Filed 10/31/14 Certified for Publication 11/24/14 (order attached)




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


ADI BEN-SHAHAR,                                                      B250728, B251417

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC502792)
         v.

DANIEL PICKART et al.,

         Defendants and Appellants.



         APPEAL from an order of the Superior Court of Los Angeles County, Richard L.
Fruin, Jr., Judge. Affirmed in part and reversed in part.
         Lewis Brisbois Bisgaard & Smith, David B. Shapiro, Lynda J. Kim, David D. Samani
and Roy G. Weatherup for Defendants and Appellants.
         Ballard Spahr, Peter Haviland, Daniel M. Benjamin and Ethan Chernin for Plaintiff
and Respondent.
                                            ——————————
       Defendants Daniel Pickart, Stephanie Pickart, Savoy Bellavia, Annamarie Bellavia,
John Acierno, and Luanne Acierno appeal the denial of their Code of Civil Procedure section
426.161 special motion to strike plaintiff’s first amended complaint. Plaintiff Adi Ben-Shahar
cross-appeals the trial court’s denial of his request for attorney fees in defending the motion.
We affirm the denial of defendants’ motion to strike, and reverse the denial of attorney fees
and remand to the trial court for further proceedings on attorney fees.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       1.       Plaintiff’s Occupancy and the Gilliland Agreement
       Plaintiff occupied a rent-controlled penthouse apartment located at 202 Bicknell Street
in Santa Monica. The apartment is in a three-story brick unreinforced masonry building that
was built in 1912. Plaintiff has resided in the apartment since 1989, and is a licensed
electrical contractor. Plaintiff spent about $70,000 to remodel his apartment based upon
representations from Geraldine Gilliland,2 the owner of the building, that she would not sell
the building and that plaintiff would be reimbursed for all costs he expended on the
remodeling. Later, plaintiff negotiated an agreement with Gilliland memorialized in a letter
dated November 29, 2011 in which Gilliland stated that she would pay $212,000 to plaintiff
for the work he had performed. The agreement also provided that plaintiff would move out of
the unit and Gilliland would pay plaintiff a relocation fee.
       2.       Defendants’ Purchase of the Building and the Unlawful Detainer Proceedings
       In March 2012, defendants3 purchased the building and defendant Daniel Pickart
served plaintiff with a 60-day notice to quit. The Santa Monica Rent Control Ordinance
(SMRCO), section 1806, permits a building owner to displace a tenant, but the owner must

       1All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
       2   Gilliland is a defendant in this action but not a party to this appeal.
       3 Daniel Pickart and Stephanie Pickart own a 50 percent interest in the building;
Savoy Bellavia and Annmarie Belavia, trustees of the S&A Belavia Trust, own a 25
percent interest; and John Acierno and Luanne Acierno, trustees of the Acierno Family
Trust, own the remaining 25 percent.

                                                 2
occupy the unit with 30 days after the tenant vacates. If the owner does not occupy the unit
within this time frame, the owner must offer the unit to the displaced tenant.4
       After plaintiff told Pickart that he would not vacate the apartment, Pickart initiated
unlawful detainer proceedings.5 At the trial of the unlawful detainer action, Pickart informed
the court he intended to move into the unit with his family. In opposition, plaintiff presented
evidence to show that Pickart’s goal was to raise rents by pushing out the rent-controlled
tenants. In July 2012, the court issued a ruling requiring plaintiff to vacate the unit and
finding that the Pickarts had acted in good faith, and the Pickarts intended to move into the
unit. The court further found plaintiff’s defense of the action was not frivolous.
       The same day, the parties entered into an agreement resolving the unlawful detainer
proceedings pursuant to which plaintiff would vacate the premises and the Pickarts would
comply with the provisions of the SMRCO, section 1806, subdivision (a)(8)(iv). Plaintiff
vacated the unit on August 31, 2012.
       However, defendants did not occupy the unit within this time period although they
intended to do so because extensive renovations of the property were necessary. An
inspection of the premises disclosed rotten wood in the building and that some seismic
anchors were present on the building, but without destructive testing the presence of the


