Opinion
B287241
03-10-2020
SUBWAY REAL ESTATE, LLC, et al., Plaintiffs and Respondents, v. AG-LC 1315 3RD OWNER, L.P., et al., Defendants and Appellants.
Collins & Khan LLP, Marc. A. Collins, Azim Khanmohamed, and R. Michael Collum for Plaintiffs and Respondents. Law Offices of Ronald Richards & Associates APC, Ronald N. Richards, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, and Robert Cooper for Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC628935) APPEAL from an order of the Superior Court of Los Angeles County, Michelle Williams Court, Judge. Affirmed. Collins & Khan LLP, Marc. A. Collins, Azim Khanmohamed, and R. Michael Collum for Plaintiffs and Respondents. Law Offices of Ronald Richards & Associates APC, Ronald N. Richards, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, and Robert Cooper for Defendants and Appellants.
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Plaintiffs' (Subway) second amended complaint alleged Appellants (Subway's landlord, and landlord's property manager) fraudulently evicted Subway from its food court leasehold in breach of multiple agreements, and in retaliation for Subway's attempts to enforce those agreements. Appellants moved to strike the complaint in its entirety pursuant to Code of Civil Procedure section 425.16, arguing Subway's lawsuit arose from Appellants' filing and prosecution of unlawful detainer actions. The trial court denied the motion to strike, and Appellants appealed.
We affirm; Subway's claims do not arise from protected activity within the meaning of Section 425.16.
FACTUAL AND PROCEDURAL HISTORY
A. Summary of Events Preceding Subway's Action
In 2001, Plaintiff Subway Real Estate LLC's (SREL) predecessor-in-interest leased roughly 665 square feet (the Property) on the second floor of a multi-tenant food court. SREL subleased the Property to Surjit Multani, owner of Plaintiff S & R Subway, Inc., for operation of a Subway Restaurant franchise. Plaintiffs (collectively, Subway) occupied the Property between November 2001 and June 2015.
Defendant AG-LC 1315 3rd Owner, LP through its general partner defendant AG-LC 3rd GP, LLC (collectively, Landlord) acquired the food court in 2014 and was assigned all right, title, and interest in and to Subway's lease and sublease. Landlord hired defendant Linwood Real Estate, Inc. (Linwood) to manage the food court.
Landlord began a major renovation of the food court in 2015, including a seismic renovation which Landlord estimated would take six weeks and would require Subway to shutter and remain closed until its completion. Landlord and Subway agreed that, during the closure, Landlord would waive Subway's rent and other tenancy charges, and would compensate Subway $3,800 a week for its lost profits. In turn, Subway agreed to replace signage and certain finishes within its Property during the closure, and to reopen immediately on completion of the renovation (the Closure Period Agreement).
Subway closed its doors in July 2015, a month earlier than anticipated, because Landlord's renovation work blocked customer access to the food court's second floor and created intolerable operating conditions. Subway was not permitted to reopen for approximately fifty weeks, until May 2016. Between July 2015 and May 2016, Subway paid no rent to Landlord; neither Landlord nor Linwood (collectively, Appellants) made any rent demand on Subway; and Landlord did not compensate Subway for any lost profits.
Landlord's renovation required certain modifications to Subway's Property, and Subway invested at least $80,000 into a remodel of its leased space during the closure. At this time, Subway notified Appellants that it was exercising its third option to extend its lease for five years.
Landlord's general contractor notified Subway that it was authorized to re-open its restaurant on May 19, 2016, and Subway reopened for business that day. Despite the reopening, Appellants removed Subway's exterior signage, closed off rear building access traditionally used by Subway's customers, and cut off escalator and elevator access to the food court's second floor where Subway was located.
In July 2016, Subway asked Linwood about the unpaid compensation for Subway's weekly lost profits during its closure. The following week, Linwood sent Subway a letter demanding payment of unpaid rent and tenancy charges since Subway's May 2016 reopening ($36,139.29); unpaid rent and tenancy charges throughout Subway's 50-week closure ($148,066.64); and Subway's alleged pro-rata share of Landlord's food court renovation costs ($447,417.18). In total, Appellants demanded Subway's prompt payment of more than $600,000. Appellants also claimed for the first time that Subway's exercise of its lease extension option was void because Subway was in default of its lease at the time.
