Copenbarger v. Morris Cerullo World Evangelism

























Filed 4/3/13 Copenbarger v. Morris Cerullo World
Evangelism CA4/3





















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

PAUL D. COPENBARGER, Plaintiff and Appellant, v. MORRIS CERULLO WORLD EVANGELISM et al., Defendants and Respondents.

G046273 (Super. Ct. No. 30-2011-00479442) O P I N I O N

Appeal from orders of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Francisco F. Firmat, Judge. Reversed and remanded.

Paul D. Copenbarger, in
pro. per.; John L. Dodd & Associates and John L. Dodd for Plaintiff and
Appellant.

Darryl J. Paul for
Defendants and Respondents.

* * *

Introduction

Paul
D. Copenbarger, acting individually and derivatively on behalf of Newport Harbor
Offices & Marina, LLC (NHOM), appeals from the order granting the special
motion to strike his complaint pursuant to the href="http://www.fearnotlaw.com/">anti‑SLAPP statute, Code of Civil
Procedure section 425.16 (further code references are to the Code of Civil
Procedure unless otherwise specified).href="#_ftn1" name="_ftnref1" title="">^[1]

NHOM
is the sublessee, and defendant/respondent Morris Cerullo Worldwide Evangelism
(Cerullo) is the sublessor under a sub‑ground lease of real property in Newport
Beach. After
Cerullo served NHOM with a three‑day notice to cure or quit, Copenbarger
filed a complaint asserting causes of action against Cerullo, Plaza del Sol
Real Estate Trust (Plaza del Sol), Roger Artz, Dennis A. D’Alessio, and
Vertical Media Group, Inc. (VMG) (collectively, Respondents), for declaratory
relief, breach of contract, and intentional interference with contract.href="#_ftn2" name="_ftnref2" title="">^[2] Soon thereafter, Cerullo filed an unlawful
detainer action against NHOM, and all Respondents brought their successful
anti-SLAPP motion to strike Copenbarger’s complaint.

The
dispositive issue on appeal is whether the causes of action asserted in
Copenbarger’s complaint arose out of Cerullo’s petitioning activity—protected
under section 425.16, subdivision (b)(1)—of service of the three‑day
notice to cure or quit and the subsequent unlawful detainer action. We conclude that while the three‑day
notice might have triggered the complaint, the evidence in the record
demonstrates the complaint was based on an underlying dispute over NHOM’s
repair and maintenance obligations under the sublease and other unprotected
activities. We therefore reverse the
order granting the anti‑SLAPP motion and the order awarding Respondents
attorney fees.

>Facts
and Allegations of the Complaint

In
1963, John J. Jakosky and Katherine F. Jakosky, as lessors, and F. David Young,
as lessee, entered into a 55‑year ground lease (the Ground Lease) of
unimproved real property (the Property) in Newport Beach. In 1987, a multistory office building and
marina were constructed on the Property by the lessee at the time. Under the terms of the Ground Lease, the
lessee is the owner of any improvements constructed on the Property.

Sometime
before December 2003, Cerullo became the lessee under the Ground Lease. In January 2004, Cerullo entered in a sub‑ground
lease of the Property (the Sublease) with NHOM for a term expiring in November
2018. NHOM had been formed by Kent A.
McNaughton and Copenbarger, who are its members. By quitclaim deed, Cerullo conveyed title to
the improvements on the Property to NHOM.


Also
in January 2004, The Hazel I. Maag Trust (the Maag Trust) loaned
$3 million to NHOM, which used the loan proceeds as partial payment to
purchase the improvements on the Property and to acquire the Sublease. The loan was evidenced by a promissory note,
which was secured by a first priority deed of trust on the improvements and the
Sublease. At the same time, NHOM
executed a promissory note in the amount of $1.15 million in favor of Plaza del
Sol. The promissory note to Plaza del
Sol (the Plaza del Sol Note) was made to pay for the balance of the purchase
price of the improvements and acquisition of the Sublease. The Plaza del Sol Note was secured by a
second priority deed of trust (the Plaza del Sol Deed of Trust) on the
improvements and the Sublease. Roger
Artz was the trustee of Plaza del Sol and a vice‑president of
Cerullo.

