Opinion
F085534
01-22-2024
MAGED OSMAN, Plaintiff and Appellant, v. HERON POINTE APARTMENTS, LLC, Defendant and Respondent.
Maged Osman, in pro. per, for Plaintiff and Appellant. Petrie Leath Larrivee & O'Rourke, Oliver J. Larrivee, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 22CECG01962 Kimberly A. Gaab, Judge.
Maged Osman, in pro. per, for Plaintiff and Appellant.
Petrie Leath Larrivee & O'Rourke, Oliver J. Larrivee, for Defendant and Respondent.
OPINION
THE COURT [*]
Maged Osman filed the instant case against Heron Pointe Apartments, LLC (Heron Pointe). Heron Pointe filed a special motion to strike pursuant to California's anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16). The trial court granted the motion and struck the complaint. Osman appealed. We affirm the trial court's order granting the anti-SLAPP motion and striking the complaint.
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Osman rented an apartment at Heron Pointe in October 2019. On October 11, 2021, Osman was given a "three-day notice to pay rent or quit" for unpaid rent and utilities that were due on October 1, 2021. (Unnecessary capitalization omitted.) On January 24, 2022, Heron Pointe filed an unlawful detainer action against Osman, in the Fresno County Superior Court, with regard to the past-due rent and utilities from October 2021. On February 18, 2022, Osman filed an answer in the matter. The unlawful detainer action was ultimately dismissed on March 29, 2022.
Thereafter, on June 28, 2022, Osman filed the complaint initiating the present action. The complaint encompassed three claims, namely, fraud, intentional infliction of emotional distress, and filing an unnecessary eviction case, and sought compensatory and punitive damages. As to the fraud claim, Osman stated in the complaint: "[T]he defendat [sic] maliciyoucly [sic] staged a situation where he can evict me and he did not mind comiting [sic] fraud by lying to the court in few occasion. i.e. lying [sic] about the cause of action." Osman noted he had filed a rental assistance application with the City of Fresno and Heron Pointe filed the unlawful detainer action despite the fact his application was pending and, further, misrepresented the situation. Osman stated these actions "harmed him" and he suffered as a result. Osman claimed damages for wage loss, loss of earning capacity, general damages, and damages for emotional stress, pain and suffering, anxiety, inconvenience, and oppression on account of the unlawful detainer action.
The trial court summarized Osman's complaint as follows: "Here, plaintiff has alleged claims for intentional fraud, filing of an unnecessary eviction case, and intentional infliction of emotional distress against defendant, plaintiff's landlord. The complaint alleges that defendant served him with a three-day notice to pay rent or quit and then attempted to evict him by filing an unlawful detainer action against him. [Citation.] Plaintiff claims that he had applied for renter's assistance from the City of Fresno before he was served with the three-day notice, and that he notified defendant of this fact on at least two occasions, yet defendant nevertheless filed the unlawful detainer action against him. [Citation.] Plaintiff also alleges that defendant made false and fraudulent statements in its court filings, including that it had not been notified of the pending renter's assistance application and that the application had been denied. [Citation.] These statements were false, as plaintiff had repeatedly informed defendant that he had applied for renter's assistance. [Citation.] Plaintiff was forced to miss job opportunities and suffered substantial emotional distress as a result of having to deal with the unlawful detainer action. [Citation.] Even after plaintiff pointed out the misstatements in defendant's legal filings, it refused to dismiss the case for months."
On August 18, 2022, Heron Pointe filed a special motion to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. Osman filed an opposition to the motion on October 18, 2022, and Heron Pointe filed a reply to the opposition on December 27, 2022. The trial court, Judge Kimberly A. Gaab, granted Heron Pointe's anti-SLAPP motion and dismissed, with prejudice, Osman's underlying civil complaint. This appeal followed.
DISCUSSION
Trial Court Properly Granted Heron Pointe's Anti-SLAPP Motion
Osman argues the trial court erred in granting Heron Pointe's anti-SLAPP motion and striking his underlying complaint. We disagree and affirm.
A. The Anti-SLAPP Statute and Standard of Review
The anti-SLAPP statute, section 425.16, provides a procedure for expeditiously resolving "nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) "When served with a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To determine whether this motion should be granted, the trial court must engage in a two-step process." (Hansen v. Department of Corrections &Rehabilitation (2008) 171 Cal.App.4th 1537, 1543 (Hansen); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)
The first prong of the anti-SLAPP analysis requires the court to decide "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Equilon, supra, 29 Cal.4th at p. 67; § 425.16, subd. (b)(1).) The defendant makes this showing by demonstrating the acts of which the plaintiff complains were taken "in furtherance of the [defendant's] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1); Equilon, at p. 67.) To ensure that participation in matters of public significance is not chilled, the anti-SLAPP statute mandates that its terms "shall be construed broadly." (§ 425.16, subd. (a); Equilon, at p. 60; see Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23 ["The Legislature inserted the 'broad construction' provision out of concern that judicial decisions were construing [the public participation] element of the statute too narrowly."].)
