Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-06-449042
Pollak, J.
This court previously reversed the trial court’s order in this case that had denied defendants’ motion to dismiss plaintiff’s wrongful eviction complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP statute). We directed the trial court to grant the motion and dismiss the action. When the case was returned to the superior court after the Supreme Court denied plaintiff’s petition for review, plaintiff requested the trial court to depart from this court’s order based on an intervening decision of the Supreme Court in another case that plaintiff argued showed that this case had been wrongly decided. The trial court refused to do so, advising plaintiff that “If you wish to have that particular determination reviewed then you should go to the Court of Appeal and ask the Court of Appeal to reverse its determination in view of the California Supreme Court decision that you suggest is now the law to follow.” On this appeal from the trial court’s order denying plaintiff’s motion to “disregard the Court of Appeal’s holding because of intervening case law,” the parties argue at length concerning the proper application of the doctrine of law of the case, should this court agree with plaintiff that the intervening Supreme Court decision undermines the basis for our decision in the prior appeal. We find it unnecessary to grapple with those issues, however, because there is no inconsistency between our prior decision and the subsequent Supreme Court decision. Hence, we shall affirm.
BACKGROUND
The facts out of which this controversy arises are set out in our prior opinion. (May 16, 2007, A114310 [nonpub. opn.].) Briefly, having prevailed in an unlawful detainer action brought against her by defendant Citi Properties I De, LLC (Citi), plaintiff Kelly Hames brought an action against Citi alleging wrongful eviction, intentional infliction of emotional distress, negligence, breach of contract, and breach of the covenant of good faith and fair dealing. On appeal from the denial of Citi’s motion to strike under the anti-SLAPP statute, this court held that the filing of the wrongful eviction action was “the principal thrust or gravamen” of the first cause of action and a significant part of the conduct underlying the other causes of action, so that the complaint was based on protected activity and satisfied the first prong of the anti-SLAPP statute. We held further that Hames had failed to make a prima facie showing of her right to prevail because the filing of the unlawful detainer action was protected by the litigation privilege (Civ. Code, § 47, subd. (b)(2)) and because the conduct of Citi preceding the filing of the action—telephone calls to Hames over a period of six or seven years inquiring whether she would relinquish her tenancy in exchange for payment, characterized by Hames as harassment—was insufficient to support any of the other causes of action. We therefore held that the trial court should have granted the motion to strike and ordered it to do so and to dismiss the action.
This court’s opinion was filed on May 16, 2007. Hames timely filed a petition for review in the Supreme Court. While that petition was still pending, the Supreme Court filed its opinion in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 (Action Apartment) on August 2, 2007. On August 8, 2007, the Supreme Court denied Hames’s petition for review. On August 13, 2007, this court issued its remittitur to the superior court. On September 18, 2007, Hames filed in the superior court a motion entitled, “Motion to Excuse the Trial Court’s Adherence to the Law of the Case Due to Intervening Case Law.” Hames argued that the trial court “should not adhere to the law of the case due to intervening case law from the California Supreme Court[, the decision in Action Apartment], which goes contrary to the analysis employed by the Court of Appeal for the instant matter.” The court denied the motion and proceeded to enter a judgment of dismissal as this court had directed. Hames timely appealed.
DISCUSSION
In Action Apartment, the owner and manager of apartment buildings challenged the validity of a Santa Monica ordinance authorizing civil and criminal penalties against a landlord who maliciously serves a notice of eviction or brings an action to recover possession of a rental unit without a reasonable factual or legal basis. The Supreme Court held that the litigation privilege preempts entirely the provision authorizing a penalty for filing an action to recover possession of a rental unit, but preempts the provision authorizing a penalty for serving a notice of eviction only to the extent that it penalizes the service of eviction notices “where litigation is contemplated in good faith and under serious consideration.” (Action Apartment, supra, 41 Cal.4th at p. 1252.) The litigation privilege does not protect from liability prelitigation communications that do not relate to litigation that is contemplated in good faith and under serious question, and “[w]hether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact.” (Id. at p. 1251.)
Hames argues that our prior decision in this case is inconsistent with Action Apartment because our prior decision incorrectly assumed that Citi’s prelitigation communications with her necessarily were barred by the litigation privilege. Rather, she contends, there is a factual issue as to whether the communications related to litigation that was contemplated in good faith and under serious consideration, and this court’s “blanket application . . . of the litigation privilege to all of [Citi’s] conduct violates the requirement of Action Apartment for a full factual inquiry.” Hames misreads our prior opinion. We did state that the telephone calls to Hames that she considers to have constituted harassment “may well be viewed as anticipatory to the litigation and within the scope of the [litigation] privilege.” However, we held that the motion to strike should have been granted because “in all events, the only factual showing Hames made with respect to such calls is that Citi agents called her approximately 30 times over a period of six or seven years—i.e., once every two to three months—and did no more than ask whether she ‘would be interested in vacating [her] apartment in exchange for a certain sum of money.’ This conduct was hardly sufficiently outrageous to support a claim of intentional infliction of emotional distress and, in all events, is constitutionally protected. [Citation.] Hames failed to carry her burden of presenting evidence sufficient to support a right to recover in the action.” The insufficiency of Hames’ showing to defeat the motion to strike is unaffected by the Supreme Court’s subsequent decision in Action Apartment.
Because Action Apartment does not cast doubt on this court’s reasoning or conclusion on the prior appeal, it is unnecessary to consider the appropriate reach and qualifications of the law of the case doctrine. Hames’ motion to disregard this court’s prior decision was properly denied and the action was properly dismissed.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.