Opinion
G054744
06-19-2018
DUAL DIAGNOSIS TREATMENT CENTER, INC., Plaintiff and Respondent, v. CHRISTOPHER A. PENNA, Defendant and Appellant.
Robert J. Winkler and Alan S. Yockelson for Defendant and Appellant. Jehan N. Jayakumar and Shaun P. Martin for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. Robert J. Winkler and Alan S. Yockelson for Defendant and Appellant. Jehan N. Jayakumar and Shaun P. Martin for Plaintiff and Respondent.
Christopher A. Penna appeals from the trial court's order denying his special motion to strike Dual Diagnosis Treatment Center Inc., dba Sovereign Health of California's (DDTC) complaint. Penna argues the trial court erred by concluding DDTC's claims did not arise from his protected activity. We disagree and affirm the order.
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 treatment center in San Clemente (the Center). Penna lived next door.
Throughout Penna's opening brief, he asserts there was no evidence DDTC owned, rented, or leased the property. This is belied by the record.
In August 2016, Penna learned DDTC was to use the adjacent property as a treatment center and became concerned. On or about August 10, 2016, Penna saw workers unload approximately 10 beds from a truck and move them into the Center. Penna reported this to the City of San Clemente (the City) code enforcement department.
On August 18, 2016, the San Clemente Times newspaper published an article about a group of San Clemente residents protesting the Center. In the article, Penna was quoted regarding his fear of the Center and a photograph showed him placing a sign on his own property protesting the Center. The article also included photographs of people protesting the Center. Later that month, the City served a cease and desist notice at the Center; the notice was subsequently rescinded.
Two weeks later, DDTC filed a complaint against Penna, Nathan Brown, and Jodi Brown 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, Penna, and the Browns, illegally entered the Center, stayed there about 15 to 20 minutes, yelled at Center employees, and photographed and videoed the Center.
DDTC's lawsuit against the Browns is the subject of the appeal in case No. G054784.
At some point, DDTC amended the complaint to add Sean and Eva O'Keefe as "Doe" defendants.
Penna filed a special motion to strike supported by exhibits and declarations, including his own. DDTC filed an opposition to the special motion to strike. The opposition was supported by a declaration from corporate counsel, evidentiary objections, and a request for judicial notice. Penna filed a reply, which was supported by a request for judicial notice and evidentiary objections.
After the trial court posted its tentative ruling denying Penna's special motion to strike, there was an unreported hearing where counsel argued. The trial court took the matter under submission. In a minute order the following week, the trial court denied Penna's special motion to strike. The court opined the core allegations in DDTC's causes of action were based on the alleged trespass and not on protected activity.
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.)
The trial court here did not have the benefit of our Supreme Court's decision in Park, supra, 2 Cal.5th 1057, however that decision compels the same result pursuant to our de novo review (Id. at p. 1067). Park, supra, 2 Cal.5th at page 1060, is instructive not because of its facts, a university's denial of a professor's tenure application, but instead 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, . . . Penna[] trespassed into the Center and spent approximately 15-20 minutes in the Center." The complaint adds that Penna refused the Center employees' request to leave, yelled at them, and took photographs and video of the Center's interior. DDTC alleged the following three claims. DDTC argued that pursuant to 42 United States Code section 3617, Penna interfered with the Center's residents' right to move in and reside free from harassment. DDTC asserted Penna's conduct of entering into the Center was a nuisance because he prevented the Center's residence from freely using and enjoying the Center. Finally, DDTC contended Penna 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 Penna and the Browns allegedly trespassed into the Center "[d]efendants yelled at [DDTC's] employees" and they tried to "'rid'" the City of these facilities. However, the elements of DDTC's causes of action do not depend on Penna's free speech right to protest the Center or his right to petition the City to prohibit them. Instead, DDTC's causes of action depend entirely on Penna's alleged illegal entry into the Center, his refusal to leave, and his conduct while there. Penna's 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 still stated the same causes of action.
We do not base our decision on the fact DDTC did not assert Penna himself made any statements when he allegedly entered the Center illegally—we assume he too "yelled" at Center employees. --------
Penna relies on Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 (Huntingdon), a case involving inter alia claims of trespass and harassment, to argue protesting is protected activity. Huntingdon is inapposite because it involved protests on a public residential street and not illegal entry into the residence. (Id. at pp. 1240-1241, 1247.) Here, DDTC alleged Penna illegally entered the Center.
Penna cites Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), to argue that because the complaint contains both protected and unprotected activity, we must "disregard the trespass and focus on the protected conduct[.]" Baral concerned the second prong of the anti-SLAPP analysis, not the first prong, which is at issue here. (Id. at p. 385.) And as we explain above, Park clarifies the required nexus between the challenged claim and the defendant's activity in the first prong analysis. (Park, supra, 2 Cal.5th at p. 1060.)
Finally, Penna relies on the fact the trial court later granted Sean and Eva O'Keefe's special motion to strike the complaint to argue the court's rulings were inconsistent. They were not. As Penna acknowledges, DDTC added the O'Keefes as "Doe" defendants and the complaint's allegations concerning whether they participated in the August 11, 2016, protest was unclear. Consequently, the court looked to the evidence to determine the basis of DDTC's claims against the O'Keefes. The basis for DDTC's claims against Penna was clear—alleged illegal entry into the Center—and the court did not need to look to the affidavits to make its ruling. (Park, supra, 2 Cal.5th at p. 1063 [first prong analysis requires court consider claim's elements and defendant's actions that supply those elements].) We agree with the trial court that Penna may have other challenges available to him to litigate his claim he was not at the Center the day in question, but it was not a special motion to strike. Therefore, we conclude Penna did not carry his burden of establishing his conduct which DDTC claims to have been injured falls within the two applicable categories in Code of Civil Procedure section 425.16, subdivision (e).
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.