not all speech or petition activity is constitutionally protected, and thus, not all such activity is protected under section 425.16. (Flatley v. Mauro, supra, 39 Cal.4th at p. 313.) “[T]he critical question... ‘is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’” (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160, fn. omitted.)
If it is protected activity, then in the second step, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; Cohen v. Brown, supra, 173 Cal.App.4th at p. 315.) Where the court determines that the plaintiff failed to meet the burden, the cause of action is subject to being stricken pursuant to section 425.16. (Navellier, supra, at p. 89; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478.)
In our de novo review, we consider the pleadings and affidavits of both the defendant and the plaintiff, but we do not assess the credibility or weight of the evidence. (§ 425.16, subd. (b)(2).) Rather, 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.’” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918.) That is, like the trial court, we determine “‘whether a prima facie showing has been made that would warrant the claim going forward.’” (Ibid.)
1. Protected Activity
Plaintiffs contend that defendant’s activities which form the basis of their malicious prosecution and unfair business practices causes of action were unlawful and, hence, not protected under section 425.16. (See Flatley v. Mauro, supra, 39 Cal.4th at pp. 329-330.) Plaintiffs claim that defendant had no probable cause to believe that plaintiffs had done anything that would support eviction, and, therefore, he unlawfully fabricated a pretext for issuing the three-day notices to quit (§ 1161, subd. 4) and bringing the unlawful detainer actions. He did this in contravention of LARSO, for the purpose of clearing his rent-controlled building of low-rent paying tenants in order to re-rent their apartments at market value. We disagree with plaintiffs’ claim that, under the facts presented, the defendant’s service of eviction notices and institution of the unlawful detainer actions were not protected activities.
In their malicious prosecution cause of action, plaintiffs allege that Clark had no probable cause to believe that plaintiffs had done anything that would support eviction utilizing the three-day notices to quit permitted by section 1161, subdivision 4. Therefore, according to plaintiffs, defendant acted with malice in proceeding to issue the three-day notices and bring the unlawful detainer actions, in that, in contravention of LARSO, he knowingly and intentionally fabricated a pretext for evicting plaintiffs from their rent-controlled homes for the primary purpose of raising the rent for the next tenants.
Terminating a tenancy is not a protected activity (Marlin v. Aimco Venezia, LLC, supra, 154 Cal.App.4th at p. 161), and a tenant “who has successfully defended against an eviction action may, of course, bring an action for malicious prosecution” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249). On the other hand, the filing of an eviction notice and the bringing of an unlawful detainer action are protected activities. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 (Mazgani); Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at pp. 1479-1480.) In cases involving service of notices required to terminate tenancy and/or unlawful detainer actions, the “pivotal distinction... is whether an actual or contemplated unlawful detainer action by a landlord (unquestionably a protected petitioning activity) merely ‘preceded’ or ‘triggered’ the tenant’s lawsuit, or whether it was instead the ‘basis’ or ‘cause’ of that suit.” (Mazgani, supra, at p. 1289.) Recognizing that the lines drawn in such cases are fine ones, the “‘focus’ of the [anti-SLAPP] statute ‘is not the form of plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability....’ [Citations.]” (Feldman, supra, at p. 1483, quoting Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)
Plaintiffs rely on Mazgani, supra, 170 Cal.App.4th 1281 in support of their claim that their action is based on unprotected activity. In Mazgani, the tenant sued her landlord after the landlord successfully brought an unlawful detainer action to terminate her tenancy in a rent-controlled apartment. (Id. at p. 1284.) The landlord claimed the eviction was to free the unit for occupancy by the landlord’s daughter, as permitted under a family occupancy exemption in the applicable rent stabilization ordinance. (Ibid.) The daughter never moved into the unit. (Id. at pp. 1284-1285.) The tenant sued the landlord, alleging violations of the rent stabilization ordinance, fraudulent misrepresentations in the unlawful detainer action, and unfair business practices in violation of Business and Professions Code section 17203. (Ibid.)
The trial court granted the landlord’s anti-SLAPP motion based on the landlord’s claim that the tenant’s causes of action were based on protected activity—administrative and unlawful detainer proceedings, including filing and serving the eviction notice. (Mazgani, supra, 170 Cal.App.4th at p. 1285.) The Mazgani court reversed, concluding that the tenant’s claims did not arise from protected activity, but rather from the landlord’s violation of the ordinance and other rent control laws. (Id. at p. 1284.) “The gravamen of [the tenant’s] action,” according to the court, was that “wrongful eviction was the result of fraud in that [the landlord] did not fulfill the [ordinance] requirement that [the landlord’s] family member reside in the evicted tenant’s apartment....” (Id. at p. 1289.) The court noted that if it accepted the landlord’s contentions, the result would be that the landlord “‘“could preclude any judicial review of [the landlord’s] violation of the rent control law, no matter how egregious, by simply filing a SLAPP motion....”’” (Id. at p. 1290.)
