APPEAL from an order of dismissal of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Reversed, in part, with directions. (Los Angeles County Super. Ct. No. BC463640)
The opinion of the court was delivered by: Croskey, J.
This is an appeal by Elvira Oviedo (appellant) of an order granting a special motion to strike each cause of action in her complaint pursuant to the anti-SLAPP *fn1 statute, Code of Civil Procedure section 425.16.*fn2 Appellant contends that the trial court's granting of the special motion to strike was in error as (1) respondents' alleged illegal rent increase, the basis of her first cause of action, was not a protected activity; and (2) she established a probability of prevailing with respect to her malicious prosecution action. Reversed in part, affirmed in part and remanded with directions.
All statutory references herein are to the Code of Civil Procedure unless specified otherwise.
FACTUAL AND PROCEDURAL BACKGROUND *fn3
1. Factual History of the Parties' Dispute *fn4
Appellant resides in Apartment J of a twelve-unit complex on S. Windsor Boulevard (the Windsor Complex) in Los Angeles, California. The Windsor Complex is owned by respondent Windsor Twelve Properties, LLC (Windsor). Respondent Marc Myers (Myers) is the managing member of Windsor. Myers' family purchased the Windsor Complex in 1999 and transferred its ownership to Windsor in 2000 and Myers became the managing member at that time. Appellant was residing in Apartment J prior to the Myers' family's purchase. She resides there with her young adopted daughter. Respondents raised appellant's rent on an annual basis. Each time, respondents provided notice to appellant in the month of November regarding the increase that would become effective on January 1 of the following year.*fn5
On May 17, 2010, Myers posted a three-day notice to pay or vacate on appellant's door due to her failure to make a timely payment of the May 2010 rent. On May 24, 2010, Myers wrote a letter to appellant that recited that appellant had accused him of trying to intimidate her and of wanting her out of the building, which he denied. In the letter, Myers briefly mentioned the notice to quit for failure to pay rent and enclosed copies of letters that he had received from other tenants complaining about appellant's child and the noise from her apartment. He also referred to an earlier letter from November of 2009 that described "items" she had yet to fix. The letter concluded with the following sentence, "The bottom line Mandore is really two things; [sic] receiving my rent on time and the noise problem for others."
Despite referring to a letter he sent in November of 2009 that appeared to note issues regarding her daughter, Myers asserted that he first became aware that appellant had a daughter around April of 2010. Shortly after posting the three-day notice to quit for her failure to pay rent, Myers reported appellant to the Department of Children and Family Services (DCFS) on July 1, 2010. Myers asserted that he received complaints from current and prospective tenants that appellant's daughter screamed for hours without comfort including late at night and that she was left unsupervised in the building courtyard near the fountain. He claims he reported appellant to the DCFS out of concern for possible liability by Windsor. Appellant argues that Myers' intentions were malicious rather than in good faith; however, she produced no evidence to support that claim. The DCFS investigation was later closed as unfounded.
Myers stated in a declaration that he met with Denice Gaucin (Gaucin), an attorney at the Law Offices of Dennis Block, around October 25, 2010 regarding problems he was having with appellant, including "her chronic late rental payments, tenant complaints about noise from her unit, and her daughter being left unsupervised." His "purpose for the meeting was to determine [Windsor's] rights as [appellant's] landlord [regarding these problems] and several of the tenant's personal fears of [appellant.]" Gaucin confirmed his statements in her declaration. He described two incidents involving tenants who occupied units below appellant's who requested to be moved because of noise. Another tenant, who was set to become the new resident manager, Sabine Volel (Volel), was the focus of a DCFS investigation shortly after Myers had reported appellant and she believed appellant had reported Volel in retaliation. Myers became concerned that if he tried to evict appellant, the process would necessarily involve other tenants and he was not willing to do that. Myers informed Gaucin that he had reported appellant to DCFS during this meeting.
Appellant disputes the beginning of Gaucin's representation of Windsor and other information asserted in Myers' declaration but she failed to provide any evidence in support. Instead she points to Myers' statement that he signed the written retainer agreement on or about January 17, 2011. No copy of such agreement is in the record. Without more, this is not sufficient to negate Myers' assertion that he sought counsel in October of 2010.
Myers informed Gaucin that there was no written lease with appellant. Gaucin informed Myers that he was entitled to raise appellant's rent to market prices if appellant did not reside there prior to January 1, 1996. Myers informed her that the current resident manager, Jan Karaoglanian (Karaoglanian), who had resided in the Windsor Complex since 1991, told him appellant moved into the apartment in 1997 to live with her boyfriend, who was the original tenant.
Respondents notified appellant sometime in late 2010 or early 2011 *fn6 that the rent for Apartment J was increased from $1,283 to $1,850 per month, effective January 1, 2011. A written notice was prepared, dated October 25, 2010, and addressed to "Mandore Oviedo." In response to this notice, appellant's attorney, Jennifer Hughes (Hughes), contacted Gaucin on January 14, 2011 to discuss appellant's contention that the 44–percent increase in rent was illegal pursuant to the Los Angeles Rent Stabilization Ordinance (RSO). *fn7 She followed this discussion with a letter that same day noting that appellant did not receive proper service of the notice regarding increased rent. The letter also stated her reasons for asserting that the increase was illegal, including (1) that appellant had moved into the apartment in 1993 with her boyfriend, Phillip Betz (Betz), and their dog, Lucky, and had resided there ever since; (2) that appellant had signed the original lease along with Betz; and (3) that even if she had not signed the original lease, the increase in rent was unlawful because she resided there prior to January 1, 1996.*fn8 In the letter, Hughes referred to appellant as Elvira Oviedo, rather than Mandore Oviedo.