In
April 2010, Cerullo, Plaza del Sol, and the Maag Trust entered into an
agreement (the Assignment for Collection), under the terms of which the Maag
Trust agreed to make certain payments on the Plaza del Sol Note, to reimburse
Plaza del Sol for real property taxes it paid on the improvements and the
Property, and to make future payments to Plaza del Sol in the amount equal to
payments due on the Plaza del Sol Note as such payments became due. Cerullo and Plaza del Sol agreed not to
declare a default under the Sublease on account of then existing defaults so
long as the Maag Trust made the agreed‑upon payments.

D’Alessio
was the president of VMG. The complaint
alleged that sometime before April 22, 2011, D’Alessio approached Artz and
proposed that he cause Cerullo and Plaza del Sol to breach the Ground Lease,
the Sublease, and the Assignment for Collection, by declaring a default under
the Sublease and terminating it. In the
appellant’s opening brief, Copenbarger asserts the purpose of D’Alessio’s
proposal was “to obtain the Property and the improvements for himself at no
cost, free of the Maag Trust Deed, so they could be acquired by D’Alessio
and/or an entity controlled by him.”
(Some capitalization omitted.) In
response to D’Alessio’s proposal, Cerullo and Plaza del Sol entered into a
management agreement with VMG and authorized D’Alessio to serve NHOM with
default notices.

On
April 22, 2011, VMG, on behalf of Cerullo, served NHOM with a 30‑day
notice (the 30‑day notice) to cure certain maintenance and other related
defaults under the Ground Lease and the Sublease. The 30‑day notice asserted that NHOM
breached paragraph 1.2 of the Sublease by failing to maintain and repair
both the improvements and the Property.
The 30‑day notice stated:
“[W]e have conducted a limited inspection of the Property and have
discerned there to be a wholesale failure on the part of [NHOM] to perform even
a modicum of maintenance or repair to any aspect of the building or any part of
it, to include major structural components.”
The 30‑day notice included a list of maintenance and repair issues
and demanded that NHOM address them within 30 days.

By
letter dated May 18, 2011, Copenbarger, on behalf of NHOM, responded to
the 30‑day notice. He asserted,
among other things, the sublessee’s duty to maintain and repair under the
Sublease did not extend to the improvements on the Property because the
improvements were never subject to the Ground Lease and were conveyed by
quitclaim deed to NHOM. By letter of the
same date, Lloyd Copenbarger, as trustee of the Maag Trust, informed Artz and
Plaza del Sol that the Maag Trust had requested that a property management
company determine what repairs and maintenance needed to be made at the
Property and arrange for those repairs and maintenance to be made, at the Maag
Trust’s expense.

On
May 26, 2011, VMG, on behalf of Cerullo, served a three‑day notice
to cure or quit (the three‑day notice) on NHOM, based on “[y]our failure
to cure the breaches of your Sub‑Ground Lease
. . . .” Five days later,
Copenbarger, both in his individual capacity and derivatively on behalf of
NHOM, filed this lawsuit. The complaint
asserted three causes of action: (1) declaratory
relief against Cerullo, Plaza del Sol, D’Alessio, and VMG; (2) breach of
contract against Cerullo and Plaza del Sol; and (3) intentional
interference with contract against Artz, D’Alessio, and VMG. In the declaratory relief cause of action, Copenbarger
alleged a controversy exists among the parties “concerning their respective
rights and duties arising under” the Ground Lease, the Sublease, the Plaza del
Sol Deed of Trust, and the quitclaim deed.
Copenbarger contended, among other things, NHOM had no duty to repair
the improvements to the Property, the 30‑day notice and the three‑day
notice were premature and did not comply with the Ground Lease, and NHOM is the
owner of the improvements to the Property.

>

>Unlawful
Detainer Action

In
June 2011, Cerullo commenced an unlawful detainer action against NHOM
predicated on the 30‑day notice and the three‑day notice. The unlawful detainer complaint alleged NHOM
was in breach of the maintenance and repair covenant of the Sublease, alleged
service of the 30‑day notice and the three‑day notice, and attached
copies of those notices.

NHOM
demurred to the unlawful detainer
complaint, and, in response, Cerullo filed an amended unlawful detainer
complaint. Instead of alleging breach of
the maintenance and repair covenant, the amended unlawful detainer complaint
alleged nuisance, that is, “[t]he failures of NHOM to effect repairs to and/or
maintenance on the [P]roperty have resulted in public and private nuisances and
dangerous conditions, caused the [P]roperty to be in violation of building and
zoning codes, and constitute waste . . . .” On August 1, 2011, VMG, on behalf of
Cerullo, served a second 30‑day notice on NHOM. The second 30‑day notice was
substantially the same as the first one, but asserted that NHOM’s failure to
make the identified repairs and maintain the improvements to the Property “has
allowed the [P]roperty to become a public and private nuisance, constitutes
waste, and constitutes violations of the building codes of the City of Newport
Beach.”



