Moriarty v. Laramar Management
Filed 1/29/14 Moriarty v. Laramar Management CA1/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION TWO
JOHN MORIARTY,
Plaintiff and
Respondent,
v.
LARAMAR MANAGEMENT CORPORATION,
Defendant and
Appellant.
A137608
(San
Francisco City & County
Super. Ct. No.
CGC-12-520970)
Another appeal in an anti-SLAPP case. Another appeal
by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no
merit, will result in an inordinate delay of the plaintiff’s case and cause him
to incur more unnecessary attorney
fees. (See Grewal v. Jammu (2011) 191
Cal.App.4th 977, 1002‑1003.) And
no merit it has. We thus affirm,
concluding, as did the trial court, that plaintiff’s
activity.
On May
21, 2012, John Moriarty filed a complaint
naming four defendants: 2363 Van Ness Avenue, LLC; Laramar Management Corporation; Laramar Urban Specialty
Partners; and Laramar SF Urban Apartments.
The complaint alleged 11 causes of action, styled as follows: (1) harassment (violation of San Francisco
Administrative Code § 37.10 B); (2) negligent violation of statutory duty/
of habitability; (4) breach of the statutory warranty of
injury; (6) nuisance; (7) breach of the covenant of quiet enjoyment; (8) intentional
infliction of emotional distress;
(9) unlawful business practice; (10) negligent misrepresentation; and (11) wrongful
eviction (violation of San Francisco Administrative Code § 37.9).
The complaint is 22 pages long, with 139 paragraphs. After the jurisdictional allegations and some
boilerplate, the substance of Moriarty’s claims begins with 45 paragraphs of
“Factual Allegations,†all of which would be incorporated in the causes of
action that followed. That substance is
as follows:
In 1994 Moriarty rented the premises at 2363 Van Ness Avenue, San Francisco,
from defendants’ predecessors in interest, and he was a tenant within the
definition of the San Francisco Rent Ordinance (San Francisco Administrative
Code, Chapter 37).
At various times throughout his tenancy Moriarty notified defendants
and/or their predecessors of various maintenance and repair issues required at
the premises, including for water intrusion at various locations. Most recently, Moriarty notified defendants
of surface and airborne contaminants throughout the premises, airborne
contaminants that were negatively impacting him and adversely affecting his
health.
Defendants attempted to remediate the premises, which attempts were
unsuccessful, after which defendants “notified [him] they were going to
commence extensive repairs of the subject premises, . . . so [he]
vacated the premises on or about September 2010.†This was a temporary abandonment until repairs
and remediation were conducted.
In June 2011, Moriarty “learned that Defendants had chosen to
permanently retain possession of the subject premises and thereafter refused to
return possession to [him] in violation of [his] rights.†Defendants’ conduct “was intended to, and in
fact did, oust Plaintiff from the Premises,†which conduct involved 15 specific
wrongs by defendants, including failing to provide a habitable dwelling; failing
to maintain and repair plumbing fixtures; allowing water intrusion and failing
to rectify it; failing to repair multiple sources of water intrusion and
remediate development of airborne contaminants; failing to eliminate
illness-causing airborne contaminants from the premises due to the persistent
water intrusion, excessive dampness, and prolonged saturation of indoor
building materials; permitting dilapidated and/or stained and peeling paint on
walls and ceiling; and failing to provide operable and locking windows and
doors which were watertight or weather proofed.
And the result was that defendants failed to perform under the rental
agreement in various ways, including that they “a. Breached the warranty of
habitability by not making the needed repairs;
[¶] b. Failed to maintain the Subject Premises in a safe and habitable
condition; [and] [¶] c. Denied Plaintiff’s peaceable quiet enjoyment of the
Subject Premises.â€
Following all that, Moriarty alleged this:
“56. Defendants, and each of them, endeavored to recover possession
of the Subject Premises in bad faith through unlawful harassment and other
means, including but not limited to the following actions:
“a. Refusing to perform effective repairs of the severely
dilapidated conditions which rendered the Subject Premises uninhabitable;
“b. Demanding rent while the Subject Premises was in a condition of
severe dilapidation and disrepair;
“c. Seeking to force Plaintiff to vacate the Subject Premises by
permitting the Subject Premises to fall into and/or remain in a condition that
was substandard, untenantable and a threat to the health and safety of
Plaintiff, and any occupants, in an effort to recover possession of the rent
controlled unit.
