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Cheryl Wallace et al v. Lois Mccubbin et al

June 27, 2011

CHERYL WALLACE ET AL., PLAINTIFFS AND RESPONDENTS,
v.
LOIS MCCUBBIN ET AL., DEFENDANTS AND APPELLANTS.



Trial court: San Francisco County Superior Court Trial judge: Hon. Peter J. Busch (San Francisco County Super. Ct. No. CGC-09-488803)

The opinion of the court was delivered by: Needham, J.

CERTIFIED FOR PUBLICATION

Lois McCubbin and Joshua Merck appeal from an order denying their special motion to strike two causes of action from respondents' complaint under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.)*fn1 They contend that the acts on which the causes of action are based constitute activity protected by the statute, and the court erred in ruling that those acts were merely incidental to the causes of action. We agree, confirming that the first prong of analysis under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action as respondents urge. McCubbin and Merck further contend that respondents did not demonstrate a probability of prevailing on the merits based on the alleged protected activity. Harmonizing and applying recent precedent, we agree on this point as well and conclude that the motion to strike should have been granted.

I. FACTS AND PROCEDURAL HISTORY

We begin with the facts, as alleged by respondents in their complaint.

A. Background

Victor Wu is the owner of a four-unit apartment building at 369-375 7th Avenue in San Francisco. The building is managed by Victor Wu and his brother, Lawrence Wu. The property is allegedly subject to provisions of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance).

Appellants and respondents were tenants in the building, living in apartments across the hall from each other. Appellants McCubbin and Merck occupied 373 7th Avenue. Respondents Cheryl Wallace and John Owen moved into 375 7th Avenue in January 2004.

Around the time Wallace and Owen signed their lease in late 2003, Wallace obtained a dog named Nemo "under the prescription of her psychiatrist." Nemo is a "mixed breed dog certified trained by the San Francisco SPCA."

In January 2005, Wallace's psychiatrist informed landlord Victor Wu and the building manager, Campbell Peters, that Wallace was disabled and required a service dog, and that a landlord must allow a tenant to keep a service dog even if pets are otherwise prohibited. Owen was later diagnosed with post-traumatic stress disorder as well.

In the first half of 2006, "Defendants and each of them" - allegedly including Victor Wu, Lawrence Wu, and also tenants McCubbin and Merck - threatened to evict two other tenants in the building for having dogs. They also demanded a third tenant to remove their dog, after which the dog disappeared without its owner knowing the dog's whereabouts.

In March 2006, Wallace complained to Merck and McCubbin about Merck's smoking on the enclosed balcony that was shared by the two apartments. Later that month and the next month, Merck telephoned the Wus weekly to complain about Nemo's purportedly aggressive behavior. In mid-2006, McCubbin and Merck started an argument with Wallace about Nemo being "overly friendly" and "noisy."

Alleged on information and belief, in the first half of 2007 McCubbin and Merck continued their "campaign of complaining falsely about Nemo's behavior" to Victor Wu. Lawrence Wu threatened Wallace and Owen that "Defendants" would eventually have Nemo removed.

Around June 2007, Wallace complained to the San Francisco Human Rights Commission about "Defendants' " threats to remove Nemo. After an investigation, the commission's Fair Housing and Public Accommodations Compliance Officer warned Victor Wu that, due to the nature of Wallace's disability, she required the accommodation of a "service/comfort" dog. The compliance officer informed "Defendants" that he found Nemo to be " 'docile, friendly and well socialized.' "

Around September 2007, Victor Wu and "another man" "forcefully interrogated" Wallace as to the nature of her disability and her need for a service dog. Victor Wu told Wallace that her service dog designation was invalid and that she and Owen would be evicted if they did not get rid of Nemo. In the same month, Wallace's psychiatrist wrote a letter to San Francisco Animal Care and Control (Animal Control), asserting that Wallace required a service animal for health reasons. Victor Wu telephoned the psychiatrist in October 2007 and claimed there was no basis for prescribing a service dog for Wallace; the psychiatrist replied that Wallace was disabled.

In October 2007, McCubbin informed Lawrence Wu in writing that Wallace and Owen were advertising for a new subtenant. Wallace and Owen's lease states that three adults may reside at the premises, and from the inception of the lease they had three persons - themselves and a subtenant - occupying the apartment. Later in October, Victor Wu and an "assistant" intimidated the new subtenant, Reno Ybarra, into removing his belongings from the apartment and canceling his sublease.

