Hamel v. Beeson
Filed 9/6/12 Hamel v. Beeson CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
CHERYL HAMEL et al.,
Plaintiffs and Respondents,
v.
RON BEESON et al.,
Defendants and
Appellants.
H037386
(Santa Cruz
County
Super. Ct.
No. CV170415)
Defendants
Ron Beeson, Deanna Copeland, and Daniel Copeland appeal from the superior
court’s order denying their special motion
to strike (Code Civ. Proc., § 425.16)
the complaint of plaintiffs Cheryl Hamel and Eli Hamel, a minor, by and through
his guardian ad litem, Cheryl Hamel.
some of the causes of action arose out of their exercise of
establish a probability of prevailing on the merits. We affirm the judgment.
I. Background
In July
2009, plaintiffs began renting a residential property from Daniel and Deanna,
who were leasing it from Beeson, the owner.
Eli, who has autism. Defendants were
aware of Eli’s disability. Due to the severity
of Eli’s disability, he required teachers and others with specialized training
to provide services at plaintiffs’ residence.
However, Deanna informed Cheryl that she and Beeson had a policy that
any visitor to plaintiffs’ residence was required “to check in with and be
cleared by” Deanna prior to entering the residence. As a result of this policy, Eli did not
receive assistance from these specialists on many occasions.
Eli’s
autism was often calmed by the use of swings, small trampolines, and similar
devices. However, when Cheryl tried to
provide these items for Eli, Deanna’s daughter told her that they were not
allowed on the property because they violated defendants’ policy.
In November
2010, Deanna told Cheryl that she and Beeson no longer wanted the liability of
having an autistic tenant on the property and served her with a 60-day notice
to terminate the tenancy. Cheryl
believed this action was discriminatory and submitted a pre-complaint questionnaire
to the Department of Fair Employment and
Housing on December 23, 2010.
Fearful that she would be evicted
and knowing that she would need money for a security deposit on another rental
property, Cheryl did not pay rent for the month of December 2010. On January
3, 2011, plaintiffs were served with a three-day notice to pay rent
or quit the premises. Three days later,
Cheryl submitted a formal complaint to the Department of Fair Employment and
Housing.
On January 7, 2011, Deanna and Daniel filed an
Cheryl. Since Cheryl did not have funds
to contest the action, she did not respond.
On January 19, 2011,
a default judgment in favor of the Deanna and Daniel was entered by the clerk
pursuant to Code of Civil Procedure section 1169.
Following
their eviction, plaintiffs lived in a kitchen of a warehouse and hotels at
various times. However, they were
essentially homeless. When Eli’s
condition deteriorated due to the changes in his living environment, the
Department of Social Services placed him in a group home. Since Cheryl was no longer Elia’s custodial
caregiver, she was not eligible for social security income. Without this income, Cheryl was unable to
afford housing and could not provide a safe and stable environment for Eli.
On February 28, 2011, plaintiffs filed a
complaint for damages. The complaint alleged seven causes of
action: (1) negligence, (2) breach of
the implied covenant of quiet enjoyment, (3) violation of the California
Disabled Persons Act (Civ. Code, § 54 et seq.), (4) violation of the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12920 et seq.), (5)
intentional infliction of emotional distress, (6) negligent infliction of
emotional distress, and (7) breach of the implied warranty of habitability
(Civ. Code, § 1941.1). Plaintiffs
requested dismissal of the negligence cause of action without prejudice in
April 2011.
Defendants
filed an anti-SLAPP motion, which was accompanied by a
judicial notice of the unlawful detainer complaint, attached as exhibit A,
and the judgment on the unlawful detainer complaint, attached as exhibit
B. Defendants argued that plaintiffs’
complaint arose from protected activity and they could not meet their burden to
show a probability of success on the merits.
Plaintiffs
filed opposition to the motion, which included a memorandum of points and
authorities and Cheryl’s declaration.
They argued that a landlord’s termination of a tenancy due to a tenant’s
disability is not protected by First
Amendment rights. They also argued
that the doctrines of res judicata and collateral estoppel did not apply, since
defendants had obtained a clerk’s judgment by default for possession only.
Defendants’
reply contended that the unlawful detainer action was a key element of
plaintiffs’ causes of action and that the litigation privilege prevented
recovery on any cause of action.
After the
trial court denied the special motion to strike, defendants filed a timely
appeal.
II. Discussion
A. Anti–
Procedure, section 425.16,
found that “it is in the public interest to encourage continued participation
in matters of public significance, and . . . this participation should not be
chilled through abuse of the judicial process.”
(§ 425.16, subd. (a).) Section
425.16, subdivision (b)(1) states: “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
the 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.” The Legislature has also
mandated that section 425.16 “shall be construed broadly.” (§ 425.16, subd. (a).)
The anti-SLAPP
statute provides a means for the trial court to evaluate the merits of a
possible SLAPP “using a summary-judgment-like procedure
at an early stage of the litigation” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192), thereby
providing a defendant with the opportunity to limit the costs of litigation. (Kibler
v. Northern Inyo
Cal.4th 192, 196.) The trial court must
apply a two-part test in ruling on a motion to strike under section
425.16. “First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one ‘arising from’ protected activity.” (City
of Cotati
(b)(1).) “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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) “If the court finds such a showing has been
made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.”
(Cotati, at p. 76.)
court’s denying a motion to strike under section 425.16 de novo. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
B. Protected
Activity
Defendants argue that they met
their initial burden of establishing that the action arose from the exercise of
their right of petition because the issues raised in the complaint arose from
defendants’ filing of an unlawful detainer lawsuit. We disagree.