Subway eventually paid Landlord all rent and tenancy charges from Subway's May 2016 re-opening through (at least) November 2016.
B. Subway's Complaint
On July 29, 2016, Subway filed a complaint against Appellants for breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, fraud in the inducement, accounting, unfair business practices, and declaratory relief, seeking declarations that (a) Subway's exercise of its option to extend the lease was valid, and (b) Subway was not in default of any agreement with Landlord. Subway's complaint alleged: Subway and Appellants had entered into an agreement through which Subway would close its restaurant during Landlord's renovation, and Landlord would waive tenancy charges and compensate Subway for lost profits during the closure; Landlord's renovation forced Subway to close its restaurant earlier, and to remain closed much longer, than the parties had anticipated; and Appellants breached the parties' Closure Period Agreement as well as Subway's lease to force Subway's default and terminate its lease, so that Appellants could market the renovated food court to prospective buyers unencumbered by an existing tenant.
Subway then responded to Linwood's demand letter, informing Appellants of Subway's lawsuit and that Subway disputed the letter's charges, and, in turn, demanding that Landlord pay Subway $191,634 to compensate for Subway's lost profits during its closure, and acknowledge Subway's valid five-year lease extension.
Appellants cross-complained, disputing the existence of the Closure Period Agreement and alleging Landlord's right under the lease to seek Subway's reimbursement of some of Landlord's renovation costs.
C. Appellants' Three-Day Notices and Unlawful Detainer Actions
On November 2, 2016, Appellants issued Subway a Three-Day Notice to Pay or Quit, alleging Subway's default and breach of its lease and demanding Subway pay Landlord $457,291.54 or vacate the Property to avoid legal proceedings. Two days later, Appellants sent Subway an amended Three-Day Notice, this time demanding Subway pay Landlord $99,827.38 for tenancy charges during Subway's closure. Appellants served Subway with a third Three-Day Notice on November 13, 2016, demanding Subway pay $256,092.99 as its share of Landlord's renovation costs.
Appellants filed two unlawful detainer actions against Subway in November 2016.
D. Subway's First Amended Complaint
In December 2016, Subway filed a first amended complaint adding four additional causes of action: breach of covenant to extend lease agreement; breach of covenant of quiet enjoyment pursuant to Civil Code section 1927; specific performance; and injunctive relief. Subway asserted the "gravamen" of its first amended complaint "was to add a cause of action for Specific Performance, since Plaintiffs were now fighting to stay on the Premises, rather than just seeking damages and a declaration of the Court that Plaintiffs did not owe rent during the Closure Period." Accordingly, the amended complaint's prayer for relief requested orders compelling Appellants to honor Subway's lease extension option; estopping Appellants from evicting Subway either before or during its optioned lease term; and permanently enjoining Appellants from interfering with Subway's quiet enjoyment in the possession of its leasehold estate.
E. The Parties' Stipulated Judgment of Possession
Unsuccessful in its efforts to have the various actions related, or to stay the unlawful detainer hearings pending determination of its own action, Subway entered into a stipulated judgment for Landlord's possession of the Property and cancellation of Subway's lease. The stipulated judgment, executed December 16, 2016, concluded the unlawful detainer actions. Subway vacated the Property on December 23, 2016.
The parties then stipulated to allow Subway to file the second amended complaint.
F. Subway's Second Amended Complaint
In its February 2017 second amended complaint, Subway withdrew its claims for possession and specific performance, and eliminated from its prayer for relief requests for any order related to Subway's continued tenancy. Subway added causes of action for constructive eviction and retaliatory eviction, among others, and introduced a number of new paragraphs to the end of its pleading's general allegations. These paragraphs described procedural events following Subway's filing of its original complaint, including Appellants' repudiation of Subway's exercise of its third option to extend the lease; Appellants' service of three-day notices on Subway, demanding payments exceeding $500,000; and Appellants' filing of unlawful detainer actions against Subway.
