Birkner v. LamBirkner v. Lam
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- Before:
- Pollak
POLLAK, Acting P.J.
Defendant Kwai Ho Lam appeals from the denial of his special motion to strike the complaint of plaintiffs Regina Birkner, Nyri Scanlon, Charles Birkner, and William Rogers Burton as a strategic lawsuit against public participation pursuant to Code of Civil Procedure1 section 425.16 (commonly known as the anti-SLAPP statute). The trial court determined plaintiffs’ causes of action were not based upon petitioning activity protected by section 425.16. We disagree, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The four causes of action in the complaint designated wrongful eviction-violation of a rent ordinance, negligence, breach of the covenant of quiet enjoyment, and intentional infliction of emotional distress are all based on the following factual allegations. Plaintiffs are tenants of a single unit in a San Francisco apartment building owned by Lam2 under a month-to-month rental agreement. The tenancy is subject to the San Francisco Residential Rent Stabilization and Arbitration Ordinance, San Francisco Administrative Code, chapter 37, originally enacted on June 13, 1979 (Rent Ordinance). At issue is Rent Ordinance section 37.9(a)(8), concerning relative move in evictions. That provision allows a landlord to terminate a tenancy “in order that the premises may be occupied, in good faith, without ulterior reasons and with honest intent, by” a relative of a landlord, to be used as the relative‘s principal residence, within three months of the termination and for a period of at least 36 continuous months. (Ibid.) However, “[a] landlord may not recover possession of a unit from a tenant under Section 37.9(a)(8) if the landlord receives notice, [at] any
On or about December 8, 2005, Lam, through counsel, served a 60-day notice to terminate tenancy (the termination notice), pursuant to Rent Ordinance section 37.9(a)(8). Lam sought possession of plaintiffs’ apartment to allow his mother to reside in the building. On or about January 6, 2006, plaintiffs’ counsel notified Lam in writing that plaintiffs could not be evicted because they were protected tenants under the Rent Ordinance. Lam refused to rescind the termination notice.
The declarations filed in opposition to and support of Lam‘s special motion to strike added the following relevant information. After Lam moved into the apartment building, he decided to move his mother into plaintiffs’ ground floor apartment. Lam‘s mother used a walker and had a disabled person placard to use when being driven. At the time the termination notice was served on plaintiffs in December 2005, Lam‘s mother was living in an apartment that required her to climb 38 stairs to reach her unit. However, on February 2, 2006, Lam‘s mother died. On February 13, Lam‘s attorney wrote plaintiffs’ attorney, informing him of the mother‘s death and rescinding the termination notice. .
According to plaintiffs, the termination notice had been unlawful for two reasons: three of the tenants were protected from eviction because of their age or disability and length of tenancy, and the termination notice failed to comply with procedural requirements of the Rent Ordinance. Plaintiffs alleged that Lam was aware of their protected status before he served the termination notice, their apartment was not the only rental unit in the building that was available for use by Lam‘s mother, another unit was then occupied by tenants who were not protected under the Rent Ordinance, and Lam had made no offer to move plaintiffs to any other rental unit owned by Lam or his family. The termination notice assertedly exacerbated plaintiffs’ preexisting medical conditions, and caused them stress, frustration, insomnia and anxiety. Also, Regina Birkner alleged that she and the other plaintiffs had “many problems” with the building‘s owners over the years. She recounted a
In a reply declaration, one of Lam‘s attorneys asserted she was notified of the death of Lam‘s mother on February 7, 2006, but did not notify plaintiffs’ counsel immediately because she was busy and knew plaintiffs were not going to vacate the unit. Had Lam‘s mother not died, counsel would have proceeded to file an unlawful detainer action. Lam also filed a reply declaration, asserting he did not own an interest in another apartment at the time the termination notice was served, and his sole intent in serving the notice was to provide a place for his mother to live to accommodate her difficulty in walking up and down stairs. If his mother had not died, he intended to file an unlawful detainer action, if necessary, but he was hoping to settle the dispute.
