Lopez v. Alevizos
Filed 7/23/13
Lopez v. Alevizos CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
MARIA ELENA
LOPEZ et al.,
Plaintiffs and Respondents,
v.
PETER
ALEVIZOS et al.,
Defendants and Appellants.
A135641
(Alameda County
Super. Ct. No. RG11 608535)
A
landlord appeals from an order denying a special
cause of action in the complaint of former tenants as a strategic lawsuit
against public participation (SLAPP) under Code of Civil Procedure
section 425.16,
name="_ftnref1" title="">[1]
the anti-SLAPP statute. The landlord
contends that although the trial court correctly determined that the
challenged cause of action, the court erred in concluding that the tenants
established a probability of prevailing on the merits. We affirm.
A. Tenancy and Unlawful Detainer Proceedings
Peter Alevizos and Kathleen Alevizos are the
owners of an apartment building located in Walnut Creek; the building is
managed by Ramin Moosa and Tatiana DaMatta.
We shall refer to the owners and the managers collectively as defendants
and individually where appropriate.
Ana Lopez, her sister, Maria Lopez, and Ana’s
teenage daughter (plaintiffs) were tenants in the building from December 2004
to December 2011.
title="">[2] Plaintiffs claim that throughout the tenancy,
the sliding glass door in the master bedroom leaked and accumulated mold. On August 17, 2011, plaintiffs complained about a
leak in the bedroom. Defendants
investigated and found that the carpet in the bedroom was wet. They hired a plumber, removed the furnishings
from the room, and pulled up the saturated carpet. The plumber advised that the cause of the
leak was not apparent, and that the apartment would have to be vacated for the
investigation and repair to proceed.
Defendants allegedly attempted to negotiate with plaintiffs about
relocating them either temporarily or permanently. On September
24, 2011, after the negotiation efforts failed, defendants served plaintiffs with
a three-day notice to quit on the grounds that they were creating a nuisance
and committing waste.
When plaintiffs failed to comply
with the three-day notice, defendants filed an unlawful detainer action against
them on October 26, 2011. That action was
set for trial on December 16, 2011.
Plaintiffs ultimately vacated the premises on December 15, 2011. As possession was no longer an issue,
defendants dismissed the unlawful detainer action on December 16, 2011.
B. The Present Action
Civil Action
Plaintiffs filed a
10-cause-of-action complaint on December 12, 2011, four days before the
unlawful detainer action was set for trial.
In it, their principal charging allegations were that defendants were
negligent in the management of the subject property, failed to provide
habitable premises, and breached related covenants regarding the condition of
the subject premises. Plaintiffs further
alleged a pattern and practice of defendants of failing to maintain the subject
property
the Latino residents of the subject property.
As noted, plaintiffs alleged ten
causes of action for, respectively, negligence,
breach of the covenant of quiet enjoyment, breach of the implied warranty of
habitability (contract), tortious breach of the implied warranty of
habitability, unfair business practices, retaliatory eviction (statutory and
common law), private nuisance, fraud, intentional infliction of emotional
distress, and invasion of privacy.
2. Defendants’ Anti-SLAPP Motion
Defendants
filed a motion to strike the sixth cause of action for retaliatory eviction
under section 425.16.
name="_ftnref3" title="">[3] In their motion, defendants contended:
(1) the retaliatory eviction cause of
action was a SLAPP arising from protected activity and, thus, the anti-SLAPP
statute applied to the challenged activities, and (2) plaintiffs could not show
a probability of prevailing on their claims, in part because they were barred
by the litigation privilege. After
briefing and argument, the trial court issued an order denying defendants’
motion, finding that although the anti-SLAPP statute applied to the challenged
cause of action, plaintiffs established a probability of succeeding “on at
least part of their claim†for retaliatory eviction. In so ruling, the trial court explained that
the retaliatory eviction cause of action “does not appear to be based solely on
the service of eviction notices and the filing of the unlawful detainer
action. Rather, it appears to also be
based on an allegation that, after [p]laintiffs complained about the
habitability (or “ ‘tenantability’ â€) of their rented dwelling,
[d]efendants retaliated against them by causing them to vacate the premises
involuntarily, under the pretense that [d]efendants intended to repair the
premises.â€
Law and Standard of Review
“A SLAPP suit—a strategic lawsuit
against public participation—seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the government for redress
of grievances. [Citation.] The Legislature enacted . . .
section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy
to dispose of lawsuits that are brought to chill the valid exercise of
constitutional rights. [Citation.]†(Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1055-1056.)
A court’s consideration of an
anti-SLAPP motion involves a two-step process. “First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity.