a. Fourth Cause of Action for Breach of Covenant of Quiet Enjoyment
The fourth cause of action asserts that Appellants attempted to force Subway to vacate the Property prematurely and in breach of the parties' agreements. To achieve its goal, Appellants' tactics included refusing to honor the lease agreement's third option; forcing Subway's closure during renovation, and then demanding Subway's full payment of all tenancy charges for the closure period in breach of the parties' Closure Period Agreement; demanding that Subway vacate the Property by November 2016; and finally forcing Subway to vacate the Property and demanding that Subway reimburse nearly $500,000 of Landlord's renovation costs.
b. Ninth Cause of Action for Constructive Eviction
The ninth cause of action asserts that Appellants "frustrated" Subway's business purpose and paralyzed Subway's business "by demanding it pay an increase of 150% in rent as unauthorized holdover charges . . . after knowing that Plaintiffs' [sic] rightfully exercised their Third Option." "As a result of Appellants' conduct, Plaintiffs were constructively evicted from its leased Premises. . . ."
c. Tenth Cause of Action for Retaliatory Eviction
The tenth cause of action asserts Appellants threatened that, if Subway pursued its rights under the Closure Period Agreement, Subway "would face eviction based on Appellants' attempts to collect unauthorized rents and CAM [common area maintenance] charges." Then, "[Appellants] intentionally forced [Subway] to default in the payment of such rents by demanding" that Subway pay "an increase of 150% in rent as an unauthorized holdover charge" in retaliation for Subway's exercise of its lease extension option.
The tenth cause of action also alleges that, "[i]n further retaliation, [Appellants] filed a multiplicity of Unlawful Detainer Actions against [Subway] based upon meritless claims for rents and CAM charges that were not authorized under the [lease], and that [Appellants] had agreed to abate pursuant to the Closure Period Agreement."
G. The Anti-SLAPP Motion
a. Appellants' Special Motion to Strike the Second Amended Complaint
Appellants moved to strike the entire second amended complaint pursuant to Code of Civil Procedure, section 425.16 (Section 425.16, or the "anti-SLAPP statute"). Appellants' motion focused on paragraphs 42-47 of the amended pleading, describing events occurring after Subway filed its original complaint, including Appellants' three-day notices and unlawful detainer lawsuits. Appellants argued that their unlawful detainer actions and preceding notices constitute protected activity under the anti-SLAPP statute, and that the "gravamen" of the pleading and its damages claims is Appellants' filing of unlawful detainer actions against Subway, "which forced them to prematurely vacate the premises and breach the various Leases, Options, and other Agreements."
b. Subway's Opposition
Subway opposed Appellants' motion, noting Appellants' allegedly protected activity post-dated Subway's original complaint. Subway argued its lawsuit "was not commenced because of the filing of unlawful detainer proceedings, but as a result of [Appellants'] contract breaches and tortious conduct beginning a full year before the original complaint was filed. . . ." Subway claimed that Appellants' conduct to fraudulently induce Subway to close its restaurant, and Appellants' breaches of the parties' agreements, are the true "gravamen" of its pleading.
c. Appellants' Reply
In their reply, Appellants again argued that the second amended complaint and Subway's alleged damages arise out of and are in response to Appellants' constitutionally protected activity—namely, the three-day notices in anticipation of initiating an unlawful detainer action, the unlawful detainer actions, and the stipulated judgment concluding the unlawful detainer actions. Appellants contended both in their moving papers and in their reply that Subway's second amended complaint—filed after the stipulated judgment in the unlawful detainer action—is the only relevant document for purposes of its anti-SLAPP motion, and that Subway's previously filed pleadings should be ignored as if they had never existed.
H. Trial Court's Order Denying the Anti-SLAPP Motion
The trial court concluded that the gravamen of the second amended complaint was not Appellants' filing of the unlawful detainer actions. Rather, ". . . the gravamen of the allegations are based on actions that were allegedly taken before the unlawful detainer action was filed, and which were already the subject of the original and First Amended Complaint." These actions included Appellants' multiple breaches of Subway's lease agreement and the Closure Period Agreement.
Appellants appealed the trial court's denial of its motion as to the fourth, ninth, and tenth causes of action.