The Anti-SLAPP Motion

Respondents
brought a special motion to strike Copenbarger’s complaint under the anti‑SLAPP
statute. The motion asserted
Copenbarger’s lawsuit was a “meritless action filed in an attempt to intimidate
the moving parties, to chill their rights to enforce contracts in which
[Cerullo] is a party, and to bludgeon the moving parties into submission so
that [Cerullo] would forego the commencement of an unlawful detainer action
against [NHOM].” Copenbarger opposed the
motion.

In
October 2011, the trial court granted the special motion to strike. In the written order granting the motion, the
court stated: “After consideration of
the matter, the Court finds that all of the Defendants have sustained their
burden to show Plaintiff’s lawsuit arises from Defendants’ exercise of free
speech. The Landlord’s service of the
three day notice to quit was a communication preparatory to the bringing of the
unlawful detainer action and thus constituted a protected activity within the
anti SLAPP statute per Feldman v. 1100
Park Lane, 160 Cal App 4th 1467.
[¶] The burden thus shifted to
Plaintiff to establish a probability that Plaintiff will prevail on the claims
asserted against Defendants. 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. Plaintiff has failed to do either.”

Respondents
moved to recover nearly $31,100 in attorney fees and costs, and Copenbarger
moved for reconsideration of the order granting the anti‑SLAPP special
motion to strike. The trial court denied
the motion for reconsideration, and, though granting the motion for attorney
fees, awarded Respondents only $6,557. Copenbarger
timely appealed from the order granting the special motion to strike under the
anti‑SLAPP statute and from the order granting Respondents’ motion for
attorney fees.



Discussion

I.

The Anti‑SLAPP Statute

“Section 425.16
provides for a special motion to strike ‘[a] cause of action against a person
arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue.’ (§ 425.16, subd. (b)(1).)” (Cabrera
v. Alam (2011) 197 Cal.App.4th 1077, 1085.)


The
trial court undertakes a two-step analysis in deciding the merits of an anti‑SLAPP
suit. First, the court must decide
whether the defendant has made a threshold showing that the challenged cause of
action arose from the defendant’s protected activity. (Taus
v. Loftus (2007) 40 Cal.4th 683, 712.)
If the defendant fails to satisfy this burden, then the special motion
to strike must be denied. (>City of Cotati v. Cashman (2002) 29
Cal.4th 69, 76.) If the trial court
finds that such a showing has been made, then the court must decide whether the
plaintiff has demonstrated a probability of prevailing on the challenged cause
of action. (Ibid.) We independently
review the trial court’s order granting the special motion to strike under the
de novo standard. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325‑326.)

>II.

>The Complaint Was Not Based on Respondents’
Protected Activity Within the Meaning

of the Anti‑SLAPP Statute.

The
“critical consideration” under the first part of the anti-SLAPP analysis is
“whether the cause of action is based on
the defendant’s protected free speech or petitioning activity.” (Navellier
v. Sletten (2002) 29 Cal.4th 82, 89.)
“The anti‑SLAPP statute’s definitional focus is not the form of
the plaintiff’s 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.) “In deciding
whether the ‘arising from’ requirement is met, a court considers ‘the
pleadings, and supporting and opposing affidavits stating the facts upon which
the liability or defense is based.’” (>City of Cotati v. Cashman, >supra, 29 Cal.4th at p. 79.)

A. The
Complaint Was Not Based on Service of the Three‑day Notice

or the Unlawful Detainer Complaint.

An
unlawful detainer action is protected activity within the meaning of section
425.16. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 (>Clark); Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (>Birkner).) It has been held that service of a three‑day
notice to quit also is protected activity within the meaning of
section 425.16 because service of the notice is legally required to file
an unlawful detainer action. (>Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467, 1480 (Feldman);
Birkner, supra, at pp. 281‑282.)