The moving defendant’s burden is to demonstrate that the act or acts of
which the plaintiff complains were taken ‘in furtherance of the [defendant]’s
right of petition or free speech under the United States or California
Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability
of prevailing on the claim.†(Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
In order to establish a probability
of prevailing on the claim, “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.’ [Citations.]†(Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as stated in
Hutton v. Hafif (2007) 150
Cal.App.4th 527, 547.) “Thus,
plaintiffs’ burden as to the second prong of the anti-SLAPP test is akin to
that of a party opposing a motion for summary judgment.†(Navellier v. Sletten (2003) 106
Cal.App.4th 763, 768 (Navellier II).)
We review the trial court’s decision
to grant or deny an anti-SLAPP motion de novo.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In doing so, we consider “ ‘the
pleadings, and supporting and opposing affidavits . . . [stating the facts]
upon which the liability or defense is based.’
(§ 425.16, subd. (b)(2).)
However, we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true
the evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff
as a matter of law.†[Citation.]’ [Citation.]â€
(Flatley v. Mauro, supra, 39 Cal.4th at p. 326.)
In analyzing a defendant’s burden
under the first prong of the anti-SLAPP analysis, “the critical consideration
is whether the cause of action is based on the defendant’s protected
free speech or petitioning activity.
[Citations.]†(Navellier v.
Sletten (2002) 29
Cal.4th 82, 89 (Navellier I).) “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 I, supra, 29 Cal.4th at p.
92.)
“The prosecution of an unlawful
detainer action indisputably is protected activity within the meaning of
section 425.16. [Citations.] ‘The constitutional right to petition
. . . includes the basic act of filing litigation or otherwise
seeking administrative action.’ [Citations.]â€
(Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).) In this case, defendants attempted to
terminate plaintiffs’ tenancy on various occasions, ultimately issuing a
three-day notice and filing an unlawful detainer action.
As a general matter, “[t]erminating
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 v. Aimco Venezia,
LLC (2007) 154 Cal.App.4th 154, 161 (Marlin).) Nevertheless, a notice terminating a tenancy
qualifies as protected speech or petitioning activity if it is a “legal
prerequisite for bringing an unlawful detainer action,†in which case the
notice constitutes “activity in furtherance of the constitutionally protected
right to petition. [Citation.]†(Birkner, supra, 156 Cal.App.4th at p.
282.) Here, no one disputes that service
of a termination notice was required before defendants could file an unlawful
detainer action against plaintiffs.
name="_ftnref4" title="">[4] Rather, what is in dispute is whether the
allegations in the complaint relating to those activities are central to
plaintiffs’ retaliatory eviction cause of action or merely incidental and
tangential to the gravamen of the complaint.
In cases where the wrongful acts
alleged involve both protected and unprotected activity, “ ‘the cause of action
will be subject to section 425.16 unless the protected conduct is “merely
incidental†to the unprotected conduct.’ â€
(Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658, 672 (Peregrine).) “As one court explained, ‘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. [Citation.]’
[Citation.]†But if the
allegations concerning protected activity are more than ‘merely incidental’ or
‘collateral,’ the cause of action is subject to a motion to strike.†(Ibid.) Recognizing that the lines drawn in such
cases are fine ones, the “ ‘focus’ of the [anti-SLAPP] statute ‘is not the form
of plaintiff’s cause of action but, rather, the defendant’s activity
that gives rise to his or her asserted liability . . . .’ [Citations.]â€
(Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1483.) Where, for example, the essence or gravamen
of a plaintiff’s claim is breach of duty of care or of loyalty, “this
conclusion does not obviate the need to examine the specific acts of wrongdoing
[the] plaintiffs allege regarding [the defendants’] conduct . . . .†(Peregrine, supra, 133 Cal.App.4th at
p. 671.) “As the Supreme Court has
explained, . . . a court considering a special motion to strike must
examine the allegedly wrongful conduct itself, without particular heed to the
form of action within which it has been framed.
[Citations.]†(Ibid.)
Plaintiffs allege that defendants
violated Civil Code section 1942.5 by retaliating against them for
“exercis[ing] their legal rights as tenants by requesting repairs to their unit.†It is not clear from this allegation whether
plaintiffs seek recovery under subdivision (a) of Civil Code section 1942.5, or
subdivision (c) of the statute, or both.
