Opinion
B299967
08-11-2020
SYLVIA PARKER, Plaintiff and Appellant, v. U.S. BANK TRUST N.A., as Trustee, etc., Defendant and Respondent.
Sylvia Parker, in pro. per., for Plaintiff and Appellant. Locke Lord, Regina J. McClendon, Simon F. Feng, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19STCV18799) APPEAL from an order of the Superior Court of Los Angeles County, Dennis Landin, Judge. Affirmed. Sylvia Parker, in pro. per., for Plaintiff and Appellant. Locke Lord, Regina J. McClendon, Simon F. Feng, for Defendants and Respondents.
____________________
Plaintiff and appellant Sylvia Parker appeals from an order granting a motion to strike her complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) in favor of defendant and respondent U.S. Bank Trust, N.A., as trustee for the LSF9 Master Participation Trust (the Trustee). On appeal, Parker contends that the trial court erred by striking her complaint, which arose from the Trustee's unlawful detainer action, because even if the complaint arose from protected activity, she met her burden to show a probability of prevailing on the merits. We conclude that Parker has not shown a probability of prevailing on the merits, and therefore, we affirm.
SLAPP is an acronym for "Strategic Lawsuits Against Public Participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further statutory references are to the Code of Civil Procedure, unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
Complaint
On May 30, 2019, Parker filed a form complaint against the Trustee for "Invalid Unlawful Detainer." The complaint stated that there were causes of action for general negligence and punitive damages attached. The cause of action attached to the form, however, stated it was for an "Intentional Tort." The description of liability provided in full: "Defendant fraudulently filed an illegal and invalid unlawful detainer action against plaintiff, a tenant with a bona fide signed lease prior to the foreclosure sale, in violation of Federal and California state laws that provides protections for tenants with a lease in foreclosed property. Defendant provided written acknowledgment prior to filing the invalid unlawful detainer, that defendant was aware that plaintiff was a tenant with a lease." The complaint attached a claim for exemplary damages alleging malice based on the same facts. Anti-SLAPP Motion and Supporting Evidence
On July 11, 2019, the Trustee filed an anti-SLAPP motion. The Trustee argued that the complaint was based on protected activity, namely, the Trustee's litigation conduct in a post-foreclosure unlawful detainer action. In addition, Parker could not establish a substantial probability of prevailing on the merits because all of the Trustee's conduct was covered by the litigation privilege of Civil Code section 47, subdivision (b).
The Trustee submitted the declaration of attorney Randall D. Naiman as to the following facts in support of the motion. On April 24, 2019, the Trustee purchased residential real property in Los Angeles at a non-judicial foreclosure sale. On May 14, 2019, the Trustee served on Parker and all other occupants in possession of the property a three-day notice to quit and deliver possession, but Parker did not vacate the property. That day, Parker sent a letter to Naiman by fax transmission stating that she was a tenant who had resided at the property for more than a year. Naiman called the telephone number listed and left a voice message requesting rental information. The following day, Parker sent a letter to Naiman by fax stating that banks who foreclose on single family homes cannot evict tenants merely because they have foreclosed on the property. On May 16, 2019, Naiman sent a letter to Parker by overnight delivery requesting a copy of the rental agreement or a written description of the terms, proof of the last rental payment and any security deposit, and a list of conditions requiring repair. Parker did not respond with documentation to confirm her tenancy. On May 22, 2019, the Trustee filed an unlawful detainer action against Parker. On May 26, 2019, Parker was served with the summons and complaint by substituted service. The Trustee filed an ex parte application to advance a hearing on a motion to quash filed by Parker to June 21, 2019. Parker failed to appear at the hearing on the ex parte motion and her motion to quash was denied. She was granted five days leave to respond to the unlawful detainer complaint. The unlawful detainer action was ongoing. Every act or omission by the Trustee that could have affected Parker in any way was made in the context of its litigation related conduct in the unlawful detainer action.
The Trustee submitted a copy of the unlawful detainer action. A trustee's deed upon sale dated April 25, 2019, states that the property was conveyed by Clear Recon Corporation as trustee under a deed of trust executed by Myron Hale, a single man, as trustor, and recorded October 1, 2007, to the Trustee. The Trustee also submitted a copy of a notice to renters stating that the home was sold in foreclosure and the new owners intended to evict any renters.