       4 Section 1806 of the SMRCO provides in relevant part: “(a) No landlord shall
take action to terminate any tenancy including but not limited to, to making a demand for
possession of a rental unit, threatening to terminate a tenancy, serving any notice to quit
or other eviction notice or bringing any action to recover possession or be granted
recovery of possession of a controlled rental unit except: [¶] . . . [¶] (8) The landlord
seeks to recover possession in good faith for use and occupancy by herself or himself, or
her or his children, parents, grandparents, brother, sister, father-in-law, mother-in-law,
son-in-law, or daughter-in-law; [¶] . . . [¶] (iv) The landlord or enumerated relative must
intend in good faith to move into the unit within thirty (30) days after the tenant vacates
and to occupy the unit as a primary residence for at least one year. The Board may adopt
regulations governing the determination of good faith.”
       5The unlawful detainer proceedings were prosecuted in two separate actions: one
pertained to the apartment, and the other pertained to a garage/office that plaintiff also
rented.

                                                3
remaining anchors could not be determined. Such testing disclosed the anchors were missing.
An architect retained by the Pickarts drew up extensive plans for the property, and estimated
that the work would take six months, not including the time required to obtain permits. The
required permits were obtained in August 2012. In September 2012, defendants began
demolishing the apartment, but several days later the City issued a stop order because the
required permits had not been issued. The City kept finding new issues to be resolved before
construction could proceed. After revisions were made to the plans, the required permits were
issued and construction continued in October through November 2012.
        Based on the delays in construction, on November 5, 2012, plaintiff moved for a
finding that defendants had breached the unlawful detainer settlement because even if the
Pickarts had moved into the premises, they had moved out during September 2012, and were
thus required to offer the premises to plaintiff pursuant to SMRCO section 1806, subdivision
(a)(8)(iv).
        On January 23, 2013, proceedings were held in the unlawful detainer proceedings
concerning defendants’ alleged breach of the unlawful detainer settlement. The court
indicated that it could only undertake consideration of the merits if the case were reclassified
from limited to unlimited, and noted that a separate lawsuit was the appropriate way for
plaintiff to assert his claims. The court did not rule on the motion.
        3.       Plaintiff’s Complaint and Defendants’ Motion to Strike
        Plaintiff filed this action on March 12, 2013, and his operative first amended complaint
stated claims for violations of the SMRCO, breach of the unlawful detainer settlement
agreement, violation of the UCL, breach of the Gilliland relocation agreement, and unjust
enrichment. Plaintiff sought an order restoring him to his apartment, restitution, damages, and
attorney fees.
        Defendants filed a special motion to strike, asserting that their conduct was protected
litigation activity because it was based on Pickart’s actions as landlord in serving a notice to
quit, resolution of the unlawful detainer action, and enforcement of the settlement agreements.
Further, plaintiff’s claims were without merit because the court in the unlawful detainer


                                                4
proceedings had found in favor of defendants, thus collaterally estopping plaintiff from
asserting any claims based upon his eviction or the Pickarts’ failure to occupy the premises
within 30 days.
       Plaintiff’s opposition asserted that his lawsuit did not target protected activity because
it sought redress for defendants’ breach of the unlawful detainer settlement agreement,
violation of the SMRCO, and breach of the Gilliland agreement. Plaintiff argued that a suit
for breach of a settlement agreement was not protected activity, nor was violation of the rent
control laws. Further, he would prevail on the merits because the Pickarts failed to move into
the apartment within 30 days and the statute did not impose a “good faith” requirement; the
unlawful detainer settlement did not collaterally bar his claims; and the Pickarts never
intended to occupy the unit. Plaintiff sought attorney fees of $14,861, arguing that
defendants’ motion was frivolous because plaintiff’s claims were not based upon the filing of
the unlawful detainer action, but the first three causes of action were based upon the Pickarts’
failure to move into the apartment, and the fourth and fifth causes of action were based upon
the Gilliland agreement.
       The trial court found the first cause of action arose from petitioning conduct.6 On the
merits, the court stated that although the judge prepared a tentative ruling in the unlawful
detainer action regarding plaintiff’s motion to enforce the settlement, the unlawful detainer
court dismissed the action without making any findings, although the settlement preserved all
of plaintiff’s rights under the SMRCO. As a result, the trial court found there was no
collateral estoppel from the hearing in the unlawful detainer action. The trial court concluded
defendants’ special motion to strike should be denied with respect to the first cause of action,
and stated that “the same analysis would apply to each [of the] other cause[s] of action.” The




       6  The record does not contain an official reporter’s transcript, but contains a copy
of the transcript provided by the parties. (See Cal. Rule of Court, rule 8.120(b).) As
neither party disputes the contents of the transcript, we will accept it as accurate for
purposes of our appellate review.

