Ahdoot v. 10811 Ashton Apartments

Filed 5/2/07 Ahdoot v. 10811 Ashton Apartments CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Valerie L. Baker, Judge. Affirmed.

James H. Lehr for Plaintiffs and Appellants.

Law Offices of Joel F. Citron, Joel F. Citron, Thomas H. Citron; Lascher & Lascher and Alfred Vargas for Defendants and Respondents.

* * * * * *

Jason Ahdoot, Mahnaz Hendifar, and Paul Hendifar appeal from the order granting the special motion of respondents, 10811 Ashton Apartments, a California Limited Partnerhsip (Ashton), Ishak Bibawi and Soraya Soltani, to strike four causes of action of the complaint and the order for related attorney fees pursuant to the SLAPP statute. (Code Civ. Proc., 426.16 et seq.)^[1]

SLAPP is an acronym for strategic lawsuits against public participation. A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.^[2]( 425.16, subd. (b)(1).)

Appellants contend reversal of the order granting the SLAPP motion is compelled, because although service of a three-day notice to pay rent or quit (Three-Day Notice) constitutes activity protected under the SLAPP statute, the stricken causes of action did not arise from the notice but from respondents unprotected activities. They challenge the related order awarding respondents attorney fees and costs as prevailing defendants solely on the ground that reversal of the order granting the motion to strike mandates reversal of the order for attorney fees and costs.

We conclude the stricken causes of action arose primarily from respondents service of the Three-Day Notice and the exercise of their right to freedom of speech, both activities protected under the SLAPP statute. The orders striking the first, second, fifth and sixth causes of action and awarding attorney fees and costs were thus correct. We therefore affirm both orders.

BACKGROUND

The Complaint

On October 11, 2005, appellants filed a verified complaint asserting claims for: (1) wrongful eviction; (2) retaliatory eviction; (3) invasion of privacy; (4) slander; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) breach of agreement (written lease); and (8) common counts.

In pertinent part, the complaint alleged: About December 9, 2002, appellants rented apartment 107 at 10811 Ashton Avenue in Los Angeles, from its owner Ashton. Pursuant to the written agreement, the tenancy was for a one-year period at a monthly rental amount of $1,700, payable in advance on the first day of every month, beginning December 1, 2002.

Appellants were in possession of the premises from about December 1, 2002 until January 7, 2005, on which date [appellants] vacated the premises in accordance with a notice to quit and notice of eviction served on [them]. Appellants alleged on information and belief that during the period of their tenancy they were not in default in paying rent.

The complaint also alleged that on or about October 29, 2004, two tenants of the apartment complex knocked on appellants door and demanded to know why appellants had requested their car be towed. Appellants never requested such action. One tenant explained that Soltani told him appellants made the request. When Ahdoot asked Soltani why she had lied to the tenants, Soltani, who was standing outside the door, became agitated, began yelling and approached [him]. Ahdoot asked Soltani to leave and closed the door. Soltani burst into the premises and demanded appellants move out.

On the following morning, Ahdoot was awakened by a maintenance man inside the apartment. Soltani had provided a key to the maintenance worker and told him to go into the apartment to perform nonemergency work without notice in violation of Civil Code section 1954. This was merely one example of many acts of harassment and oppression designed to intimidate appellants and force them to vacate the premises.

On or about October 31, 2004, appellants orally complained to Soltani about repeated intrusions into their privacy and unauthorized entries into the apartment. Appellants demanded an end to these intrusions.

On November 1, 2004, respondents served appellants with a notice of change of terms of tenancy increasing the monthly rent in violation of Civil Code sections 827 and 1942.

About December 7, 2004, respondents served appellants with a Three-Day Notice. Appellants asked Bibawi whether a retaliatory eviction was taking place. Robert Schibel, Bibawis attorney, responded by letter to appellants dated December 13, 2004 that they were being evicted for failure to pay appropriate rent.

Appellants alleged on information and belief that the rent increase, the notice to quit and the eviction proceedings were in retaliation to appellants complaints about intrusions into their privacy and unauthorized entries into their apartment.

