Filed 4/3/13 Copenbarger v. Morris Cerullo World Evangelism CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


PAUL D. COPENBARGER,

     Plaintiff and Appellant,                                          G046273

         v.                                                            (Super. Ct. No. 30-2011-00479442)

MORRIS CERULLO WORLD                                                   OPINION
EVANGELISM et al.,

     Defendants and Respondents.



                   Appeal from orders of the Superior Court of Orange County,
Francisco F. Firmat, Judge. Reversed and remanded.
                   Paul D. Copenbarger, in pro. per.; John L. Dodd & Associates and John L.
Dodd for Plaintiff and Appellant.
                   Darryl J. Paul for Defendants and Respondents.

                                             *               *               *
                                     INTRODUCTION
              Paul D. Copenbarger, acting individually and derivatively on behalf of
Newport Harbor Offices & Marina, LLC (NHOM), appeals from the order granting the
special motion to strike his complaint pursuant to the anti-SLAPP statute, Code of Civil
Procedure section 425.16 (further code references are to the Code of Civil Procedure
                               1
unless otherwise specified).
              NHOM is the sublessee, and defendant/respondent Morris Cerullo
Worldwide Evangelism (Cerullo) is the sublessor under a sub-ground lease of real
property in Newport Beach. After Cerullo served NHOM with a three-day notice to cure
or quit, Copenbarger filed a complaint asserting causes of action against Cerullo, Plaza
del Sol Real Estate Trust (Plaza del Sol), Roger Artz, Dennis A. D’Alessio, and Vertical
Media Group, Inc. (VMG) (collectively, Respondents), for declaratory relief, breach of
                                                    2
contract, and intentional interference with contract. Soon thereafter, Cerullo filed an
unlawful detainer action against NHOM, and all Respondents brought their successful
anti-SLAPP motion to strike Copenbarger’s complaint.
              The dispositive issue on appeal is whether the causes of action asserted in
Copenbarger’s complaint arose out of Cerullo’s petitioning activity—protected under
section 425.16, subdivision (b)(1)—of service of the three-day notice to cure or quit and
the subsequent unlawful detainer action. We conclude that while the three-day notice
might have triggered the complaint, the evidence in the record demonstrates the
complaint was based on an underlying dispute over NHOM’s repair and maintenance
obligations under the sublease and other unprotected activities. We therefore reverse the
order granting the anti-SLAPP motion and the order awarding Respondents attorney fees.



 1
   SLAPP stands for strategic lawsuit against public participation. (Nguyen-Lam v. Cao
(2009) 171 Cal.App.4th 858, 862, fn. 1.)
 2
   Copenbarger also named NHOM as a defendant, but it is not a party to this appeal.

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                    FACTS AND ALLEGATIONS OF THE COMPLAINT
             In 1963, John J. Jakosky and Katherine F. Jakosky, as lessors, and F. David
Young, as lessee, entered into a 55-year ground lease (the Ground Lease) of unimproved
real property (the Property) in Newport Beach. In 1987, a multistory office building and
marina were constructed on the Property by the lessee at the time. Under the terms of the
Ground Lease, the lessee is the owner of any improvements constructed on the Property.
             Sometime before December 2003, Cerullo became the lessee under the
Ground Lease. In January 2004, Cerullo entered in a sub-ground lease of the Property
(the Sublease) with NHOM for a term expiring in November 2018. NHOM had been
formed by Kent A. McNaughton and Copenbarger, who are its members. By quitclaim
deed, Cerullo conveyed title to the improvements on the Property to NHOM.
             Also in January 2004, The Hazel I. Maag Trust (the Maag Trust) loaned
$3 million to NHOM, which used the loan proceeds as partial payment to purchase the
improvements on the Property and to acquire the Sublease. The loan was evidenced by a
promissory note, which was secured by a first priority deed of trust on the improvements
and the Sublease. At the same time, NHOM executed a promissory note in the amount of
$1.15 million in favor of Plaza del Sol. The promissory note to Plaza del Sol (the Plaza
del Sol Note) was made to pay for the balance of the purchase price of the improvements
and acquisition of the Sublease. The Plaza del Sol Note was secured by a second priority
deed of trust (the Plaza del Sol Deed of Trust) on the improvements and the Sublease.
Roger Artz was the trustee of Plaza del Sol and a vice-president of Cerullo.
             In April 2010, Cerullo, Plaza del Sol, and the Maag Trust entered into an
agreement (the Assignment for Collection), under the terms of which the Maag Trust
agreed to make certain payments on the Plaza del Sol Note, to reimburse Plaza del Sol for
real property taxes it paid on the improvements and the Property, and to make future
payments to Plaza del Sol in the amount equal to payments due on the Plaza del Sol Note
as such payments became due. Cerullo and Plaza del Sol agreed not to declare a default