Although
an unlawful detainer action itself is protected activity under
section 425.16, terminating a lease is not. (Clark,
supra, 170 Cal.App.4th at
pp. 1286‑1287; Marlin v. Aimco
Venezia, LLC (2007) 154 Cal.App.4th 154, 158 (Marlin).) A complaint
arising out of or based on the dispute or conduct underlying the unlawful
detainer action is not subject to a special motion to strike. “‘[T]he mere fact that an action was filed
after protected activity took place does not mean the action arose from that
activity for the purposes of the anti‑SLAPP statute.’” (Marlin,
supra, at p. 160.) When, as in this case, the challenged lawsuit
follows service of a three‑day notice to quit, “[t]he pivotal
distinction” is “whether an actual or contemplated unlawful detainer action by
a landlord (unquestionably a protected petitioning activity) merely ‘preceded’
or ‘triggered’ the tenant’s lawsuit, or whether it was instead the ‘basis’ or
‘cause’ of that suit.” (>Clark, supra, at p. 1289.)

>Clark is instructive. In that case, a landlord evicted a tenant
from a rent‑controlled apartment, ostensibly to free the unit for
occupancy by the landlord’s daughter. (>Clark, supra, 170 Cal.App.4th at p. 1284.) The tenant filed a complaint alleging the
landlord fraudulently represented in the unlawful detainer action that the
landlord intended for her daughter to move into the apartment, purposefully
kept the apartment unoccupied, and performed renovations with the goal of
reletting the unit to a new tenant for a higher monthly rent. (Id.
at pp. 1284‑1285.) The trial
court granted the landlord’s special motion to strike the complaint under the
anti‑SLAPP statute. (>Ibid.)

Reversing,
the Court of Appeal reasoned the complaint was not premised on the landlord’s
prosecution of the unlawful detainer action, but on the landlord’s removal of
the apartment from the rental market and fraudulent eviction of the tenant. (Clark,
supra, 170 Cal.App.4th at
p. 1286.) Although the unlawful
detainer action triggered the tenant’s lawsuit, that lawsuit was based on
claims the landlord fraudulently invoked the family occupancy exemption of the
rent control ordinance and failed to fulfill her obligations under that
ordinance. (Id. at p. 1290.)

Three
other cases guide our analysis. In >Marlin, supra, 154 Cal.App.4th at page 157, the landlords filed notice
under the Ellis Act (Gov. Code, § 7060 et seq.) of their intention to
permanently remove apartment units from the rental market and, at the same
time, served the tenants with notice to vacate their units. Two tenants brought a declaratory relief
action against the landlords, seeking a declaration of rights under the Ellis
Act. (Marlin, supra, at
p. 157.) The landlords responded
with an anti‑SLAPP motion that asserted the tenants’ lawsuit arose out of
the landlords’ act of filing and serving the Ellis Act notices. (Id.
at p. 158.) The trial court granted
the anti‑SLAPP motion, and the Court of Appeal reversed. (Id.
at pp. 158, 163.) The Court of
Appeal reasoned: “Defendants have fallen
victim to the logical fallacy post hoc ergo propter hoc—because the notices
preceded plaintiffs’ complaint the notices must have caused plaintiffs’
complaint. The filing and service of the
notices may have triggered plaintiffs’ complaint and the notices may be
evidence in support of plaintiffs’ complaint, but they were not the cause of
plaintiffs’ complaint. Clearly, the
cause of plaintiffs’ complaint was defendants’ allegedly wrongful reliance on
the Ellis Act as their authority for terminating plaintiffs’ tenancy. name=3062-161> Terminating 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.” (Id.
at pp. 160‑161, fns. omitted.)

Under
similar reasoning, the court in Department
of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC
(2007) 154 Cal.App.4th 1273 (DFEH)> affirmed an order denying a landlord’s
anti‑SLAPP motion to strike. The
landlord had sought to permanently remove its apartment building from the
rental market under the Ellis Act. (>DFEH, supra, at pp. 1275-1276.)
One tenant asserted she was disabled and requested an extension of time
to find alternate housing, as required under state and local law for disabled
tenants. (Ibid.) The tenant declined the landlord’s
request to provide detailed information on her disability and claimed that
divulging such information would violate her right to privacy. (Id.
at. pp. 1275, 1278.) The landlord
ultimately removed the tenant through unlawful detainer. (Id.
at p. 1275.) The Department of Fair
Employment and Housing (the department) brought a lawsuit against the landlord
for disability discrimination, and the landlord responded with an anti‑SLAPP
motion. (Id. at pp. 1275‑1276.)
Affirming the order denying the motion, the Court of Appeal reasoned the
“gravamen” of the department’s lawsuit against the landlord was for disability
discrimination, and was not “an attack on any act [the landlord] committed
during the rental property removal process or during the eviction process
itself.” (Id. at p. 1284.) The
complaint’s allegations of wrongdoing were based on the landlord’s alleged acts
of failing to accommodate the tenant’s disability; “[t]he letters, e‑mail
and filing of unlawful detainer actions constituted [the department]’s >evidence of [the landlord]’s alleged
disability discrimination.” (>Id. at pp. 1284‑1285.)