In the first (wrongful eviction) and second (retaliatory eviction) causes of action, appellants sought recovery of their moving expenses and additional rent based on Civil Code section 1942 which prohibits a landlord from evicting tenants for retaliatory purposes. Appellants also sought punitive damages (Civ. Code, 3294).

Appellants sought general damages and punitive damages in the fifth cause of action for intentional infliction of emotional distress based on the additional allegation that respondents spread lies about them, harassed them and their family members, and ultimately wrongfully evicted them from their home in retaliation for appellants lawful and rightful action.

The sixth cause of action for negligent infliction of emotional distress sought similar damages on the further allegation that respondents Ashton, Bibawi, and Soltani breached their duty as landlord, officer, and building manager, to provide appellants with a safe living environment by harassing and oppressing appellants on an almost daily basis from about September 1, 2004 until they vacated the premises on January 7, 2005.

The Motion to Strike

On November 23, 2005, respondents filed a special motion to strike these causes of action under the SLAPP statute.^[3] They argued that these causes of action arose from the issuance of the Three-Day Notice, and were therefore protected by the litigation privilege (Civ. Code, 47, subd. (b)), and the SLAPP statute.

Respondents also argued it was not probable that appellants could prevail on the first and second causes of action. They presented evidence to show that no wrongful eviction could be shown because respondents did not initiate eviction proceedings after appellants paid the $100 rent increase that was the subject of the Three-Day Notice and that appellants, without notice or paying their January 2005 rent, voluntarily vacated the premises on January 7, 2005. Respondents argued that for the same reason retaliatory eviction could not be shown.^[4]

Respondents also argued that appellants probably would not prevail on the fifth cause of action for intentional infliction of emotional distress because the factual basis alleged did not rise to the level of extreme or outrageous conduct. These alleged facts were: (1) Soltani told two tenants that appellants had requested their car be towed; (2) the next morning Soltani allowed a maintenance man access to their premises to perform nonemergency work; and (3) appellants were served with the Three-Day Notice.

Respondents argued these factual allegations were also insufficient to state a sixth cause of action for negligent infliction of emotional distress because the alleged conduct did not abridge respondents duty to provide a safe and sound living environment free from harmful elements. They argued the cause of action was in fact for negligence and that damages for emotional distress were not recoverable when only an economic loss was suffered.

Appellants filed opposition.

In their reply, respondents argued that by their failure to discuss the litigation privilege bar (Civ. Code, 47, subd. (b)) appellants had conceded that issue and that the first (wrongful eviction) and second (retaliatory eviction) causes of action should be dismissed. They further argued that appellants failure to discuss the fifth and sixth causes of action should be deemed a concession that those claims arose from the Three-Day Notice and should be stricken.

On January 20, 2006, the trial court granted the SLAPP motion as to the first, second, fifth and sixth causes of action. The court found that respondents had met their initial burden to show these causes of action arose from activity protected under the SLAPP statute, because the Three-Day Notice and the alleged wrongful eviction are protected speech. The court also found that appellants were not likely to prevail on the merits of these claims and granted the motion as to these causes of action.

Respondents then moved for attorney fees and costs as prevailing defendants under the SLAPP statute.

On March 1, 2006, following a hearing, the trial court granted the motion in the amount of $4,218.66, or 80 percent of total fees sought because respondents had prevailed on four of five causes of action they challenged.

DISCUSSION

I. Special Motion to Strike Properly Granted

In ruling on a SLAPP motion, the court makes a two-step determination: First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ( 425.16, subd. (b)(1).) A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e) [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. ( 425.16, subd. (b)(1) . . . .) (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 . . . ; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Only a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)

The trial court found respondents had satisfied both prongs of this test. Because appellants challenge is addressed solely to the first prong, we deem appellants to have conceded the propriety of the courts findings as to the second prong. We shall review the trial courts findings de novo. (See, e.g., Thomas v. Quintero, supra, 126 Cal.App.4th at p. 645.)