Subdivision (a) of Civil Code section 1942.5 precludes a lessor from
recovering possession of a dwelling, causing the lessee to quit involuntarily,
increasing rent, or decreasing services within 180 days of certain complaints
or actions the tenant takes in regard to the tenantability of the dwelling, if
the lessor’s actions are retaliatory. Subdivision (c) of Civil Code section
1942.5 provides: “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. . . .â€
The sixth cause of action for
plaintiffs “exercised their legal rights as tenants by requesting repairs and
reporting substandard conditions,†defendants “engaged in a course of conduct
designed to cause†plaintiffs to leave the premises The alleged retaliatory conduct
included: (1) “unfounded
allegations†that plaintiffs “caused waste†to the premises, (2) unannounced
and/or . . . excessive entries, for pretextual purposes,†(3) refusals to make
timely and adequate repairs; (4) repeated demands that plaintiffs “vacateâ€
the premises “immediately,†(5) acts “breach[ing]†plaintiffs’ “quiet enjoyment
of their home,†and (6) service of “demands to vacate and eviction
notices.â€
The sixth cause of action also
incorporated by reference the allegations contained in paragraphs 1 through
39. The actions alleged in those
paragraphs as comprising defendants’ “course of conduct,†included the
following. In August 2011, the floor of the master bedroom became
completely saturated with water, damaging plaintiffs’ personal property. Defendants represented that they intended to
repair the premises and that plaintiffs needed to immediately vacate, on one
day’s notice. This occurred many times,
the first such time was on August 19, 2011, when defendants told plaintiffs
they must vacate by August 20, 2011.
Defendants told plaintiffs they must immediately
contractor enter the unit to actually assess the scope of repair, or determine
if vacancy would be required, and if so, for how long.†Additionally, defendants made this
representation “long before they ever had a permit, or an executed repair
contract from a licensed contractor.â€
Thereafter, defendants hired a plumber to “ inspect’†the premises, and
who opined that plaintiffs “had too much clutter and would need to
vacate.†Defendants represented that they intended to repair the
premises and would invite plaintiffs to return thereafter. However,
Moosa told plaintiffs that the owners did not want them to ever move back to
the premises. Moosa added that possibly
after one year, they might allow reoccupancy in another unit, if one was
vacant, but reiterated that the owners did not want or intend that plaintiffs
ever return to the subject unit following repair. Several days later, plaintiffs met with
DaMatta, Moosa’s supervisor. DaMatta
reiterated that the owners did not want or intend that plaintiffs ever return
to the premises following repair. The
complaint further alleged that defendant “made multiple entries†into
plaintiffs’ unit “without permission or consent throughout the tenancy.†Specifically, “[b]etween August 15-22,â€
plaintiff Ana Lopez returned home to find that defendants’ “agents had entered
[her unit] without permission or consent and [they] had removed her bedroom
furniture and carpet.†Then, on
September 8, 2011, defendants and “their contractor, a plumber, entered
into [plaintiffs’] unit without permission . . . while [Ana Lopez] was at work
. . . .†According to the
complaint, “[t]he plumber did not make any repairs, and to this day,
[defendants] have not produced an executed repair contract, obtained any permit
for the work they allegedly plan to do, or actually conducted any
repairs.â€
In her
declaration in opposition to defendants’ anti-SLAPP motion, plaintiff Ana Lopez
averred that after her August 2011 complaint about the water leaks in her
bedroom, defendants told plaintiffs that they must “immediately vacate,†with
one day’s notice. Lopez stated that the
requests to vacate occurred “many times†after her initial complaint, the first
occurring on August 19, 2011, when plaintiffs were told to vacate by August 20,
2011. Lopez further stated that
defendants made “multiple entries†into her unit “without permission or
consent.†Between August 15 and August
22, 2011, Lopez “returned home to find that [d]efendants[’] agents had entered
the unit without [her] permission or consent and had removed [her] bedroom
furnishings and carpet, piling them in the living room.†On or about August 29, 2011, Lopez caused a
complaint to be lodged with the City of Walnut Creek, which resulted in an
inspection of the unit on or about August 30, 2011.
Some of these acts clearly
constitute protected activity under the anti-SLAPP statute. As we have explained ante, service of
the three-day notice and the filing of the unlawful detainer action comprise
petitioning activity under section 425.16, subdivision (e). (Birkner, supra, 156 Cal.App.4th at
pp. 281–283; Feldman, supra, 160 Cal.App.4th at pp. 1479–1480.) However, other acts on which plaintiffs based
their sixth cause of action might not constitute protected petitioning
activity under the anti-SLAPP statute.
For example, the representations by Moosa and DaMatta that the owners
did not want plaintiffs to return to the premises after the repairs had been
made might constitute a threat to evict or to cause them to terminate their
tenancy involuntarily under Civil Code section 1942.5, but it would not be
protected under subdivision (e) of section 425.16, because it was not made in
connection with any judicial or administrative proceeding. We also question whether defendants’ alleged
unauthorized entries into plaintiffs’ unit and failure to make the needed
repairs would be covered by the anti-SLAPP statute. These actions were not made in connection
with any judicial or administrative proceeding and do not constitute statements
in connection with a public issue or an issue of truly public interest (a
matter we need not and do not decide here).