                                            3
under the Sublease on account of then existing defaults so long as the Maag Trust made
the agreed-upon payments.
              D’Alessio was the president of VMG. The complaint alleged that
sometime before April 22, 2011, D’Alessio approached Artz and proposed that he cause
Cerullo and Plaza del Sol to breach the Ground Lease, the Sublease, and the Assignment
for Collection, by declaring a default under the Sublease and terminating it. In the
appellant’s opening brief, Copenbarger asserts the purpose of D’Alessio’s proposal was
“to obtain the Property and the improvements for himself at no cost, free of the Maag
Trust Deed, so they could be acquired by D’Alessio and/or an entity controlled by him.”
(Some capitalization omitted.) In response to D’Alessio’s proposal, Cerullo and Plaza
del Sol entered into a management agreement with VMG and authorized D’Alessio to
serve NHOM with default notices.
              On April 22, 2011, VMG, on behalf of Cerullo, served NHOM with a
30-day notice (the 30-day notice) to cure certain maintenance and other related defaults
under the Ground Lease and the Sublease. The 30-day notice asserted that NHOM
breached paragraph 1.2 of the Sublease by failing to maintain and repair both the
improvements and the Property. The 30-day notice stated: “[W]e have conducted a
limited inspection of the Property and have discerned there to be a wholesale failure on
the part of [NHOM] to perform even a modicum of maintenance or repair to any aspect
of the building or any part of it, to include major structural components.” The 30-day
notice included a list of maintenance and repair issues and demanded that NHOM address
them within 30 days.
              By letter dated May 18, 2011, Copenbarger, on behalf of NHOM,
responded to the 30-day notice. He asserted, among other things, the sublessee’s duty to
maintain and repair under the Sublease did not extend to the improvements on the
Property because the improvements were never subject to the Ground Lease and were
conveyed by quitclaim deed to NHOM. By letter of the same date, Lloyd Copenbarger,

                                             4
as trustee of the Maag Trust, informed Artz and Plaza del Sol that the Maag Trust had
requested that a property management company determine what repairs and maintenance
needed to be made at the Property and arrange for those repairs and maintenance to be
made, at the Maag Trust’s expense.
              On May 26, 2011, VMG, on behalf of Cerullo, served a three-day notice to
cure or quit (the three-day notice) on NHOM, based on “[y]our failure to cure the
breaches of your Sub-Ground Lease . . . .” Five days later, Copenbarger, both in his
individual capacity and derivatively on behalf of NHOM, filed this lawsuit. The
complaint asserted three causes of action: (1) declaratory relief against Cerullo, Plaza del
Sol, D’Alessio, and VMG; (2) breach of contract against Cerullo and Plaza del Sol; and
(3) intentional interference with contract against Artz, D’Alessio, and VMG. In the
declaratory relief cause of action, Copenbarger alleged a controversy exists among the
parties “concerning their respective rights and duties arising under” the Ground Lease,
the Sublease, the Plaza del Sol Deed of Trust, and the quitclaim deed. Copenbarger
contended, among other things, NHOM had no duty to repair the improvements to the
Property, the 30-day notice and the three-day notice were premature and did not comply
with the Ground Lease, and NHOM is the owner of the improvements to the Property.


