Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 475498
RIVERA, J.
Defendant Ray Bronner appeals after the trial court denied his special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) We affirm.
All statutory references are to the Code of Civil Procedure.
I. BACKGROUND
Plaintiff Patrick Helland filed this action against Bronner on May 20, 2008. Bronner demurred; and before the hearing on the demurrer, Helland filed a first amended complaint, alleging causes of action for breach of contract, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, and invasion of privacy. Three days later, on July 21, 2008, Bronner filed the anti-SLAPP motion at issue here.
The first amended complaint alleged that Helland sublet part of his premises to Bronner on August 1, 2007, and Bronner remained until he was evicted on May 21, 2008. After moving in, Bronner failed to pay his rent. On January 27, 2008, Helland served Bronner with a three-day notice to quit on the ground that Bronner was creating or permitting a nuisance. He filed an unlawful detainer action against Bronner on January 31, 2008. A jury rendered a verdict in Helland’s favor, and judgment was entered awarding Helland sole possession of the premises and damages.
According to the general allegations of the first amended complaint, during Bronner’s tenancy, he locked Helland out of the premises on several occasions; he frequently changed the locks to various doors without informing Helland; on several occasions he summoned police to the premises without cause and accused Helland of wrongdoing; he made a false citizen’s arrest of Helland; he harassed Helland and his guests on the premises by videotaping them without their consent and trying to engage them in conversation against their will; he destroyed parts of the premises; he pushed and shoved Helland while Helland was on crutches as the result of the accident; he interfered with Helland’s relationship with the building’s owner by falsely maintaining that Bronner was the owner’s tenant; and he kept Helland from getting enough sleep by turning the lights on “at about 3 a.m. or at around 8 a.m.,” or by summoning the police without cause in the early morning hours.
Helland had made almost identical allegations in the three-day notice to quit attached to the complaint in the unlawful detainer action he successfully brought against Bronner.
The first cause of action, for breach of contract, alleged that plaintiff suffered damages of at least $4,800 as a result of Bronner’s breach of the oral rental agreement. The second and third causes of action, for intentional and negligent infliction of emotional distress respectively, alleged that he had suffered severe emotional distress as a result of Bronner’s conduct. The second cause of action also alleged that Bronner had acted with the deliberate intention of injuring Helland and wrongfully forcing him to vacate the premises. The fourth cause of action, for negligence, simply incorporated the general allegations and the allegations related to negligent infliction of emotional distress. The fifth cause of action, for abuse of process, incorporated the general allegations, and alleged that Bronner had committed various additional acts in order to delay the unlawful detainer action, including filing an action for injunctive relief; issuing improper subpoenas and deposition notices; refusing to provide discovery; and filing frivolous documents in the unlawful detainer action. The sixth cause of action incorporated the general allegations and alleged that Bronner’s conduct, in particular the videotaping, constituted an invasion of Helland’s privacy.
Bronner filed his anti-SLAPP motion on July 21, 2008. On September 2, 2008, Helland requested dismissal of the fifth cause of action, for abuse of process, with prejudice.
Because the fifth cause of action had been dismissed, the trial court did not rule on the anti-SLAPP motion as it pertained to that cause of action. It denied the special motion to strike as to the remaining causes of action of the first amended complaint.
II. DISCUSSION
A. The Anti-SLAPP Statute
The anti-SLAPP statute is intended to “encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims that are brought to chill another’s valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances. (§ 425.16, subd. (a).) Under section 425.16, the initial inquiry is whether the moving defendant has made a threshold showing that the challenged causes of action arise from protected activity, i.e., activity by defendants in furtherance of their constitutional right of petition or free speech. (§ 426.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) These acts include: (1) written or oral statements made before a legislative, executive, or judicial proceeding; (2) written or oral statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body; (3) written or oral statements made in a place open to the public or in 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 free speech in connection with a public issue or an issue of public interest. (§ 426.16, subd. (e).)” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 102 (Mann).) To determine whether the defendant has met this burden, we consider the pleadings and any supporting and opposing affidavits stating facts upon which the liability is based. (Ibid.) Where a cause of action alleges both protected and unprotected activity, it is subject to section 425.16 unless the protected conduct is “ ‘merely incidental’ to the unprotected conduct.” (Id. at p. 103.)
If the court finds that the defendant has made this threshold showing, it then decides whether the plaintiff has demonstrated a probability of prevailing on the claim. To do so, “the plaintiff need only have ‘ “stated and substantiated 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.] [¶] Only a cause of action that satisfied 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 v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).) In considering the second prong, we do not weigh the credibility or strength of competing evidence, but rather decide “whether the plaintiff has made a prima facie showing of facts based on competent admissible evidence that would, if proved, support a judgment in the plaintiff’s favor.” (Mann, supra, 120 Cal.App.4th at p. 105.)