                                                5
court did not award plaintiff attorney fees on the motion because plaintiff had not shown that
the motion was frivolous.
                                         DISCUSSION
       Defendants argue that the first and second causes of action—which assert violations of
the SMRCO and the settlement agreement arising out of the unlawful detainer action—
directly implicate protected litigation activity because those causes of action arose from their
prosecution of the unlawful detainer action. On the merits, defendants argue that plaintiff has
not demonstrated a reasonable probability of prevailing because the Pickarts intended in good
faith to move into the residence within 30 days; the litigation privilege protects defendants’
conduct that occurred during litigation; and plaintiff’s claims based upon the Gilliland
agreement are unsubstantiated because plaintiff does not allege the landlord defendants are
parties to the Gilliland agreement.
I.     Discussion
       Section 425.16 permits a court to strike any cause of action that arises from the
defendant’s exercise of his or her constitutionally protected free speech rights or petition for
redress of grievances. (§ 425.16, subd. (b)(1); Flatley v. Mauro (2006) 39 Cal.4th 299, 311–
312.) In ruling on a special motion to strike brought under section 425.16, the trial court must
engage in a two-step process. First, the court must determine “whether defendant has made a
threshold showing that the challenged cause of action [arises from] a protected activity.”
Second, if the defendant makes this showing, the trial court must determine “whether the
plaintiff has established a probability of prevailing on the claim.” (Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 733.) The burden is on the defendant on the first prong to
show the action is within the statute; if the defendant succeeds, the burden shifts to the
plaintiff to establish a probability of prevailing. (Kajima Engineering & Construction, Inc. v.
City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
       In making these determinations, the trial court considers the pleadings, and supporting
and opposing affidavits. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
67.) We review the trial court’s ruling on the motion to strike independently under a de novo


                                                6
standard. (Flatley v. Mauro, supra, 39 Cal.4th at p. 325.) We do not weigh credibility, but
accept as true the evidence favorable to plaintiff and evaluate the defendant’s evidence only to
determine whether it defeats the plaintiff’s evidence as a matter of law. (Id. at p. 326.)
       Subdivision (e) of section 425.16 delineates the type of speech or petitioning activity
protected. These acts include (1) written or oral statements made before a legislative,
executive, or judicial proceeding; (2) written or oral statements “made in connection with an
issue under consideration or review by a legislative, executive, or judicial body”; (3) written
or oral statements “made in a place open to the public or in a public forum in connection with
an issue of public interest”; or (4) “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection with a
public issue or an issue of public interest.” (§ 425.16, subd. (e).) Thus, if the speech is made
or the activity is conducted in an official proceeding authorized by law, it need not be
connected to a public issue, but if it is made or conducted apart from an official proceeding,
then there is a public issue requirement. (Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1117–1119.)
       Courts have not precisely defined the boundaries of a cause of action that “arises from”
such protected activity. (§ 425.16, subd. (b).) City of Cotati v. Cashman (2002) 29 Cal.4th
69, 78 explained that “the statutory phrase ‘cause of action . . . arising from’ means simply
that 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. [Citation.] In the anti-SLAPP context,
the critical point is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.” Navellier v. Sletten (2002) 29
Cal.4th 82 cautioned that 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.) Thus, whether the plaintiff’s lawsuit intended to chill or actually chilled the
defendant’s conduct is not relevant. (Equilon Enterprises, supra, 29 Cal.4th at p. 58.)



