Ulkarim v. Westfiled, LLC CA2/4
175 Cal. Rptr. 3d 17
Cal. Ct. App.2014Background
- Ulkarim, doing business as iWorld, leased space in a Westfield shopping center under a Short Term License Agreement dated Feb. 1, 2012.
- Westfield terminated the license on June 25, 2012, effective July 3, 2012, under section 13(d) of the agreement.
- Plaintiff remained in possession and faced a holdover tenancy under section 20 with rent increasing to 150 percent if holdover continued.
- Westfield obtained a trial court unlawful detainer judgment awarding possession on Aug. 15, 2012.
- Ulkarim asserted multiple counts including breach of contract, interference with prospective economic advantage, unfair competition, declaratory relief, and injunction; some counts were later dismissed or narrowed.
- Westfield moved to strike under Code Civ. Proc. § 425.16 (anti-SLAPP) and the trial court granted the motion in part, concluding protected activity and citing the litigation privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint arises from protected activity | Ulkarim contends the gravamen is not Westfield's protected conduct. | Westfield argues the suit arises from service of the termination notice and the unlawful detainer filing. | No; the gravamen targets the termination decision, not protected activity. |
| Whether plaintiff can prevail on the anti-SLAPP prongs | Ulkarim asserts likelihood of prevail on merits and privilege does not bar. | Westfield asserts the litigation privilege and lack of probability of prevailing. | Plaintiff fails to show arising from protected activity; no need to decide merits or privilege. |
| Attorney fee award on appeal | N/A | Westfield argues fees follow a successful anti-SLAPP motion. | Reversal of anti-SLAPP dismissal means no fee award to Westfield. |
Key Cases Cited
- Clark v. Mazgani, 170 Cal.App.4th 1281 (Cal. App. 4th Dist. 2009) (unlawful detainer-related protected activity)
- Birkner v. Lam, 156 Cal.App.4th 275 (Cal. App. 4th Dist. 2007) (service of termination notice protected; distinction from underlying termination)
- Marlin v. Aimco Venezia, LLC, 154 Cal.App.4th 154 (Cal. App. 4th Dist. 2007) (complaint based on Ellis Act termination; not on filing/serving notices)
- DFEH v. 1105 Alta Loma Road Apartments, LLC, 154 Cal.App.4th 1273 (Cal. App. 4th Dist. 2007) (disability discrimination; not based on notices to remove from market)
- Oviedo v. Windsor Twelve Properties, LLC, 212 Cal.App.4th 97 (Cal. App. 4th Dist. 2012) (RSO/eviction claims; contrasts with protected filing activity)
- Copenbarger v. Morris Cerullo World Evangelism, 215 Cal.App.4th 1237 (Cal. App. 4th Dist. 2013) (sublessee case; termination not protected activity; focus on underlying dispute)
- Feldman v. 1100 Park Lane Associates, 160 Cal.App.4th 1467 (Cal. App. 4th Dist. 2008) (tension between protectable acts and underlying claims; focus on activity causing liability)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (focus on defendant's activity, not the form of plaintiff’s claim)