Analysis: Anti-Slapp Motions in Landlord Tenant Context

 

C.C.P. section 425.16 allows for a special motion to strike “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.” (C.C.P. § 425.16, subd. (b)(1).) The court determines the merits of a SLAPP motion by undertaking a two-step analysis. First, the court decides whether the plaintiff’s cause of action arises from defendant’s protected activity. If the defendant fails to meet this threshold requirement, the SLAPP motion must be denied. If the trial court finds such a showing has been made, it must then determine whether the plaintiff demonstrated a probability of prevailing on the challenged cause of action. Where the court determines the cause of action arose from protected activity and the plaintiff cannot demonstrate a probability of prevailing, the SLAPP motion must be granted. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507 “Equilon”); Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89, 124 Cal.Rptr.2d 530 (“Navellier”); Copenbarger v. Morris Cerullo World Evangelsim (2013) 215 Cal.App.4th 1237, 1244, 156 Cal.Rptr.3d 70 (“Copenbarger”).)

Several appellate cases address anti-SLAPP motions in the context of landlord-tenant disputes, in which litigation between the parties follows the service of a notice to quit and/or an unlawful detainer action. In all of the relevant cases, the appellate courts unanimously concur that

“[f]iling an unlawful detainer complaint is protected activity under the anti-SLAPP statute, as is service of a notice of termination preceding an unlawful detainer complaint. [Citations omitted] A cause of action arising from such filing or service is a cause of action arising from protected activity”

(Ulkarim v. Westfield, LLC (2014) 227 Cal.App.4th 1266, 1275, 175 Cal.Rptr.3d 17 (“Ulkarim”); see Ben-Sharar v. Pickart (2014) 231 Cal.App.4th 1043, 1051-1052, 180 Cal.Rptr.3d 464 (“Ben-Sharar”); Copenbarger, supra, 215 Cal.App.4th at 1245; Wallace, supra, 196 Cal.App.4th at 1182-1183; Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286, 89 Cal. Rptr.3d 24 (“Clark”); Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479-1480, 74 Cal.Rptr.3d 1 (“Feldman”); Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282, 67 Cal.Rptr.3d 190 (“Birkner”); Department of Fair Employment & Housing v. 1005 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1283, 65 Cal.Rptr.3d 469 (“DFEH”); and Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160, 64 Cal.Rptr.3d 488 (“Marlin”).)

As such, the critical consideration in the determination of anti-SLAPP motions in the context of disputes between landlords and tenants is whether the cause of action at issue in the SLAPP motion is based on the defendant’s protected acts. (Ulkarim, supra, 227 Cal.App.4th at 1275.) In other words, the pivotal point in such cases is whether the plaintiff is asserting liability based on either the defendant’s service of a notice to quit or filing of an unlawful detainer action. If it is, the first prong of the SLAPP statute is satisfied; if it is not the SLAPP motion must be denied.

This critical determination has resulted in two divergent lines of case law. In the Marlin line of cases, the appellate courts determined that the tenants’ claims were not based on the landlord’s protected acts. Instead, the appellate courts determined that the protected activity was merely incidental or collateral to the unprotected activity that was really the basis for the claims – usually discrimination or violation of a rent control ordinance. Thus, in the Marlin line of cases, the appellate courts denied the SLAPP motions. (See Marlin, supra, 154 Cal.App.4th 154; DFEH, supra, 154 Cal.App.4th 1273; Clark, supra, 170 Cal.App.4th 1281; Copenbarger, supra, 215 Cal.App.4th 1237; Ulkarim, supra, 227 Cal.App.4th 1266; and Ben-sharar, supra, 231 Cal.App.4th 1043.)

On the other hand, in the Birkner line of cases the appellate courts determined that the landlords’ protected acts of either serving the notices or filing unlawful detainer actions were the basis for the tenants’ claims. As such, the appellate courts found the first prong of the SLAPP statute satisfied. Notably in all such cases the appellate courts also found the second prong of the SLAPP satisfied and granted the SLAPP motions because the litigation privilege is an absolute bar to liability for tort claims. (See Birkner, supra, 156 Cal.App.4th 275; Feldman, supra, 156 Cal.App.4th 275; and Wallace, supra, 196 Cal.App.4th 1169.)

The real estate attorneys at Schorr Law have extensive experience dealing with some of the most complicated landlord tenant matters, including anti-slapp motions.  For a consultation on your matter, do not hesitate to contact our Los Angeles based real estate attorneys at 310 954 1877, by email at info@schorr-law.com or by filling out the contact form on this page.

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Posted in Anti- SLAPP, Commercial Real Estate, Leases, Litigation, Notice to Quit

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