We exercise our independent judgment to decide whether the motion to strike should have been granted. (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 599.)
B. Analysis
Bronner contends the allegations of the first amended complaint arise from constitutionally protected activity. According to the general allegations incorporated into all causes of action, Bronner locked Helland out, changed locks, summoned police and accused him falsely of wrongdoing, made a false citizen’s arrest, videotaped and engaged him in conversation without his consent, pushed and shoved him, and interfered with his relationship with the owner of the building. With the possible exception of the allegations that Bronner summoned police wrongfully (discussed below), we see nothing on the face of these allegations to indicate that the actions at issue arose from statements made before a legislative, executive, or judicial proceeding; in connection with an issue under review by a legislative, executive, or judicial body; in a public place in connection with an issue of public interest; or from any other conduct in furtherance of the right to petition or free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e).)
The trial court did not rule on the fifth cause of action, for abuse of process, because it had already been dismissed, and we will not consider the allegations specific to that cause of action. The court noted that its tentative ruling had been to strike the fifth cause of action, and stated in its order denying the motion to strike: “The Court did not rule on the right of either party to seek attorneys’ fees under CCP § 425.16.” There is no indication that Bronner subsequently sought to obtain a ruling on his right to attorney fees on the fifth cause of action. (See Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218-219 [defendant entitled to ruling on merits of SLAPP motion after action dismissed]; see also ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1323 (ARP Pharmacy Services) [plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing cause of action to which anti-SLAPP motion is directed].) Nothing we say here is intended to prejudice any right Bronner may have to seek attorney fees in the trial court under section 425.16 based upon the fifth cause of action.
Citing Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 (Salma), Bronner contends that summoning law enforcement is protected conduct. In Salma, our colleagues in Division Five of the First Appellate District concluded that several of the defendant’s contacts with municipal departments were protected as requests for the initiation of official proceedings. The defendant had averred that he had spoken with the police department and district attorney’s office about a fraud that had led to the loss of his home, and had tried to file a formal written complaint; had filed police reports about the loss of personal property; and had tried to press charges against people who allegedly assaulted him. All of those communications, concluded the appellate court, “sought official investigations into perceived wrongdoing, which might culminate in criminal prosecution or other official proceedings,” and were protected by section 425.16. (Salma, supra, 161 Cal.App.4th at p. 1286.) Here, on the other hand, Bronner does not point to any evidence in the record indicating that he contacted the police in order to seek an official investigation that might lead to criminal prosecution or other official proceedings.
Although Helland acknowledged in a deposition taken in the unlawful detainer action that he had told Bronner there “would be a fist fight” between them if Bronner called Animal Control, Bronner does not cite any evidence that he called the police in responseto this statement. To the extent Bronner’s assertions are not supported by citations to the record, we will disregard them. (See Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141 [appellate court not required to search the record to determine whether or not it supports appellant’s claim of error]; see also Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.)
Bronner contends, however, that the evidence shows that the actions of which Helland complains were protected. In particular, he contends that he made various complaints about the health and safety of his housing to San Francisco’s Department of Building Inspection (DBI), that DBI ultimately issued orders of abatement, that Helland tried to dissuade other building tenants from reporting their safety concerns, and that Helland’s claims were made to retaliate against Bronner for trying to document and prevent Helland from threatening witnesses in the unlawful detainer proceeding and regulatory hearings against Helland. The health and safety problems Bronner complained of included locks that were not working, fire hazards, and a flea infestation.
Bronner argues, further, that his activities—including turning on the lights at night—were “conduct in furtherance of the right of petition in light of [Helland’s] threats to commit violent acts if [Bronner] filed a report with government.” According to Bronner, he “had a right to know who was entering his home at 3:00 AM to prevent improper interference with his preparation for administrative and judicial proceedings.” He contends he used the video camera in connection with the administrative proceedings and with the litigation between the parties, that is, his use of the video “consisted of [Bronner] using a fact-gathering and interview tool necessitated by [Helland’s] own threats of violence against [Bronner] conditioned on [Bronner’s] contacting government about building problems,” and thus was conduct in furtherance of his right to free speech and petition. He also asserts that his communications with the building owner were all “inextricably tied to official government proceedings.”