The Trustee submitted a copy of the three-day notice to quit addressed to Hale and any others in possession. The notice explained that the recipients must vacate and deliver possession of the property unless the recipient was a tenant or subtenant who had rented the property prior to the foreclosure sale. The notice stated that it was intended as a notice to quit under section 1161a. If the recipient claimed to be a tenant or subtenant entitled to remain in the property, the notice instructed that the recipient "must give telephonic or written notice to the undersigned" within three days of the date that the notice was served. The notice was signed by Naiman for the Naiman Law Group on behalf of the Trustee. Opposition to the Anti-SLAPP Motion and Supporting Evidence
The case register reflects that Parker filed an amended complaint on July 12, 2019. The amended complaint is not part of the record on appeal, nor was it provided in a motion to augment the record. The amended complaint would not affect our analysis, however, because a plaintiff "may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280, 1293-1294 (Salma); see also Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (Simmons).)" (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478.)
On July 31, 2019, the Trustee filed a notice of non-opposition noting that Parker had not filed an opposition to the anti-SLAPP motion by the deadline of July 29, 2019. On August 1, 2019, Parker filed an opposition to the anti-SLAPP motion. She conceded that the Trustee met its burden to show the complaint arose from protected activity. She argued that the unlawful detainer action was invalid, because it was filed prematurely, in violation of the federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) (Pub.L. No. 111-22, div. A, tit. VII, §§ 701-704 (May 20, 2009) 123 Stat. 1660, amended in 2010 at Pub.L. No. 111-203, tit. XIV, § 1484 (July 21, 2010) 124 Stat. 2204) and the tenant protections provided under California law in section 1161b.
Parker asserted the earliest date that the overnighted letter was delivered to her residence was May 17, 2019. The letter did not specify a due date to return the requested lease information. Section 1013 provides five days to respond after service by mail and two additional days for overnight delivery, and therefore, Parker argued that the earliest date the Trustee could file an unlawful detainer action was May 24, 2019. The unlawful detainer action was filed on May 22, 2019. Parker signed a fixed-term lease prior to the foreclosure sale and met the criteria of a bona fide tenant under the PTFA. The unlawful detainer complaint did not allege compliance with the statutory notice requirements of the PTFA. Parker also argued that "Defendant" had a history of filing anti-SLAPP claims, which constituted an abuse of process.
Parker submitted her declaration to establish the following facts. She received the three-day notice to quit from the Naiman Law Group. The notice stated that if she claimed to be a tenant, she must give telephonic or written notice to the undersigned within three days of the date that the notice was served, which was May 14, 2019. That same day, she complied with the notice by sending a fax confirming that she was a tenant who had been residing at the property for over one year. On May 15, 2019, she received a telephone message from a representative of the Naiman Law Group. The message stated, "Good afternoon, this message is for Sylvia Parker, my name is Michelle and I am calling from Naiman Law Group, and I'm calling because we got the fax that you sent to our office, and I just wanted to speak with you about it, if you can give us a call back at 858-224 6800, again my name is Michelle." Parker can provide a recording of the message upon request. The woman did not request any documentation. Parker called the following day and left a message that she was returning Michelle's call, but never received another call.
On May 18, 2019, Parker received a letter by overnight delivery instructing her to provide a copy of her lease and other rental information to the Naiman Law Group. Parker keeps her valuables, including her lease agreement, at her aunt's house, where she resided prior to renting from Hale. Her aunt was out of town when Parker received the letter and did not return until May 22, 2019. The letter did not specify a due date for the information requested. A few days later, Parker obtained her lease from her aunt's house and planned to mail the information to the Naiman Law Group on Monday, May 27, 2019. As Parker was walking to her front door on Sunday, May 26, 2019, her neighbor handed her the summons and complaint in the unlawful detainer action addressed to Hale and Parker.
Parker also submitted the declaration of her aunt, Hazel Darden. Darden declared that Parker resided with her from June 2012, to February 2019. Parker paid rent. On May 17, 2019, Darden went out of town to play bingo with her club members. She received a call from Parker that she needed to enter Darden's house and retrieve her lease agreement. Darden told her that she would be home on May 21 or 22, 2019. On May 22, Darden informed Parker that she had returned home. On May 24, 2019, Parker came to Darden's house and retrieved the lease agreement.
Parker also submitted the first page of two motions showing attorney Naiman had filed anti-SLAPP motions in cases in 2011 and 2018. The Trustee was not a party in either case.
On August 2, 2019, Parker filed a memorandum of points and authorities in support of her opposition to the anti-SLAPP motion. She argued that under section 1161b, subdivision (b), tenants in possession of rental housing under a fixed-term residential lease entered into before the transfer of title at a foreclosure sale retain the right to possession under the end of the lease term.
On August 5, 2019, Parker filed a request for sanctions against the Trustee for abuse of process in prematurely filing an unlawful detainer action against her. She argued that there was no requirement under federal or state law to provide proof of tenancy. The Trustee had fraudulently requested documentation of her tenancy to preserve her rights, when Parker had no obligation to contact the Trustee or prove that she was a tenant.