Also in October 2007, McCubbin and Merck filed a complaint with Animal Control, reporting that Nemo, "incorrectly referred to as an X-large Great Dane," was a "vicious and dangerous" dog. In late October 2007, Animal Control notified Wallace that there would be a hearing to determine whether Nemo should be killed. Wallace and Owen believe that Nemo has never damaged the apartment unit, growled, barked at, bitten, or attacked anyone.

In November 2007, Wallace complained to the San Francisco Human Rights Commission about McCubbin and Merck. On November 14, 2007, the San Francisco Human Rights Commission Fair Housing and Public Accommodations Compliance Officer wrote to McCubbin and Merck, stating that he had spoken with Victor Wu concerning the complaint and the Animal Control hearing, and that Nemo was not an " 'X-Large Great Dane' " or vicious and dangerous, but was " 'in fact a laid back docile if not lazy dog' " who " 'likes getting petted' ". The officer stated that he was "appalled by this egregious mischaracterization of this harmless dog," he intended to appear at the hearing to testify on Nemo's behalf, he was "greatly disturbed that anyone would go so far as to deny or obstruct Ms. Wallace's right as a disabled person to have a service dog as a reasonable accommodation," and the law "very clearly affirms Ms. Wallace's right to have Nemo."

In December 2007, a veterinarian examined Nemo and concluded that he did not appear to be aggressive, vicious, or dominant. Animal Control also found that Nemo was not vicious or dangerous.

In February 2008, Wallace sent a letter to Victor Wu stating her intention to replace the previous subtenant (Ybarra) with another individual, noting to "Defendants" that the lease expressly prohibits unreasonable refusal of a new subtenant. Victor Wu denied the request and threatened legal action if Wallace and Owen subleased the apartment. Wallace wrote another letter to Victor Wu, reminding him that the lease permitted three adult residents. She also provided information concerning the prospective subtenant. Lawrence Wu warned Wallace and Owen in writing that subletting would result in legal action.

In March 2008, Victor Wu served Wallace and Owen with a three-day notice to quit the premises. The eviction notice stated that eviction would be sought on the ground that having a third adult reside in the apartment breached the lease.

Wallace and Owen did not comply with the three-day notice. Victor Wu filed a complaint for unlawful detainer on April 2, 2008, alleging that subleasing to the prospective sublessee would violate the lease agreement because the lease explicitly states the apartment would be used as a residence with no more than two adults.

At the unlawful detainer trial, Victor Wu allegedly admitted that he had lied to the presiding judge during discovery hearings regarding the location of his former property manager, Campbell Peters, and that he had assisted Peters in evading service and refusing to appear for a deposition. At trial, Wallace and Owen allegedly produced "expert testimony and documentation demonstrating that the lease signed by Plaintiffs and Defendant's agent Campbell Peters in December 2003 allowed three occupants because Mr. Peters had changed the occupants from two to three." During jury selection, Victor Wu dismissed the unlawful detainer action.*fn2

B. Complaint

The allegations summarized ante were contained in a verified complaint that Wallace and Owen filed in May 2009 against Victor Wu, Lawrence Wu, McCubbin, and Merck. Paragraph 51 of the complaint further alleges: "The foregoing conduct was part of a systematic campaign of harassment and intimidation against disabled tenants with limited means, designed to force Plaintiffs from their home of four years. Plaintiffs are informed and believe and on that basis allege that Defendants engaged in such conduct to discriminate against Plaintiffs on the basis of their disabilities because of the special protections such persons are afforded by the San Francisco Rent Ordinance and other state and federal laws. Plaintiffs are informed and believe that Defendants['] eviction proceeding on the lease occupancy restriction was a pretext and retaliation for Defendants['] discriminatory intent to remove Plaintiffs from the premises for having a prescribed service dog."

The complaint asserts claims for wrongful eviction, breach of the covenant of quiet enjoyment, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, unfair business practices, housing discrimination under California's FEHA (Govt. Code, § 12955 et seq.), housing discrimination under California's Unruh Act (Civ. Code, § 51 et seq.), unlawful competition, violation of privacy, trespass, violation of Civil Code section 1954 (pertaining to a landlord's entrance into a dwelling unit), and retaliatory eviction (Civ. Code, § 1942.5 et seq.). At issue here are counts one and thirteen, for wrongful eviction and retaliatory eviction.

