Opinion
B322257
03-21-2024
HELEN DUFFY, Plaintiff and Respondent, v. VISEMER DE GELT, LLC, et al., Defendants and Appellants.
Davidovich Stein Law Group, Niv Davidovich; Law Office of Aryeh Kaufman and Aryeh Kaufman, for Defendants and Appellants. Gordon Kemper, Andrew J. Thomas, and Marcia Z. Gordon, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 21STCV02454, Teresa A. Beaudet, Judge. Reversed and remanded with directions.
Davidovich Stein Law Group, Niv Davidovich; Law Office of Aryeh Kaufman and Aryeh Kaufman, for Defendants and Appellants.
Gordon Kemper, Andrew J. Thomas, and Marcia Z. Gordon, for Plaintiff and Respondent.
MORI, J.
Defendants Visemer De Gelt, LLC (VDG) and Sol Feiner (Feiner) appeal from the denial of their special motion to strike the complaint of plaintiff Helen Duffy (Duffy) under Code of Civil Procedure section 425.16 (the anti-SLAPP statute). Defendants argue the trial court erred in denying the motion because Duffy's complaint is based on protected activity, namely service of two eviction notices. We conclude Duffy's claims arise from protected activity. On remand, the court shall consider whether Duffy has established a probability of prevailing on her causes of action.
SLAPP is the acronym for a strategic lawsuit against public participation. All further undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Lease and Prior Civil Action
In 1984, Duffy entered into a rental agreement for the upstairs unit of a duplex property on Detroit Street in Los Angeles. VDG purchased the property in November 2014 and became Duffy's new landlord under the rental agreement. Feiner is the owner and managing member of VDG; he has been the manager of Duffy's unit since VDG purchased it. Duffy's tenancy is subject to the Rent Stabilization Ordinance of the City of Los Angeles.
In January 2017, VDG served Duffy with a notice to terminate her tenancy pursuant to the Ellis Act (Gov. Code, § 7060 et seq.). "The Ellis Act permits owners of property subject to rent control to evict their tenants . . . if they comply with certain procedural requirements." (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, 18.)
One year later, Duffy filed a civil action against defendants relating to defendants' attempts to evict her. Duffy's prior civil action asserted various causes of action, including a claim seeking a declaration that VDG's Ellis Act eviction notice was invalid. A few weeks later, VDG filed an unlawful detainer action against Duffy based on the Ellis Act notice.
The parties stipulated to bifurcating the trial in Duffy's prior civil action into separate phases. In 2020, the trial court conducted phase one of the trial, adjudicating Duffy's declaratory relief claim, which included the issues in VDG's unlawful detainer action. The court issued its statement of decision in October 2020 and found the eviction notice served on Duffy in January 2017 was invalid because it contained incorrect information required by the Ellis Act, including the date her tenancy would terminate. The court, thus, found Duffy's lease was not terminated and remained "in full force and effect."
Phase two will be a jury trial of the tort and other claims Duffy has asserted against defendants in the prior civil action. Duffy seeks general and punitive damages for defendants' past alleged misconduct.
B. The 2021 Eviction Notices and Instant Complaint
On January 16, 2021, VDG served Duffy with two eviction notices by posting them on her door. The first was a three-day notice to perform covenants or quit (the non-monetary notice), and the second was a three-day notice to pay rent or quit (the monetary notice).
Four days after being served with the eviction notices, Duffy filed the instant action against defendants alleging claims for (1) intentional infliction of emotional distress; (2) breach of implied covenant of quiet enjoyment; (3) breach of contract; (4) declaratory relief; (5) negligence inclusive of wrongful eviction and negligent infliction of emotional distress; and (6) injunctive relief. Duffy alleges "[b]oth notices contain demonstrable lies and were served in bad faith" as part of a campaign by defendants to evict her. Duffy specifies that the instant action seeks to address different wrongs than her prior civil action. It seeks damages or remedies for defendants' conduct "commencing on or about January 11, 2021, which conduct is separate and distinct from prior conduct alleged in [Duffy's] [prior] [c]ivil [a]ction."
Although defendants served the non-monetary notice on January 16, 2021, Duffy asserts the notice is dated January 11, 2021.