“d. Seeking to coerce Plaintiff to not assert his legal right through
intimidation, and harassment,
“e. Refusing to return possession of the Premises to Plaintiff after
the completion of repairs and remediation.â€
All this caused Moriarty to “suffer severe physical, mental, and
emotional pain, injury and distress, including, but not limited to, respiratory
distress, nervousness, fatigue, embarrassment, humiliation, discomfort,
exacerbation and annoyance . . . .â€
The complaint was apparently served on only two of the named
defendants: 2363 Van Ness Avenue
LLC and Laramar Management Corporation.
On September
25, 2012, Laramar Management Corporation
(hereafter, usually Laramar) filed a motion to strike pursuant to Code of Civil
Procedure section 425.16 (section 425.16), the anti-SLAPP statute.
points and authorities and the declaration of Laramar’s attorney, Curtis P.
Dowling. As pertinent here, Mr. Dowling’s
testimony was that in June 2011 he had filed an unlawful detainer action
against Moriarty; that in July 2011, the court entered Moriarty’s default; and
that Moriarty’s later motion to set aside the default was denied. Mr. Dowling’s declaration had attached
various exhibits, one of which was a complaint for unlawful detainer against
Moriarty filed on behalf of Laramar Urban Specialty Partners.
The essence of Laramar’s anti-SLAPP motion was, as distilled in its
brief here, this: “Laramar argued that
Plaintiff’s complaint was premised in material part upon Laramar’s alleged
pursuit of the eviction action and the ensuing judgment for possession, that
the eviction action and judgment were not ‘merely incidental’ to Plaintiff’s claims,
and that Plaintiff could not demonstrate a prima
facie case against Laramar because his claims are barred by the litigation
privilege under Civil Code § 47 and by the doctrines of claim and issue
preclusion. [AA 30-49.]â€
Moriarty filed opposition, along with objections to evidence. The motion came on for hearing on November 29, 2012, before the Honorable Ronald Quidachy, an experienced law and
motion judge, who, following a hearing, denied Laramar’s motion, concluding as
follows: “The Court concludes that the
Moving Parties failed to carry its burden to show that the Plaintiff’s
Complaint arises out of protected activity.
[¶] We went through this Complaint in detail, trying to see how this
might be protected activity. . . . [¶] The drafters of the
Complaint did an excellent job in making sure that this basically is an action
that arises—that arises out of alleged breach of warranty of habitability. And I couldn’t find anything else in the
complaint.â€
On December
5, 2012, Judge Quidachy entered his order
denying the anti-SLAPP motion, from which Laramar filed a timely notice of
appeal.
A possible threshold issue presents itself, based on the fact that
the plaintiff in the unlawful detainer case was, as noted, Laramar Urban
Specialty Partners, while the moving party in the anti-SLAPP motion is Laramar
Management Corp. Laramar anticipated
this issue, and claims it is not one, in this footnote on page 1 of its opening
brief: “Although the unlawful detainer
action was filed by Laramar Urban Specialty Partners (‘LUSP’), Plaintiff’s
Complaint alleges that both LUSP and Laramar Management Corporation acted as
‘property managers’ and were Plaintiff’s ‘landlords.’ [Citation.]
The Complaint alleges that only LUSP ‘performed and/or supervised the
negligent repair and remediation of the Subject Premises.’ [Citation.]
The Complaint further alleges in boilerplate fashion that there was a
‘unity of interest’ among the defendants and that the Defendants were ‘alter
egos’ of each other and exerted control over each other, such that the separate
existence of the Defendants should be disregarded. [Citation.]
All causes of action are alleged against all Defendants. Laramar Management Corporation is entitled to
assert its anti-SLAPP rights in this context.
(Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1184 (Wallace);
Ludwig v. Superior Court (1995)
37 Cal.App.4th 8, 16-18.)â€
Moriarty does not vigorously contest this assertion, replying late
in his respondent’s brief only as follows:
“Defendant erroneously relies on Wallace
and Ludwig for the proposition that
Laramar can assert its anti-SLAPP rights, but these cases actually stand for
the proposition that a defendant may claim protection under the anti‑SLAPP
statute even though he only supported, assisted, exhorted, or motivated another
person who actually performed the act.
[Citations.] Thus, Defendant
effectively concedes that it supported, assisted, exhorted, or motivated
another person who actually performed the purported protected act. Therefore, Laramar’s liability for the
habitability defects at Premises and for wrongful endeavor to recover the
Premises is established.â€
We do not understand Moriarty’s argument to be that Laramar has no
standing to make the anti-SLAPP motion
here, despite that it was not involved in the earlier unlawful detainer action. Moriarty certainly did not make any such
argument below. Thus, and because the
issue is not fully developed in the briefing, we choose not to address it, and
turn to the merits of Laramar’s appeal.
Standard of Review
We recently explained the operation of section 425.16, in both the
trial and reviewing courts:
“Subdivision (b)(1) of section 425.16 provides that ‘[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 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.’ Subdivision (e)
elaborates the four types of acts within the ambit of a SLAPP, including, as
pertinent here, ‘(4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.’
“A two-step process is used for determining whether an action is a
SLAPP. First, the court decides whether
the defendant has made a threshold showing that the challenged cause of action
is one arising from protected activity, that is, by demonstrating that the
facts underlying the plaintiff’s complaint fit one of the categories spelled
out in section 425.16, subdivision (e).
If the court finds that such a showing has been made, it must then
determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. [Citation.]
“ ‘The Legislature enacted section 425.16 to prevent and deter
“lawsuits [referred to as SLAPP’s] brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.†(§ 425.16, subd.
(a).) Because these meritless lawsuits seek to deplete “the defendant’s energyâ€
and drain “his or her resources†[citation], the Legislature sought “ ‘to
prevent SLAPPs by ending them early and without great cost to the SLAPP
target’ †[citation]. Section
425.16 therefore establishes a procedure where the trial court evaluates the
merits of the lawsuit using a summary-judgment-like procedure at an early stage
of the litigation.’ [Citation.]
“Finally, and as subdivision (a) of section 425.16 expressly
mandates, the section ‘shall be construed broadly.’
“With these principles in mind, we turn to a review of the issues
before us, a review that is de novo.
[Citation.]†(
Organization (2012) 203 Cal.App.4th 450, 463-464.)
Not Subject to the Anti-SLAPP
Statute
As It Is Not Based on Protected Activity
As indicated above, Judge Quidachy concluded that Laramar had failed
to meet its burden under the first step of the anti-SLAPP analysis, failing to
demonstrate that Moriarty’s complaint was based on protected activity. We reach the same conclusion.
Laramar’s brief is correct in two respects. First, prosecution of an unlawful detainer
action is “indisputedly protected activity†within the meaning of the
anti-SLAPP statute, as we ourselves have held.
(Feldman v.
“Application of section 425.16 does not depend on the form or label of
plaintiff’s cause of action, but rather on ‘the defendant’s activity that gives
rise to his or her asserted liability—and whether that activity constitutes
protected speech or petitioning.’ â€
But those principles, essentially black letter law, are unavailing
here, as Laramar fails the most fundamental requirement—demonstrating that Moriarty’s
lawsuit is based on the unlawful detainer action. It is not.
In order for a complaint to be within the anti-SLAPP statute, the
“critical consideration . . . is whether the cause of action is
speech or petitioning activity.†(
82, 89.) To make that determination, we
look to the “principal thrust or gravamen of the plaintiff’s cause of action.†(
Inc. (2003) 113 Cal.App.4th 181, 188;
1273, 1279.)
Laramar’s brief on appeal essentially ignores all pertinent
principles or cases, its brief nowhere mentioning “gravamen†or “thrust,†or
even attempting to meaningfully discuss what Moriarty’s complaint is “based
on.†Rather Laramar states its argument
this way:
“D. Plaintiff’s Lawsuit Against Laramar is a SLAPP
“Plaintiff has attempted to disguise the fact that this action is a
SLAPP, but it is a SLAPP nonetheless.