As the Mazgani court noted, Marlin v. Aimco Venezia, LLC, supra, 154 Cal.App.4th 154 is instructive. (Mazgani, supra, 170 Cal.App.4th at p. 1287.) In Marlin, the court determined that a lawsuit brought by tenants did not “arise from” and was not “based on” protected activities—i.e., the landlord’s filing and service of an Ellis Act notice of intent to remove units from the rental market. (Marlin, supra, at p. 160.) Rather, the tenants’ complaint arose from the landlord’s allegedly wrongful reliance on the Ellis Act to terminate their tenancies and, thus, the landlord’s activities were not taken in furtherance of the constitutional rights of petition or free speech (Id. at pp. 160-161.)
Marlin was decided by this court.
Similarly, in Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, this court determined that the landlord was sued based on the landlord’s disability discrimination against the tenant in violation of the Ellis Act, and not because the landlord had utilized the eviction process and unlawful detainer proceedings. (Id. at pp. 1283-1285.) The court concluded that the landlord’s disability discrimination did not constitute protected activity and, therefore, the tenant’s complaint could not be stricken under section 425.16. (Id. at p. 1288.)
In contrast, the Mazgani court explained, where a landlord’s unlawful detainer action was the “‘basis’” or “‘cause’” of a tenant’s suit, the suit is against protected activity. (Mazgani, supra, 170 Cal.App.4th at p. 1289.) By definition, the basis for a malicious prosecution cause of action is the bringing of a lawsuit, such as an unlawful detainer action, by a defendant. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 736, fn. 5.) Therefore, the protected activity prong of section 425.16 analysis is satisfied. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) Accordingly, we conclude that defendant made the requisite threshold showing that plaintiffs’ malicious prosecution cause of action is based upon defendant’s exercise of his constitutional right to petition, thereby satisfying the first prong of the anti-SLAPP statute. (§ 425.16, subds. (b)(1) & (e); Jarrow Formulas, Inc., supra, at p. 736, fn. 5.)
We find further support for our conclusion in the 2008 decision in Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th 1467, where the court affirmed the grant of a landlord’s anti-SLAPP motion as to the tenants’ retaliatory eviction causes of action. The Feldman court acknowledged that, in Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th 1232, the Supreme Court “set to rest” any doubt that the filing of an unlawful detainer action would constitute protected activity under the anti-SLAPP statute. (Feldman, supra, at p. 1480, citing Action Apartment Assn., supra, at pp. 1249-1250.)
As to plaintiffs’ cause of action for unfair business practices, the gravamen of their allegations is that defendant wrongfully issued the three-day notices and brought the unlawful detainer actions. Since these activities of defendant constituted protected activities under section 425.16, defendant made the requisite threshold showing that plaintiffs’ unfair business practices cause of action is based upon defendant’s exercise of its constitutional right to petition, thereby satisfying the first prong of the anti-SLAPP statute. (§ 425.16, subds. (b)(1) & (e); Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291.)
2. Probability of Prevailing
We turn to the second prong of the determination required by the anti-SLAPP statute—whether plaintiffs have met their burden to demonstrate a probability of prevailing on the merits. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; Cohen v. Brown, supra, 173 Cal.App.4th at p. 315.) In order to establish the requisite probability of prevailing, a plaintiff must “‘state[] and substantiate[] a legally sufficient claim.’” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 741.) To do so, the plaintiff must make a sufficient prima facie showing of facts to sustain a favorable judgment if the plaintiff’s evidence is credited. (Ibid.; Drummond v. Desmaris (2009) 176 Cal.App.4th 439, 449.) We agree with the trial court’s conclusion that plaintiffs failed to make a sufficient showing.
With respect to plaintiffs’ malicious prosecution cause of action, the trial court concluded that plaintiffs could not make the required showing that defendant took action without probable cause. We agree. The elements required to prove malicious prosecution are (a) the defendant’s institution of an action, (b) without probable cause and (c) with malice, (d) termination of the action in plaintiff’s favor, and (e) resulting damage. (Drummond v. Desmaris, supra, 176 Cal.App.4th at p. 449.) As to the probable cause element “[i]n the context of an action alleging malicious prosecution of a prior civil suit,... it has long been recognized that it is not ‘true charges’ but rather legally tenable claims for relief that the law seeks to protect.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 885.) Probable cause to institute an action depends “upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.] Denial of a defense summary judgment motion on grounds that a triable issue exists, or of a nonsuit, while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdict.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824, italics omitted.)
In the instant case, defendant’s success on plaintiffs’ motions for summary judgment in the unlawful detainer actions is sufficient, as a matter of law, to negate the element of lack of probable cause to bring the actions. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 824.) The denial of plaintiffs’ subsequent motion for judgment after defendant’s case-in-chief in the unlawful detainer actions further bolsters the conclusion that probable cause existed. (Ibid.) Therefore, plaintiffs cannot prevail on their malicious prosecution cause of action. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875 [where “the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated”].)
