I.
BACKGROUND
Sometime in 2010, plaintiff Shameka Winslett and her two young children moved into an apartment in a building owned by 1811 27th Avenue LLC and Yugal Sagi (colleсtively Sagi).
Beginning in 2013, the pestilent conditions in Winslett's apartment became unbearable. She was pregnant at the time and wanted a healthy living environment for the day-to-day activity of her children, who at their tender ages were particularly vulnerable to filth and vermin. One of the most serious issues was the prevalence of cockroaches, which came from the refrigerator
Around this same time, the mold and mildew grew so severe that it covered the refrigerator, walls, and window sills. Thе presence of loiterers and general lack of security added to the intolerable conditions. Winslett complained repeatedly to Sagi and his on-site property manager Edgar Vargas. In response to her numerous complaints, made both orally and in writing, Sagi and Vargas did very little. Winslett was told that the cockroaches were her own fault for not cleaning her apartment well enough and that if she paid her rent, which had fallen into delinquency, the repairs she requested would be made. But after she paid her rent bill, no repairs were made. Winslett believed Sagi and Vargas were ignoring her complaints as a way to force her to move out. If she was so unhappy, she was told, she should just leave.
Because of Sagi's and Vargas's inaction, Winslett called Alameda County Health Care Services, Vector Control Services District (Vector Control), which, in August 2013, sent an inspector to her apartment to document the habitability issues she identified. After the inspection, the inspector spoke with Sagi and informеd him the apartment needed to be repaired. Sagi was furious at Winslett and told her she should not have contacted Vector Control and not to call them again in the future. The inspector's visit led Sagi to make a few cosmetic repairs, such as painting over some water damage and mold, but within a few months the rot reappeared.
According to Winslett, even after she called Vector Control, her continued complaints to Sagi and Vargas were still ignored. At no point was she informed she had rights under the Oakland Municipal Code or that she could contact the Oakland Rent Board. Finally, in December 2014, Winslett felt she could not tolerate the situation anymore. She told Sagi the mold was causing her children to be sick and that the cockroaches were unbearable. She also told him she would not be paying her rent for January 2015 if these conditions were not resolved.
Not long after this settlement, Winslett sued Sagi for damages, ultimately alleging 15 causes of action in the operative first amended complaint.
In opposition to Sagi's anti-SLAPP motion, Winslett argued that none of her claims arises out of protected activity and that her claim for violation of the Just Cause Ordinance is not based on Sagi's litigation activity. Winslett also argued that the litigation privilege does not bar claims for retaliation in violation of section 1942.5. She supported her opposition with an evidentiary showing reciting and documenting the facts summarized above, in her own declaration and various exhibits documenting her tenancy. Sagi lodged a raft of objections on relevance, hearsay, and lack of foundation grounds.
Prominent in the court's reasoning was the voluntary settlement of the unlawful detainer action. The court noted that the unlawful detainer case was dismissed 12 days before Winslett filed her lawsuit against Sagi and indicated that it was bearing in mind the way that action ended-in the form of an agreed resolution. "[I]n looking at the probability of success in this case," the court said, the settlement was significant, since it bore on "the potential relevancy" to the merits of her current claims.
This timely appeal followed. Three days after Winslett filed her notice of appeal, Sagi filed a motion in the trial court for attorney fees and costs under Code of Civil Procedure sectiоn 425.16, subdivision (c)(1). That motion was eventually granted, with the court awarding him $9,465 in fees and costs. Along with her appeal of the order on the underlying anti-SLAPP motion, Winslett now seeks review of the award of fees and costs.
II.