The complaint sets forth numerous causes of action against all of the
defendants, including a penultimate [sic]
cause of action for ‘Wrongful Eviction,’ accusing the Defendants of a
laundry-list of bad actions as landlords.
However, the laundry list includes the filing and prosecution of the
Unlawful Detainer Action that resulted in Plaintiff’s eviction. In particular, the Complaint asserts the
following conduct as the basis of Plaintiff’s claims:
“45. In or after June of 2011, Plaintiff learned that Defendants had
chosen to permanently retain possession of the subject premises and thereafter
refused to return possession to Plaintiff in violation of Plaintiff’s rights
. . . .
“55. As a direct and proximate result of the above acts by
Defendants . . . . Plaintiff
lost possession of the Subject Premises and suffered loss of the Subject
Premises to his general damage in an amount to be proven at
trial. . . .
“56. Defendants . . . endeavored to recover possession of
the Subject Premises in bad faith through unlawful harassment and other means,
including but not limited to the following actions: . . . .
“e. Refusing to return possession of the Premises to Plaintiff after
the completion of repairs and remediation. . . .
“70. Defendants violated their duty of due care to Plaintiff and
violated their statutory duties to Plaintiff by failing to state just cause for
the eviction of Plaintiff or offer any relocation benefits as proscribed under
San Francisco Administrative Code § 37.9C. . . .
“129. Defendants endeavored to recover, and in fact recovered,
possession of the Premises in bad faith, with ulterior reason, and without
honest intent, and in a manner not permitted by the San Francisco
Administrative Code § 37 et seq.
(Rent Ordinance) and thereby violated the Rent Ordinance § 37.9 et
seq. . . .
“130. Defendants, and each of them, failed to provide Plaintiff just
cause to evict her [sic] as required
by the Rent Ordinance. Defendants’
eviction of Plaintiff was lacking in the requisite just cause and was incapable
of being remedied . . . .
“These allegations fall within the scope of section 425.16(e)(1) and
(e)(2), because they expressly invoke the Unlawful Detainer Action and ensuing
eviction as the factual basis for Plaintiff’s claims against Laramar.â€
In short, with disregard of the pertinent principles or cases—and on
a strained, myopic reading of Moriarty’s complaint—Laramar focuses on a few
words in a few paragraphs (of 139) and from there argues, however conclusorily,
that the complaint is within the SLAPP statute.
Laramar’s primary focus in this regard is on the eleventh cause of
action, as to which it asserts as follows:
“Plaintiff’s tactics are shown by his penultimate [
‘Wrongful Eviction,’ which explicitly seeks damages based on the Unlawful
Detainer Action and resulting eviction.
Plaintiff alleges:
“Defendants endeavored to
recover, and in fact recovered, possession of the Premises in bad faith,
with ulterior reason, and without honest intent, and in a manner not permitted
by the San Francisco Administrative code § 37, et seq. (‘Rent Ordinance’) and thereby violated the Rent Ordinance
§ 37.9, et seq.
“. . . . Plaintiff then alleges:
“Defendants, and each of them, failed to provide Plaintiff just
cause to evict her [sic] as required by the Rent Ordinance. Defendants’ eviction of Plaintiff was lacking
in the requisite just cause and was incapable of being remedied as Plaintiff’s
tenancy was protected from eviction.
“. . . . Plaintiff contends that he is entitled to
treble damages because Laramar endeavored to recover possession of the rental
unit in violation of Chapter 37.9 of the Rent Ordinance. [Citation.] . . . [¶] The eleventh
cause of action clearly arises from protected petitioning conduct.â€
Laramar’s selective reading of Moriarty’s complaint is
inappropriate, which is bad enough.
Worse, the conclusion it draws from the eleventh cause of action is
wrong, as shown by numerous cases, including some by us.
The issue presented by the eleventh cause of action is essentially whether
an action for violation of rent ordinances is within the anti-SLAPP statute, an
issue that most frequently presents itself in cases involving a claimed violation
of the Ellis Act—cases held not to be within the anti-SLAPP law.