The point is that, because the sixth cause of action is based on some
acts other than the three-day notice and unlawful detainer proceedings, it is
based on both protected activity and unprotected activity.
Where a cause of action is based on
both protected activity and unprotected activity, it is subject to section
425.16 “ ‘ “unless the protected conduct is ‘merely incidental’ to the
unprotected conduct.†’ †(Haight Ashbury Free Clinics, Inc. v.
Happening House Ventures (2010) 184
Cal.App.4th at 1539, 1551 (Haight Ashbury);
Peregrine, supra, 133 Cal.App.4th at pp. 672–673 [first prong of
anti-SLAPP analysis met where the allegations of loss resulting from protected
activity were not merely incidental or collateral to unprotected activity].)
The protected conduct alleged in the
sixth cause of action is not merely incidental to the alleged unprotected
conduct. “The three-day notice and
unlawful detainer are two of the acts on which liability is premised, and those
acts are certainly not collateral to a cause of action that seeks relief for
causing a lessee to quit involuntarily or bringing an action to recover
possession.†(Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1187.) Accordingly, defendants satisfied the first
prong of the anti-SLAPP analysis as to the sixth cause of action. (Haight Ashbury, supra, 184
Cal.App.4th at p. 1551, fn. 7 [“where the defendant shows that the gravamen of
a cause of action is based on nonincidental protected activity as well as
nonprotected activity, it has satisfied the first prong of the [anti-]SLAPP
analysisâ€]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287 [mixed
causes of action are subject to a special motion to strike under section 425.16
if “at least one of the underlying acts is protected conductâ€].)
We turn to the second prong of the
determination required by the anti-SLAPP statute—whether plaintiffs have met
their burden to demonstrate a probability of prevailing on the merits. (Navellier I, supra, 29 Cal.4th at p.
88; Cohen v. Brown (2009) 173
Cal.App.4th 302, 315.) In order to
establish the requisite probability of prevailing, a plaintiff must “ ‘state[ ]
and substantiate [ ] a legally sufficient claim.’ †(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) To do so, the plaintiff must make a
sufficient prima facie showing of facts to sustain a favorable judgment if the
plaintiff’s evidence is credited. (Ibid.;
Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 449.)
1. Plaintiffs Must Show a Probability of
Prevailing on Any Part of the Challenged Cause of Action
Under the second step of the
anti-SLAPP analysis, if a plaintiff “ ‘can show a probability of prevailing on any
part of its claim, the cause of action is not meritless’ and will not be
stricken; ‘once a plaintiff shows a probability of prevailing on any part of
its claim, the plaintiff has established that its cause of action has
some merit and the entire cause of action stands.’ †(Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 820 (Oasis), quoting Mann v. Quality Old Time
Service, Inc. (2004) 120 Cal.App.4th 90, 106 (Mann).)
Defendants criticize the above rule
(which was first announced by the appellate court in Mann ). Defendants argue this court should reject Mann. In Oasis, however, our Supreme Court
cited Mann with approval, albeit in a case that apparently did not
involve a mixed cause of action, and adopted its approach to the second step of
the anti-SLAPP analysis. (Oasis,
supra, 51 Cal.4th at pp. 820–821; see also Wallace, supra, 196 Cal.App.4th at p. 1196.)
In Wallace, supra, 196
Cal.App.4th 1169, our colleagues in Division Five of this court questioned the
wisdom of the Mann rule, arguing it permits a plaintiff to shield
meritless allegations of protected activity by combining them in a single count
with meritorious allegations of unprotected activity. (See Wallace, supra, 196 Cal.App.4th
at pp. 1195–1212; but see id. at pp. 1216–1220 (conc. opn. of Jones, P.
J.) [disagreeing with majority’s criticism of Mann].) The Wallace majority argued a
plaintiff instead should have to show a probability it would prevail based
solely on its allegations of protected activity. (Id. at p. 1210.) The Wallace majority stated this
result would be consistent with the statutory language, legislative history,
public policy, and Taus v. Loftus (2007) 40 Cal.4th 683 (Taus),
in which the Supreme Court, in the anti-SLAPP context, separately examined the
merit of individual acts or bases of liability that were combined in larger
causes of action. (See Wallace,
supra, 196 Cal.App.4th at pp. 1208–1210, citing Taus, supra, 40
Cal.4th at pp. 711–712, 714–715, 742–743.)