DISCUSSION
A. Standard of Review
Anti-SLAPP analysis under Code of Civil Procedure section 425.16 proceeds in two familiar steps. In the first
A claim arises from protected activity when that activity underlies or forms the basis for the claim. We look to whether " 'the defendant's act underlying the plaintiff's cause of action [was] itself ... an act in furtherance of the right
At the second step, " '[w]e ... evaluate the defendants' evidence only to determine if it defeats that submitted by the plaintiff as a matter of law.' [Citation.] '[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have " 'stated and substantiated a legally sufficient claim.' " [Citation.] "Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' " ' [Citation.] ... That burden [is] not particularly high[.]" ( Area 51 Productions, Inc. v. City of Alameda (2018)
If the cause of action satisfies both prongs of the anti-SLAPP statute, then it is subject to being stricken. ( Barry , supra ,
The trial court's evidentiary rulings at the second step of the anti-SLAPP analysis are generally reviewed for abuse of discretion. (See Morrow v. Los Angeles Unified School Dist. (2007)
B. Sagi's Evidentiary Objections
Preliminarily, we address a series of evidentiary objections raised by Sagi as a threshold matter. He argues that regardless of the merit of the various legal arguments Winslett advances, her appeal must fail because none of the evidence she presented is admissible and thus she cannot meet her burden on the second prong of the anti-SLAPP analysis for any of the three disputed claims. In support of this line of argument, Sagi contends, as he did in the trial court, that the sworn statements in Winslett's declaration and the documents she presented lacked foundation, set forth improper opinions and conclusions, and were hearsay, and that all of her evidence was irrelevant.
These evidentiary issues are easily resolved. We see no abuse of discretion in the trial court's rejection of Sagi's hearsay, lack of foundation, and improper opinion and conclusion objections. Relevance is another matter. On that point, the court sustained Sagi's objection, but it did so on the premise that none of Winslett's evidence has any relevance to claims that are not legally viable as pleaded. For the reasons exрlained below, we hold that that underlying premise was erroneous. Thus, the exclusion of Winslett's evidence on relevance grounds was erroneous as well.
Since Sagi does not dispute that, if Winslett's evidence is admissible, she met the minimal burden necessary to make a prima facie case supporting the three disputed claims, we turn to his arguments that those claims fail as a matter of law.
C. Claims Under Section 1942.5, Subdivision (d )
Section 1942.5, subdivision (d) provides that "it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law." Subdivision (h) of the statute, in turn, states that "Any lessor or agent of a lessor who violates [ section 1942.5 ] shall be liable to the lessee in a сivil action for all of the following: [¶] (1) The actual damages sustained by the lessee. [¶] (2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act." The landlord can defend against an action
The filing of an unlawful detainer complaint is anti-SLAPP protected activity, as is service of a notice of termination preceding an unlawful detainer complaint. ( Clark v. Mazgani (2009)
We first address whether the trial court was correct to rule that the litigation privilege аpplies to claims brought under section 1942.5, subdivision (d), a topic that, according to Winslett, presents "[t]he most important question in this case."
1. Statutory History
We begin by tracing the origins of the statute. The statutory cause of action now embodied in section 1942.5, subdivisions (d) and (h), was not always included in section 1942.5. As originally enacted in 1970, section 1942.5 was "part of comprehensive landlord-tenant reform legislation. Assembly Bill No. 2033, 1970 Regular Session
These common law developments began nеarly simultaneously with the enactment of section 1942.5, in Schweiger v. Superior Court (1970)
Following Schweiger,
Two years after its decision in Green v. Superior Court, supra ,
In 1979, the Legislature repealed and reenacted section 1942.5, at that point adding the statutory cause of action that we now see in current subdivisions (d) and (h). (See section 1942.5, former subds. (c), (f), as enacted by Stats. 1979, ch. 652, § 2, pp. 2005-2006; § 1942.5, subds. (d), (h), as amended by Stats. 2017, ch. 489, § 6, No. 6 West's Cal. Legis. Service, pp. 3720-3721.) Taking common law rights recognized by the high court over the preceding decade as a foundation, the Legislature enlarged and built upon the limited scheme of statutory remedies it had first created in AB 2033.