On August 6, 2019, Parker filed another memorandum of points and authorities in opposition to the anti-SLAPP motion. She argued that the PTFA protected tenants with month-to-month and fixed-term leases. Under section 1161b, subdivision (a), a tenant under a month-to-month or periodic tenancy at the time the property is sold in foreclosure must receive 90 days written notice to quit pursuant to section 1162 before the tenant may be removed from the property. Under section 1161b, subdivision (b), in addition to the rights under subdivision (a), tenants under a fixed-term residential lease entered into before the transfer of title at the foreclosure sale have the right to possession under the end of the lease term. Parker asserted that she had complied with the PTFA and section 1161b, because she signed a fixed-term lease on February 12, 2018. She argued that the prematurely filed unlawful detainer action violated the PTFA and California law.
Parker submitted the declaration of Hale's brother. The brother declared that he witnessed the execution of a fixed-term residential lease between Hale as landlord and Parker as tenant on February 12, 2018.
On August 7, 2019, Parker filed a document that was entitled a declaration in opposition to the anti-SLAPP motion. In the document, Parker argued that she had complied with the three day notice to quit by informing the Trustee that she was a tenant with a signed lease. The PTFA requires a new owner to honor a tenant lease entered into prior to foreclosure and tenants have a right to remain until the end of their lease. The Trustee's unlawful detainer action was filed prematurely, and with knowledge that it violated the PTFA. The premature and fraudulent filing of the unlawful detainer action, knowing Parker was a bona fide tenant with a signed lease, violated the PTFA and California tenant protection laws. She argued that the litigation privilege of section 47, subdivision (b) could not be used as a shield for fraud. Trial Court Ruling
A hearing was held on the anti-SLAPP motion on August 9, 2019, and the trial court took the matter under submission. The record on appeal does not contain a reporter's transcript of the hearing. Later that day, the trial court granted the motion to strike and ordered the Trustee to submit an order of dismissal.
The trial court noted that the Trustee's conduct fell within the category of activity protected under the anti-SLAPP statute, which Parker did not dispute, and therefore, the burden shifted to Parker to show a reasonable probability of success on the merits. Parker had argued the Trustee knew it was violating the PTFA and section 1161b by filing the unlawful detainer action, and had filed the action before the required response time had expired. The court found that although Parker's arguments might be valid defenses based on her rights in the unlawful detainer action, she had failed to clearly state the applicable law and facts to establish a cause of action against the Trustee. The amended complaint was devoid of a legal or factual basis to support her general negligence claim, and her declarations were unclear as to exactly what causes of action she alleged against the Trustee. The court found the declarations pertained more appropriately to her opposition in the unlawful detainer action. Based on these findings, the court concluded that Parker had not met her burden and granted the anti-SLAPP motion. Parker filed a notice of appeal from the order granting the motion to strike that same day. On September 9, 2019, the trial court entered judgment in favor of the Trustee. Parker filed a request for reconsideration, including a copy of a signed lease agreement stating that she would pay monthly rent of $750 until February 2022.
Parker's motion to augment the appellate record filed with this court on February 24, 2020, is denied. The documents are duplicative of the documents in the clerk's transcript or previously provided in the Trustee's motion to augment granted by this court on February 21, 2020.
DISCUSSION
Parker contends that the trial court erred by granting the Trustee's anti-SLAPP motion. We conclude Parker has not demonstrated a probability of prevailing on the merits.
A. Anti-SLAPP Statute and Standard of Review
"Courts construe the anti-SLAPP statute broadly to protect the constitutional rights of petition and free speech." (Anderson v. Geist (2015) 236 Cal.App.4th 79, 84.) "Resolution of an anti-SLAPP motion involves two steps." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) In the first step, the moving party must establish that the claim at issue arises from free speech or petitioning activity protected by section 425.16. (Ibid.) Under section 425.16, 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' 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, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (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." (§ 425.16, subd. (e).)
The issues to be determined in an anti-SLAPP motion are framed by the pleadings. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883.) In other words, the acts underlying the plaintiff's claim for the purposes of the anti-SLAPP statute are determined from the allegations of the complaint. (Ibid.; Baral, supra, 1 Cal.5th at p. 396.)
If the moving party establishes that the claim arises from protected activity, the burden shifts to the opposing party to demonstrate a probability of prevailing on the merits. (Baral, supra, 1 Cal.5th at p. 384.) The second step has been compared to a "summary-judgment-like procedure." (Taus v. Loftus (2007) 40 Cal.4th 683, 714; see also Baral, supra, 1 Cal.5th at p. 384.) "The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] '[C]laims with the requisite minimal merit may proceed.' [Citation.]" (Baral, supra, at pp. 384-385.)