As relevant here, the statutory
definition of protected activity includes “any written or oral statement or
writing made before a . . . judicial proceeding,” “any written or oral statement
or writing made in connection with an issue under consideration or review by a
. . . judicial body,” and any “conduct in furtherance of the exercise of the
constitutional right of petition . . . .”
(§ 425.16, subds. (e)(1), (2) & (4).)
Department
of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC
(2007) 154 Cal.App.4th 1273 (DFEH) is
instructive. In DFEH, the defendant decided to remove its apartment building from
the rental market. (DFEH, at p. 1276.) In
response to notice of its decision, a disabled tenant requested additional time
to vacate pursuant to Government Code section 7060.4. (DFEH,
at p. 1277.) When the defendant
requested confirmation of the tenant’s disability, the tenant refused on the
ground that the request was discriminatory.
(DFEH, at pp. 1278-1279.) After the defendant filed an unlawful
detainer action, the DFEH filed an action on behalf of the tenant for
disability discrimination. (
strike under section 425.16, which the trial court denied. (DFEH,
at pp. 1280-1281.)
DFEH
reasoned: “We will assume [the
defendants’s] acts of filing and serving notices of its intent to remove its
residential units from the rental market, its investigation and communications
made necessary by the rent control removal process, and its filing and
prosecuting its unlawful detainer actions against [the tenant] constituted
protected petitioning or free speech activity.
‘But the mere fact an action was filed after protected activity took
place does not mean it arose
cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’
must itself have been an act in furtherance of the right of petition or
free speech.” [Citation.]’ In other words, ‘that a cause of action
arguably may have been “triggered” by protected activity does not entail that
it is one arising from such. [Citation.] In the anti-SLAPP context, the critical
consideration is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity.
[Citations.]’ ” (DFEH,
supra, 154 Cal.App.4th at pp.
1283-1284, fns. omitted.)
the affidavits submitted by the parties establish the gravamen of DFEH’s action
against [the defendant] was one for disability discrimination, and was not an
attack on any act [the defendant] committed during the rental property removal
process or during the eviction process itself.”
(Id. at p. 1284.)
DFEH also noted that “if this kind
of suit could be considered a SLAPP, then landlords and owners, if not [the
defendant], could discriminate during the removal process with impunity knowing
any subsequent suit for disability discrimination would be subject to a motion
to strike and dismissal. We are
confident the Legislature did not intend for section 425.16 to be applied in
this manner either. As the trial court
aptly observed, ‘I just feel
like to rule for the defendant in this case would be to say that section 425.16
provides a safe harbor for discriminatory conduct and I don’t think that’s what
it’s intended to do.’ ” (DFEH,
supra, 154 Cal.App.4th at p. 1288.)
Similarly, here, the gravamen of
plaintiffs’ complaint was disability discrimination. Plaintiffs’ allegations were based on
defendants’ conduct during their tenancy.
This conduct included restricting plaintiffs’ ability to have teachers
and other specialists provide services to Eli at his residence as well as
refusing to allow certain recreational devices that were therapeutically
required for Eli’s autism. Plaintiffs’
complaint also arose from defendants’ basis for terminating their tenancy. Defendants told plaintiffs that they “did not
want to assume the liabilities of housing an autistic tenant” and served them
with a 60-day notice to terminate their tenancy. Thus, it was defendants’ alleged acts of
discriminating against plaintiffs that formed the basis for the complaint, not
the filing of the unlawful detainer action.
These acts by defendants were not acts in furtherance of their rights of
petition or free speech.
name="_ftnref7" title="">[7]
Marlin
v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 (Marlin) supports this conclusion.
In Marlin, the defendants gave
notice to the City of Los Angeles under the Ellis Act that they intended to
remove several units from the rental market.
(Marlin, at p. 157.) The defendants also notified the plaintiffs
of their intent and that they were required to vacate their apartment. (Ibid.) The plaintiffs then filed a declaratory
action, contending that the defendants could not invoke the Ellis Act to evict
them. (Marlin, at pp. 157-158) The
defendants responded by filing a special motion to strike under section 425.16,
arguing that the complaint arose from their filing and serving the Ellis Act
notices. (Marlin, at p. 158.)
argument: “The filing and service of the
notices may have triggered plaintiffs’ complaint and the
notices may be evidence in support of plaintiffs’ complaint,
complaint. Clearly, the cause of
plaintiffs’ complaint was defendants’ allegedly wrongful reliance on the Ellis
Act as their authority for terminating plaintiffs’ tenancy.
a tenancy or removing a property from the rental market are not activities
taken in furtherance of the constitutional rights of petition or free speech.” (Marlin,
at pp. 160-161, fns. omitted, italics added.)
Similarly, here, the cause of plaintiffs’ complaint was defendants’
alleged disability discrimination during their tenancy and as the basis for
terminating their tenancy.
Since
defendants have not met their threshold burden of showing this lawsuit is based
on protected activity, we need not consider whether plaintiffs have
demonstrated a probability of prevailing on its causes of action.
III. Disposition
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Duffy, J.
name="_ftn1" title="">[1] These
motions are also referred to as anti-SLAPP motions. “SLAPP is an acronym for ‘strategic lawsuit
against public participation.’ ” (Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 16, fn. 1.)
name="_ftn2" title="">[2] Because
some of the parties share a last name, we will refer to them by their first
names.