                                                  7
       Whether the statute applies is determined from the “principal thrust or gravamen” of
the plaintiff’s claim. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181,
187.) For this reason, the sequence in which actions are filed is not determinative of whether
a lawsuit is a prohibited suit. The mere fact that a lawsuit was filed after the defendant
engaged in protected activity does not establish the complaint “arose from” protected activity
under the statute because a cause of action may be triggered by protected activity without
arising from it. (Cotati, supra, 29 Cal.4th at pp. 76–77, 78.)
       Numerous SLAPP cases have discussed a landlord’s unlawful detainer action that is
followed by a tenant’s lawsuit. Unless the sole basis of liability asserted in the tenant’s
complaint is the filing and prosecution of the unlawful detainer action, the tenant’s action will
not be targeted at protected activity. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281–282
[where action directed solely at filing of unlawful detainer action, the unlawful detainer action
is protected activity for purposes of SLAPP action].) Where, however, the action is
predicated upon conduct distinct from the prosecution of unlawful detainer action—even
though the complaint is based upon the unlawful detainer action or arises from it—the
tenant’s action is not targeted at protected activity and thus does not meet the first prong of the
SLAPP analysis. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154.)
       In Marlin v. Aimco Venezia, LLC, supra, 154 Cal.App.4th 154, the landlord served the
tenants with notices under the Ellis Act (Gov. Code, § 7060 et seq.) that the landlord intended
to withdraw the rental units from the market. The tenants brought a declaratory relief action,
citing improper reliance on the Ellis Act, and the landlord filed a motion to strike. The court
held that even if the filing of the Ellis Act notices was protected activity, the tenants’ action
was directed at wrongful reliance on the Ellis Act, not at the filing of the notices of removal.
(Marlin, at pp. 160–161.)
       In Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308,
1316–1319, the court concluded the lawsuit at issue, brought by the rent control board, was
based on the landlords’ charging of unlawful rents, not on their filing of regulatory paperwork
with the board. Even assuming submitting the regulatory paperwork qualified as protected


                                                 8
petitioning activity, the court explained that was not the basis of the board’s claims again the
landlords. “[W]hile th[e] suit may have been ‘triggered by’ [the landlords’] submission of
such documents to the Board, it is not true that this suit is based on the filing of such papers.”
(Id. at p. 1318.) Instead, it was based on the landlords’ alleged violation of the rent control
ordinance. There is no “authority for the proposition that their conduct in charging illegal rent
is an act in furtherance of their rights of petition or free speech.” (Ibid.)
       Clark v. Mazgani (2009) 170 Cal.App.4th 1281 employed the same reasoning. In
Clark, the landlord filed an unlawful detainer action to evict a tenant, “ostensibly to free the
unit for occupancy by the landlord’s daughter.” (Id. at p. 1284.) However, the daughter never
moved in, and the evicted tenant subsequently sued for fraud, unlawful eviction, and failure to
pay relocation expenses. (Ibid.) Clark once again explained the tenant’s lawsuit “is not based
on . . . filing or service of the notices of intent to evict, it is not based on anything [the
landlord] said in court or a public proceeding, and it is not based on the fact that [the landlord]
prosecuted an unlawful detainer action . . . . The complaint is based on [the landlord’s]
allegedly unlawful eviction, in that she fraudulently invoked the [rent ordinance] to evict [the
tenant] from her rent-controlled apartment as a ruse to provide housing for her daughter, but
never installed her daughter in the apartment as required by that ordinance, and also that she
failed to pay [the tenant’s] relocation fee.” (Id. at p. 1288.)
       Indeed, numerous cases have addressed anti-SLAPP motions that were not properly
advanced in the context of a landlord-tenant dispute. (See e.g., Moriarty v. Laramar
Management Corp. (2014) 224 Cal.App.4th 125, 133 [wrongful eviction claim premised on
violation of San Francisco rent control ordinance did not arise from protected activity, though
it followed the filing of unlawful detainer action]; Copenbarger v. Morris Cerullo World
Evangelism (2013) 215 Cal.App.4th 1237, 1240 [“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 . . . repair and maintenance obligations under the sublease and
other unprotected activities”]; Oviedo v. Windsor Twelve Properties, LLC (2012) 212
Cal.App.4th 97, 110–111 [“appellant’s first cause of action is based, not on the unlawful