We review an order granting or denying an anti-SLAPP motion de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) "'We exercise our independent judgment to determine not only whether the anti-SLAPP statute applies, but whether the complainant has established a reasonable probability of prevailing on the merits. [Citation.]' [Citation.]" (Greco v. Greco (2016) 2 Cal.App.5th 810, 820 (Greco).)
As noted above, there is no reporter's transcript of the hearing on the anti-SLAPP motion, and the record on appeal does not include a settled statement or agreed statement as authorized by California Rules of Court, rules 8.163 and 8.137. When a reporter's transcript is necessary for meaningful review, it may be warranted to affirm the order appealed from in the absence of a transcript or an acceptable substitute. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [appeal requiring consideration of testimony could not proceed in the absence of a reporter's transcript or a settled statement].) We can resolve the appeal in this case without a reporter's transcript, however, because we review the order granting the anti-SLAPP motion de novo and conduct an independent analysis. (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933-934; Chodos v. Cole (2012) 210 Cal.App.4th 692, 696.)
B. Protected Activity
There is no dispute that filing an unlawful detainer action in court is petitioning activity protected by section 425.16, subdivision (e), as is service of a notice of termination preceding an unlawful detainer complaint. (See Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 248; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 766; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282.) Parker's claim arises from allegations that the Trustee filed a premature, invalid unlawful detainer action, which is subject to a motion to strike under the anti-SLAPP statute. In her brief on appeal, Parker does not contend otherwise.
C. No Probability of Prevailing Shown
The burden shifted to Parker to show a probability of prevailing on a cause of action alleged in her complaint. It is not clear from her complaint or her briefs whether she is alleging general negligence or intentional fraud, but she has not shown a probability of prevailing on either claim. Issues concerning title to the property that have been raised for the first time in her brief on appeal are waived.
1. Federal and State Laws Protecting Tenants
The PTFA requires the new owner of property pursuant to a foreclosure sale to give at least 90 days' notice to a bona fide tenant before the tenant may be removed. (PTFA, § 702; see Nativi v. Deutsche Bank National Trust. Co. (2014) 223 Cal.App.4th 261, 275 (Nativi).) A bona fide tenant under a fixed-term lease can generally remain through the end of the lease term, unless the new owner intends to occupy the unit as a primary residence. (Id. at p. 270.) A tenancy is considered "bona fide" under the PTFA only if (1) the mortgagor was not the tenant, (2) the lease or tenancy was the result of an arm's length transaction, and (3) the lease or tenancy required the receipt of rent that was not substantially less than fair market rent for the property or the unit's rent was reduced or subsidized due to a federal, state or local subsidy. (Id. at p. 275.)
California law provides comparable tenant protections in section 1161b: "(a) Notwithstanding Section 1161a [authorizing recovery of real property after service of a three day notice to quit], a tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure shall be given 90 days' written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter. [¶] (b) In addition to the rights set forth in subdivision (a), tenants or subtenants holding possession of a rental housing unit under a fixed-term residential lease entered into before transfer of title at the foreclosure sale shall have the right to possession until the end of the lease term, and all rights and obligations under the lease shall survive foreclosure, except that the tenancy may be terminated upon 90 days' written notice to quit pursuant to subdivision (a) if any of the following conditions apply: [¶] (1) The purchaser or successor in interest will occupy the housing unit as a primary residence. [¶] (2) The lessee is the mortgagor or the child, spouse, or parent of the mortgagor. [¶] (3) The lease was not the result of an arms' length transaction. [¶] (4) The lease requires the receipt of rent that is substantially less than fair market rent for the property, except when rent is reduced or subsidized due to a federal, state, or local subsidy or law. [¶] (c) The purchaser or successor in interest shall bear the burden of proof in establishing that a fixed-term residential lease is not entitled to protection under subdivision (b). [¶] (d) This section shall not apply if any party to the note remains in the property as a tenant, subtenant, or occupant. [¶] (e) Nothing in this section is intended to affect any local just cause eviction ordinance. This section does not, and shall not be construed to, affect the authority of a public entity that otherwise exists to regulate or monitor the basis for eviction." (§ 1161b.)
