Filed 11/10/26 Gemigniani v. B-B Barry CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
STACI GEMIGNIANI, B350208
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. 24SMCV02486)
B-B BARRY, LP,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark A. Young, Judge. Affirmed.
Caldwell Law Firm and Larry J. Caldwell for Defendant
and Appellant.
Schumann Arevalo, Eric Arevalo, Jeffrey P. Cunningham
and Michelle L. Arevalo for Plaintiff and Respondent.
________________________
Appellant and defendant landlord B-B Barry, LP (B-B
Barry), appeals from an order denying a special motion to strike
under Code of Civil Procedure section 425.15 (the anti-SLAPP
statute) entered in favor of plaintiff and respondent tenant Staci
Gemigniani in this malicious prosecution action.1 On appeal, B-B
Barry contends Gemigniani failed to show a probability of
prevailing because there was no evidence to show the underlying
unlawful detainer action was brought without probable cause,
with malice, and terminated in her favor. We conclude the
evidence was sufficient to establish the requisite minimal merit
as to each element of malicious prosecution. Therefore, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Unlawful Detainer Actions
In 2009, Gemigniani began leasing a rent-controlled
apartment on Barry Avenue in Los Angeles. Ownership of the
property was transferred to B-B Barry in 2016.
In March 2020, during the Covid-19 pandemic, the County
of Los Angeles enacted a Covid-19 Tenant Protections Resolution
(the rent moratorium), providing tenant protections that applied
to Gemigniani’s unit. Beginning in September 2021, Gemigniani
1 SLAPP is an acronym for “strategic lawsuit against public
participation.” (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) All further statutory references are to
the Code of Civil Procedure unless otherwise stated.
2
failed to make rent payments under her lease. She made no rent
payments in 2022.
The rent moratorium was to expire on March 31, 2023.
Tenants were required to resume making rent payments after
April 1, 2023, but income qualified residential tenants who had
notified their landlord of their inability to pay rent had 12
months to repay the past due rent.
In February 2023, Gemigniani provided three money orders
to the property management company totaling $2,149. Each
stated “February 2023 rent” or “February rent” in the memo line.
In a letter to the property management company dated
February 2, 2023, however, Gemigniani stated she was unable to
pay rent for February and March 2023. She requested that the
three money orders, which she identified by number, be applied
in full to the rent due following the end of the Covid tenant
protections, which was April 1, 2023.
Gemigniani paid the full amount of her monthly rent in
May 2023 and in June 2023.
On June 5, 2023, a Covid-19 rent relief program notified
Gemigniani that her application for rental assistance was
preliminarily approved to cover rent due from August 2021
through February 2022, in the amount of $15,043. The notice
stated the funds would be disbursed to Gemigniani within 10 to
14 business days, and then she was required to remit the funds to
her landlord within 15 days after receipt. B-B Barry learned that
same day that Gemigniani was preliminarily approved to receive
housing assistance from the program.
On June 19, 2023, B-B Barry served Gemigniani with a 3-
day notice to pay rent or quit. The notice listed delinquent
monthly rent payments of $2,149 beginning from July 2022,
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through April 2023, with the exception of February 2023. The
months listed in the 3-day notice were outside the period to be
covered by the relief program. The total amount due was stated
to be $19,341.
In July 2023, B-B Barry filed an unlawful detainer action
against Gemigniani based on the 3-day notice. On October 11,
2023, B-B Barry dismissed the unlawful detainer action without
prejudice.
On November 2, 2023, B-B Barry served Gemigniani with a
new 3-day notice to pay rent or quit. The notice listed delinquent
monthly payments beginning in July 2023, through November
2023, for a total amount due of $10,745. On November 13, 2023,
B-B Barry filed a second unlawful detainer action against
Gemigniani, which the parties settled.
B. Malicious Prosecution Action
On October 14, 2024, Gemigniani filed the operative
amended complaint for malicious prosecution against several
defendants, including B-B Barry, based on the July 2023
unlawful detainer action. Among other allegations, Gemigniani
alleged the July 2023 action was based on past due rent of
$19,341, for the months from July 2022 to April 2023, but at the
time the action was filed, it was unlawful for residential
landlords to evict tenants based on rent owed for those months.