In
the recent case of Oviedo v. Windsor
Twelve Properties, LLC (2012) 212 Cal.App.4th 97, the Court of Appeal
reversed an order granting a landlord’s anti‑SLAPP motion to strike a
tenant’s cause of action for violation of a rent control ordinance. The landlord filed an unlawful detainer
action against the tenant because she failed to pay an increased amount of
rent. (Id. at p. 105.) After
the landlord voluntarily dismissed the unlawful detainer action, the tenant
filed a complaint against the landlord, which asserted, among other things, the
rent increase violated the rent control ordinance. (Id.
at p. 106.) The Court of Appeal
concluded the cause of action for violation of the rent control ordinance was
not based on the unlawful detainer action, a 60‑day notice of intent to
increase rent, or on a three‑day notice to pay rent or quit, all of which
are protected activities within the meaning of section 425.16. (Oviedo,
supra, at pp. 110-111.) Rather, the cause of action for violation of
the rent control ordinance arose out of the landlord’s allegedly illegal act of
raising the tenant’s rent. (>Ibid.)

In
this case, service of the three‑day notice preceded the complaint and
might have triggered Copenbarger to file it, but the complaint was not based on
service of that notice. The first cause
of action, for declaratory relief, does not attack the service of the three‑day
notice or the unlawful detainer action itself:
The gravamen of the declaratory relief cause of action is a dispute over
the parties’ respective rights and obligations under certain terms of the
Ground Lease and the Sublease. The first
cause of action sought a declaration on several issues arising under the
Sublease, including whether NHOM owned the improvements to the Property and had
a duty to maintain and repair them. The
30‑day notice constituted evidence these lease interpretation issues were
genuinely in dispute. Cerullo’s decision
to amend the unlawful detainer complaint and the 30‑day notice in order
to assert nuisance, rather than breach of the covenant to maintain and repair,
is evidence the declaratory relief cause of action was brought in good
faith.

Respondents
argue there is “nothing in the record to establish that the supposed
controversy exists otherwise than as stated as a product of the prosecution of
an unlawful detainer action proceeding by [Cerullo].” The 30‑day notice and Copenbarger’s
May 18 letter in response constitute evidence demonstrating the existence
of a conflict over the rights and obligations of the parties to the
Sublease. The 30‑day notice
asserted NHOM breached its maintenance and repair obligations under the
Sublease. The May 18 letter
asserted NHOM’s maintenance and repair obligations under the Sublease did not
extend to the improvements on the Property because the improvements were never
subject to the Ground Lease and were conveyed by quitclaim deed to NHOM.

Respondents
did not meet their threshold burden of demonstrating the second cause of
action, for breach of contract, arose out of protected activity. The second cause of action alleged Cerullo
and Plaza del Sol breached the Sublease by failing to give a 60‑day
written notice to NHOM as required under the terms of the Ground Lease, which
were incorporated into the Sublease.
Although the second cause of action was triggered by Cerullo’s
commencement of unlawful detainer proceedings, that cause of action was based
on Cerullo’s alleged breach of the Sublease, not on the notices
themselves.

Respondents
also did not meet their threshold burden of demonstrating the third cause of
action, for intentional interference with contract, arose out of protected
activity. The third cause of action
alleged Artz, D’Alessio, and VMG intentionally interfered with the Sublease by
inducing Cerullo to seek to terminate it.
The third cause of action was not brought against Cerullo, the party for
which the 30‑day notice and the three‑day notice were served. The acts giving rise to the third cause of
action were not service of the three‑day notice, but the alleged conduct
of Artz, D’Alessio, and VMG in inducing Cerullo to serve the notice and attempt
to terminate the Sublease.