DISCUSSION
A. Appellants Failed to Establish Subway's Claims Arise from Protected Activity
1. Summary of Code of Civil Procedure Section 425.16
Section 425.16, "commonly referred to as the anti-SLAPP statute" (Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 312), is intended "to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. [Citation.]" (Id. at p. 315.) "The section authorizes the filing of a special motion that requires a court to strike claims brought '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 Constitution or the California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.' (§ 425.16, subd. (b)(1).)" (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1519 (Hunter).)
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
The word "person" as used in section 425.16, subdivision (b) includes entities, which can only speak through their representatives. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114.
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' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. . . ." (Code Civ. Proc., § 425.16, subd. (e).) California courts "have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) "[S]tatements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute. . . . [Citations.]" (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) Additionally, statements made in preparation for or in anticipation of bringing an action that is contemplated in good faith and under serious consideration fall within the ambit of section 425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn. 11.) "Accordingly, although litigation may not have commenced, if a statement 'concern[s] the subject of the dispute' and is made 'in anticipation of litigation "contemplated in good faith and under serious consideration"' [citations] then the statement may be petitioning activity protected by section 425.16." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.)
Section 425.16 "'requires that a court engage in a two-step process when determining whether a defendant's anti-SLAPP motion should be granted.'" (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) "'"First the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]." [Citation.] . . . .' [Citation.]" (Hunter, supra, 221 Cal.App.4th at p. 1519.)
If the defendant succeeds in the first step, the court then proceeds to the second step of the anti-SLAPP analysis, which requires it to "decide[ ] whether the plaintiff has demonstrated a reasonable probability of prevailing at trial on the merits of its challenged causes of action. [Citations.]" (Hunter, supra, 221 Cal.App.4th at p. 1519.) "A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff's favor. [Citation.]" (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1166.) If, however, "'the defendant does not meet its burden on the first step, the court should deny the motion and need not address the second step. [Citation.]' [Citation.]" (Hunter, supra, 221 Cal.App.4th at p. 1519.)
On review, an appellate court employs the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted or denied. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1651-1652.)
Appellants argue, in their reply brief, that Subway's brief violates procedural rules. We exercise our discretion to consider all briefing filed in this matter. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
2. First Step of the Anti-SLAPP Analysis: Whether a Cause of Action Arises From Protected Activity
"'The sole inquiry' under the first prong of the [anti-SLAPP] test is whether the plaintiff's claims arise from protected speech or petitioning activity. [Citation.] In making this determination, '[w]e do not consider the veracity of [plaintiffs'] allegations' [citation] nor do we consider '[m]erits based arguments' [Citations]." (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156.) "In deciding whether the 'arising from' requirement is satisfied, 'the court . . . consider[s] the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).)" (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1274 (Ulkarim).)
"In assessing whether a cause of action arises from protected activity, '"we disregard the labeling of the claim [citation] and instead 'examine the principal thrust or gravamen of a plaintiff's cause of action . . .' . . . . We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.]" (Hunter, supra, 221 Cal.App.4th at p. 1520.)
". . . [A] claim does not 'arise from' protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim. [Citation.]" (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621, see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77-78 [the phrase "arising from" in section 425.16 does not mean "in response to" or "triggered by"].) Rather, "'. . . 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.]" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park) [holding that in deciding whether the "arising from" requirement is met, "courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability"].)
"'"If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]" [Citation].' [Citation.]" (Hunter, supra, 221 Cal.App.4th at p. 1520; see also Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414 (Scott) [". . . [I]f the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion."].)
3. The Second Amended Complaint's Fourth, Ninth, and Tenth Causes of Action Do Not Arise from Appellants' Protected Litigation and Pre-Litigation Activity
a. Subway's Claims Are Based on Unprotected Conduct Underlying Appellants' Unlawful Detainer Actions and Prelitigation Mailings
Appellants have failed to meet their burden to show that the bases of the fourth, ninth, and tenth causes of action are acts in furtherance of Appellants' constitutional right of petition or free speech. Appellants assert their demand letter, three-day notices to pay or quit, and unlawful detainer actions are all protected petitioning activities triggering the anti-SLAPP statute.
Both the prosecution of an unlawful detainer action and the service of a three-day notice to quit in advance of filing an unlawful detainer action constitute protected activity within the meaning of section 425.16. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 (Feldman).)