The defendants had actual knowledge that the 3-day notice and
the July 2023 action were unlawful but prosecuted the meritless
action to intimidate Gemigniani into giving up her tenancy and
possession of the rent-controlled apartment, which the
defendants planned to re-rent to a new tenant at a higher rate.
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After the July 2023 action was filed, a representative of the Los
Angeles Housing Department (LAHD) contacted B-B Barry and
told them the July 2023 action was unlawful. The defendants
caused the July 2023 action to be dismissed, which was a
termination in favor of Gemigniani.
C. Anti-SLAPP Motion
In July 2025, B-B Barry filed an anti-SLAPP motion
arguing that Gemigniani could not make a sufficient factual
showing that the underlying July 2023 action was brought
without probable cause, with malice, and terminated in her favor.
B-B Barry submitted the declaration of Gary Steinhardt,
who is a consultant for the property management company for
the property. He was aware of the rent moratorium that applied
to Gemigniani. B-B Barry believed Gemigniani’s continued
failure to pay rent after the rent moratorium expired on
March 31, 2023, provided reasonable grounds to move forward
with the eviction process.
When Gemigniani had not remitted funds received from the
rent relief program to B-B Barry by July 2023, B-B Barry
reported her to the program and moved forward with the July
2023 action.
During the litigation of the July 2023 action, B-B Barry
learned several of the dates included in the complaint for which
Gemigniani had failed to pay rent were still protected by the rent
moratorium. In an abundance of caution and not intending to
violate any tenant protections that might be applicable, B-B
Barry dismissed the July 2023 action. B-B Barry dismissed the
action after it learned there was a technical error in the July
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2023 action as a result of including dates that may have
continued to be protected by the rent relief ordinances. When
Gemigniani continued to fail to pay rent, B-B Barry filed the
second unlawful detainer action.
Steinhardt declared that B-B Barry did not file the July
2023 action with malicious intent or to inflict emotional distress,
nor was it part of a scheme to unlawfully evict Gemigniani to
install a new tenant at a higher rent. B-B Barry’s sole purpose
was to recover funds from Gemigniani that it believed it had
reasonable grounds to seek at the time of filing.
D. Opposition to Anti-SLAPP Motion
Gemigniani filed an opposition to the anti-SLAPP motion.
She argued B-B Barry’s voluntary dismissal of the July 2023
action, which was not the result of a settlement, was sufficient
evidence of termination on the merits in her favor. B-B Barry
was presumed to know the applicable law precluding filing of the
July 2023 action, and the property was professionally managed
by a sophisticated property management company, so it was
malicious to file an action that any reasonable person would
know was prohibited by the applicable ordinances. Moreover, the
3-day notice stated Gemigniani had not paid rent for April 2023,
when B-B Barry knew rent was received for April 2023, and B-B
Barry knew Gemigniani had applied for additional COVID
emergency relief benefits.
Gemigniani provided her declaration stating that she paid
rent for April 2023 through the money orders that she mailed
with a letter explaining the payment was for April 2023. Before
June 2023, she told B-B Barry that she had applied for additional
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COVID emergency rental assistance. After B-B Barry filed the
July 2023 action, Gemigniani filed a complaint for violation of the
rent stabilization ordinance with LAHD. In response, LAHD sent
a letter explaining that the July 2023 unlawful detainer action
violated three existing ordinances. After receiving information
from LAHD, B-B Barry dismissed the July 2023 unlawful
detainer action.
Gemigniani received approximately $15,000 in COVID
emergency relief benefits from the rent relief program, but after
B-B Barry filed the July 2023 action, Gemigniani believed she
could use the funds to relocate rather than remit them to B-B
Barry, and in the settlement of the second unlawful detainer
action, B-B Barry agreed she could retain the funds.
Gemigniani provided copies of the three money orders,
totaling $2,149, and her February 2, 2023 letter to the property
manager explaining the money orders should be applied to the
April 2023 rent. She also submitted LAHD’s letter explaining the
violations of applicable tenant protections ordinances.
E. Reply and Trial Court Ruling
B-B Barry filed a reply arguing Gemigniani had misapplied
the burden for an anti-SLAPP motion and failed to show a
reasonable probability of prevailing.