Barela also put to rest any remaining "notion that the common law retaliatory eviction defense was preempted by statute," thereby definitively confirming that "California has two parallel and independent sources for the doctrine of retaliatory eviction." ( Glaser v. Meyers (1983)
2. Action Apartment v. City of Santa Monica
Turning specifically to whether the litigation privilege defeats Winslett's claims under section 1942.5, subdivision (d), Action Apartment Assn., Inc. v. City of Santa Monica (2007)
The text of section 47, subdivision (b), "provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged. This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' [Citation.] 'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' [Citation.]" ( Action Apartment ,
Traditionally, the privilege has been given "a broad interpretation" in order to achieve its " 'principal purpose' " to afford litigants and witnesses " 'the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.' " ( Action Apartment ,
Applying these principles, the high court in Action Apartment held that to the extent the challenged ordinance covers the filing of an eviction action ("bringing 'any action to recover possession of a rental housing unit based upon facts which the landlord had no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord' "), it conflicts with and is entirely preempted by the litigation privilege. ( Action Apartment , 41 Cal.4th at pp. 1249-1250,
3. Litigation Privilege Must Yield to Section 1942.5
Because the scheme of retaliatory eviction remedies in section 1942.5 meets the test of specificity set out in Action Apartment and wоuld be rendered significantly inoperative if the litigation privilege were to apply, we agree with our Second District, Division One colleagues in Banuelos v. LA Investment, LLC (2013)
Section 1942.5, subdivisions (d) and (h) are not only more specific than section 47, subdivision (b), they are also later enacted. Section 47 was enacted in 1872 (and was amended in 1873-1874 to specify a privileged publication is one made " 'in any legislative or judicial proceeding, or in any other official proceeding authorized by law' ") (see Historical and Statutory Notes, 6 West's Ann. Civ. Code (2007 ed.) foll. § 47, p. 303), predating the statutory retaliatory eviction cause of action in section 1942.5 by more than a century. Bearing in mind both principles of construction (see
The statutory history traced above, intertwined with the parallel cоmmon law developments out of which the statute arose, provides considerable support for this conclusion. Section 1942.5, subdivisions (d) and (h) seek to vindicate policies that "depend[ ] for [their] effectiveness on private initiative and would thus be emasculated by allowing punitive
The litigation privilege is "not without limit," as the Action Apartment court took pains to point out. ( Action Apartment , supra ,
4. Feldman and Wallace
Sagi insists that section 47, subdivision (b) applies to Winslett's eighth and fifteenth causes of action, citing two cases, both from this District, one from Division Two, Feldman v. 1100 Park Lane Associates (2008)
The appeal in Feldman involved the Feldmans' cross-complaint for damages in the unlawful detainer action, by which they asserted seven claims, including a retaliatory eviction claim under section 1942.5, formеr subdivision (c). ( Feldman , supra , 160 Cal.App.4th at pp. 1475-1476, 1492-1494,
Wallace , another anti-SLAPP case involving a statutory retaliatory eviction claim, adopts the same holding without independent analysis. ( Wallace , supra , 196 Cal.App.4th at pp. 1214-1215,
5. Agreement to Vacate
Separate and apart from his litigation privilege argument, Sagi argues that Winslett cannot establish a claim for retaliatory eviction under section 1942.5, subdivision (d) beсause she was not evicted. Drawing on Banuelos for what little assistance it might offer him here, Sagi cites a portion of the Banuelos opinion holding that "[a plaintiff] cannot state a common law cause of action for retaliatory eviction because that cause of action applies only to conduct that causes the tenant to involuntarily vacate the premises." ( Banuelos, supra,
Drouet does not compel a contrary conclusion. In that case, a landlord filed an Ellis Act unlawful detainer action in what he claimed was an effort to withdraw his rental unit from the market, and his tenants raised a defense of retaliatory eviction. In writ of mandate proceedings posing the question whether tenants facing eviction pursuant to the Ellis Act may raise such a defense, the high court answered, yes, they may, but the landlord may rebut such a defense upon proof of a bona fide intent to withdraw the rental unit from the market as an action undertaken "for any lawful cause" under section 1942.5, former subdivision (d). ( Drouet , supra , 31 Cal.4th at pp. 594, 599-600,
Having determined that Winslett has shown a likelihood of prevailing on her claims under section 1942.5, subdivision (d), we turn now to her tenth cause of action for violation of the Just Cause Ordinance. In her first amended complaint, Winslett alleges that Sagi violatеd the Just Cause Ordinance by wrongfully endeavoring to recover possession of her apartment, failing to make repairs, serving her with "misleading notices," attempting to trick her into moving out without just cause, and not advising her of her right to contact the rent board.
