Opinion
G054784
06-19-2018
DUAL DIAGNOSIS TREATMENT CENTER, INC., Plaintiff and Appellant, v. NATHAN BROWN et al., Defendants and Respondents.
Jehan N. Jayakumar and Shaun P. Martin for Plaintiff and Appellant. Law Offices of M. David Meagher and M. David Meagher for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00873362) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed in part, reversed in part, and remanded. Jehan N. Jayakumar and Shaun P. Martin for Plaintiff and Appellant. Law Offices of M. David Meagher and M. David Meagher for Defendants and Respondents.
Diagnosis Treatment Center, Inc.'s (DDTC) appeals from the trial court's order granting in part and denying in part Nathan Brown and Jody Brown's special motion to strike DDTC's complaint. DDTC argues the trial court erred by concluding its claims arose from the Browns' protected activity and it did not demonstrate a probability of prevailing. As we explain below, we conclude DDTC's claims did not arise from the Browns' protected activity. We reverse that part of the order granting the special motion to strike and affirm that part of the order denying the special motion to strike.
We will refer to the Browns by their first names for ease of reference unless the context requires we refer to them collectively in which case we will refer to them as the Browns.
The trial court denied the Browns' special motion to strike DDTC's trespass claim because it demonstrated a probability of prevailing. The Browns did not file a cross-appeal, and thus the correctness of that ruling is not before us.
FACTS
DDTC provides treatment at licensed facilities for disabled individuals who suffer from mental health, substance abuse, and dual diagnosis disorders. Pursuant to a lease with the property owner, DDTC planned to operate a residential substance abuse center in San Clemente (the Center). City of San Clemente (City) residents organized and protested against sober living homes, including the Center, and petitioned the City to prohibit them. The Browns participated in those protests.
DDTC filed a complaint against Nathan, Jodi, and Christopher Penna alleging the following causes of action: violation of the Fair Housing Act (42 U.S.C. § 3617 (FHA)); private nuisance; and trespass. The common theme of all three causes of action was that on or about August 11, 2016, the Browns, and Penna, illegally entered the Center, stayed there about 15 to 20 minutes, yelled at Center employees, and photographed and videoed the Center. The complaint alleged Jodi yelled, "'I can say whatever the fuck I want, freedom of speech asshole'" and told employees "they 'would not allow [DDTC] in their neighborhood and that [they] don't belong [there].'" The complaint stated that on or about August 17, 2016, Jodi trespassed onto the Center's driveway and "threatened to 'burn the house down if they had to.'" Finally, the complaint asserted that on or about August 19, 2016, Nathan, a former Navy Seal, went to the Center, made reference to having weapons, and yelled at employees to "'be a man and come over here so I can finish you like the pussy you are.'"
DDTC's lawsuit against Penna is the subject of the appeal in case No. G054744. At some point, DDTC amended the complaint to add Sean and Eva O'Keefe as "Doe" defendants.
DDTC did not include the complaint in the clerk's transcript, a fact the Browns point out. We take judicial notice of the record in case No. G054744. (Evid. Code, §§ 459, 452, subd. (d).) The Browns do not object.
The Browns filed a special motion to strike supported by exhibits and declarations, including their own. DDTC filed an opposition to the special motion to strike supported by declarations and exhibits. The Browns filed a reply, which was supported by a request for judicial notice and evidentiary objections.
After the trial court posted its tentative ruling, there was a reported hearing where counsel argued. The trial court took the matter under submission. In a minute order a few days later, the trial court granted in part and denied in part the Browns' special motion to strike. The court opined the illegality exception articulated in Flately v. Mauro (2006) 39 Cal.4th 299, 317, 320, was inapplicable. The court stated DDTC's claims were "'mixed'" causes of action combining protected speech and physical entry. As to the first prong, the court concluded DDTC's claims arose from the Browns' protected activity because the speech was material, not incidental, to the claims. The court added that based on the complaint, supporting affidavits, and a judicially noticed related court action, this was a matter of public interest. With respect to the second prong, the court reasoned DDTC failed to present any evidence the Browns harassed residents, their conduct resulted in economic loss to DDTC, or the Browns' conduct was ongoing and thus it failed to establish a probability of prevailing on its FHA and nuisance claims. The court explained DDTC demonstrated a probability of prevailing on its trespass claim because there was sufficient evidence the Browns illegally entered the Center on or about August 11, 2016. The court granted the Browns' motion to strike the FHA and nuisance claims, and denied its motion to strike the trespass claim. The trial court later denied DDTC's motion for reconsideration.
City of San Clemente v. Dual Diagnosis Treatment Center, Inc. (Super. Ct. Orange County, 2015, No. 30-2015-00805214).