A hearing was held on the anti-SLAPP motion on
September 4, 2025. B-B Barry argued there was no showing of
malice. The trial court noted B-B Barry’s own evidence showed a
rent moratorium was in effect, so a trier of fact could find it was
not a tenable action to bring under a reasonably objective
standard. B-B Barry responded that although the rent
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moratorium was set to expire on March 31, 2023, and Gemigniani
claimed to have paid her April 2023 rent, copies of the money
orders that Gemigniani submitted showed she had given
instructions to apply the funds to the February 2023 rent, not
April 2023. The payments were applied to Gemigniani’s
February 2023 rent as stated on the money orders. When the
rent moratorium expired, and Gemigniani failed to pay rent in
April 2023, B-B Barry moved forward with the July 2023
unlawful detainer action, which included the April 2023 rent that
was not protected. Any landlord would have had a reasonable
belief that there were reasonable grounds to bring the July 2023
action when Gemigniani was $20,000 in arrears and had failed to
pay her April 2023 rent obligation after the Covid-related rent
protections expired.
B-B Barry admitted that the July 2023 action sought some
rent payments that could not be collected until February 2024,
but argued Gemigniani’s failure to pay rent for April 2023, after
expiration of the protections, gave B-B Barry a tenable basis to
move forward with the action. No malice was shown, B-B Barry
argued, because it was not attempting to use the judicial system
for anything other than to enforce a legitimate right to payment.
B-B Barry also admitted that it dismissed the July 2023 action
after learning several months later that some of the months in
the action were still covered by Covid rent protections.
The trial court noted that landlords often have discretion to
apply payments to arrears, but the inclusion in the 3-day notice
and the July 2023 action of rent payments that B-B Barry was
precluded from recovering made the July 2023 action untenable.
The 3-day notice overstated the rent, so the 3-day notice was
void. B-B Barry argued that because one of the rent payments
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sought in the July 2023 action was not covered by the rent
moratorium, the action was not untenable.
The trial court denied the anti-SLAPP motion. The court
found Gemigniani’s evidence that B-B Barry voluntarily
dismissed the underlying July 2023 action was sufficient to infer
termination in her favor, and in addition, there was evidence that
B-B Barry would not have succeeded in the underlying action.
The court found Gemigniani’s evidence showed she paid rent for
April 2023, which B-B Barry had alleged that she failed to pay.
It was undisputed the Covid-19 rent moratorium prevented rent
collection for the period from July 2022 through January 2023
until February 2024. Gemigniani’s evidence showed her rent for
February and March 2023 was also in forbearance until February
2024. B-B Barry’s evidence confirmed that B-B Barry knew,
prior to filing the July 2023 action, that the applicable Covid-19
rent moratorium expired March 2023. B-B Barry filed a second
unlawful detainer action based on unpaid rent in later months,
which did not include the months alleged in the July 2023 action.
The trial court concluded a reasonable trier of fact could find B-B
Barry did not have legally tenable grounds to believe it could
maintain a suit against Gemigniani for rent collection from July
2022 through April 2023. The court found, therefore, a prima
facie case of malicious prosecution had been demonstrated.
B-B Barry filed a timely notice of appeal from the order
denying the anti-SLAPP motion.
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DISCUSSION
A. Statutory Scheme and Standard of Review
“[T]he anti-SLAPP statute is designed to protect
defendants from meritless lawsuits that might chill the exercise
of their rights to speak and petition on matters of public concern.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–
884 (Wilson).) To accomplish this purpose, the statute authorizes
a special motion to strike a claim 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 . . .
unless the court determines that the plaintiff has established
that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)
Courts apply a two-step analysis to evaluate anti-SLAPP
motions. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1011 (Bonni).) In the first step, the court determines
whether the plaintiff’s claims arise from protected activity. (Id.
at p. 1009.) “The defendant’s burden is to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity. [Citation.]” (Id. at p. 1009.)
If the complaint seeks relief based on allegations arising
from protected activity, the court turns to the second step of the
analysis. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) In
the second step, “the burden shifts to the plaintiff to demonstrate
that each challenged claim based on protected activity is legally
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sufficient and factually substantiated.” (Ibid.) “[A] plaintiff
seeking to demonstrate the merit of the claim ‘may not rely solely
on its complaint, even if verified; instead, its proof must be made
upon competent admissible evidence.’ [Citations.]” (Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th
931, 940 (Sweetwater).)