The Just Cause Ordinance provides that "[n]o landlord shall endeavor to recover possession, issue a notice terminating tenancy, or recover possession of a rental unit in the city of Oakland unless the landlord is able to prove the existence of one of the following grounds." (Oakland Mun. Code, § 8.22.360, subd. (A).) Among the stated grounds for eviction is when "[t]he tenant has failed to pay rent to which the landlord is legally entitled pursuant to the lease or rental agreement and under provisions of state or local law, and said failure has continued after service on the tenant of a written notice correctly stating the amount of rent then due and requiring its payment within a period, stated in the notice, of not less than three days. However, this subsection shall not constitute grounds fоr eviction where tenant has withheld rent pursuant to applicable law." (Oakland Mun. Code, § 8.22.360, subd. (A)(1).)
The Just Cause Ordinance also states that "[a] landlord shall not endeavor to recover possession of a rental unit unless" a permitted ground for eviction is set forth "in the notice and that ground is the landlord's dominant motive for recovering possession and the landlord acts in good faith in seeking to recover possession." (Oakland Mun. Code, § 8.22.360, subd. (B)(2).) Additionally, a notice terminating a tenancy must include "[a] statement that advice regarding the notice terminating tenancy is available from the Rent Board." (Oakland Mun. Code, § 8.22.360, subd. (B)(6)(b).) Finally, "[w]henever a landlord ... wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Subsection 6(A) [8.22.360 A], the tenant ... may institute a civil proceeding for ... money damages of not less than three times actual damages (including damages for mental or emotional distress), and whatever other relief the court deems appropriate. ..." (Oakland Mun. Code, § 8.22.370, subd. (A)(2), brackets in original.)
As noted above, the filing of an unlawful detainer action and the service of a notice to quit are acts arising from protected activity under the anti-SLAPP statute. " 'But the mere fact an action was filed after protected activity took place does not mean it arose from that activity.' [Citation.] 'Moreover, that a cause of action arguably may have been "triggered" by
Unlike her section 1942.5 claims as pleaded in the eighth and fifteenth causes of action, Winslett grounds her tenth cause of action on Sagi's retributive tactics prior to the eviction proceedings. While Winslett's section 1942.5 claims incorporate and replead all of the background allegations in her first amended complaint, including paragraph 15-which alleges the initiation of unlawful detainer proceedings as the culminating act-the background allegations incorporated into her tenth cause of action omit that paragraph. Sagi tries to argue around the careful framing of this claim by selectively focusing on a vague reference in it to "misleading notices," an allegation he contends can only refer to the notice to quit, which marked the formal initiation of the unlawful detainer process. But that reading of Winslett's claim for violation of the Just Cause Ordinance seems to us a stretch. Whatever she may have meant in referring to "misleading notices," we do not understand it as shorthand to reallege what she deliberately skipped over by omitting paragraph 15.
Ultimately, Sagi's position on the tenth cause of action rests on the argument that, in a brief filed in support of a discovery motion, Winslett admitted that this claim is based on the filing of an unlawful detainer action. Winslett does not deny that, in substance, her lawyers said as much in the offending brief, but she characterizes the language they used to describe the tenth cause of action there as an "unintentionally broad misstatement" that has no legal effect. This issue, in our view, is nothing but a distraction. We are not impressed by Sagi's attempt to draw Winslett into a debate over what was
In the sole case on which Sagi relies, Brown v. Boren (1999)
Accordingly, we conclude that the gravamen of Winslett's tenth cause of action is not rooted in the unlawful detainer action, in the notice to quit, or in any other protected free speech or petitioning activity, but rather lies in the broader circumstances surrounding the eviction, in particular all of the alleged pressure tactics designed to force Winslett to abandon her apartment and cease making complaints about tenantability. Because Winslett's Just Cause Ordinance claim does not arise out of protected activity, there were no grounds for striking it under the anti-SLAPP statute.
III.
CONCLUSION AND DISPOSITION
The trial court еrred in striking Winslett's eighth, tenth and fifteenth causes of action under Code of Civil Procedure section 425.16, subdivision (b).
We concur:
Reardon, J.
Schulman, J.
Notes
All statutory references are to the Civil Code unless otherwise stated.
By recent amendment effective January 1, 2018, section 1942.5, former subdivision (c) has been redesignated subdivision (d) in a set of revisions designed, among other things, to accommodate the addition of several new subdivisions. (See Stats. 2017, ch. 489, § 6, No. 6 West's Cal. Legis. Service, pp. 3720-3721.) All further references to section 1942.5 and its subdivisions will be to the current, recently redesignated subdivisions, except in certain instances where, in our discussion of prior law, we specifically reference former subdivisions for purposes of clarity.