In denying Lam‘s special motion to strike, the trial court found Lam‘s “asserted petitioning activity was not illegal as a matter of law.” However, the court concluded that Lam‘s conduct was not in furtherance of his right to petition within the meaning of section 425.16, so that the complaint was not based on activity protected by that section. The court did not address whether plaintiffs had made a prima facie showing they were likely to prevail on their causes of action. Lam timely appeals from the denial of his motion, as he is entitled to do by sections 425.16, subdivision (i), and 904.1, subdivision (a)(13).
DISCUSSION
I. Lam has satisfied the first prong of the section 425.16 analysis
In analyzing defendant‘s burden under the first prong of the section 425.16 analysis, “the critical consideration is whether the cause of action is based on the defendant‘s protected free speech or petitioning activity.” (Navellier, supra, 29 Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703). “The anti-SLAPP statute‘s definitional focus is not on the form of the plaintiffs cause of action but, rather, the defendant‘s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Id at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Defendant does not have to “establish [his] actions are constitutionally protected under the First Amendment as a matter of law.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, 33 Cal.Rptr.2d 446, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The statute requires a defendant to make only a prima facie showing that plaintiffs’ causes of action arise from an act in furtherance of defendant‘s constitutional rights of petition or free speech in connection with a public issue. (Wilcox v. Superior Court, supra, at p. 820, 33 Cal. Rptr.2d 446.)
The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 3 Cal.Rptr.3d 636, 74 P.3d 737; Navellier, supra, 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703, Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087, 114 Cal. Rptr.2d 825.) “The constitutional right to petition ... includes the basic act of filing litigation or otherwise seeking administrative action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19, 43 Cal.Rptr.2d 350; California Motor Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642[“[t]he right of access to the courts is indeed but one aspect of the right to petition“].)
Plaintiffs’ complaint, however, is not based on the filing of an unlawful detainer action but upon the service and refusal to rescind a notice to terminate plaintiffs’ tenancy. In general, “[t]erminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” (Marlin v. Aimco Venezia, LLC (2007) 154 Cal. App.4th 154,161, 64 Cal.Rptr.3d 488 (Marlin); see Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1250, 63 Cal.Rptr.3d 398, 163 P.3d 89 [a “notice of eviction is a communication regarding prospective litigation, and, as such, it is not necessarily part of a judicial proceeding“].) Nevertheless, if the termination notice is a legal prerequisite for bringing an unlawful detainer action, as it is in this case (
Plaintiffs contend that Marlin v. Aimco Venezia, LLC, supra, 154 Cal.App.4th 154, 64 Cal.Rptr.3d 488, which in turn relies on Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 135 Cal.Rptr.2d 903 (Pearl Street), demonstrates that Lam‘s activity is not protected under section 425.16. We disagree. In Pearl Street, the plaintiff rent control board sought a judicial determination of the maximum allowable rent that defendant landlords could charge for two apartments. (109 Cal.App.4th at p. 1318, 135 Cal.Rptr.2d 903.) The Court of Appeal assumed defendants’ filing of paperwork to restore the two apartments to the rental market was undertaken in furtherance of their right to petition or free speech, as that phrase is used in section 425.16. (Ibid.) Nevertheless, the court concluded section 425.16 did not apply because defendants were not being sued for their conduct in exercising such constitutional rights. (Ibid.) “Rather, the suit is based on activity that preceded the filing of the
Unlike the situations in Marlin and Pearl Street, plaintiffs’ causes of action do not challenge the validity of the Rent Ordinance or any activity by Lam that preceded the service of the termination notice. As noted by the trial court and supported by the record, “[t]he sole basis for liability” in each of plaintiffs’ causes of action “was the service of a termination notice, pursuant to Rent Ordinance,” and Lam‘s “refusal to rescind it after [p]laintiffs informed him that they constituted a protected household.” Thus, the complaint indisputably arose from “activity protected under the anti-SLAPP statute.” (Navellier, supra, 29 Cal.4th at p. 91, fn. 6, 124 Cal.Rptr.2d 530, 52 P.3d 703.)3