In the second step, without weighing evidence or resolving
evidentiary conflicts, the court determines “whether the
plaintiff's showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment.” (Baral, supra, at
p. 396.) “ ‘[C]laims with the requisite minimal merit may
proceed.’ [Citation.]” (Id. at p. 385.) “If not, the claim is
stricken.” (Id. at p. 396.)
On appeal, we review an order granting or denying an anti-
SLAPP motion de novo. (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1067 (Park).) “We
exercise independent judgment in determining whether, based on
our own review of the record, the challenged claims arise from
protected activity.” (Ibid.) Considering the pleadings and the
affidavits concerning the facts, we accept the plaintiffs’
submissions as true “and consider only whether any contrary
evidence from the defendant establishes its entitlement to prevail
as a matter of law. [Citation.]” (Ibid.)
B. Probability of Prevailing on Malicious Prosecution
It is undisputed that the malicious prosecution action was
based on protected activity, shifting the burden to Gemignaini to
demonstrate that the claim was supported by sufficient prima
facie evidence to sustain a favorable judgment if her evidence was
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credited. To prove a cause of action for malicious prosecution, the
plaintiff must show the underlying action was (1) initiated or
continued without probable cause, (2) prosecuted with malice,
and (3) terminated in the plaintiff’s favor. (Lanz v. Goldstone
(2015) 243 Cal.App.4th 441, 458.) B-B Barry contends
Gemignaini failed to provide sufficient evidence to meet her
burden as to any element of malicious prosecution. We disagree.
1. Lack of Probable Cause
B-B Barry contends Gemigniani failed to show that it had
no probable cause to bring the July 2023 action because Covid-
related protections for tenants expired in March 2023 and
Gemigniani failed to pay rent in April 2023, so B-B Barry had
probable cause to bring the July 2023 action based on the rent
owed for April 2023. This analysis is incorrect.
“ ‘An action is deemed to have been pursued without
probable cause if it was not legally tenable when viewed in an
objective manner as of the time the action was initiated or while
it was being prosecuted.’ (Sycamore Ridge [Apartments LLC v.
Naumann (2007) 157 Cal.App.4th 1385,] 1402.) ‘Only those
actions that “ ‘any reasonable attorney would agree [are] totally
and completely without merit’ ” may form the basis for a
malicious prosecution suit.’ (Wilson [v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811,] 817.)” (Olivares v. Pineda
(2019) 40 Cal.App.5th 343, 355 (Olivares).)
Due to the summary nature of unlawful detainer actions, a
landlord must strictly comply with the requirements of a 3-day
notice under Code of Civil Procedure section 1161, subdivision
(2), including stating in the 3-day notice “ ‘the amount which is
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due.’ ” (Levitz Furniture Co. v. Wingtip Communications (2001)
86 Cal.App.4th 1035, 1038.) “A notice that seeks rent in excess of
the amount due is invalid and will not support an unlawful
detainer action.” (Ibid.)
In this case, the evidence was that B-B Barry provided a 3-
day notice to Gemigniani in June 2023, stating the total amount
due was $19,341, which was alleged as the basis for the July 2023
unlawful detainer action. It is undisputed that $17,192 of the
total amount stated in the notice was for months covered by the
rent moratorium and in forbearance until February 2024. The
July 2023 action could not succeed because the amount stated in
the June 2023 3-day notice was clearly in excess of the amount
due. This evidence met Gemigniani’s burden to show any
reasonable attorney would have concluded under the applicable
laws that there was no probable cause to bring the July 2023
action based on the June 2023 3-day notice.
2. Malice
“The malice element goes to the defendant’s subjective
intent in initiating or continuing the prior action. (Sierra Club
Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1156–1157
(Sierra Club).) It is not limited to actual hostility or ill will and
may be present when proceedings are instituted or maintained
primarily for an improper purpose. (Ibid.)” (Olivares, supra, 40
Cal.App.5th at p. 356.)