If the court determines the defendant has made the threshold showing, "it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); § 425.16, subd. (b)(1).) To establish the requisite probability of prevailing, the plaintiff need only have" 'stated and substantiated a legally sufficient claim.'" (Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs).) "Put another way, 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.'" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson); Navellier, at pp. 88-89.)
We review both prongs of the anti-SLAPP analysis de novo. (Hansen, supra, 171 Cal.App.4th at p. 1544.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at p. 89.)
Section 425.16, subdivision (b)(1) provides: "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."
B. Trial Court Ruling
The trial court issued a detailed written decision granting Heron Pointe's anti- SLAPP motion. The trial court ruled, in part:
"Under Code of Civil Procedure section 425.16, '[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 the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on that claim.' (Code Civ. Proc., § 425.16, subd. (b)(1).) 'In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (Code Civ. Proc., § 425.16, subd. (b)(2).) 'As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law....' (Code Civ. Proc., § 425.16, subd. (e), emphasis added.)
" 'Section 425.16, subdivision (b)(1) establishes "a two-step process for determining" whether an action should be stricken as a SLAPP. First, the court must determine "whether the defendant has made a threshold showing that the challenged cause of action" arises from an act in furtherance of the right of petition or free speech in connection with a public issue. Second, the court must "determine whether the plaintiff has demonstrated a probability of prevailing on the claim." If the defendant makes a threshold showing that the cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing, then the court must strike the cause of action and award the defendant "attorney's fees and costs."' (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192, internal citations omitted.)
[¶ ]…[¶ ]
"[With regard to the first prong of the test,] '[s]tatements made before an "official proceeding" or in connection with an issue under consideration or review by a legislative, executive, or judicial body, or in any other "official proceeding," as described in clauses (1) and (2) of section 425.16, subdivision (e), are not limited to statements made after the commencement of such a proceeding. Instead, statements made in anticipation of a court action or other official proceeding may be entitled to protection under the anti-SLAPP statute." '[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], ... such statements are equally entitled to the benefits of section 425.16.' [Citations.]"' (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 886-887, internal citations omitted.)
"In the present case, plaintiff's claims are all clearly based on the statements, communications, and court filings made by defendant in preparation for or in connection with the unlawful detainer action. The service of the three-day notice to pay rent or quit, the filing and service of the unlawful detainer complaint and summons, and statements made in connection with those activities are all protected petitioning activities related to a judicial proceeding. Also, most of the statements and activities of which plaintiff complains were made by defendant's attorney or his staff, so those communications and actions are protected petitioning activities.' "Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute."' (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408-409, quoting Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.)
"As a result, defendant has met its burden of showing that plaintiff's claims arise out of protected speech or petitioning activities, and the burden shifts to plaintiff to present admissible evidence showing that he has a probability of prevailing on his claims. (Code Civ. Proc., § 425.16, subd. (b)(1).)
[¶ ] ... [¶ ]
"Here, plaintiff has not met his burden of presenting admissible evidence to show that he has a probability of prevailing on any of his claims. While he has filed [an] opposition in which he argues that defendant committed fraud and perjury when it filed false documents and verifications in support of its unlawful detainer action and engaged in a scheme to illegally evict him from the premises, plaintiff has not provided any admissible evidence to support his claims. His statements regarding the facts and events of the eviction proceeding are not sworn under penalty of perjury, and thus cannot support a finding that he has a probability of prevailing. Nor is his complaint verified under penalty of perjury, so it does not constitute evidence that might show that he has a likelihood of prevailing on his claims. Plaintiff has also failed to authenticate or lay a foundation for any of the documents he attaches to his opposition or complaint. Therefore, plaintiff has not shown that he has any probability of prevailing on his fraud, unnecessary filing of eviction case, or intentional infliction of emotional distress claims.
"In addition, even if plaintiff had submitted admissible evidence to support his claims, his claims are barred under the litigation privilege set forth in Civil Code section 47, subdivision (b). 'The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.' (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1485, internal citations omitted.)
"' "Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
" 'The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a "publication or broadcast" made as part of a "judicial proceeding" is privileged. This privilege is absolute in nature, applying "to all publications, irrespective of their maliciousness." "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action." The privilege "is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards."' (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, internal citations omitted.)
"' "The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]" In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation. The litigation privilege "derives from common law principles establishing a defense to the tort of defamation." "It's placement in the Civil Code immediately following the statutory provisions defining the elements of the twin defamation torts of libel and slander [citations] makes clear that, at least historically, the section was primarily designed to limit an individual's potential liability for defamation." Beginning with Albertson v. Raboff, which involved an action for defamation of title, we first extended the litigation privilege to apply to torts other than defamation. As we observed in Silberg, the litigation privilege has since "been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation] and fraud [citations]."' (Id. at pp. 1241-1242, internal citations omitted.)
" 'The "[p]leadings and process in a case are generally viewed as privileged communications." The privilege has been applied specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations. Thus, the Court of Appeal here correctly concluded that the communicative act of filing an allegedly false declaration of service of process fell within the litigation privilege.' (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058, internal citations omitted.)