We examined the pertinent decisions on this point in
177 Cal.App.4th 940 (Delois), as
follows:
“[In] Marlin v. Aimco Venezia,
LLC (2007) 154 Cal.App.4th 154, . . . after the landlords had
served notice under the Ellis Act (Gov. Code, § 7060 et seq.) that they
intended to withdraw certain rental units from the market, the tenants of some
of those units brought a declaratory relief action to clarify their rights
under that statute. The landlords filed
an anti-SLAPP motion, contending that the tenants’ complaint arose from the
landlords’ action in filing and serving the Ellis Act notices, and from other
litigation involving the removal of the rental property from the market. The trial court granted the SLAPP motion,
thereby striking the tenants’ cause of action and dismissed their declaratory
relief action.
“The Court of Appeal disagreed with the trial court that the SLAPP
motion was appropriate and reversed its order. After quoting the key language from section
425.16, subdivision (a), the court wrote:
‘Even if we assume filing and serving the Ellis Act notice and the notice
to vacate constituted protected petitioning or free speech activity “the 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.†Rather, the critical question
in a SLAPP motion “is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity.†[¶] 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. 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.’ (Marlin,
supra, 154 Cal.App.4th at pp. 160-161, fns. omitted).
“In January 2009, perhaps the most pertinent of the appellate
decisions discussing the application (or lack thereof) of the SLAPP statute to
landlord-tenant disputes was published. It
is Clark v. Mazgani (2009) 170
Cal.App.4th 1281 (Clark). There, as here, a tenant sued her landlord
for fraud and unlawful eviction after the landlord evicted her, allegedly to
make the rental unit available to the landlord’s daughter; the latter never
happened. The trial court granted the
landlord’s SLAPP motion, holding that the tenant’s complaint was essentially
based on the landlord’s privileged communications. Again, the Second District reversed. In so doing, it held that although ‘[t]here is
no question that the prosecution of an unlawful detainer action is indisputably
protected activity within the meaning of section 425.16,’ on the facts before
it, the tenant’s complaint was ‘not premised on Mazgani’s protected activities
of initiating or prosecuting the unlawful detainer action, but on her removal
of the apartment from the rental market and fraudulent eviction of Clark for
the purpose of installing a family member who never moved in.’ (Clark,
supra, 170 Cal.App.4th at p. 1286.)
“Quoting Marlin, the
property from the rental market are not activities taken in furtherance of the
constitutional rights of petition or free speech.†[Citations.]
“ ‘[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.’ †[Citation.]
The pivotal question “ ‘is whether the cause of action is based on
the defendant’s protected free speech or petitioning activity.’ †[Citations.]’ (Clark, supra, 170 Cal.App.4th at pp. 1286-1287, italics
omitted.)
“The Clark court then discussed
the facts and rulings of both Marlin
and DFEH [Department of Fair Employment
& Housing v. 1105 Alta Loma Road
service of the notices of intent to evict, it is not based on anything Mazgani
said in court or a public proceeding, and it is not based on the fact that
Mazgani prosecuted an unlawful detainer action against her. The complaint is based on Mazgani’s allegedly
unlawful eviction, in that she fraudulently invoked the [rent ordinance] to
evict Clark from her rent-controlled apartment as a ruse to provide housing for
her daughter, but never installed her daughter in the apartment as required by
that ordinance, and also that she failed to pay Clark’s relocation fee.’ (Clark,
supra, 170 Cal.App.4th at p. 1288.)
“Because the landlord in Clark relied
on our decision . . . in Feldman
[v.
“The Clark court then
summed up the critical distinction between the facts before it and those before
us in Feldman and the court in
‘The pivotal distinction between the circumstances in
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, 170 Cal.App.4th at p. 1289.)†(Delois,
supra, 177 Cal.App.4th at pp. 950–953, fns. omitted.)
This last sentence is explained by the trio of decisions that came
from our Supreme Court in 2002. “[T]he
mere fact an action was filed after protected activity took place does not mean
it arose from that activity.†(
underlying the plaintiff’s 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.’ (Equilon
Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) “[T]hat 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.†(Navellier
v. Sletten, supra, 29 Cal.4th at p. 89.)
Those are the cases that would apply to Moriarty’s eleventh cause of
action. They do not help Laramar.