                             UNLAWFUL DETAINER ACTION
              In June 2011, Cerullo commenced an unlawful detainer action against
NHOM predicated on the 30-day notice and the three-day notice. The unlawful detainer
complaint alleged NHOM was in breach of the maintenance and repair covenant of the
Sublease, alleged service of the 30-day notice and the three-day notice, and attached
copies of those notices.
              NHOM demurred to the unlawful detainer complaint, and, in response,
Cerullo filed an amended unlawful detainer complaint. Instead of alleging breach of the
maintenance and repair covenant, the amended unlawful detainer complaint alleged

                                             5
nuisance, that is, “[t]he failures of NHOM to effect repairs to and/or maintenance on the
[P]roperty have resulted in public and private nuisances and dangerous conditions, caused
the [P]roperty to be in violation of building and zoning codes, and constitute waste . . . .”
On August 1, 2011, VMG, on behalf of Cerullo, served a second 30-day notice on
NHOM. The second 30-day notice was substantially the same as the first one, but
asserted that NHOM’s failure to make the identified repairs and maintain the
improvements to the Property “has allowed the [P]roperty to become a public and private
nuisance, constitutes waste, and constitutes violations of the building codes of the City of
Newport Beach.”


                                THE ANTI-SLAPP MOTION
              Respondents brought a special motion to strike Copenbarger’s complaint
under the anti-SLAPP statute. The motion asserted Copenbarger’s lawsuit was a
“meritless action filed in an attempt to intimidate the moving parties, to chill their rights
to enforce contracts in which [Cerullo] is a party, and to bludgeon the moving parties into
submission so that [Cerullo] would forego the commencement of an unlawful detainer
action against [NHOM].” Copenbarger opposed the motion.
              In October 2011, the trial court granted the special motion to strike. In the
written order granting the motion, the court stated: “After consideration of the matter, the
Court finds that all of the Defendants have sustained their burden to show Plaintiff’s
lawsuit arises from Defendants’ exercise of free speech. The Landlord’s service of the
three day notice to quit was a communication preparatory to the bringing of the unlawful
detainer action and thus constituted a protected activity within the anti SLAPP statute per
Feldman v. 1100 Park Lane, 160 Cal App 4th 1467. [¶] The burden thus shifted to
Plaintiff to establish a probability that Plaintiff will prevail on the claims asserted against
Defendants. Plaintiff must demonstrate that the complaint is both legally sufficient and



                                               6
supported by a sufficient prima facie showing of facts to sustain a favorable judgment.
Plaintiff has failed to do either.”
               Respondents moved to recover nearly $31,100 in attorney fees and costs,
and Copenbarger moved for reconsideration of the order granting the anti-SLAPP special
motion to strike. The trial court denied the motion for reconsideration, and, though
granting the motion for attorney fees, awarded Respondents only $6,557. Copenbarger
timely appealed from the order granting the special motion to strike under the
anti-SLAPP statute and from the order granting Respondents’ motion for attorney fees.


                                        DISCUSSION
                                             I.
                                  The Anti-SLAPP Statute
               “Section 425.16 provides 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.’ (§ 425.16, subd. (b)(1).)” (Cabrera v. Alam (2011)
197 Cal.App.4th 1077, 1085.)
               The trial court undertakes a two-step analysis in deciding the merits of an
anti-SLAPP suit. First, the court must decide whether the defendant has made a threshold
showing that the challenged cause of action arose from the defendant’s protected activity.
(Taus v. Loftus (2007) 40 Cal.4th 683, 712.) If the defendant fails to satisfy this burden,
then the special motion to strike must be denied. (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 76.) If the trial court finds that such a showing has been made, then the court
must decide whether the plaintiff has demonstrated a probability of prevailing on the
challenged cause of action. (Ibid.) We independently review the trial court’s order
granting the special motion to strike under the de novo standard. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 325-326.)

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                                              II.

                    The Complaint Was Not Based on Respondents’
                        Protected Activity Within the Meaning
                             of the Anti-SLAPP Statute.
              The “critical consideration” under the first part of the anti-SLAPP analysis
is “whether the cause of action is based on the defendant’s protected free speech or
petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “The anti-SLAPP
statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the
defendant’s activity that gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.” (Id. at p. 92.) “In deciding whether
the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense is based.’”
(City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.)

