Ortiz v. Eisler

YAZMIN ORTIZ, Plaintiff and Appellant, v. RUDY EISLER et al., Defendants and Respondents.

B303780

California Court of Appeals, Second District, Fifth Division

May 10, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No SC125247, Craig D. Karlan, Judge. Affirmed in part, reversed in part.

Yazmin Ortiz, self-represented litigant, for Plaintiff and Appellant.

Citron & Citron, Thomas H. Citron and Katherine A. Tatikian for Defendants and Respondents.

KIM J.

I. INTRODUCTION

Plaintiff Yazmin Ortiz appeals from an order granting, in part, a special motion to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute.^[1] We reverse, in part, as to the 12th cause of action to the extent it concerns activity not protected by the anti-SLAPP statute. We otherwise affirm.

II. BACKGROUND

A. Unlawful Detainer Action

In March 1995, plaintiff entered into a rental agreement with defendant Rudy Eisler for a unit within an apartment building located in Santa Monica (the property). The property was owned by defendants Stephen B. Eisler and Theresa A. Eisler as trustees of the Eisler Family 2000 Living Trust, and Rudy Eisler and Wendy Lou Eisler as trustees of the Eisler Living Trust (the Eislers). In May 2015, the Eislers filed an unlawful detainer action (the unlawful detainer action) against plaintiff for failure to pay rent. In August 2015, the Eislers filed the second amended complaint in the unlawful detainer action. They alleged that plaintiff was served with a three-day notice to pay rent or quit and that she owed past-due rent in the amount of $3, 371.91. The Eislers also sought forfeiture of the rental agreement, reasonable attorney fees, possession of the property, and damages.

On December 4, 2015, a court entered judgment in favor of the Eislers on the unlawful detainer action. Plaintiff appealed, and the Appellate Division of the Los Angeles County Superior Court affirmed.

B. Plaintiff's First Amended Complaint

On December 4, 2017, plaintiff filed her first amended complaint alleging 19 causes of action against defendants.^[2] Only the fifth, sixth, both 10th (plaintiff alleged two separate 10th causes of action), 12th, 13th, and 16th causes of action are relevant for purposes of this appeal. We will discuss the allegations in plaintiff's complaint in further detail below.

C. Anti-SLAPP Motion

On March 12, 2019, defendants filed a special motion to strike the causes of action listed above. They asserted that each of the challenged causes of action arose from protected activity, specifically, defendants' filing of the unlawful detainer action. Defendants also argued that plaintiff could not demonstrate a probability of success on the merits of those causes of action because, among other arguments, defendants' alleged conduct was protected by the litigation privilege (Civ. Code, § 47, subd. (b)).

On November 5, 2019, plaintiff filed her opposition to the anti-SLAPP motion. She asserted that "plaintiff's causes of action do not arise from acts in furtherance of defendant[s'] right to free speech on a public issue" (original emphasis and capitalization omitted). She also contended that "'she would [prevail] due to the fact that she had a full legal defense to the unlawful detainer as a matter of law . . . ." But in discussing the purported minimal merits of her causes of action, she only listed the elements of a cause of action for the intentional infliction of emotional distress claim and negligence, neither of which was the subject of defendants' anti-SLAPP motion.

On November 19, 2019, the trial court conducted a hearing on the anti-SLAPP motion. After taking the matter under submission, the court issued its ruling. The court found that the conduct at issue in the fifth, both 10th, 12th, 13th, and 16th causes of action arose from defendants' filing and prosecution of the unlawful detainer action and were therefore protected activity. The court concluded, however, that only a portion of plaintiff's sixth cause of action arose from the unlawful detainer action. It also found that plaintiff failed to demonstrate a probability of success on the merits of any of these causes of action because she failed to make any relevant argument in her opposition. The court therefore granted the anti-SLAPP motion as to the fifth, both 10th, 12th, 13th, and 16th causes of action in full, and, for the sixth cause of action, in part, ordering that only "the allegations relat[ed] to the institution of the unlawful detainer action" be stricken. On January 21, 2020, plaintiff filed a notice of appeal.

III. DISCUSSION

A. The Anti-SLAPP Procedure

"'[The anti-SLAPP] statute authorizes a special motion to strike a claim "arising from any act . . . in furtherance of the [plaintiff's] right 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).)' (Wilson[ v. Cable News Network, Inc. (2019)] 7 Cal.5th [871, ] 883-884.) [¶] Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' (Park[ v. Board of Trustees of California State University (2017)] 2 Cal.5th [1057, ] 1061 [(Park)].) Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."' (Ibid.) If the plaintiff cannot make this showing, the court will strike the claim." (Bonni, supra, 11 Cal.5th at p. 1009.) We review de novo the grant or denial of an anti-SLAPP motion. (Park, supra, 2 Cal.5th at p. 1067.)

B. First Prong-Protected Activity

"A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, 'the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.' [Citations.] '[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.' [Citations.] Instead, the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.' [Citation.] 'The only means specified in section 425.16 by which a moving defendant can satisfy the ["arising from"] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .' [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park, supra, 2 Cal.5th at pp. 1062-1063.)

"Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion." (Bonni, supra, 11 Cal.5th at p. 1010.)

It is well-settled that the filing of an unlawful detainer action and service of a three-day notice to quit are protected activities. (See Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069, 1083 (Aron); Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 (Feldman).) Thus, we examine the pleadings to determine whether the challenged causes of action are based on these protected activities.

1. Fifth Cause of Action: Civil Code section 1942.5

In her fifth cause of action, plaintiff alleged that defendants retaliated against her for making complaints about the tenantability of the property, in violation Civil Code section 1942.5. In order to prevail on this cause of action, a plaintiff must show that "the lessor retaliate[d] against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent . . . ." (Id., § 1942.5, subd. (a); see Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 247.)

According to plaintiff's first amended complaint, defendants "commenced an ongoing campaign of harassment and retaliation, including the filing of unlawful detainer/eviction actions against" her. Plaintiff, however, did not allege any acts of harassment or retaliation other than the filing of the unlawful detainer action. The conduct alleged in the fifth cause of action therefore all arose from protected activity.

2. Sixth Cause of Action: Breach of the Covenant of Quiet Enjoyment

In her sixth cause of action, plaintiff alleged a breach of the covenant of quiet enjoyment. "'In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises.'" (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896; Civ. Code, § 1927.) The covenant of quiet enjoyment can be breached upon actual or constructive eviction of a tenant. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299.)

According to plaintiff, defendants...