In a similar fashion, Laramar then asserts, again conclusorily, that
“Plaintiff’s Second Cause of Action, which asserts a claim for ‘Negligent
Violation of Statutory Duty/Negligence Per Se’ is expressly based on the
eviction. After incorporating all of the
previous fact allegations (Complaint, ¶ 68 [AA 17]), Plaintiff generally
alleges that Laramar breached its duty of due care and violated statutory
duties by ‘violating certain housing, building and fire codes, local ordinances
and state statutes.’ (Complaint, ¶ 69
[AA 17].) But in the next paragraph,
Plaintiff specifically pleads that ‘Defendants violated their duty of care to
Plaintiff and violated their statutory duties to Plaintiff by failing to state just cause for the eviction of Plaintiff or
offer any relocation benefits as proscribed under San Francisco Administrative
code §37.9C.’ (Complaint, ¶ 70, emphasis
added [AA 17].) This same allegation is
subsequently incorporated into all of Plaintiff’s remaining causes of
action. (See, Complaint, ¶¶ 73, 82, 89, 95, 100, 104, 107, 123 and 128 [AA
18, 20, 21, 22, 23, 25].) Therefore, it
is clear that this cause of action is based at least in part on protected
conduct by the Defendants.â€
Then, Laramar goes on to discuss other causes of action, which
Laramar describes this way: “[a]lthough
disguised, [Moriarty’s] other causes of action also arise from the same
petitioning activity, and are also subject to the anti-SLAPP statute.†The primary basis of Laramar’s argument is
that “all prior allegations†are incorporated in the complaint “(which includes
his eviction from the unit.)†And so, Laramar
sums up, “Thus, in material part, each of Plaintiff’s causes of action is
premised on the three day notice, the prosecution of the Unlawful Detainer
Action, and the eviction, which resulted in Plaintiff’s permanent loss of
possession of the unit.†Simply saying
something does not make it so. Laramar’s
strained reading of Moriarty’s complaint is, simply, inaccurate.
Laramar places heavy reliance on Wallace,
supra, 196 Cal.App.4th 1169, a case it cites four times in its opening
brief, and which it describes in its reply as “on point.†The reliance is misplaced. Wallace
is distinguishable. To begin with, the
anti‑SLAPP motion in Wallace was
directed at only two of 13 causes of action (id. at p. 1178), not the entire complaint as is Laramar’s
motion here. And the court found that
the acts on which the challenged causes of action were “based†were protected
activity. Beyond that, we find
does not even address Delois, supra, 177 Cal.App.4th
940, and dismisses Clark in conclusory fashion in a footnote. (Wallace,
supra, 196 Cal.App.4th at p. 1192, fn. 10.)
In sum, Laramar fails to demonstrate that Moriarty’s cause of action
for violation of section 37.9 of the San Francisco Administrative Code Chapter
37 (or any other cause of action) is based in whole or in part on an unlawful
detainer default suit that is nowhere referenced in the complaint. Indeed, Laramar does not show that the
unlawful detainer suit was even “incidental†to Moriarty’s claims here. But even assuming it did, it would still
lose, based on the numerous cases that apply the rule that the anti-SLAPP
statute does apply where any allegations of protected activity are only
incidental to the thrust of the complaint.
(Dyer v. Childress, supra, 147
Cal.App.4th at p. 1279.). Four
illustrations should suffice.
Cases (2009) 45 Cal.4th 467, which was a national
church’s action to recover parish property after the parish disaffiliated
itself from national church, which disaffiliation was caused by protected
activity related to a doctrinal dispute.
Held: the case did not arise from
such protected activity, as the gravamen or principal thrust of the action was
a property dispute, not a dispute
over religious doctrine or other protected activity. (Id.
at pp. 477–478.)
Estate Business Trust (2007) 153 Cal.App.4th 790,
where a seller of real property brought an action against the buyer, the city,
and city officials for breach of contract, fraud, and related causes of action,
in which some of the actions complained of related to defendants’ conduct in
obtaining and issuing permits.