Duffy's complaint in the instant action first alleges statements made in the non-monetary notice are false. The nonmonetary notice indicates Duffy had an unauthorized dog and "adult female" on the premises in violation of her lease agreement and that Feiner witnessed the breaches over the "last 30[-]day period." The complaint alleges Duffy's dog fell ill and was cremated in April 2020. The unauthorized adult female was purportedly a subtenant who moved out of Duffy's unit in November 2020 to return home to New York. Further, Duffy alleges the right to have subtenants was decided in her favor in the phase one trial where the trial court found Duffy's lease, which contains an amendment permitting her to "'have a tenant,'" remained in full force and effect.
Duffy's complaint next alleges the monetary notice asserting Duffy failed to pay her rent for February 2020 is also false. Duffy alleges she timely sent her full rent for February 2020 to VDG, but Feiner returned her payment. She alleges the trial court found in the phase one trial that Duffy "'always paid her rent in full and on time'" since 1984. Duffy alleges the explanation "for the service of the [n]on-[m]onetary and [m]onetary [t]hree-[d]ay [n]otices [defendants] posted on [Duffy's] door on January 16, 2021[,] is that they are (again) trying to intentionally, or in the alternative, negligently, inflict new and different severe emotional distress on the elderly [Duffy]." Defendants' alleged motivation for wanting to evict Duffy is that her rent is far below its market value.
Duffy's complaint refers to her prior civil action and the conduct upon which it is based and includes other allegations to establish that defendants are "scofflaws." It alleges that since purchasing the unit in 2014, Feiner has been trying to illegally evict Duffy by any means, including by trying to make her life so miserable she would voluntarily vacate. Specifically, defendants shut off Duffy's water, removed her central furnace heater, failed to repair roof leaks, and attempted to evict Duffy using the "fake" Ellis Act eviction notice. The complaint states that this was the conduct that resulted in her filing, and serves as the basis for, the prior civil action in which the phase one trial was held. The complaint also states that the phase two trial will be held to address Duffy's claims for damages related to this conduct.
The complaint includes one paragraph under the heading "HARM TO MS. DUFFY." The paragraph reads, "Upon seeing the [m]onetary and [n]on-[m]onetary [n]otices posted on her door on January 16, 202[1], [Duffy] cried and suffered severe and extreme fear, anxiety, [and] emotional trauma ...."
The above allegations are incorporated by reference into each cause of action.
C. Defendants' Anti-SLAPP Motion
Defendants moved to strike Duffy's entire complaint pursuant to section 425.16 on the ground that Duffy's claims arose from service of the monetary and non-monetary notices, which constituted protected activity under the anti-SLAPP statute. Defendants also argued Duffy could not show any probability of prevailing because her causes of action were barred by the litigation privilege (Civ. Code, § 47, subd. (b)).
Duffy opposed the anti-SLAPP motion arguing her claims were not based on defendants' service of the eviction notices, but instead were based on defendants' bad faith reasons for breaching the lease, causing her emotional distress. Duffy further argued that even if her complaint arose from protected activity, she established a prima facie case supporting her claims because the evidence showed defendants were lying in the eviction notices.
After a hearing, the trial court denied the motion. The court concluded Duffy's causes of action did not arise from protected activity. Consequently, the court did not address whether Duffy demonstrated a probability of prevailing on the merits of her claims. Defendants timely appealed.
In ruling on the motion, the trial court took judicial notice of the records in Duffy's prior civil action. These records were not made part of the record on appeal.
DISCUSSION
A. Section 425.16 and Standard of Review
"A cause of action arising from a person's act in furtherance of the 'right of petition or free speech under the United States Constitution or 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 claim will prevail." (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788, citing § 425.16, subd. (b)(1).) Anti-SLAPP motions are evaluated through a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) We review the trial court's decision to grant or deny an anti-SLAPP motion de novo. (Monster Energy Co. v. Schechter, at p. 788.)
B. Duffy's Causes of Action Arise from Protected Activity
Defendants argue each cause of action in Duffy's complaint is predicated on defendants' protected activity of serving the two 3-day eviction notices. We agree.
A cause of action is one "'arising from'" protected activity within the meaning of section 425.16, subdivision (b)(1), only if the defendant's act on which the cause of action is based was an act in furtherance of the defendant's constitutional right of petition or free speech. (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1274 (Ulkarim).) "In deciding whether the 'arising from' requirement is satisfied, 'the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).)" (Ibid.)
