Opinion
G053577
05-22-2017
HIGH SEAS YACHT CHARTERS, LLC, Plaintiff and Respondent, v. NEWPORT HARBOR OFFICES & MARINA, LLC, et al., Defendants and Appellants.
Copenbarger & Associates, Paul D. Copenbarger and Elaine B. Alston for Defendants and Appellants. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2015-00771141) OPINION Appeal from an order of the Superior Court of Orange County, James L. Crandall, Judge. Affirmed with modifications. Copenbarger & Associates, Paul D. Copenbarger and Elaine B. Alston for Defendants and Appellants. No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellants Newport Harbor Offices & Marina, LLC (NHOM), Paul Copenbarger, and Izamar Perez appeal from an order denying their motion to strike the second amended complaint of respondent High Seas Yacht Charters, LLC (High Seas), under Code of Civil Procedure section 425.16, the anti-SLAPP statute. High Seas sued appellants alleging a variety of wrongful acts, including filing notices to quit and unlawful detainer actions.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
After the court denied appellants' motion, our Supreme Court issued its opinion in Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral). Baral addressed the vexing question of evaluating the "mixed" cause of action in an anti-SLAPP motion, that is, a cause of action containing allegations of both protected and unprotected activity. The court determined that a special motion to strike under the anti-SLAPP statute functioned like an ordinary motion to strike—it could be used to eliminate some allegations from a cause of action while leaving others intact.
We therefore affirm the order denying the motion, but with the allegations regarding respondents' filing notices to quit and unlawful detainer actions stricken. Regardless of the intention behind these activities or the truthfulness of statements made in them, High Seas cannot base a lawsuit on them, at least at this point. They are absolutely privileged under Civil Code section 47 as publications made in a judicial proceeding. The remaining allegations, however, do not involve protected conduct, and High Seas' lawsuit can proceed based on them.
FACTS
High Seas leases an office and three boat slips in the Newport Harbor from NHOM. From this facility it operates a business renting small boats, kayaks, bicycles, and paddleboards. It also has a yacht available for charter to large groups. The lease entitles High Seas to several parking spots in an adjacent lot.
The office and the slips are leased separately. Accordingly High Seas has alleged four individual leases.
In the second amended complaint, High Seas alleged a campaign of harassment against itself and its customers by NHOM and related individuals, based on the desire to drive High Seas away so that NHOM could rent the office space and the boat slips for a lot more money. High Seas alleged that NHOM employees have been snapping photographs of High Seas customers and bothering them, interfering with their parking, trespassing on the yacht, and harassing High Seas for imagined violations. High Seas also alleged that NHOM served it with a series of notices to quit between December 7, 2014, and January 17, 2015, followed up by three unlawful detainer actions to recover possession of the boat slips and the office. The second amended complaint contained five causes of action: breach of contract, breach of the implied covenant of quiet enjoyment, intentional and negligent interference with prospective economic advantage, and trespass.
Respondents filed an anti-SLAPP motion, asking that the entire second amended complaint be stricken and judgment entered for them. The motion was denied in its entirety. The court acknowledged that the complaint included some allegations of protected activity, but concluded that its gravamen lay elsewhere.
DISCUSSION
The California Legislature enacted the anti-SLAPP statute to counteract "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." (§ 425.16, subd. (a).) A court may order a cause of action "arising from any act" "in furtherance" of the "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue" to be stricken by means of this special motion. (§ 425.16, subd. (b)(1).) We review the order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The statute defines "'an act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue'" to include "any written or oral statement or writing made before a . . . judicial proceeding . . ." and "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subd. (e).)
We use a two-part test to evaluate an anti-SLAPP motion. First, we determine whether the complaint or cause of action is "one arising from protected activity[.]" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) As the Supreme Court has emphasized, "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Id. at p. 89.) If the defendant satisfies the first part of the test, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Id. at p. 88.) Although the plaintiff does not have to prove its case at this juncture, it must present a prima facie case that could sustain a judgment if its evidence is believed. (Id. at pp. 88-89.)
High Seas did not file a respondent's brief. We therefore decide the appeal on the record, the opening brief, and oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)
Our Supreme Court has now settled the question of whether an anti-SLAPP motion can be used to strike individual allegations of protected conduct upon which the plaintiff has shown no likelihood of prevailing. In Baral, supra, 1 Cal.5th 376, the court held that an anti-SLAPP motion, like the ordinary motion to strike long in use, could be directed at individual allegations, and it was not necessary to consider an entire complaint or cause of action as a unit in deciding whether to grant or deny the motion. (Id. at p. 396.) The point of an anti-SLAPP motion, as the court observed, is to screen out meritless claims based on protected activity before a defendant has to engage in discovery. (Id. at p. 392.) The anti-SLAPP motion, like the ordinary motion to strike, could be used to challenge particular allegations within a pleading. (Id. at pp. 393-394.)
Baral was issued in August 2016, after the trial court had ruled in this matter.
In this case, the five causes of action High Seas has pleaded in the second amended complaint do not, of themselves, implicate protected conduct. It is the initial allegations, incorporated by reference into all the causes of action, that include instances of protected conduct, specifically serving notices to quit and filing unlawful detainer actions. Serving notices to quit is a required part of the unlawful detainer process and, like filing the complaints themselves, qualifies as petitioning activity as writings made in connection with an issue under consideration by a judicial body. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282.)
On the other hand, merely terminating a tenancy is not protected activity. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal4th 154, 161.) --------
The burden therefore shifted to High Seas to show that it is likely to prevail on holding respondents liable for serving these notices and filing the unlawful detainer lawsuits. This it cannot do. Regardless of how false or ill-intentioned these notices were, they are absolutely privileged under Civil Code section 47, subdivision (b) (2), as publications made in a judicial proceeding. (See Silberg v. Anderson (1990) 50 Cal.3d 205, 218 [fraudulent communications and perjured testimony privileged].) "'[T]he privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.]' [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) High Seas cannot prevail at this point on any theory of liability based on the service of notices to quit or on filing unlawful detainer actions.
Baral instructs us that the court can strike meritless individual allegations of protected conduct, while leaving allegations of unprotected conduct alone. (Baral, supra, at pp. 393-394.) That is what will happen here. The allegations about the notices to quit and filing unlawful detainer actions will be stricken, leaving the ones about the parking problems, the photographs, the customer harassment, and the other non-protected actions to support the five causes of action alleged in the second amended complaint.
DISPOSITION
The order denying special motion to strike portions of the second amended complaint is affirmed except for the following paragraphs, which are to be stricken: paragraph 26(xiv) and (xv), paragraph 32, paragraphs 37 and 38, paragraphs 47 and 48, and paragraphs 51 through 55. Exhibits 6, H, L and M will also be stricken. The parties will bear their own costs on appeal.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.