Wallace v. McCubbin
196 Cal. App. 4th 1169
Cal. Ct. App.2011Background
- Wallace and Owen (tenants) sued landlords and co-tenants for wrongful eviction, retaliatory eviction, and related harms under Rent Ordinance and Civil Code provisions.
- Defendants McCubbin and Merck moved to strike under anti-SLAPP §425.16, arguing the gravamen arose from protected petition/free-speech activity.
- Trial court denied the motion; found gravamen was not merely protected activity and that acts were prelude to protected actions.
- Court analyzed whether petitioning activities (three-day notice, unlawful detainer, Animal Control complaints) were the basis of the claims.
- Court concluded the first and thirteenth causes of action arose from protected activity and unprotected activity, but held the plaintiff failed to show probability of prevailing on protected-activity theories against McCubbin and Merck; hence, anti-SLAPP motion should be granted.
- Remanded to strike the first and thirteenth causes of action as to McCubbin and Merck; costs award to defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful eviction is based on protected activity | Wallace argues gravamen is discrimination, not protected acts | McCubbin/Merck contend gravamen is protected activity (three-day notice/unlawful detainer) | First cause of action arose from protected activity; necessity of prong-two analysis remains for merits |
| Whether retaliatory eviction liability rests on protected activity | Retaliation based on protected rights; acts to evict were retaliatory | Protected acts include notices and unlawful detainer; some acts are unprotected | Thirteenth cause of action includes protected acts (notice, detainer); but liability not proven; need prong-two analysis shows no prevailing likelihood |
| Whether mixed claims allow saving protected-activity elements via Mann rule | A plaintiff can show merit on any part of the claim | Mann should not allow meritless protected-activity claims to survive | Court rejects Mann’s broad save; adopts Taus/Oasis approach limiting to protected-activity merits, but ultimately remands on prong-two for specific protection-based liability |
| Whether the protected activity is precluded by litigation privilege or illegality | Protected acts should not be privileged if illegal | Legislation and privilege bar liability for prelitigation and litigation acts | Litigation privilege bars wrongful-eviction/retaliation theories tied to three-day notice, detainer, or Animal Control reports; illegality not grounds to dismiss protected acts |
| Whether the trial court properly applied anti-SLAPP prongs to mixed claims | Court should strike protected portions, retain rest | Protected acts predominate; need to strike those portions | Remand for prong-two analysis; ultimately, strike of first/13th actions as to McCubbin and Merck warranted |
Key Cases Cited
- Birkner v. Lam, 156 Cal.App.4th 275 (Cal.App.2d 2007) (unlawful detainer protection includes protected activity when tied to eviction)
- Feldman v. 1100 Park Lane Associates, 160 Cal.App.4th 1467 (Cal.App.4th 2008) (service of three-day notice and filing of UD action protected; threats during dispute protected)
- Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal.App.4th 1539 (Cal.App.4th 2010) (mixed protection; incudes guidance on prong-one analysis for protected activity)
- Mann v. Quality Old Time Service, Inc., 120 Cal.App.4th 90 (Cal.App.4th 2004) (protective scope of prong-two; allows merit on any part of claim to save action (original rule))
- Oasis West Realty v. Goldman, 51 Cal.4th 811 (Cal. 2011) (final rule: proves Merlin—merit on any protected act can keep the action alive (mixed actions caveat))
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (analyze prong-two by protected-activity merits within specific claims)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (statutory interpretation on section 425.16)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) (anti-SLAPP context terminology and procedure)
- G.R. v. Intelligator, 185 Cal.App.4th 606 (Cal.App.4th 2010) (protected activity guidance in anti-SLAPP)