Count one is styled "FIRST CAUSE OF ACTION [¶] (Wrongful Eviction, Violation of Rent Ordinance)." It incorporates the allegations summarized ante.*fn3 The count alleges that the "Defendants'" dominant motive for attempting to recover possession of the premises was not a permissible ground under the Rent Ordinance, and as a proximate result of "Defendants' wrongful acts alleged herein," Wallace suffered hospitalization and treatment and both she and Owen suffered inconvenience, annoyance, and emotional distress. In addition to trebled damages under the Rent Ordinance, Wallace and Owen seek punitive damages on the ground that "Defendants' conduct was malicious and oppressive."

Count 13 is entitled, "THIRTEENTH CAUSE OF ACTION [¶] (Retaliatory Eviction - Civil Code § 1942.5 et seq.)." It also incorporates all of the allegations of wrongdoing summarized ante. Specifically, it alleges that when "Defendants took the actions alleged in paragraphs 1 through 51," their purpose was to retaliate against Wallace and Owen for exercising their rights within 180 days of their complaint to governmental agencies and otherwise exercising their rights under law. As a proximate result of "Defendants' wrongful acts alleged herein," Wallace suffered hospitalization and treatment and both Wallace and Owen suffered inconvenience, annoyance, and emotional distress.

C. McCubbin and Merck's Anti-SLAPP Motion to Strike

In August 2009, McCubbin and Merck filed a special motion to strike under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) They argued that the first and thirteenth causes of action arose from conduct the statute protects. Specifically, they contended, the "gravamen of [the] claim" was that all defendants served a bogus notice of termination of the tenancy (the three-day notice) and instigated a frivolous and malicious unlawful detainer action, both of which constituted protected activity. Furthermore, they argued, Wallace and Owen could not prevail on these causes of action, because McCubbin and Merck were not the ones who prosecuted the unlawful detainer action, the alleged wrongful conduct was protected by the litigation privilege, and no liability could arise under a conspiracy theory.

Wallace and Owen opposed the motion to strike. They claimed that the gravamen of the action was one for disability discrimination and did not attack any act of the Defendants in filing or prosecuting the unlawful detainer action itself. As to the merits, Wallace and Owen argued that they had a probability of proving McCubbin and Merck were the Wus' agents in the prosecution of the unlawful detainer action and the causes of action were not barred by the litigation privilege.

Wallace and Owen offered declarations in opposition to the motion to strike. In her declaration, Wallace affirmed certain allegations of the complaint and attached a number of documents referenced in the complaint. Also attached was the declaration of Aaron Gonzalez, who supported some of the allegations of the complaint and purported to set forth the history of dogs and tenants at the building during the time he was a tenant. Declarations predating this case were submitted from a number of persons declaring Nemo to be friendly.

D. Denial of Motion to Strike

The trial court denied the motion to strike. The court explained: "Defendants [McCubbin and Merck] have not carried their initial burden to prove that the gravamen of Plaintiffs' Complaint is based upon protected conduct as that term is defined in Section 426.16 [sic]. The gravamen of the Plaintiffs' Complaint is not that the Defendant filed a lawsuit or sent notices or threatened even to send a notice, but that the Defendants engaged in a pattern of disability discrimination designed to drive the Plaintiffs from their home, and that therefore the allegations of what would otherwise be protected conduct are incidental to the thrust of the Plaintiffs' Complaint. And while they are pleaded, they are pleaded as evidentiary support for the course of conduct which went on before and was in full blossom before the potentially protected conduct occurred."

This appeal followed.

II. DISCUSSION

McCubbin and Merck contend that the first and thirteenth causes of action arose from activity protected by the anti-SLAPP statute and that Wallace and Owen did not show a probability of prevailing on the merits. We begin with a brief description of the anti-SLAPP statute and then proceed with our analysis.