              A. The Complaint Was Not Based on Service of the Three-day Notice
                        or the Unlawful Detainer Complaint.
              An unlawful detainer action is protected activity within the meaning of
section 425.16. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 (Clark); Birkner
v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).) It has been held that service of a
three-day notice to quit also is protected activity within the meaning of section 425.16
because service of the notice is legally required to file an unlawful detainer action.
(Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 (Feldman);
Birkner, supra, at pp. 281-282.)
              Although an unlawful detainer action itself is protected activity under
section 425.16, terminating a lease is not. (Clark, supra, 170 Cal.App.4th at
pp. 1286-1287; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 158
(Marlin).) A complaint arising out of or based on the dispute or conduct underlying the
unlawful detainer action is not subject to a special motion to strike. “‘[T]he mere fact



                                               8
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.’” (Marlin, supra, at
p. 160.) When, as in this case, the challenged lawsuit follows service of a three-day
notice to quit, “[t]he pivotal distinction” is “whether an actual or contemplated unlawful
detainer action by a landlord (unquestionably a protected petitioning activity) merely
‘preceded’ or ‘triggered’ the tenant’s lawsuit, or whether it was instead the ‘basis’ or
‘cause’ of that suit.” (Clark, supra, at p. 1289.)
              Clark is instructive. In that case, a landlord evicted a tenant from a
rent-controlled apartment, ostensibly to free the unit for occupancy by the landlord’s
daughter. (Clark, supra, 170 Cal.App.4th at p. 1284.) The tenant filed a complaint
alleging the landlord fraudulently represented in the unlawful detainer action that the
landlord intended for her daughter to move into the apartment, purposefully kept the
apartment unoccupied, and performed renovations with the goal of reletting the unit to a
new tenant for a higher monthly rent. (Id. at pp. 1284-1285.) The trial court granted the
landlord’s special motion to strike the complaint under the anti-SLAPP statute. (Ibid.)
              Reversing, the Court of Appeal reasoned the complaint was not premised
on the landlord’s prosecution of the unlawful detainer action, but on the landlord’s
removal of the apartment from the rental market and fraudulent eviction of the tenant.
(Clark, supra, 170 Cal.App.4th at p. 1286.) Although the unlawful detainer action
triggered the tenant’s lawsuit, that lawsuit was based on claims the landlord fraudulently
invoked the family occupancy exemption of the rent control ordinance and failed to fulfill
her obligations under that ordinance. (Id. at p. 1290.)
              Three other cases guide our analysis. In Marlin, supra, 154 Cal.App.4th at
page 157, the landlords filed notice under the Ellis Act (Gov. Code, § 7060 et seq.) of
their intention to permanently remove apartment units from the rental market and, at the
same time, served the tenants with notice to vacate their units. Two tenants brought a
declaratory relief action against the landlords, seeking a declaration of rights under the

                                              9
Ellis Act. (Marlin, supra, at p. 157.) The landlords responded with an anti-SLAPP
motion that asserted the tenants’ lawsuit arose out of the landlords’ act of filing and
serving the Ellis Act notices. (Id. at p. 158.) The trial court granted the anti-SLAPP
motion, and the Court of Appeal reversed. (Id. at pp. 158, 163.) The Court of Appeal
reasoned: “Defendants have fallen victim to the logical fallacy post hoc ergo propter
hoc—because the notices preceded plaintiffs’ complaint the notices must have caused
plaintiffs’ complaint. The filing and service of the notices may have triggered plaintiffs’
complaint and the notices may be evidence in support of plaintiffs’ complaint, but they
were not the cause of plaintiffs’ complaint. Clearly, the cause of plaintiffs’ complaint
was defendants’ allegedly wrongful reliance on the Ellis Act as their authority for
terminating plaintiffs’ tenancy. Terminating a tenancy or removing a property from the
rental market are not activities taken in furtherance of the constitutional rights of petition
or free speech.” (Id. at pp. 160-161, fns. omitted.)
              Under similar reasoning, the court in Department of Fair Employment &
Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273
(DFEH) affirmed an order denying a landlord’s anti-SLAPP motion to strike. The
landlord had sought to permanently remove its apartment building from the rental market
under the Ellis Act. (DFEH, supra, at pp. 1275-1276.) One tenant asserted she was
disabled and requested an extension of time to find alternate housing, as required under
state and local law for disabled tenants. (Ibid.) The tenant declined the landlord’s
request to provide detailed information on her disability and claimed that divulging such
information would violate her right to privacy. (Id. at. pp. 1275, 1278.) The landlord
ultimately removed the tenant through unlawful detainer. (Id. at p. 1275.) The
Department of Fair Employment and Housing (the department) brought a lawsuit against
the landlord for disability discrimination, and the landlord responded with an anti-SLAPP
motion. (Id. at pp. 1275-1276.) Affirming the order denying the motion, the Court of
Appeal reasoned the “gravamen” of the department’s lawsuit against the landlord was for