B. Feldman and
Birkner are Dissimilar.

The
trial court in this case cited Feldman,
supra, 160 Cal.App.4th 1467, in the
order granting the anti‑SLAPP special motion to strike. In Feldman,
the landlord filed an unlawful detainer action against the tenant and
subtenants on the ground the subtenants were unapproved. (Id.
at pp. 1473‑1474.) The
subtenants filed a cross‑complaint for damages against the landlord,
alleging retaliatory eviction, negligence, negligent misrepresentation, breach
of the covenant of quiet enjoyment, and other causes of action. (Id.
at p. 1475.) The landlord brought
an anti‑SLAPP motion to strike the cross‑complaint. (Id.
at pp. 1475‑1476.) The trial
court granted the motion only as to the retaliatory eviction cause of
action. (Id. at p. 1473.)

The
Court of Appeal concluded the anti-SLAPP special motion to strike should have
been granted on all causes of action except that for negligent misrepresentation. (Feldman,
supra, 160 Cal.App.4th at
p. 1473.) The court reasoned that,
with the exception of the negligent misrepresentation cause of action, the
cross‑complaint was based on the filing of the unlawful detainer action,
service of the notice to quit, and statements made by the landlord’s agent in
connection with the eviction and unlawful detainer action. (Id.
at p. 1483.) “These activities,”
the court stated, “are not merely cited as evidence
of wrongdoing or activities ‘triggering’ the filing of an action that
arises out of some other independent activity.
These are the challenged
activities and the bases for all causes of action, except possibly that of
negligent misrepresentation.” (>Ibid.).

Respondents
cite Birkner, supra, 156 Cal.App.4th at page 279, in which the landlord
served the tenants with a 60‑day notice to terminate tenancy under a rent
control ordinance. The landlord sought
possession to allow his mother to live in the building. (Ibid.) The tenants’ counsel notified the landlord that
the tenants could not be evicted because they were protected tenants under the
ordinance. (Ibid.) When the landlord
refused to rescind the termination notice, the tenants filed a complaint
against him for wrongful eviction, negligence, breach of the covenant of quiet
enjoyment, and intentional infliction of emotional distress. (Id.
at pp. 278‑279.) The trial
court denied the landlord’s anti‑SLAPP motion on the ground the tenants’
complaint was not based on protected activity within the meaning of section 425.16. (Birkner,
supra, at p. 280.) The Court of Appeal reversed. Although the court acknowledged that
terminating a tenancy or removing a unit from the rental market is not activity
taken in furtherance of the constitutional right of petition or free speech,
the court concluded the sole basis for the tenants’ lawsuit was the service of
the termination notice and the landlord’s refusal to rescind it, activities
protected under the anti‑SLAPP statute.
(Id. at pp. 281‑283.) The court distinguished Marlin on the basis the tenants’ claims in that case were based on
the landlords’ conduct, which preceded service of the termination notice, of
relying on the Ellis Act to evict the tenants.
(Birkner, supra, at pp. 282‑283.)

This
case is dissimilar to Birkner and >Feldman because the causes of action
alleged by Copenbarger did not arise out of service of the 30‑day notice
and the three‑day notice. Instead,
the case is similar to Clark, >Marlin, and DFEH because the declaratory relief cause of action is based
Copenbarger’s claim that NHOM had no obligation to maintain and repair the
improvements to the Property—the ground on which Cerullo sought to terminate
the Sublease. The complaint and the
evidence submitted in connection with the anti-SLAPP motion establish the 30‑day
notice and the three‑day notice were, at most, evidence of an underlying
dispute over interpretation of various lease terms, including whether NHOM
owned the improvements to the Property and had a duty to maintain and repair
them. The breach of contract cause of
action asserted an independent breach of a notice provision in the Ground
Lease, and the interference cause of action is not asserted against the
landlord, Cerullo.

>III.

>Probability of Prevailing on the

Challenged Causes of Action

We
do not consider whether Copenbarger demonstrated he is likely to succeed on the
merits of the challenged causes of action because Respondents did not meet
their threshold burden of showing the complaint was based on protected
activity. The trial court erred in
granting the anti‑SLAPP motion; therefore, the trial court also erred in
awarding Respondents attorney fees under section 425.16,
subdivision (c). (>Clark, supra, 170 Cal.App.4th at p.
1290, fn. 5.)

>

>Disposition

The
order granting the special motion to strike and the order awarding attorney
fees are reversed. The matter is
remanded for further proceedings.
Appellant shall recover costs incurred on appeal.







FYBEL,
J.



WE CONCUR:







RYLAARSDAM,
ACTING P. J.







BEDSWORTH, J.