DISCUSSION
"Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.' [Citations.]" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); Code Civ. Proc., § 425.16.)
"Anti-SLAPP motions may only target claims 'arising from any act of [the defendant] in furtherance of the [defendant's] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .' [Citation.] In turn, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. [Citation.]" (Park, supra, 2 Cal.5th at p. 1062, fn. omitted.) Our review is de novo. (Id. at p. 1067.)
The trial court here did not have the benefit of our Supreme Court's decision in Park, supra, 2 Cal.5th 1057. Contrary to the Browns' claim otherwise, Park, supra, 2 Cal.5th at page 1060, is instructive because the court clarified "[w]hat nexus must a defendant show between a challenged claim and the defendant's protected activity for the claim to be struck?"
The Park court reasoned as follows: "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.' [Citations.] '[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.' [Citations.] Instead, the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.' [Citation.] 'The only means specified in section 425.16 by which a moving defendant can satisfy the ["arising from"] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .' [Citation.] 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, 2 Cal.5th at pp. 1062-1063.)
Two of Code of Civil Procedure section 425.16, subdivision (e)'s four categories are relevant here: "(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, or (4) 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." --------
After examining a number of its own and Court of Appeal cases, the Park court opined the determination of whether a claim arises from protected activity requires a careful "distinction between speech that provides the basis for liability and speech that provides evidence of liability." (Park, supra, 2 Cal.5th at p. 1065, italics added.) Later, the court stated, "[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden . . . ." (Id. at p. 1066.)
"'"'A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it . . . . A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.'" [Citations.]' [Citation.]" (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178.) Title 42 United States Code section 3617 makes it unlawful to "coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [Title 42 United States Code] section 3603, 3604, 3605, or 3606" of the FHA. (The Committee Concerning Community Improvement v. City of Modesto (9th Cir. 2009) 583 F.3d 690, 712.)
DDTC's complaint alleged that "[o]n or about August 11, 2016, . . . [the Browns] . . . trespassed into the Center and spent approximately 15-20 minutes in the Center." The complaint adds that the Browns refused the Center employees' request to leave, yelled at them, and took photographs and video of the Center's interior. The complaint further alleged Jody yelled, "'I can say whatever the fuck I want, freedom of speech asshole'" and told employees "they 'would not allow [DDTC] in their neighborhood and that [they] don't belong [there].'" The complaint also asserted that six days later Jody again trespassed and "threatened to 'burn the house down of they had to.'" Finally, the complaint contended that two days later Nathan, a former military special operator, yelled at employees to "'be a man and come over here so I can finish you like the pussy you are'" and insinuated he had weapons.
DDTC alleged the following three causes of action. DDTC alleged that pursuant to 42 United States Code section 3617, the Browns interfered with the Center's residents' right to move in and reside free from harassment. DDTC also asserted the Browns' conduct of entering into the Center was a nuisance because they prevented the Center's residence from freely using and enjoying the Center. Finally, DDTC alleged the Browns illegally entered into the Center and prevented the Center's residents from moving in.
It is true the complaint stated background facts that suggest protected activity, including that when the Browns allegedly trespassed into the Center "[d]efendants yelled at [DDTC's] employees" and they tried to "'rid'" the City of these facilities. The complaint also alleged both Jody and Nathan made specific comments both on August 11, 2016, and thereafter. However, the elements of DDTC's causes of action do not depend on the Browns' free speech rights to protest the Center or their right to petition the City to prohibit them. Instead, DDTC's causes of action depend entirely on Browns' alleged illegal entry into the Center and their refusal to leave. We agree the complaint is not a model of clarity regarding the Browns, but it alleged Jody later illegally entered the property and Nathan "returned to the Center" to threaten Center employees.
The Browns' protesting and petitioning activities may supply evidence to support liability for the FHA, nuisance, and trespass claims, but the protesting and petitioning was not the wrong complained of. (Park, supra, 2 Cal.5th at p. 1060 [claim struck if protected activity itself is wrong complained of and not merely evidence of liability].) In other words, DDTC could have omitted any facts concerning protesting the Center or petitioning the City to close the Center, and omitted the Browns' inflammatory statements, and still stated the same causes of action. Therefore, we conclude the Browns did not carry their burden of establishing their conduct which DDTC claims to have been injured by falls within the two applicable categories in Code of Civil Procedure section 425.16, subdivision (e).
DISPOSITION
The order granting the special motion to strike the FHA and nuisance claims is reversed and the order denying the special motion to strike the trespass claim is affirmed and the matter is remanded. In the interests of justice, each party shall bear its own costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.