Held: the thrust of the action
did not “arise†from these activities. (
LLC, supra, 154 Cal.App.4th 154, where tenants
brought a declaratory relief action after the landlord served them with notice
under a statute (Govt. Code, section 7060 et seq.) that permits landlords to
evict tenants under certain conditions, even if prohibited by local rent control
ordinance—an action instituted in response to service of the notice, a
protected activity. Held: the action did not “arise†from the protected
activity, as the thrust of the action was whether the landlord could evict
tenants. (Id. at pp. 160–161.)
1301, where plaintiff sued for declaratory relief to obtain a determination
that defendant’s conduct (involvement in protests) constituted breach of a
settlement agreement. Held: not an anti‑SLAPP suit. Although the conduct constituted an exercise
of the constitutional right of free speech, the cause of action did not arise
from that exercise, but rather from a controversy between the parties as to the
scope of the settlement agreement. (
Because we conclude that Laramar has not met its burden under the
first step of the anti-SLAPP analysis, we do not reach step two.
subject based on Laramar’s final argument that Moriarty’s claims “are barred by
the doctrines of claim and issue preclusion.â€
The argument is as follows: “The
Complaint in The Eviction alleged that Laramar had complied with all applicable
requirements of the Rent Ordinance.
[Citation.] As such, the issues
raised in the complaint concerning possession were at issue in the eviction
proceeding, and were accordingly adjudicated against Plaintiff when the court
entered a judgment for possession against him.â€
We are nonplussed.
As noted above, Moriarty moved to set aside the default entered in
the unlawful detainer action, hearing on which was held on May 2, 2012. Laramar Urban Specialty
Partners, the plaintiff in the unlawful detainer case, was represented by Mr.
Dowling, Moriarty by Eric Lifschitz. Mr.
Lifschitz expressed his concern that if the default were not set aside there
might be a preclusive effect on Moriarty at a later date, a concern that from
all indications also bothered the trial court.
Mr. Dowling alleviated the concern.
This was the colloquy:
“THE COURT: How do you
comment on the other statements made by other counsel which related to even if
the Court were to say you can’t get possession because this is a U.D. and
possession is not the issue, at least want the judgment modified in this
instance here to set forth what happened?
I guess something to that extent so that, you heard, you can’t use it
against them in whatever they are going to do.
“MR. DOWLING: I don’t know
there is any collateral affect. Certainly
no issue preclusion because nothing was litigated, where we have a default
judgment here. There is nothing
litigated. There was no evidence put
before the Court so no fact issues got decided.
In terms of claim preclusion, only seems to operate against my
client. No cross-complaints are
permitted in U.D., so not as if he could assert any affirmative complaints that
he was going to use.â€
In any event, the argument that the judgment entered on Moriarty’s
default in the unlawful detainer action proves that his “claims are barred by
the doctrines of claim and issue preclusion†is wrong. The sole issue in an unlawful detainer action
is possession of the premises. (
158, 159; Berry v. Society of Saint Pius
X (1999) 69 Cal.App.4th 354, 363.)
The range of Moriarty’s claims is, as already shown, far wider than
that.
The order is affirmed.
>
+_________________________
Richman,
J.
We concur:
_________________________
Haerle, Acting
P.J.
_________________________
Brick, J.
is apparently proceeding as to it.
our opinion in Chacon v. Litke (2010)
181 Cal.App.4th 1234. While
argues its applicability here, as follows:
“This court agrees that wrongful endeavors to recover possession of a
rental unit in violation of enumerated grounds for eviction in a rent
ordinance, ‘[o]n their face, these provisions create liability for a range of
conduct that does not necessarily include filing a lawsuit to recover
possession (such as service of an eviction notice with no intent to proceed to
litigation, or constructive eviction by failure to provide heat), or that arise
from a landlord’s conduct after recovery of possession.’ (
at p. 1257, citing Rental Housing
Association of Northern Alameda County v. City of Oakland (2009)
171 Cal.App.4th 741.) ¶ This Court
has essentially found that a wrongful eviction does not necessarily include
filing an unlawful detainer action . . . .†(Fns. omitted.)
Laramar ignores Chacon in
its reply brief, not even mentioning it.
This is bad enough in any event.
It is especially so here, as counsel for Laramar was counsel for the
losing party in Chacon.