The filing of an unlawful detainer action and service of a three-day notice to quit are protected activities within the meaning of section 425.16. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 (Feldman); Newport Harbor Offices &Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45.) The statements made in the notices also are protected acts because they are "communication[] preparatory to the bringing of [an] unlawful detainer action." (Feldman, at p. 1480.) Thus, a cause of action arising from such filing or service of a three-day notice to quit is a cause of action arising from protected activity. (Ulkarim, supra, 227 Cal.App.4th at p. 1275.) However, "the mere fact an action was filed after protected activity took place does not mean it arose from that activity." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.) When, as in this case, the challenged lawsuit follows service of a three-day notice to quit, the critical consideration is whether the cause of action is based on the defendant's protected petitioning activity. (See Ulkarim, at p. 1275.)
Here, although the complaint describes Duffy's prior civil action and the alleged bad faith campaign to evict her on which it is based, it specifies that the conduct for which she now seeks damages or remedies concerns the eviction notices posted in January 2021. The first cause of action for intentional infliction of emotional distress alleges defendants' conduct commenced "on or about January 11, 2021," and "is separate and distinct from prior conduct alleged in [Duffy's] [prior] [c]ivil [a]ction." This allegation is incorporated by reference into all the causes of action that follow. The implied covenant of quiet enjoyment and breach of contract claims allege defendants breached the lease by serving the notices. The declaratory relief claim seeks a declaration concerning the parties' rights under the notices. The negligence claim asserts defendants exposed Duffy to an unreasonable risk of harm by serving her with the notices. The final claim for injunctive relief seeks an order enjoining defendants from evicting Duffy pursuant to the notices. Further, the sole allegation under the heading "HARM TO DUFFY" states, "Upon seeing the [m]onetary and [n]on-[m]onetary [n]otices posted on her door on January 16, 202[1], [Duffy] cried and suffered severe and extreme" emotional distress.
While Duffy's prior civil action seeks damages for conduct prior to service of the 2021 eviction notices, the service of the notices allegedly containing false statements is the conduct that supports the elements of each of her claims in this action. The service of the three-day notices to quit was protected activity within the meaning of section 425.16. (Feldman, supra, 160 Cal.App.4th at p. 1480; see also Ulkarim, supra, 227 Cal.App.4th at p. 1275.)
Duffy attempts to liken her claims to those in Ulkarim, supra, 227 Cal.App.4th 1266. In Ulkarim, a commercial tenant asserted causes of action against her landlord, alleging that a third-party competitor induced the landlord to terminate her lease. (Id. at pp. 1270-1272.) The appellate court found the tenant's allegations did not arise from protected activity. The gravamen of the tenant's breach of contract and declaratory relief claims was that the landlord acted in bad faith when it terminated the lease in a manner contrary to what was required under the lease's terms. (Id. at p. 1281.) The gravamen of the claims for negligent and intentional interference with prospective economic advantage was that the landlord interfered with the tenant's business by, among other things, interfering with her credit card processing and telling her employees and other vendors her business would be replaced. (Id. at p. 1282.) An unfair competition count was based on the same unprotected conduct. (Ibid.) The tenant's complaint, therefore, was based on conduct apart from service of a termination notice or filing of an unlawful detainer complaint.
Unlike in Ulkarim, defendants' service of the three-day notices to quit provides the foundation for each of Duffy's claims. (See Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1175 [the gravamen is defined by the alleged wrongful and injury-producing conduct that provides the foundation for the claims].) The complaint does not identify any act other than the service and contents of the three-day notices upon which Duffy seeks to impose liability on defendants. (See Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1051-1052 [When "the sole basis of liability asserted in the tenant's complaint is the filing and prosecution of the unlawful detainer action, the tenant's action [is] targeted at protected activity. [Citation.]"].)
Duffy contends this action is not about defendants' right to serve the eviction notices but is about defendants' reasons for and decision to terminate Duffy's tenancy. While the complaint includes allegations of other acts by defendants dating back to 2014, it specifies the older conduct is the basis of Duffy's prior civil action, not this one. According to Duffy, a phase two trial will take place to determine what damages she may be entitled to because of the prior alleged misconduct. In this action, the complaint states defendants "inflict[ed] new and different severe emotional distress" on Duffy, distinct from the conduct that is the subject of the prior civil action, by serving the notices. Were the allegations about the three-day notices removed, the remaining allegations would not state a cause of action against defendants. Indeed, Duffy expressly recognizes this when she alleges the instant complaint concerns defendants' conduct "commencing on or about January 11, 2021, which conduct is separate and distinct from prior conduct alleged in [Duffy's] [prior] [c]ivil [a]ction."