A defendant meets the threshold burden to show the challenged cause of action arises from protected activity by demonstrating that defendants act underlying the plaintiffs cause of action . . . itself [was] an act in furtherance of the right of petition or free speech. [Citation.] (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Nonetheless, the mere fact an action was filed after protected activity took place does not mean it arose from that activity. (Id. at pp. 7677, italics added.) Moreover [t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such. (Id. at p. 78.)

In the SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech and the focus is on the substance of the action in determining whether it arose from the defendants protected activities. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) In other words, whether the SLAPP statute applies turn on the gravamen of the cause of action challenged.

Where both constitutionally protected and unprotected conduct is implicated by a cause of action, a plaintiff may not immunize a cause of action challenging protected free speech or petitioning activity from a special motion under section 425.16 by the artifice of including extraneous allegations concerning nonprotected activity. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) Thus, when allegations of nonprotected activity are incidental or collateral to a plaintiffs claim challenging primarily the exercise of the rights of free speech or petition, they may be disregarded in determining whether the cause of action arises from protected activity. Conversely, if 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. (See Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 [anti-SLAPP statute does not provide protection to suits arising from any act having any connection, however remote, with [protected conduct]].) (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414415.)

When the relevant factual allegations of the complaint are considered in context, the only reasonable inference to be drawn is that the gravamen of the first, second, fifth, and sixth causes of action is grounded in respondents exercise of their rights to petition for redress of grievances and to free speech, which are protected activities under the SLAPP statute. Setting aside the extraneous and peripheral factual allegations, it is evident that the gist of appellants claim arises from the allegations regarding the imposition of the rent increase, service of notice to quit and the initiation of eviction proceedings and that respondents maliciously served [appellants] with a Three-Day Notice . . . . for failure to pay the rent increase.

The service of a Three-Day Notice is a prerequisite to the maintenance of an unlawful detainer action based on failure to pay rent. Service of this Three-Day Notice therefore qualifies as a protected activity under the SLAPP statute. (See 425.16, subd. (e)(1) [any written or oral statement or writing made before a . . . judicial proceeding]; cf. Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318 [where landlord applied for illegal rent increase and rent control board sued to compel compliance with rent control law, action based on violation of law, not application; grant of SLAPP motion reversed].)

II. Challenge to Order Awarding Fees and Costs Moot

Appellants acknowledge they are not challenging the amount of fees awarded; rather they are simply making the obvious point that, if the trial courts [SLAPP motion] ruling is reversed on this appeal, its separate ruling awarding attorney fees on Respondents Motion . . . must also be reversed. Our affirmance of the order granting the SLAPP motion thus obviates the need to address appellants challenge to the fee and cost order.

DISPOSITION

The orders appealed from are affirmed. Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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^[1] All further section references are to the Code of Civil Procedure unless otherwise indicated.

^[2] In enacting the SLAPP statute, the Legislature made these findings and declarations: The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. ( 425.16, subd. (a).)

^[3] The court denied respondents motion as to the fourth slander cause of action.

^[4] In his declaration, Bibawi, Ashtons general partner, stated that on December 1, 2002, Mahnaz Hendifar leased the premises for the monthly rent of $1,700. In January 2004, the rent was decreased to $1,600 in view of construction noise from an adjacent apartment building. After the noise abated in September or October 2004, Bibawi directed Soltani, the apartment complex manager, to notify appellants that effective November 2004 the monthly rent would return to $1,700. Effective December 2004, the monthly rent was increased by $100, because appellants apartment and several others were due for their annual increase and this was the first increase in rent in two years. Appellants rent payment for December 2004 did not include the $100 increase.

Appellants were served the Three-Day Notice, after which Bibawi received a letter from Ahdoot accusing him of retaliatory eviction. Shortly thereafter appellants paid the $100 and then abruptly, and without notice, moved out in early January 2005. One months rent was deducted from appellants security deposit, because no 30-day notice had been given.

Soltani corroborated Bibawis statements in her own declaration and explained that Mahnaz Hendifar had leased the premises for her son Paul and a friend Ahdoot. She denied accusing Ahdoot or any tenant of having a car towed from the parking space assigned to the apartment. Rather, when a tenant approached and asked if Soltani had seen her car which was parked in the visitors parking space, Soltani explained that space was assigned to the premises and was not for visitor parking.