“Malice may be inferred from circumstantial evidence, such
as the defendants’ lack of probable cause, supplemented with
proof that the prior case was instituted largely for an improper
purpose. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225
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(Daniels).) This additional proof may consist of evidence that the
prior case was knowingly brought without probable cause or was
brought to force a settlement unrelated to its merits. (Id. at
pp. 226, 228.) A defendant attorney’s investigation and research
also may be relevant to whether the attorney acted with
malice. [Citation.]” (Cole v. Patricia A. Meyer & Associates, APC
(2012) 206 Cal.App.4th 1095, 1113–1114.)
In this case, a trier of fact making all reasonable inferences
from the evidence in favor of Gemigniani could find B-B Barry
brought the July 2023 action for an improper purpose, satisfying
the malice requirement for malicious prosecution. B-B Barry
applied funds that Gemigniani paid in February to satisfy her
February rent obligation, despite her written notice to B-B Barry
that (1) she could not afford to make the February rent payment,
which she was not required to make under the rent moratorium,
and (2) she was requesting the funds be applied to the first
payment due after the rent moratorium expired. In June 2023,
B-B Barry used its application of the funds to the February 2023
rent obligation to claim that rent for April 2023, outside the
moratorium, had not been paid, which B-B Barry bootstrapped to
justify a 3-day notice demanding payment for multiple months in
arrears, including dates covered by the moratorium and in
forbearance until February 2024. B-B Barry served the 3-day
notice exactly two weeks after learning that Gemigniani had been
approved for housing assistance for earlier arrears. Gemigniani
did not make any rent payments in 2022, but the 3-day notice
calculated the amount due beginning with the rent obligation for
July 2022, such that the total amount stated in the 3-day notice
was greater than the amount of assistance that Gemigniani
would receive from the rent relief program. B-B Barry employed
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the services of a knowledgeable property management company
and legal counsel. From the evidence, a trier of fact could infer
that B-B Barry brought the July 2023 action for an improper
purpose, demanding an excessive amount of rent, greater than
the amount of the housing assistance that Gemigniani was
approved to receive for the earlier months, to intimidate
Gemigniani and force her to vacate her rent-controlled
apartment, allowing B-B Barry to re-rent the unit at a higher
rate. Viewed in the light most favorable to Gemigniani, the trier
of fact could find B-B Barry acted with malice when it filed the
July 2023 action without probable cause.
3. Favorable Termination
“A voluntary dismissal is presumed to be a favorable
termination on the merits unless proved otherwise to a jury
because the natural assumption is that one does not simply
abandon a meritorious action. (Sycamore Ridge Apartments LLC
v. Naumann [, supra, 157 Cal.App.4th at p. 1400].) When
termination is other than by a judgment on the merits, the court
examines the record to see if the disposition reflects the opinion
of the court or the prosecuting party that the action would not
succeed, and if there is a dispute as to the circumstances of the
termination, the determination of the reasons underlying the
dismissal is a question of fact. (Id. at p. 1399.)” (Olivares, supra,
40 Cal.App.5th at p. 354.)
Gemigniani has shown B-B Barry’s voluntary dismissal of
the July 2023 action was a termination in her favor under the
circumstances of this case. After filing the July 2023 action, B-B
Barry learned several dates included in the complaint were
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protected by the rent moratorium. An unlawful detainer action
cannot be based on a 3-day notice that seeks rent in excess of the
amount due. Because B-B Barry voluntarily dismissed the action
after the disclosure of this evidence, Gemigniani has made a
prima facie showing that the dismissal reflected B-B Barry’s
opinion that the unlawful detainer action could not succeed based
on the June 2023 3-day notice. B-B Barry’s argument that it
dismissed the July 2023 action based on technicalities in an
abundance of caution merely raises a triable factual dispute as to
the true circumstances of the termination and does not defeat
plaintiffs’ prima facie showing as a matter of law. (See Olivares,
supra, 40 Cal.App.5th at p. 354.) The anti-SLAPP motion was
properly denied because Gemigniani made a prima facie showing
of evidence that, if credited by the trier of fact, would allow
judgment in her favor.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed.
Respondent Staci Gemigniani is awarded her costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
HOFFSTADT, P. J. KIM (D.), J.
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