                                                   9
detainer action and prior communications, but on respondent’s alleged violation of the” Rent
Stabilization Ordinance, thus “respondents ‘were not sued for their conduct in
exercising . . . constitutional rights’ but for the underlying conduct of illegally raising
appellant’s rent”]; Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 953
[“plaintiff’s action here did not challenge any ‘communications preparatory [to] or in
anticipation of’ a lawsuit” but “defendants’ actions in allegedly breaching the Tenancy
Termination Agreement” and “the landlords’ failure to return plaintiff’s rental deposit and
other promised refunds”].)
       These authorities are precisely on point here. Plaintiff’s complaint is not directed at
the act of defendants’ filing the unlawful detainer proceedings or the parties’ act of settling the
matter. Rather, it is directed the Pickarts’ acts constituting a purported breach of the
settlement agreements based on their conduct in failing to occupy plaintiff’s apartment in a
timely fashion as required by the SMRCO. The few landlord-tenant cases that have
concluded special motions to strike were appropriately brought are distinguishable. (See, e.g.,
Birkner v. Lam, supra,156 Cal.App.4th 275; Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467; Copenbarger v. Morris Cerullo World Evangelism, supra, 215
Cal.App.4th at p. 1237.) In Birkner and Feldman, the eviction notices and unlawful detainer
actions were “not merely cited as evidence” of the landlord’s allegedly wrongful conduct but
were the “sole basis for liability.” (Feldman, at p. 1483; Birkner, at p. 283.)
       Further, plaintiff’s action is not collaterally estopped by his misguided attempt to
enforce the settlement agreement in the unlawful detainer proceedings. As the trial court in
the unlawful detainer proceedings recognized, such proceedings are limited proceedings. The
sole issue in an unlawful detainer proceedings is possession of the premises. Thus, the trial
court there did not have the authority to resolve the dispute arising from the purported breach
of the unlawful detainer settlement and therefore did not do so. (Moriarty v. Laramar, supra,
224 Cal.App.4th at p. 141.)




                                                 10
       As we conclude that plaintiff’s complaint is not directed at protected activity, we need
not consider the second prong of the analysis. (Demetriades v. Yelp, Inc. (2014) 228
Cal.App.4th 294, 312.)
       A.      Cross-appeal
       Plaintiff cross-appeals the trial court’s denial of attorney fees.
       The court shall award attorney fees to a plaintiff who prevails on a special motion to
strike if the court finds that the defendants’ motion was “frivolous or solely intended to cause
unnecessary delay.” In such case, the court is required to award costs and reasonable attorney
fees to the plaintiff pursuant to section 128.5 as a sanction. (§ 425.16, subd. (c)(1); Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1131.)7
       The court must apply the procedures and substantive standards of section 128.5 in
ruling on the motion. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) For a determination
that a SLAPP action was frivolous, the court must make a finding that the defendant’s motion
was “totally and completely without merit,” namely “any reasonable attorney would agree
such motion is totally devoid of merit.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th
265, 275.) Section 128.5, subdivision (c) requires the trial court to “recite in detail the
conduct or circumstances justifying the order.” (See Foundation for Taxpayer& Consumer
Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.)
       Here, we affirm the trial court’s order finding that plaintiff’s complaint is not subject to
a motion to strike. We remand the matter for a determination of whether defendants’ motion
was frivolous, whether plaintiff is entitled to attorney fees and if so, the amount of such fees.




       7  Under section 425.16, subdivision (c)(1), “If the court finds that a special motion
to strike is frivolous or is solely intended to cause unnecessary delay, the court shall
award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion,
pursuant to Section 128.5.” Under that subdivision (a) of section 128.5, “Every trial court
may order a party, the party’s attorney, or both to pay any reasonable expenses, including
attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are
frivolous or solely intended to cause unnecessary delay.”

                                                11
                                         DISPOSITION
       The order of the superior court is affirmed to the extent that it denied defendants’
special motion to strike, and is reversed to the extent it denied plaintiff’s attorney fees and
costs. The trial court is directed, consistent with the views expressed in this opinion, to
evaluate whether plaintiff is entitled to attorney fees for his successful defense of the special
motion to strike and if so, in what amount.


                                              JOHNSON, J.


We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




                                                12
Filed 11/24/14
                            CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION ONE


ADI BEN-SHAHAR,                                    B250728, B251417
                                                   (Los Angeles County
        Plaintiff and Respondent,                  Super. Ct. No. BC502792)

        v.                                         CERTIFICATION AND
                                                   ORDER FOR PUBLICATION
DANIEL PICKART et al.,

        Defendants and Appellants.




        The opinion in the above-entitled matter filed October 31, 2014, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




        ROTHSCHILD, P. J.                 CHANEY, J.                  JOHNSON, J.