However, Appellants were not sued for their conduct in exercising those rights. While Subway's lawsuit was perhaps "triggered by" Appellants' letter demanding Subway pay Landlord nearly $600,000, the fourth, ninth, and tenth causes of action are not based on either the mailing of the demand letter, or the subsequent filing of unlawful detainer actions. Rather, each of these three causes of actions is premised on the acts underlying the eventual unlawful detainer action: Appellants' levying of unlawful charges against Subway, in breach of Subway's lease and the parties' Closure Period Agreement, to force Subway's default and as grounds for repudiating Subway's lease extension.
The fourth cause of action for breach of the covenant of quiet enjoyment alleges Appellants refused to honor the lease agreement's third option; demanded payments in breach of the Closure Period Agreement; and demanded Subway's reimbursement of nearly $500,000 of Landlord's renovation costs. These were the acts that ultimately succeeded in forcing Subway from the Property. The ninth cause of action for constructive eviction alleges that Appellants demanded, in contravention of the parties' agreements, a 150 percent rent increase in unauthorized holdover charges, which paralyzed Subway's business and constructively evicted Subway from the Property. Each of these causes of action arises from payment demands in breach of the lease and the Closure Period Agreement. Those payment demands were then used as the basis for the unlawful detainer actions.
The retaliatory eviction cause of action asserts Appellants filed their unlawful detainer actions "based upon meritless claims for rents" and other unauthorized tenancy charges.
b. Claims Based on Conduct Underlying an Unlawful Detainer Action, Even If Triggered by That Action, Are Not Subject to a Special Motion to Strike
Neither breaching an agreement nor wrongfully terminating a tenancy is an activity taken in furtherance of the constitutional right of petition or free speech. (See Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 951; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 161; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286-1287 (Clark).)
"The pivotal distinction" in the case law "is whether an actual or contemplated unlawful detainer action by a landlord . . . merely 'preceded' or 'triggered' the tenant's lawsuit, or whether it was instead the 'basis' or 'cause' of that suit." (Clark, supra, 170 Cal.App.4th at p. 1289; see also Ulkarim, supra, 227 Cal.App.4th at p. 1276 ["Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination. [Citations.]".) "A complaint arising out of or based on the dispute or conduct underlying the unlawful detainer action is not subject to a special motion to strike." (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1245.)
Appellants ignore this distinction in relying on Birkner v. Lam (2007) 156 Cal.App.4th 275, where "[t]he sole basis for liability was the landlord's service of an eviction notice and his refusal to rescind it. . .", and on Feldman, supra, 160 Cal.App.4th 1467, where the filing of landlord's unlawful detainer action, service of the notice to quit, and statements made by the landlord's agent in connection with the threatened unlawful detainer ". . . were the challenged activities and the bases for all but one cause of action. [Citation.]" (Clark, supra, 170 Cal.App.4th at pp. 1289-1290.) To the extent Subway's claims rely on Appellants' "pre-litigation demands for payment," it is the unauthorized payment demand itself, and not the form of the demand or ensuing unlawful detainer action, that grounds Subway's claims. That Appellants filed unlawful detainer actions against Subway after breaching the parties' agreements, and before Subway filed its second amended complaint, does not convert the claims based on Appellants' earlier alleged misfeasance into claims "arising from" Appellants' unlawful detainer actions. (See, e.g., Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes (2015) 235 Cal.App.4th 361, 370.)
c. The Second Amended Complaint's References to Appellants' Protected Activity Are Incidental
The Second Amended Complaint's general allegations describe the procedural history of the case, including Appellants' service of three-day notices and filing of unlawful detainer actions. The fourth cause of action alleges Appellants "demand[ed]" and then "forc[ed]" Subway to vacate the Property. The tenth cause of action alleges Appellants filed "a multiplicity of [u]nlawful [d]etainer actions" against Subway in bad faith.
While the complaint references Appellants' three-day notices and unlawful detainer actions, the targeted causes of action are not premised on those three-day notices or the unlawful detainer actions. Rather, as discussed above, the targeted causes of action arise from Appellants' breaches of the parties' agreements. Therefore, the complaint's references to Appellants' protected activities are merely incidental and not the proper target of an anti-SLAPP motion. (Scott, supra, 115 Cal.App.4th at p. 414; Baral v. Schnitt (2016) 1 Cal.5th 376, 395 ["When the Legislature declared that a 'cause of action' arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief."].)