A. Code of Civil Procedure Section 425.16

Section 425.16 authorizes a defendant to file a special motion to strike when a cause of action arises from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue.*fn4 It establishes a procedure by which the trial court evaluates the merits of the plaintiff's claim using a summary-judgment-like procedure at an early stage of the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The purpose is to curb the chilling effect that certain litigation may have on the valid exercise of free speech and petition rights, and the statute is to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)

"In its motion, the defendant must make a threshold showing that the plaintiff's cause of action arises from the defendant's free speech or petition activity, as specified in the statute. (§ 425.16, subds. (b), (e).) The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c).) We review an order granting or denying a motion to strike under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at p. 325.)" (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547 (Haight Ashbury); Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 998 (Schaffer).)*fn5

B. First Prong: McCubbin and Merck's Burden to Show Protected Activity

The first prong of the anti-SLAPP analysis required McCubbin and Merck to make a threshold showing that Wallace and Owen's first and thirteenth causes of action arose from acts "in furtherance of [their] right[s] 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).)

By statutory definition, an " 'act in furtherance of a person's right of petition or free speech . . . in connection with a public issue' includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . . ; (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 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).)

1. First Cause of Action: Wrongful Eviction

In their first purported cause of action, Wallace and Owen alleged that the defendants' attempts to recover possession of their apartment violated the Rent Ordinance, because their dominant motive was not one of the permissible grounds listed in the Rent Ordinance. Section 37.9 of the Rent Ordinance provides that "[a] landlord shall not endeavor to recover possession of a rental unit unless" the landlord's dominant motive pertains to at least one of the occurrences specified in the ordinance. (Sec. 37.9(a)-(c).)

According to the complaint, the acts by which the defendants attempted to recover possession of the apartment were, or at least included, Victor Wu's service of his three-day notice to quit and his filing of the unlawful detainer action. Indeed, this is the wrongdoing alleged in the complaint that is most obviously related to a wrongful eviction claim.

The unlawful detainer action clearly falls within the scope of free speech or petitioning activity protected by the anti-SLAPP statute. "The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16." (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner). Furthermore, a notice of eviction or termination of a tenancy is protected activity where, as here, it is a legal prerequisite for bringing the unlawful detainer action. (Id. at pp. 281-282; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479-1481 [service of a three-day notice to quit, filing of an unlawful detainer action, and threats by the landlord's agent in connection with the dispute constituted protected activity under Code Civ. Proc., § 425.16, subd. (e)] (Feldman).) Wallace and Owen's first cause of action is based on protected activity.

Wallace and Owen's arguments to the contrary are unpersuasive. They contend that the wrongful eviction cause of action does not arise from the three-day notice and unlawful detainer litigation, because those acts are merely incidental to their claim. For purposes of anti-SLAPP analysis, however, an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability. (Haight Ashbury, supra, 184 Cal.App.4th at p. 1550; see Episcopal Church Cases (2009) 45 Cal.4th 467, 477-478 [allegation that "lurk[s] in the background" to explain why a rift between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton (2009) 171 Cal.App.4th 1617, 1628 [allegations about a law firm's protected communications for purposes of showing the firm had a conflict of interest]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414-417 [defendant's advertising activity was merely incidental to plaintiff's causes of action for personal injury, where liability for those claims was based not on the advertising but on the product's failure to conform to the defendant's warranties and statements].) It makes no sense for Wallace and Owen to argue that their cause of action for defendants' attempt to evict them wrongfully is not based on defendants' alleged attempt to evict them.

Wallace and Owen also argue that McCubbin and Merck lack standing to assert their anti-SLAPP motion as to the first cause of action, based on the filing of the unlawful detainer proceedings. They contend that, because McCubbin and Merck did not personally file the unlawful detainer complaint, and it is not expressly alleged that they exhorted Victor Wu to file it, the filing was not in furtherance of McCubbin and Merck's rights of free speech and petition. Wallace and Owen did not make this standing argument in the trial court, and the argument is meritless given their allegations in this case.

As mentioned, the acts alleged in the complaint that could most likely constitute endeavoring to recover possession of a rental unit under section 37.9 of the Rent Ordinance are the filing of the three-day notice and prosecution of the unlawful detainer action. Wallace and Owen do not explain how the acts attributed directly and specifically to McCubbin and Merck (complaining to the landlord, complaining to Animal Control, etc.) could constitute endeavoring to recover possession of a rental unit within the meaning of the Rent Ordinance. Since Wallace and Owen nonetheless seek to hold McCubbin and Merck liable for wrongful eviction, their wrongful eviction cause of action must be based on the three-day notice and the unlawful detainer litigation, whether the complaint is construed to allege that McCubbin and Merck actually performed the acts, participated in them, or are otherwise responsible for them. Indeed, it is alleged extensively in the complaint that all "Defendants [including McCubbin and Merck] took the actions alleged in paragraphs 1 through 51" and "each and every of the Defendants herein were responsible in some manner for the acts, omissions, and occurrences herein alleged." (Italics added.) Whether McCubbin and Merck performed the acts themselves or merely assisted, exhorted, or motivated the Wus to perform them, McCubbin and Merck may assert their rights under the anti-SLAPP statute. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 16-18 [defendant may claim protection under the anti-SLAPP statute, even though he only supported another person who actually performed the protected activity].)