Another of respondents' attorneys, Dennis Block (Block), replied to Hughes in a letter requesting a copy of the lease, asserting that Mandore Oviedo and her child were the only occupants of Apartment J, and asserting that it was irrelevant whether " Elvira Oviedo has a lease or commenced her tenancy before the year 1996." (Italics added.) It is not clear from the record whether there were any further communications between Hughes and Block regarding his assertions. After appellant failed to pay the demanded increased rent, respondents prepared a "Three Day Notice to Pay Rent or Quit Premises," which was dated January 19, 2011 and addressed again to Mandore Oviedo.
In response to a claim that appellant filed with the LAHD, Joseph Plascencia (Plascencia), who represented that entity, sent a letter to Block, dated January 27, 2011, which (1) stated that the Windsor Complex was subject to the RSO; (2) stated that appellant asserted she had resided in the unit prior to 1996; and (3) requested that a copy of the lease be forwarded to LAHD within five days of the date of the letter. If respondents failed to provide a copy of the lease within that time frame, Plascencia asserted that LAHD would proceed with what it had received to date. Block responded by letter also dated January 27, 2011, denying that respondents had a copy of the lease and stating that they had previously sought but had not received a copy of the lease from Hughes, the attorney for Mandore Oviedo.
From Block's prior letter to Hughes, it appeared there was some confusion as to whether respondents knew Mandore and Elvira were the same person. Based on this letter from Block to Plascencia at LAHD, however, it appears that he understood them to be one and the same at the time it was sent. Myers stated in his declaration that he discovered that Mandore and Elvira were the same person sometime in mid-January of 2011. Myers also stated that it was around that time that his secretary, Carla Moreno, informed him that Windsor had received checks for Apartment J in the names of "Mandore E. Oviedo," "Elvira A. Oviedo," "Elvira M. Oviedo," and "Mercedes Oviedo." Myers later slightly contradicted himself stating that he first learned that Mandore and Elvira were the same person after receiving a letter from LAHD in February of 2011.
Respondents filed an unlawful detainer action against Mandore Oviedo on January 31, 2011. The complaint stated it was based on appellant's failure to pay the increased rent.
Plascencia at the LAHD sent another letter to respondents through Gaucin, dated February 11, 2011. The letter recited that the evidence provided by appellant was consistent with the assertions Hughes made in her letter to Gaucin on January 14, 2011. Attached to the letter were copies of (1) two driver licenses identifying Elvira and Mandore Oviedo, from 2008 and 1997, respectively, as the same individual; (2) federal income tax returns for Elvira Oviedo for tax years 1993, 1994, 1995, 1996, and 1998; (3) California income tax returns for tax years 1995 and 1998; (4) W–2 statements from The Oaks School for tax years 1994, 1995 and 1996; and (5) a W–2 statement from Legal Document Systems for tax year 1996. All of these documents reflected that the Windsor Complex, Apartment J, was her place of residence. The letter also clarified that appellant's full legal name was Elvira Mandore Alta Garcia Oviedo, leaving no room for further misunderstanding that Elvira and Mandore were the same person. Plascencia concluded that appellant resided in the apartment prior to 1996 and that, since respondents could not produce a copy of the lease establishing otherwise, respondents increased appellant's "rent without knowledge and/or evidence who were the original tenants at the inception of tenancy." Plascencia then directed respondents to provide evidence that the unlawful detainer action had been rescinded and that appellant's rent had been restored to $1,283 a month. If no response was provided within ten days, Plascencia stated that LAHD would process the complaint as a violation of the RSO.
Myers discussed this letter with Gaucin who, surprisingly, determined the evidence was not conclusive regarding when appellant first occupied Apartment J since no one had produced a written lease. Myers met, for the first time, with Matthew Hogan (Hogan), the attorney who was to handle the unlawful detainer action, on February 25, 2011 — just four days prior to the date on which trial was set to begin. Hogan admitted that he had not been involved in the lawsuit prior to that meeting other than to review some files. Myers informed Hogan that his primary witness, Karaoglanian, was very ill with cancer and may not be able to testify. It appears no attempt had ever been made to obtain a declaration from Karaoglanian (at least one that was mentioned or included in the record before us).
The unlawful detainer action was set to be heard on March 1, 2011. The parties met in the cafeteria prior to trial that morning, at which time appellant presented respondents with an evidence binder including 14 exhibits. Myers had learned sometime over the weekend that Karaoglanian was too ill to attend trial because he had had surgery in early February. After the meeting, respondents voluntarily filed a request for dismissal of the unlawful detainer action without prejudice. Respondents assert that they dismissed the action because (1) it became apparent that Karaoglanian was too ill to testify; (2) respondents did not wish to incur additional legal fees associated with a trial; and (3) appellant was contesting whether the two ...