At most, the complaint's references to Appellants' three-day notices and unlawful detainer actions constitute evidence of an extrajudicial campaign to oust Subway from the Property, which is not protected activity. (See Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 259-261 [pressure tactics from which unlawful eviction cause of action arose were not protected activity]; Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 133-135 [harassment intended to recover possession was not protected activity]; cf. Ulkarim, supra, 227 Cal.App.4th at p. 1282 [acts of interference with commercial tenant's business were not protected activity].)
d. Appellants' "Elements" Analysis Conflates Potential Bases for Liability with the Targeted Causes of Actions' Actual Bases for Liability
Appellants reframe their analysis on appeal based on the Supreme Court's instruction in Park, supra, 2 Cal.5th at pp. 1063-1064 that courts should consider whether a protected act "supplie[s] an essential element" of a challenged claim and "consequently form[s] the basis for liability" on that claim. Appellants argue that all three causes of action—retaliatory eviction, constructive eviction, and breach of the covenant of quiet enjoyment—satisfy the first prong of the anti-SLAPP analysis because each of the targeted causes of action requires, as an element, an act amounting to either actual or threatened eviction. Appellants then argue that their protected activities—their unlawful detainer actions, as well as the prerequisite three-day notices—constitute such acts; they conclude that each of the targeted causes of actions arises from Appellants' protected activities.
Appellants' elements-based argument confuses sufficiency with necessity. For example, Appellants argue that involuntary removal is an essential element of retaliatory eviction. Appellants issued their three-day notices and unlawful detainer actions to compel Subway's involuntary removal from the Property. Therefore, Appellants argue, their three-day notices and unlawful detainer actions provide an essential element of Subway's retaliatory eviction claim.
However, filing an unlawful detainer action is not an essential element of a common law retaliatory eviction claim. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 774-777.) ". . . [A] retaliatory eviction cause of action arises at common law whenever a retaliatory rent increase causes a tenant to move. [Citation.]" (Rich v. Schwab (1998) 63 Cal.App.4th 803, 818.) Subway's retaliatory eviction claim alleges Appellants retaliated against Subway by imposing unauthorized charges amounting to a 150 percent rent increase and other tenancy charges, in contravention of the parties' agreements.
Thus, while Appellants' notices and lawsuits could satisfy the involuntary removal element of a retaliatory eviction claim because the notices and lawsuits would be "sufficient" to state a claim for retaliatory eviction, they are not necessary to state a claim for retaliatory eviction. In this case, another act—Appellants' retaliatory rent increase—satisfies the involuntary removal element. The retaliatory eviction cause of action's involuntary removal element is premised on Appellants' retaliatory rent increase.
Likewise, Appellants argue both the breach of covenant of quiet enjoyment cause of action and the constructive eviction cause of action require Subway to have involuntarily vacated the leased premises, and that Appellants' unlawful detainer actions supply this essential element for each cause of action. Again, while an unlawful detainer action could cause a tenant's involuntary removal, the targeted causes of action are not premised on Appellants' unlawful detainer actions. Rather, they are premised on Appellants' unauthorized charges, removal of customer access and signage, and repudiation of Subway's extension option in breach of the parties' agreements.
"There is nothing more likely to lead to an actual or constructive eviction than an increase in rent." (Freeman v. Vista de Santa Barbara Associates, LP (2012) 207 Cal.App.4th 791, 798.)
A landlord's reduction in or termination of important services due its commercial tenant under the lease may constitute constructive eviction. (Public Employees' Ret. Sys. v. Winston (1989) 209 Cal.App.3d 205, 208.)
B. The Burden Never Shifted to Subway to Demonstrate Its Probability of Prevailing on the Second Amended Complaint's Claims
Appellants did not meet their threshold burden of showing the second amended complaint's claims were based on protected activity. Accordingly, we need not consider whether Subway demonstrated it was likely to succeed on the merits of the challenged causes of action. (Clark, supra, 170 Cal.App.4th at p. 1290.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
ZELON, J. We concur:
PERLUSS, P. J.
FEUER, J.