A motion for judgment pursuant to section 631.8 in a court trial functions similarly as a motion for nonsuit pursuant to section 581c in a case tried to the jury. (Rodde v. Continental Ins. Companies (1979) 89 Cal.App.3d 420, 423-424.)
As to plaintiffs’ second cause of action for unfair business practices, the trial court ruled that, because the actions of defendant alleged were protected by the litigation privilege (Civ. Code, § 47), plaintiffs could not demonstrate the required probability of prevailing. (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1485.) We agree. The litigation privilege is absolute, applying to all written and oral statements, regardless of their maliciousness, made by participants in judicial proceedings and may extend to statements made prior to or after the proceedings. (Ibid.)
Civil Code section 47 provides in pertinent part: “A privileged publication or broadcast is one made: [¶]... [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law...,” subject to specified exceptions not applicable in the instant case.
Plaintiffs do not challenge the trial court’s application of the litigation privilege. Rather, they contend that the trial court’s conclusion that the second cause of action was based on the allegations in the unlawful detainer action and the related three-day notice to quit did not fairly characterize the case. Plaintiffs assert that they also alleged defendant’s post-judgment activities with respect to procedure for making rent payments constituted “unfair business practices undertaken AFTER the unsuccessful [unlawful detainer] litigation.” Plaintiffs do not include the activities, however, in the alleged unfair business practices listed in their second cause of action. Plaintiffs may not raise such an issue for the first time on appeal. (See Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486; In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)
We agree with the trial court that the instant case is similar in many respects to the case in Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th 1467, and the litigation privilege also applies here to reach a similar result. The Feldman court affirmed the grant of the landlord’s anti-SLAPP motion as to the subtenants’ six causes of action related to retaliatory eviction, including the cause for unfair business practices, which were based upon the service of the eviction notice and the subsequent prompt filing of the unlawful detainer action. (Id. at pp. 1473, 1475, 1479.)
After determining that serving the eviction notice and filing the unlawful detainer action were protected activities as the valid exercise of the constitutional right to petition (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at pp. 1479-1480), the Feldman court considered whether the subtenants had established a probability of prevailing on their retaliatory eviction causes of action. (Id. at p. 1484.) The court concluded that the service of the eviction notice fell within the litigation privilege, given that the notice was followed promptly by the filing of the unlawful detainer action, which demonstrated the clear connection and logical relationship of the notice to the litigation. (Id. at pp. 1486-1488.)
Plaintiffs assert that defendant should not prevail on his anti-SLAPP motion because he fabricated the bases for eviction set forth in the eviction notices and alleged in the unlawful detainer actions. The Feldman subtenants similarly asserted that whether the eviction notice was subject to the litigation privilege was a question of fact, which precluded any determination that they had failed to make a prima facie showing of probability of prevailing. (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1487.) They relied on the principle that “[w]hether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact.” (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4that p. 1251.)
The Feldman court’s response is equally applicable in the instant case: “The question of fact is not whether the service was malicious or done with a bad intent or whether it was done based upon facts the landlord has no reasonable cause to believe to be true. Rather, the factual question... is ‘[w]hether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration...,’” that is, the litigation being more than a “‘hollow threat[].’” (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1487.) In making this determination, “‘[i]t is important to distinguish between the lack of a good faith intention to bring a suit and publications which are made without a good faith belief in their truth, i.e., malicious publications. The latter, when made in good faith anticipation of litigation, are protected as part of the price paid for affording litigants the utmost freedom of access to the courts.’” (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251; Feldman, supra, at p. 1487.)
Applying these principles, it is clear that defendant’s activities alleged to constitute unfair business practices, that is, serving the three-day notices and then promptly filing the unlawful detainer actions, are protected by the litigation privilege. (Civ. Code, § 47, subd. (b); Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251; Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1487.) As a result, plaintiffs cannot make a prima facie showing of a probability that they will prevail on the unfair business practices cause of action.
In sum, we conclude that, as a matter of law, plaintiffs failed to meet their burden to satisfy the second prong of the anti-SLAPP statute with respect to their cause of action for unfair business practices as well as their cause of action for malicious prosecution. Since defendant met his burden to satisfy the first prong of the anti-SLAPP statute, we conclude that the trial court properly granted defendant’s anti-SLAPP motion to strike plaintiffs’ causes of action and, hence, their complaint. (§ 425.16, subd. (b)(1); Navellier v. Sletten, supra, 29 Cal.4th at p. 89; Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1478.)
DISPOSITION
The order is affirmed. Defendant is awarded his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.
As their second cause of action, plaintiffs allege that defendant’s attempts to clear his building of low-rent paying tenants in order to re-rent their units at market value by fabricating the claims on which his eviction process and unlawful detainer actions were based and in wrongfully using a three-day notice to quit under section 1161, subdivision 4, were unfair business practices in violation of Business and Professions Code section 17200 et seq.