"[T]he PTFA did not create a private cause of action under federal law. [Citations.] The lack of federal private cause of action under the PTFA, however, does not determine state law claims in state courts." (Nativi, supra, 223 Cal.App.4th at p. 285.) "[A] bona fide tenant whose bona fide tenancy for a term survives foreclosure by operation of the PTFA [may seek] state law remedies for violations of the tenant's rights against an immediate successor in interest in a foreclosed property." (Id. at p. 289.)
2. Negligence Claim Defeated by Litigation Privilege
Parker sought to allege a cause of action for negligence based on the unlawful detainer complaint, which Parker claimed was filed prematurely in violation of the PTFA and section 1161b. It is true that "Evidence Code section 669 'codifies the common law doctrine of negligence per se, pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions.' [Citation.] 'Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care. [Citations.]' [Citations.]" (Nativi, supra, 223 Cal.App.4th at p. 286, fn. 4.) Parker has not shown a probability of prevailing, however, because the Trustee's conduct was privileged under Civil Code section 47, subdivision (b).
"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.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 216 (Silberg).) '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.' (Id. at p. 212.) The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rusheen).)" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action).)
"'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.]' (Silberg, supra, 50 Cal.3d at p. 213.) In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation." (Action, supra, 41 Cal.4th at p. 1241.) "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].' (Silberg, supra, 50 Cal.3d at p. 215.)" (Action, supra, at p. 1242.) "We contemplate no communication that is more clearly protected by the litigation privilege than the filing of a legal action." (Id. at p. 1249.)
The Trustee's communication of the three day notice to quit and filing of the unlawful detainer action were privileged under Civil Code section 47, subdivision (b). Federal and state laws protecting tenants after foreclosure may provide a defense in an unlawful foreclosure action, but they are not a basis in this case for an independent negligence action.
3. Fraud
Parker also has not shown a probability of prevailing on a cause of action for fraud based on the Trustee's request for documentation, which Parker asserts was not required under the law, and filing of the unlawful detainer action.
"'The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' [Citations.]" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).) "In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] 'Thus "'the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.'" [Citation.] [¶] This particularity requirement necessitates pleading facts which "show how, when, where, to whom, and by what means the representations were tendered."' [Citation.]" (Id. at p. 645.)
Parker has not identified any statement made by Naiman that she contends was false. Naiman's request for documentation of her tenancy was not a false statement. All of Naiman's statements were made in connection with the three-day notice to quit and the unlawful detainer proceedings, and therefore, privileged under Civil Code section 47, subdivision (b). Parker has not established a probability of prevailing on a fraud cause of action.
4. Title
For the first time on appeal, Parker raises issues about the title to the property and the propriety of the foreclosure sale. None of the allegations in the complaint or the evidence presented in connection with the anti-SLAPP motion concerned the title to the property. "'"[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court."' . . . [Citation.]" (Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398-1399.) Because Parker has not provided any reason why she failed to present this argument to the trial court, we deem the argument waived. (See id. at p. 1399 ["'"Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived"'"].) Many of Parker's contentions are more appropriately raised in defense to the unlawful detainer action and do not support a cause of action against the Trustee.
DISPOSITION
The order granting the special motion to strike is affirmed. Respondent U.S. Bank Trust, N.A., as trustee for the LSF9 Master Participation Trust, is awarded its costs on appeal.
MOOR, J.
I concur:
RUBIN, P. J. BAKER, J., Concurring
"In the paradigmatic SLAPP suit, a well-funded developer limits free expression by imposing litigation costs on citizens who protest, write letters, and distribute flyers in opposition to a local project." (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 143.) This case is quite far from that. A demurrer would have sufficed to defeat plaintiff Sylvia Parker's (plaintiff's) lawsuit. U.S. Bank Trust (the Bank) pursued a more heavy-handed response, however, and nothing in the law precludes it.
Turning, therefore, to plaintiff's probability of prevailing on her form complaint, the specifics of her allegations could certainly be clearer. But plaintiff's lawsuit appears to allege a malicious prosecution claim against the Bank. That seems evident from her choice of the "intentional tort" cause of action among the form complaint's options, her allegations that the Bank "filed an illegal and invalid unlawful detainer action" against her in violation of "laws that provide[ ] protections for tenants with a lease in foreclosed property" and while "aware that plaintiff was a tenant with a lease," her choice to seek punitive damages solely on a "malice" theory, and her concession throughout this litigation that her lawsuit arises from the Bank's filing of the unlawful detainer complaint against her. The Civil Code's litigation privilege cannot apply to defeat a malicious prosecution claim (see, e.g., Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360), but at this stage plaintiff still has no prospect of prevailing on such a claim. There is no evidence in the record that the unlawful detainer action the Bank filed was pursued to a legal termination in her favor. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [listing elements of a malicious prosecution claim].)
BAKER, J.