                                              10
disability discrimination, and was not “an attack on any act [the landlord] committed
during the rental property removal process or during the eviction process itself.” (Id. at
p. 1284.) The complaint’s allegations of wrongdoing were based on the landlord’s
alleged acts of failing to accommodate the tenant’s disability; “[t]he letters, e-mail and
filing of unlawful detainer actions constituted [the department]’s evidence of [the
landlord]’s alleged disability discrimination.” (Id. at pp. 1284-1285.)
              In the recent case of Oviedo v. Windsor Twelve Properties, LLC (2012) 212
Cal.App.4th 97, the Court of Appeal reversed an order granting a landlord’s anti-SLAPP
motion to strike a tenant’s cause of action for violation of a rent control ordinance. The
landlord filed an unlawful detainer action against the tenant because she failed to pay an
increased amount of rent. (Id. at p. 105.) After the landlord voluntarily dismissed the
unlawful detainer action, the tenant filed a complaint against the landlord, which asserted,
among other things, the rent increase violated the rent control ordinance. (Id. at p. 106.)
The Court of Appeal concluded the cause of action for violation of the rent control
ordinance was not based on the unlawful detainer action, a 60-day notice of intent to
increase rent, or on a three-day notice to pay rent or quit, all of which are protected
activities within the meaning of section 425.16. (Oviedo, supra, at pp. 110-111.) Rather,
the cause of action for violation of the rent control ordinance arose out of the landlord’s
allegedly illegal act of raising the tenant’s rent. (Ibid.)
              In this case, service of the three-day notice preceded the complaint and
might have triggered Copenbarger to file it, but the complaint was not based on service of
that notice. The first cause of action, for declaratory relief, does not attack the service of
the three-day notice or the unlawful detainer action itself: The gravamen of the
declaratory relief cause of action is a dispute over the parties’ respective rights and
obligations under certain terms of the Ground Lease and the Sublease. The first cause of
action sought a declaration on several issues arising under the Sublease, including
whether NHOM owned the improvements to the Property and had a duty to maintain and

                                               11
repair them. The 30-day notice constituted evidence these lease interpretation issues
were genuinely in dispute. Cerullo’s decision to amend the unlawful detainer complaint
and the 30-day notice in order to assert nuisance, rather than breach of the covenant to
maintain and repair, is evidence the declaratory relief cause of action was brought in
good faith.
              Respondents argue there is “nothing in the record to establish that the
supposed controversy exists otherwise than as stated as a product of the prosecution of an
unlawful detainer action proceeding by [Cerullo].” The 30-day notice and Copenbarger’s
May 18 letter in response constitute evidence demonstrating the existence of a conflict
over the rights and obligations of the parties to the Sublease. The 30-day notice asserted
NHOM breached its maintenance and repair obligations under the Sublease. The May 18
letter asserted NHOM’s maintenance and repair obligations under the Sublease did not
extend to the improvements on the Property because the improvements were never
subject to the Ground Lease and were conveyed by quitclaim deed to NHOM.
              Respondents did not meet their threshold burden of demonstrating the
second cause of action, for breach of contract, arose out of protected activity. The second
cause of action alleged Cerullo and Plaza del Sol breached the Sublease by failing to give
a 60-day written notice to NHOM as required under the terms of the Ground Lease,
which were incorporated into the Sublease. Although the second cause of action was
triggered by Cerullo’s commencement of unlawful detainer proceedings, that cause of
action was based on Cerullo’s alleged breach of the Sublease, not on the notices
themselves.
              Respondents also did not meet their threshold burden of demonstrating the
third cause of action, for intentional interference with contract, arose out of protected
activity. The third cause of action alleged Artz, D’Alessio, and VMG intentionally
interfered with the Sublease by inducing Cerullo to seek to terminate it. The third cause
of action was not brought against Cerullo, the party for which the 30-day notice and the