The Wallace majority
acknowledged, however, that in Oasis (decided after Taus), the
Supreme Court cited Mann with approval and held a cause of action based
on protected activity may proceed if the plaintiff shows a probability of
prevailing on at least one of the asserted bases for liability. (Wallace, supra, 196 Cal.App.4th at
pp. 1210-1211, citing Oasis, supra, 51 Cal.4th at pp. 820–821.) Ultimately, the Wallace court,
acknowledging the implicit overruling of Taus,
followed the rule pronounced by the Supreme Court, noting that “Oasis
clearly holds that, where a cause of action (count) is based on protected
activity, the entire cause of action may proceed as long as the plaintiff shows
a probability of prevailing on at least one
of the asserted bases for liability.†(
Court in Oasis.
2. Plaintiffs
Have Satisfied Their Burden
With respect to the merits of their
retaliation claim, the question is whether plaintiffs showed by admissible
evidence, any probability they would prevail under Civil Code
section 1942.5. (
1214.) Civil Code section 1942.5,
subdivision (c), declares it to be “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 and
peaceably exercised any rights under the law.â€
A lessor who engages in such retaliation is liable for the injured
tenant’s damages. (Civ.Code,
§ 1942.5, subd. (f).)
A tenant alleging retaliatory
eviction must prove the landlord retaliated because the tenant exercised a
legal right. (Western Land Office,
Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 739.) Typically, the claim arises as a defense to
an unlawful detainer or other eviction proceeding, but, as here, the landlord’s
retaliatory motive can also form the basis of a tenant’s affirmative cause of
action for damages. (Id. at pp.
736-737; Civ.Code, § 1942.5, subd. (c).)
As defendants correctly note,
service of the three-day notice and filing an unlawful detainer action are
subject to the litigation privilege in Civil Code section 47,
subdivision (b). (
1214-1215.) And, thus, as a matter of
law, defendants could not be liable under Civil Code section 1942.5 on the
basis of those acts. (
1215.) Nevertheless, plaintiffs contend
that they established their prima facie case of liability for the sixth cause
of action, separate and apart from evidence of the filing the unlawful detainer
action or the eviction notices. We
agree. The allegations in the complaint
and supporting declarations demonstrate that defendants took actions and made
statements that were independent of the actual eviction litigation. Specifically, plaintiffs allege that
defendants refused to make adequate and timely repairs to their unit. And, after requesting the repairs and
complaining about the substandard conditions, defendants engaged in a “course
of conduct†designed to cause plaintiffs to quit the premises. The alleged course of conduct included
“unannounced and/or unreasonable and excessive entries, for pretextual purposes
. . . .â€
Defendants argue that the alleged
unwarranted entries in plaintiffs’ unit were irrelevant because they are not
among the enumerated acts proscribed by Civil Code section 1942.5. That unwarranted entries are not specifically
listed in the retaliatory eviction statute is of no moment. The statute explicitly proscribes acts that
“cause a lessee to quit involuntarily†the premises. (Civ. Code, § 1942.5, subd. (c).) Here, plaintiffs allege that defendants by
their unannounced and/or unreasonable and excessive entries engaged in a course
of conduct designed to cause plaintiffs to involuntarily quit the
premises.
Equally unpersuasive is defendants’
claim that the retaliatory eviction statute does not apply to the challenged
conduct because pursuant to Civil Code section 1954 they had a legal right
to enter the unit. (See Civ. Code,
§ 1942.5, subd. (d) [“Nothing in this section shall be construed as
limiting in any way the exercise by the lessor of his or her rights under any
lease or agreement or any law pertaining to the hiring of property or his or
her right to do any of the acts described in subdivision (a) or (c) for any
lawful cause. Any waiver by a lessee of
his or her rights under this section is void as contrary to public policyâ€].) Civil Code section 1954, subdivision (a)
enumerates the instances in which a landlord may enter a unit, which, as
relevant here, includes entry to make necessary repairs. However, subdivision (c) of that section
expressly provides that a “landlord may not abuse the right of access or use it
to harass the tenant.†Here, the
complaint alleges that defendants abused their right of access and used it to
harass plaintiffs. Plaintiffs submitted
evidence that, if credited, supports this claim.
Consequently, the plaintiffs made a
prima facie showing that they were likely to succeed on their
action. The trial court did not err in
denying the special motion to strike.
The judgment is
affirmed. Plaintiffs are entitled to
their costs on appeal.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
All undesignated statutory
references are to the Code of Civil Procedure.
name="_ftn2" title="">[2] According to plaintiffs, Maria Lopez,
though a signatory on the lease, did not reside at the premises.