Plaintiffs contend that in order to prevail on the first prong of the section 425.16 analysis, Lam was required to show that serving and refusing to rescind a termination notice are expressly referred to in the enumeration of acts in furtherance of a right to petition included in section 425.16, subdivision (e).4 However, “the
Lam argues that his conduct is protected by the litigation privilege (
Nor is there any merit to plaintiffs’ suggestion that the exclusion from anti-SLAPP coverage for indisputably illegal conduct, recognized in Flatley, supra, 39 Cal.4th at page 320, 46 Cal. Rptr.3d 606, 139 P.3d 2, applies here. “[C]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage ... simply because it is alleged to have been unlawful or unethical.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911, 120 Cal. Rptr.2d 576; see Chavez v. Mendoza, supra, 94 Cal.App.4th at p. 1089, 114 Cal. Rptr.2d 825.) Ai exception to the use of section 425.16 applies only if a “defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley, supra, 39 Cal.4th at p. 320, 46 Cal.Rptr.3d 606, 139 P.3d 2.) The exception does not apply here. The trial court found, and we concur, that the evidence does not conclusively establish that Lam‘s conduct of serving and refusing to rescind the termination notice was illegal.
Finally, we are not persuaded by plaintiffs’ argument that holding the first prong of the section 425.16 analysis to be satisfied in this case would turn every dispute into petitioning conduct and every lawsuit arising from that dispute into a SLAPP.” “`[T]he Legislature recognized that “all kinds of claims could achieve the objective of a SLAPP suit—to interfere with and burden the defendant‘s exercise of his or her rights.“\’ [Citation.] `Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights.\‘” (Navellier, supra, 29 Cal.4th at pp. 92-93, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Plaintiffs’ causes of action are indisputably based on conduct that was necessary for Lam to exercise his right to petition the court and he therefore is entitled to seek the protection of section 425.16.
II. The trial court must determine whether plaintiffs have made a prima facie showing of their right to prevail
Because Lam has “met his threshold burden of demonstrating that plaintiffs’ action is one arising from the type of ... petitioning activity that is protected by the anti-SLAPP statute” (Navellier, supra, 29 Cal.4th at p. 95, 124 Cal.Rptr.2d 530, 52 P.3d 703), whether his conduct was wrongful is an issue plaintiffs “must raise and support in the context of the discharge of [their secondary] burden to provide a prima facie showing of the merits of [their causes of actions]” (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, 102 Cal.Rptr.2d 864, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685). This burden can be met by showing Lam‘s purported “`defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses.\’ ” (Paul for Council v. Hanyecz, supra, at p. 1367, 102 Cal.Rptr.2d 864, italics added, quoting Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824, 33 Cal. Rptr.2d 446; see also Flatley, supra, 39 Cal.4th at p. 323, 46 Cal.Rptr.3d 606, 139 P.3d 2 [“The litigation privilege is ... relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing“].)
Because the trial court concluded that Lam had not met his burden under the first prong of the section 425.16 analysis, it did not address the second prong. Although the parties have extensively briefed the issues pertaining to the probability of plaintiffs prevailing on their causes of actions and the validity of Lam‘s defenses, we believe it more appropriate that the trial court address these issues in the first instance. The court did not expressly rule on plaintiffs’ objections to evidence presented by Lam—noting in its written decision only that it considered “admissible evidence“—or on Lam‘s disputed request for judicial notice.5 Whether plaintiffs have made a prima facie showing of their ability to overcome Lam‘s contention that service of the termination notice is protected by the litigation privilege in
DISPOSITION
The order denying defendant‘s motion to strike is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. Defendant shall recover his costs on appeal.
We concur: SIGGINS and HORNER, JJ.*