                                             12
three-day notice were served. The acts giving rise to the third cause of action were not
service of the three-day notice, but the alleged conduct of Artz, D’Alessio, and VMG in
inducing Cerullo to serve the notice and attempt to terminate the Sublease.
                          B. Feldman and Birkner are Dissimilar.
              The trial court in this case cited Feldman, supra, 160 Cal.App.4th 1467, in
the order granting the anti-SLAPP special motion to strike. In Feldman, the landlord
filed an unlawful detainer action against the tenant and subtenants on the ground the
subtenants were unapproved. (Id. at pp. 1473-1474.) The subtenants filed a
cross-complaint for damages against the landlord, alleging retaliatory eviction,
negligence, negligent misrepresentation, breach of the covenant of quiet enjoyment, and
other causes of action. (Id. at p. 1475.) The landlord brought an anti-SLAPP motion to
strike the cross-complaint. (Id. at pp. 1475-1476.) The trial court granted the motion
only as to the retaliatory eviction cause of action. (Id. at p. 1473.)
              The Court of Appeal concluded the anti-SLAPP special motion to strike
should have been granted on all causes of action except that for negligent
misrepresentation. (Feldman, supra, 160 Cal.App.4th at p. 1473.) The court reasoned
that, with the exception of the negligent misrepresentation cause of action, the
cross-complaint was based on the filing of the unlawful detainer action, service of the
notice to quit, and statements made by the landlord’s agent in connection with the
eviction and unlawful detainer action. (Id. at p. 1483.) “These activities,” the court
stated, “are not merely cited as evidence of wrongdoing or activities ‘triggering’ the filing
of an action that arises out of some other independent activity. These are the challenged
activities and the bases for all causes of action, except possibly that of negligent
misrepresentation.” (Ibid.).
              Respondents cite Birkner, supra, 156 Cal.App.4th at page 279, in which the
landlord served the tenants with a 60-day notice to terminate tenancy under a rent control
ordinance. The landlord sought possession to allow his mother to live in the building.

                                              13
(Ibid.) The tenants’ counsel notified the landlord that the tenants could not be evicted
because they were protected tenants under the ordinance. (Ibid.) When the landlord
refused to rescind the termination notice, the tenants filed a complaint against him for
wrongful eviction, negligence, breach of the covenant of quiet enjoyment, and intentional
infliction of emotional distress. (Id. at pp. 278-279.) The trial court denied the landlord’s
anti-SLAPP motion on the ground the tenants’ complaint was not based on protected
activity within the meaning of section 425.16. (Birkner, supra, at p. 280.) The Court of
Appeal reversed. Although the court acknowledged that terminating a tenancy or
removing a unit from the rental market is not activity taken in furtherance of the
constitutional right of petition or free speech, the court concluded the sole basis for the
tenants’ lawsuit was the service of the termination notice and the landlord’s refusal to
rescind it, activities protected under the anti-SLAPP statute. (Id. at pp. 281-283.) The
court distinguished Marlin on the basis the tenants’ claims in that case were based on the
landlords’ conduct, which preceded service of the termination notice, of relying on the
Ellis Act to evict the tenants. (Birkner, supra, at pp. 282-283.)
              This case is dissimilar to Birkner and Feldman because the causes of action
alleged by Copenbarger did not arise out of service of the 30-day notice and the three-day
notice. Instead, the case is similar to Clark, Marlin, and DFEH because the declaratory
relief cause of action is based Copenbarger’s claim that NHOM had no obligation to
maintain and repair the improvements to the Property—the ground on which Cerullo
sought to terminate the Sublease. The complaint and the evidence submitted in
connection with the anti-SLAPP motion establish the 30-day notice and the three-day
notice were, at most, evidence of an underlying dispute over interpretation of various
lease terms, including whether NHOM owned the improvements to the Property and had
a duty to maintain and repair them. The breach of contract cause of action asserted an
independent breach of a notice provision in the Ground Lease, and the interference cause
of action is not asserted against the landlord, Cerullo.

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                                            III.

                             Probability of Prevailing on the
                              Challenged Causes of Action
              We do not consider whether Copenbarger demonstrated he is likely to
succeed on the merits of the challenged causes of action because Respondents did not
meet their threshold burden of showing the complaint was based on protected activity.
The trial court erred in granting the anti-SLAPP motion; therefore, the trial court also
erred in awarding Respondents attorney fees under section 425.16, subdivision (c).
(Clark, supra, 170 Cal.App.4th at p. 1290, fn. 5.)


                                       DISPOSITION
              The order granting the special motion to strike and the order awarding
attorney fees are reversed. The matter is remanded for further proceedings. Appellant
shall recover costs incurred on appeal.




                                                   FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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