We reject all of these contentions. As to the first cause of action, for breach of contract, Helland alleges Bronner failed to pay the rent that was due. Bronner’s alleged failure to pay his rent does not fall within the definition of activity in furtherance of his right to free speech or the right to petition. (§ 425.16, subds. (b) & (e).)
The anti-SLAPP motion fails as to the other causes of action as well. The bulk of the actions of which Helland complains, such as locking Helland out, changing locks, destroying the premises, videotaping Helland in his own home, pushing Helland, and turning on lights at odd hours, are not acts done in furtherance of any right to free speech or petition. It is therefore reasonable to conclude that Bronner’s alleged summoning of the police was incidental to the other allegations of unprotected conduct, and there is no contraindicative evidence. (See Mann, supra, 120 Cal.App.4th at p. 103.)
Bronner includes in his briefs a scanned portion of a document that is not included in the record on appeal, this court having denied Bronner’s motion to augment the record to include it. We will not consider this document.
In any case, even if Bronner had met his burden on the anti-SLAPP motion, we would conclude Helland has shown the necessary probability of success. In opposition to the anti-SLAPP motion, Helland submitted his own declaration, in which he testified that Bronner’s “steady stream of harassing behavior” included changing the locks without Helland’s knowledge or permission; locking Helland out; mistreating Helland’s cats by locking them out at night without food or water; confronting other tenants aggressively without cause; locking up the heating unit; videotaping Helland at home, including one occasion when he was leaving the shower and one in his bedroom; and turning on lights outside Helland’s bedroom in the middle of the night. Helland raised the same complaints against Bronner in his unlawful detainer action, and a jury found in his favor. In the circumstances, we cannot conclude that Helland’s claims lack “even minimal merit.” (Navellier, supra, 29 Cal.4th at p. 89.)
In carrying out this inquiry, we do not weigh the credibility or strength of competing evidence. (Mann, supra, 120 Cal.App.4th at p. 105.)
C. Other Issues
We briefly address Bronner’s argument that the trial court erred in allowing the complaint to be amended after Bronner had made a prima facie showing that the action targeted protected conduct. (See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 [section 426.16 does not provide for amendment of complaint after court finds defendant has established prima facie case]; see also ARP Pharmacy Services, supra, 138 Cal.App.4th at p. 1323 [plaintiff cannot amend pleading to avoid pending anti-SLAPP motion].) To the extent this issue is encompassed by the notice of appeal, which was limited to the ruling on the anti-SLAPP motion, we reject it. Bronner did not file his anti-SLAPP motion until after Helland had amended his complaint. Thus, when Helland filed his amended complaint, not only had the trial court not found a prima facie showing of protected conduct, but there was no pending anti-SLAPP motion.
Bronner seems to suggest that his demurrer to the first amended complaint should be treated as an anti-SLAPP motion because it made brief references to section 425.16. These references did not transform the demurrer into an anti-SLAPP motion.
We likewise reject Bronner’s request that we rule on the evidentiary objections he made in the trial court, upon which he asserts the trial court did not rule. In the trial court, Bronner contended that the documents in support of Helland’s opposition to the anti-SLAPP motion were not organized properly, and in light of the short time frame available to him, he “generally object[ed] to each exhibit on the grounds of: [¶] a. relevance, [¶] b. hearsay, [¶] c. lack of personal knowledge, [¶] d. and unfair prejudice/no probative value.” (Emphasis omitted.) Bronner does not provide any argument or authorities on appeal in support of his objections, and we will treat the issue as waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [where appellant fails to support point with reasoned argument and citations to authority, point treated as waived].)
The record does not include the reporter’s transcript of the hearing on the anti-SLAPP motion, and we are unable to verify this assertion.
We add a few final comments. First, Bronner’s briefs include ad hominem attacks on Helland’s counsel. These comments are irrelevant to the issues before the court, and we have disregarded them. The activities of Helland’s process server are likewise irrelevant. Finally, we have not considered arguments unrelated to the anti-SLAPP ruling at issue in this appeal.
III. DISPOSITION
The order of September 2, 2008, denying Bronner’s special motion to strike is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.
In regard to this deposition, we also note that Bronner sought to lodge copies of Helland’s deposition in this court, and we denied the request on April 7, 2009. On May 12, 2009, Bronner submitted a copy of the deposition as a trial court exhibit. The copy of the deposition indicates that it was an exhibit in the unlawful detainer action. Bronner indicated that the deposition was also sent to the trial court as an exhibit in the present action on July 14, 2008, but we are aware of nothing in the superior court’s files to indicate that the court considered it as an exhibit in this action. In any case, the portions of the deposition that Bronner cites would not persuade us to change our views.