"Here, plaintiff's claims are all based on defendant's allegedly false and perjurious statements made as part of the unlawful detainer action, or in preparation for the filing of the action. As a result, they are privileged under Civil Code section 47, subdivision (b) and cannot support plaintiff's claims for fraud, intentional infliction of emotional distress, or unnecessary filing of an eviction action.
[¶ ].[¶ ]
"As a result, plaintiff cannot prevail on his claims against defendant, and the court grants the motion to strike plaintiff's complaint in its entirety."
C. Osman's Instant Civil Complaint Arises Out of Protected Activity
Starting with the first prong of the anti-SLAPP analysis, we consider "whether the defendant [or respondent] has made a threshold showing that the challenged cause of action is one arising from protected activity." (Equilon, supra, 29 Cal.4th at p. 67; § 425.16, subd. (b)(1).) This in turn requires us to consider whether Osman's present complaint arose from acts taken by Heron Pointe in furtherance of its "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1).)
Section 425.16, subdivision (e), elaborates on what constitutes an" 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" (§ 425.16, subd. (e).) As pertinent here, such conduct includes "any written or oral statement or writing made before a ... judicial proceeding." (§ 425.16, subd. (e).)
Heron Pointe's oral and written statements made in preparation for, and in connection with, its unlawful detainer action were statements "made before a . judicial proceeding," and therefore count as protected activity for purposes of section 425.16, subd. (b)(1). (See Digerati Holdings, LLC v. Young Money Entertainment, LLC, supra, 194 Cal.App.4th at pp. 886-887 ["statements made in anticipation of a court action" as well as "statements made after the commencement of such a proceeding" are entitled to protection under the anti-SLAPP statute]; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17; Briggs, supra, 19 Cal.4th at p. 1115 [filing a lawsuit constitutes an exercise of a party's constitutional right of petition].) We conclude Heron Pointe has properly established that Osman's instant complaint arose from protected petitioning conduct. Thus, Heron Pointe has made the requisite showing in the first step of the anti-SLAPP analytic process.
Having concluded that Osman's current complaint arises from protected activity, we turn to the second prong of the anti-SLAPP analysis-whether Osman has established the probability of prevailing in this action.
D. Osman Failed to Establish a Probability of Prevailing on His Complaint
To establish a reasonable probability of prevailing under the second prong of the anti-SLAPP analysis, "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.'" (Wilson, supra, 28 Cal.4th at p. 821.)
Here, the trial court concluded that Osman failed to show a probability of prevailing on the claims in his civil complaint. Among other reasons, the trial court noted: "Here, plaintiff's claims are all based on defendant's allegedly false and perjurious statements made as part of the unlawful detainer action, or in preparation for the filing of the action. As a result, they are privileged under Civil Code section 47, subdivision (b) and cannot support plaintiff's claims for fraud, intentional infliction of emotional distress, or unnecessary filing of an action."
Osman does not challenge the trial court's determination that Heron Pointe's contested statements are privileged under Civil Code section 47, subdivision (b). Nor do we detect any error in the trial court's analysis on this point. We therefore conclude that Osman has not shown a probability of prevailing on the claims in his complaint.
E. Osman's Contentions are Unavailing
Osman alleges that Heron Pointe submitted false paperwork and declarations to the court in which its unlawful detainer action was pending, whereby its petitioning activity was illegal and not entitled to the protection of the anti-SLAPP statute, section 425.16, under the holding of Flatley v. Mauro (2006) 39 Cal.4th 299.
In Flatley v. Mauro, our Supreme Court held that "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley v. Mauro, supra, 39 Cal.4th at p. 320.) Flatley v. Mauro further noted: "In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law-either through defendant's concession or by uncontroverted and conclusive evidence-is not the same showing as the plaintiff's second prong showing of probability of prevailing." (Ibid.) The court cautioned it would be a rare case "where the defendant's assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law." (Ibid.)
Here, Heron Pointe has not conceded that its petitioning activity (i.e., its filing of the unlawful detainer action and other acts in furtherance thereof) was illegal, nor does the record conclusively establish that Heron Pointe's petitioning activity was illegal as a matter of law. It bears mention in this context that Osman did not submit any sworn affidavits or declarations in support of his opposition to Heron Pointe's anti-SLAPP motion. Osman's reliance on Flatley v. Mauro is therefore unavailing.
We find it unnecessary to address any remaining, tangential claims in Osman's brief. (See Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817 ["We consider all points asserted in this appeal to be forfeited as unsupported by 'adequate factual or legal analysis.' "].)
Accordingly, we affirm the trial court's decision granting Heron Pointe's anti-SLAPP motion and striking the instant complaint with prejudice.
F. Conclusion
Osman, who is self-represented in this matter, appeared personally at oral argument. Osman highlighted numerous difficulties he encountered in dealing with Heron Pointe in the course of his efforts, during the relevant period, to obtain rental assistance through the appropriate channels. We also note that the unlawful detainer action brought by Heron Pointe against Osman was ultimately dismissed. However, the issue before us is the narrow question of the application of the anti-SLAPP statute here and our consideration is necessarily limited to resolving that narrow question.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
[*] Before Poochigian, Acting P. J., Franson, J. and Meehan, J.