Yugal Sagi used the entity 1811 27th Avenue LLC as a vehicle to hold ownership of the building. We refer to Mr. Sagi and 1811 27th Avenue LLC collectively as "Sagi" for convenience.
The stipulated dismissal included a waiver of Sagi's claims for rent and daily dаmages through June 4, 2015 (the date Winslett moved out), a waiver of claims on both sides for fees and costs incurred in the unlawful detainer action, and a waiver of Winslett's claim to her security deposit and last month's rent. The settlement terms do not mention any other claims and include no general mutual release of claims.
The pleaded claims in the operative first amended complaint are for: (1) tortious breach of the implied warranty of habitability (§ 1941); (2) contractual breach of the implied warranty of habitability (§ 1941); (3) violation of section 1942.4; (4) breach of contract (§ 3300 et seq.); (5) breach of quiet enjoyment (§ 1927); (6) private nuisance (§ 3501 et seq.); (7) premises liability (§ 1714); (8) retaliation in violation of section 1942.5, subdivision (d) ; (9) negligence; (10) violation of the Oakland Just Cause Ordinance (Oakland Mun. Code, § 8.22.300 et seq.); (11) violation of the Oakland Tenant Protection Ordinance (Oakland Mun. Code, § 8.22.600 et seq.); (12) constructive eviction-negligence; (13) unfair business practices (Bus. & Prof. Code, §§ 17200 et seq., 17500 ); (14) fraud; and (15) retaliatory eviction.
There are two sets of remedial provisions in section 1942.5. First, subdivision (a) prohibits certain acts by a landlord if they occur within 180 days of the tenant making specified complaints (§ 1942.5, subd. (a)(1)-(2) ) or of specified events occurring (id. , subd. (a)(3)-(5) ). Second, subdivision (d) provides that certain retaliatory acts by a landlord are illegal. While subdivision (a) and subdivision (d) are somewhat different in scope-most obviously because only a tenant who is not in default on her rent may invoke subdivision (a)-subdivision (h) makes "[a]ny lessor ... who violates this section ... liable to the lessee in a civil action." Because subdivision (h) applies broadly to any violation of "this section " (italics added), which of course includes subdivision (a), civil actions for damages appear to be available for violation of subdivision (a), as well as subdivision (d).
Without setting out an argument by separate heading, Winslett suggests as an aside in her opening brief that her eighth and fifteenth claims are supported by subdivision (a) as well as subdivision (d). But she does not explain why she is entitled to invoke subdivision (a) even though the eviction here was indisputably based on nonpayment of rent. Perhаps she would argue that she was current on her rent when the specific violations of section 1942.5, subdivision (a) she alleges took place; or perhaps she would take the position that the alleged uninhabitability of her apartment vitiated her rent obligation. We do not know, and we will not endeavor to guess. Arguments not raised by a separate heading in an opening brief will be deemed waived. (See Cal. Rules of Court, rule 8.204(a)(1)(B) ; Opdyk v. California Horse Racing Bd. (1995)
For its holding, the high court relied on two lines of precedent. First, the court cited Abstract Investment Co. v. Hutchinson (1962)
Second, the court drew on authority from a wholly different context, but one presenting similar considerations to those at issue with landlord retaliation against tenants. Citing the seminal employee termination in violation of public policy case (Petermann v. International Brotherhood of Teamsters (1959)
See section 1942.5, former subdivision (h), as enacted by Statutes 1979, chapter 652, section 2, page 2006 ["[t]he remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law"]; section 1942.5, subdivision (j), as amended by Statutes 2017, chapter 489, section 6, No. 6 West's California Legislative Service, page 3721.
In unlawful detainer proceedings tenants are not allowed to file cross-complaints. (Knowles v. Robinson (1963)
Section 1942.5, former subdivision (d) has been recodified in section 1942.5, subdivision (f), with some changes in wording that are not material here. (See Stats. 2017, ch. 489, § 6, No. 6 West's Cal. Legis. Service, p. 3720.)
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.