California Court of Appeals, First District, Second Division
Order Certified for publication 2/26/14
Superior Court of the City and County No. CGC-12-520970, of San Francisco Honorable Ronald Evans Quidachay Trial Judge.
Attorney for Plaintiff and Respondent: Law Offices of Eric L. Lifschitz, Eric L. Lifschitz, Aaron H. Darsky, and Maria C. Williams
Attorneys for Defendant and Appellant: Lewis Brisbois Bisgaard & Smith, Michael Kenneth Johnson and William F. Horsey
Another appeal in an anti-SLAPP case. Another appeal by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no merit, will result in an inordinate delay of the plaintiff’s case and cause him to incur more unnecessary attorney fees. (See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1002 1003.) And no merit it has. We thus affirm, concluding, as did the trial court, that plaintiff’s lawsuit is not based on protected activity.
On May 21, 2012, John Moriarty filed a complaint naming four defendants: 2363 Van Ness Avenue, LLC; Laramar Management Corporation; Laramar Urban Specialty Partners; and Laramar SF Urban Apartments. The complaint alleged 11 causes of action, styled as follows: (1) harassment (violation of San Francisco Administrative Code § 37.10 B); (2) negligent violation of statutory duty/negligence per se; (3) breach of implied warranty of habitability; (4) breach of the statutory warranty of habitability; (5) negligence/personal injury; (6) nuisance; (7) breach of the covenant of quiet enjoyment; (8) intentional infliction of emotional distress; (9) unlawful business practice; (10) negligent misrepresentation; and (11) wrongful eviction (violation of San Francisco Administrative Code § 37.9).
The complaint is 22 pages long, with 139 paragraphs. After the jurisdictional allegations and some boilerplate, the substance of Moriarty’s claims begins with 45 paragraphs of “Factual Allegations, ” all of which would be incorporated in the causes of action that followed. That substance is as follows:
In 1994 Moriarty rented the premises at 2363 Van Ness Avenue, San Francisco, from defendants’ predecessors in interest, and he was a tenant within the definition of the San Francisco Rent Ordinance (San Francisco Administrative Code, Chapter 37).
At various times throughout his tenancy Moriarty notified defendants and/or their predecessors of various maintenance and repair issues required at the premises, including for water intrusion at various locations. Most recently, Moriarty notified defendants of surface and airborne contaminants throughout the premises, airborne contaminants that were negatively impacting him and adversely affecting his health.
Defendants attempted to remediate the premises, which attempts were unsuccessful, after which defendants “notified [him] they were going to commence extensive repairs of the subject premises, ... so [he] vacated the premises on or about September 2010.” This was a temporary abandonment until repairs and remediation were conducted.
In June 2011, Moriarty “learned that Defendants had chosen to permanently retain possession of the subject premises and thereafter refused to return possession to [him] in violation of [his] rights.” Defendants’ conduct “was intended to, and in fact did, oust Plaintiff from the Premises, ” which conduct involved 15 specific wrongs by defendants, including failing to provide a habitable dwelling; failing to maintain and repair plumbing fixtures; allowing water intrusion and failing to rectify it; failing to repair multiple sources of water intrusion and remediate development of airborne contaminants; failing to eliminate illness-causing airborne contaminants from the premises due to the persistent water intrusion, excessive dampness, and prolonged saturation of indoor building materials; permitting dilapidated and/or stained and peeling paint on walls and ceiling; and failing to provide operable and locking windows and doors which were watertight or weather proofed. And the result was that defendants failed to perform under the rental agreement in various ways, including that they “a. Breached the warranty of habitability by not making the needed repairs; [¶] b. Failed to maintain the Subject Premises in a safe and habitable condition; [and] [¶] c. Denied Plaintiff’s peaceable quiet enjoyment of the Subject Premises.”
Following all that, Moriarty alleged this:
“56. Defendants, and each of them, endeavored to recover possession of the Subject Premises in bad faith through unlawful harassment and other means, including but not limited to the following actions:
“a. Refusing to perform effective repairs of the severely dilapidated conditions which rendered the Subject Premises uninhabitable;
“b. Demanding rent while the Subject Premises was in a condition of severe dilapidation and disrepair;
“c. Seeking to force Plaintiff to vacate the Subject Premises by permitting the Subject Premises to fall into and/or remain in a condition that was substandard, untenantable and a threat to the health and safety of Plaintiff, and any occupants, in an effort to recover possession of the rent controlled unit.
“d. Seeking to coerce Plaintiff to not assert his legal right through intimidation, and harassment, “e. Refusing to return possession of the Premises to Plaintiff after the completion of repairs and remediation.”
All this caused Moriarty to “suffer severe physical, mental, and emotional pain, injury and distress, including, but not limited to, respiratory distress, nervousness, fatigue, embarrassment, humiliation, discomfort, exacerbation and annoyance....”
The complaint was apparently served on only two of the named defendants: 2363 Van Ness Avenue LLC and Laramar Management Corporation.
The Proceedings Below
On September 25, 2012, Laramar Management Corporation (hereafter, usually Laramar) filed a motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16), the anti-SLAPP statute. The motion was accompanied by a memorandum of points and authorities and the declaration of Laramar’s attorney, Curtis P. Dowling. As pertinent here, Mr. Dowling’s testimony was that in June 2011 he had filed an unlawful detainer action against Moriarty; that in July 2011, the court entered Moriarty’s default; and that Moriarty’s later motion to set aside the default was denied. Mr. Dowling’s declaration had attached various exhibits, one of which was a complaint for unlawful detainer against Moriarty filed on behalf of Laramar Urban Specialty Partners.
The essence of Laramar’s anti-SLAPP motion was, as distilled in its brief here, this: “Laramar argued that Plaintiff’s complaint was premised in material part upon Laramar’s alleged pursuit of the eviction action and the ensuing judgment for possession, that the eviction action and judgment were not ‘merely incidental’ to Plaintiff’s claims, and that Plaintiff could not demonstrate a prima facie case against Laramar because his claims are barred by the litigation privilege under Civil Code § 47 and by the doctrines of claim and issue preclusion. [AA 30-49.]”
Moriarty filed opposition, along with objections to evidence. The motion came on for hearing on November 29, 2012, before the Honorable Ronald Quidachy, an experienced law and motion judge, who, following a hearing, denied Laramar’s motion, concluding as follows: “The Court concludes that the Moving Parties failed to carry its burden to show that the Plaintiff’s Complaint arises out of protected activity. [¶] We went through this Complaint in detail, trying to see how this might be protected activity.... [¶] The drafters of the Complaint did an excellent job in making sure that this ...