McCubbin and Merck met their initial burden of showing that Wallace and Owen's wrongful eviction cause of action arose from activity protected under the anti-SLAPP statute.

2. Thirteenth Cause of Action: Retaliatory Eviction (Civ. Code, § 1942.5)

Wallace and Owen allege that all defendants violated Civil Code section 1942.5 by retaliating against Wallace and Owen "for exercising their rights within 180 days of [their] complaint to a governmental agencies [sic] and otherwise exercising their rights under law." It is not clear from this allegation whether Wallace and Owen seek recovery under subdivision (a) of Civil Code section 1942.5, subdivision (c) of the statute, or both. Reference to the "180 days" period suggests subdivision (a); reference to "exercising their rights under law" may suggest subdivision (c), and it is this subdivision they reference in their respondents' brief.

Subdivision (a) of Civil Code section 1942.5 precludes a lessor from recovering possession of a dwelling, causing the lessee to quit involuntarily, increasing rent, or decreasing services within 180 days of certain complaints or actions the tenant takes in regard to the tenantability of the dwelling, if the lessor's actions are retaliatory. We do not see how subdivision (a) can apply in this case, however, since there is no allegation that Wallace or Owen ever complained about the tenantability of the dwelling.

Subdivision (c) of Civil Code section 1942.5 provides: "It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. . . ."

The thirteenth cause of action does not specify what acts purportedly violated either subdivision of Civil Code section 1942.5. Instead, it asserts that "Defendants took the actions alleged in paragraphs 1 through 51," without distinguishing between the acts of the Wus and the acts of McCubbin and Merck. As mentioned, the complaint asserts that each defendant is liable for the acts of the other.

The "actions alleged in paragraphs 1 through 51," either by McCubbin and Merck or by Victor or Lawrence Wu as part of the defendants' "campaign," include the following. In 2006 and 2007: McCubbin and Merck complained to the Wus about Nemo's purported aggressive behavior; McCubbin and Merck started an argument with Wallace about Nemo being overly friendly and noisy; and Lawrence Wu threatened Wallace and Owen that "Defendants" would eventually have Nemo removed. Within 180 days of Wallace's June 2007 complaint to the San Francisco Human Rights Commission about "Defendants'" threats to remove Nemo: Victor Wu interrogated Wallace as to Wallace's need for a service dog and warned that Wallace and Owen would be evicted if they did not get rid of Nemo; McCubbin informed Lawrence Wu that Wallace and Owen were advertising for a new subtenant; Victor Wu intimidated the new subtenant; and McCubbin and Merck filed a complaint with Animal Control about Nemo. Within 180 days after Wallace's November 2007 complaint to the San Francisco Human Rights Commission about McCubbin and Merck: Victor Wu denied Wallace's request for a subtenant, Lawrence Wu stated that subletting would result in legal action, and Victor Wu served a three-day notice to quit and filed the unlawful detainer action.

In sum, Wallace and Owen base their thirteenth cause of action on the following categories of acts: (1) McCubbin and Merck's complaints to Wallace and Owen; (2) McCubbin and Merck's complaints to the Wus; (3) the Wus threat to evict Wallace and Owen unless Nemo was removed; (4) McCubbin and Merck's complaint to Animal Control; (5) Victor Wu's treatment of Wallace and Owen's subtenant and refusal of their request to have a third adult reside in the apartment; and (6) the three-day notice to quit and ensuing unlawful detainer action.

Some of these acts clearly constitute protected activity under the anti-SLAPP statute. As we have explained ante, service of the three-day notice and the filing of the unlawful detainer action comprise petitioning activity under section 425.16, subdivision (e). (Birkner, supra, 156 ...


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