Likewise, the complaint includes allegations regarding defendants' management of other properties they own and manage that purportedly demonstrate defendants are "recidivist scofflaw landlords." However, Duffy is not asserting defendants are liable for any acts in connection with other properties in this lawsuit.
The other cases Duffy cites where anti-SLAPP motions were denied in the context of landlord-tenant disputes are also distinguishable. (See e.g., Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 157-158, 160 [complaint was triggered by the service of notices but sought declaratory relief about parties rights under the Ellis Act]; Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1287 [complaint triggered by filing and serving paperwork to remove units from rental market and evict tenant but was based on disability discrimination]; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 12861287 [complaint was based on violation of rent control laws and not on landlord's unlawful detainer action]; Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1240, 1247 [complaint sought declaration of rights and duties under a ground lease, sublease, trust deed, quitclaim deed, and duties to repair, and did not arise from unlawful detainer action].) In none of these cases was the sole basis for liability service of an eviction notice.
Moreover, although the complaint alleges defendants want to evict Duffy to re-rent the property for more money, defendants' purported motive in undertaking the petitioning activities is irrelevant in determining whether Duffy's causes of action are based on protected activities. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269, disapproved on other grounds in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1071; see also City of Cotati v. Cashman, supra, (2002) 29 Cal.4th 69, 74 [party's motivation or subjective intent for filing a lawsuit is not relevant to determining whether lawsuit arose from an act in furtherance of right to petition].) Instead, Duffy's arguments that the three-day notices were invalid and served in bad faith may be relevant to determining whether Duffy has established a probability of prevailing on the merits. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 904 ["allegations that the suit was filed without probable cause-or, for that matter, based on a malicious motive-were irrelevant at the first step, and mattered only at the second step"]; Navellier v. Sletten (2002) 29 Cal.4th 82, 94 ["any 'claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's [secondary] burden to provide a prima facie showing of the merits of the plaintiff's case'"].)
As to Duffy's contention defendants are trying to illegally evict her, a defendant may not use the anti-SLAPP statute where "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) "'"[I]llegal"' in this context refers to criminal conduct; merely violating a statute is not sufficient because the broad protection the anti-SLAPP statute provides for constitutional rights would be significantly undermined if all statutory violations were exempt from the statute. [Citation.]" (Collier v. Harris (2015) 240 Cal.App.4th 41, 55.) Defendants do not concede the notices were illegal, nor does the record conclusively establish defendants' petitioning activity was illegal as a matter of law. "[C]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 739-740 [allegation lawsuit filed without probable cause was irrelevant at first step of anti-SLAPP analysis].)
Based on the foregoing, defendants met their burden of showing Duffy's complaint arises from protected activity.
C. The Trial Court Must Proceed to Step Two in Evaluating the Anti-SLAPP Motion
Once a defendant establishes the complaint seeks relief "based on allegations arising from [protected] activity[,]" the trial court must proceed to step two. (Baral, supra, 1 Cal.5th at p. 396.) At step two, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated." (Ibid.)
Defendants met their first-step burden. They are "therefore entitled to preliminary screening of those claims to determine whether they have minimal merit." (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 904.) Because the trial court did not reach the second step, it never had an opportunity to consider whether there was a probability Duffy would prevail.
We remand the matter to allow the trial court to evaluate whether Duffy's claims have the minimal merit required to survive a special motion to strike in the first instance. (See Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1527 ["the more prudent course is to remand the matter to the trial court to determine in the first instance whether [the plaintiff] demonstrated a reasonable probability of prevailing on the merits"].) We note that the appellate record does not contain documents of which the trial court took judicial notice in its consideration of the motion. We express no view on Duffy's probability of prevailing.
DISPOSITION
The order denying defendants' anti-SLAPP motion is reversed. On remand, the trial court shall determine whether Duffy met her burden of demonstrating a reasonable probability of prevailing on the merits. Defendants are awarded costs on appeal.
We concur: CURREY, P. J. ZUKIN, J.