Filed 5/21/14 Phillips v. Sberlo CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


TANYA PHILLIPS,
         Cross-Complainant and Appellant,
                                                                     A138237
v.
YOEL SBERLO et al.,                                                  (San Francisco City & County
                                                                     Super. Ct. No. CUD11639554)
         Cross-Defendants and Respondents.

         During the pendency of this unlawful detainer case, Tanya Phillips filed a cross-
complaint against her former landlords, Yoel and Nadine Sberlo (as trustees of the Sberlo
family trust), alleging numerous claims, including wrongful eviction. The Sberlos, in
turn, filed a special motion to strike under the “anti-SLAPP” statute (Code of Civil Proc.
§ 425.16),1 asserting the cross-claims (a) arose from protected First Amendment
petitioning activity, namely their service of eviction notices and prosecution of this
unlawful detainer action and (b) lacked any arguable merit. The trial court granted the
motion and awarded the Sberlos attorney fees. Following a now well-established line of
anti-SLAPP cases in the unlawful detainer context, we reverse on the ground Phillips’s
cross-claims did not “arise from” the Sberlos’ petitioning activities, but from other
conduct preceding and following these activities.




         1
         All further statutory references are to the Code of Civil Procedure unless
indicated.


                                                             1
                      FACTUAL AND PROCEDURAL BACKGROUND
       In October 2011, the Sberlos purchased an apartment building in which Phillips
had been a tenant since at least 2000. Phillips paid $1,115 per month in rent, which was
largely covered by San Francisco’s Housing Authority (Housing Authority) under its
Section 8 Housing Choice voucher program. The Authority paid $1,014 of the rent,
Phillips paid $101.
       The Sberlos apparently did not receive the rent due for November (Phillips does
not contend otherwise) and eventually served Phillips with a three-day notice—to pay the
full $1,115, not just her portion—under Code of Civil Procedure section 1161,
subdivision (2). When that notice went unanswered, the Sberlos filed the instant action,
alleging unlawful detainer. When the complaint went unanswered, the Sberlos obtained a
default judgment and, then, a writ of execution for possession. The Sheriff’s Department
evicted Phillips and removed her possessions on January 4, 2012.
       Later that month, Phillips retained counsel and moved to vacate the default
judgment. In her moving papers, she asserted the Housing Authority mistakenly sent its
November 2011 rent payment to the previous owner. When Phillips realized, in early
November, that she was at risk of eviction, she contacted the previous owner. That
person told Phillips she was busy and would call her back, but never did. After receiving
an eviction notice around the second week of November, Phillips contacted the property
management firm. It set up a meeting for her to sign a form allowing the Sberlos to
obtain payments from the Housing Authority, and Phillips signed the form. When
another eviction notice arrived later in the month, she called the management firm again
and was told there had been an oversight and she could ignore the notice. Phillips also
provided evidence the Housing Authority sent payments to the Sberlos in December 2011
and January 2012. Based on Phillips’s submissions, the trial court vacated the default
judgment on March 14, 2012.
       Within a week, the Sberlos filed an amended complaint, and several months later,
in November, they filed a second amended complaint. In addition to their cause of action
for unlawful detainer, they brought causes of action for: breach of contract for Phillips’s


                                             2
portion of the rent for November and December 2011, which was still unpaid (and
unrelated to any misdirected Housing Authority payment); trespass when Phillips
returned to the apartment on January 5, 2012, and had to be forcibly removed by San
Francisco police; breach of the covenant of good faith and fair dealing implied in her
lease agreement when she delayed providing the consent the Sberlos needed to obtain
payment from the Housing Authority; and declaratory relief that Phillips had no right of
occupancy.
       Phillips responded with a cross-complaint. She claimed the Sberlos knew about
the misdirected rent and her status as a Section 8 tenant, but insisted on moving forward
with the eviction, and “rented [what was Phillips’s] apartment to a different tenant,
discriminating against [Phillips] because of her race and social status in violation of State,
Federal and local law.” Phillips alleged negligence (for the manner in which they stored
Phillips’s possessions after the eviction, refusal to put her back in possession, failure to
adequately accommodate her with another rental, and discrimination against her);
violations of San Francisco’s Residential Rent Stabilization and Arbitration Ordinance
and Proposition M (for failure to properly credit rent and moving to evict on that basis,
and for discrimination on the basis of race); breach of the warranty of quiet enjoyment
(for interfering with her tenancy and not restoring Phillips to possession “pending the
motions concerning possession, and after the motion to set aside the [unlawful detainer
judgment] was granted”); negligent and intentional infliction of emotional distress; and
discrimination on the basis of race under Civil Code section 51. The cross-complaint
sought damages, but not declaratory or injunctive relief.
       The Sberlos filed a special motion to strike Phillips’s cross-complaint under
section 425.16. They asserted all of Phillips’s claims were in response to protected
petitioning activity, namely their issuance of the three-day notice to quit and pursuit of
the unlawful detainer action. They further asserted Phillips’s claims were barred on the
merits by California’s litigation privilege. In a brief written order, dated January 3, 2013,
the trial court agreed Phillips’s cross-complaint arose entirely from protected petitioning
activity and concluded she had not produced sufficient evidence supporting the merits of


                                              3
her claims. However, the court deferred final ruling on the motion to allow additional
discovery and briefing.
       The parties then addressed additional issues as to the merits of Phillips’s cross-
claims. For instance, the Sberlos’ asserted Phillips cross-claims necessarily failed in part
because she still owed her $101 portion of the rent, regardless of what the Housing
Authority had done.2 Phillips, meanwhile, claimed the Sberlos had wrongfully
terminated her tenancy because, as reflected in the three-day notice, they demanded from
her not only the $101 she owed, but the full rent.
       On February 4, 2013, the court issued a one-page order granting the special
motion to strike. It subsequently denied reconsideration and, on March 18, 2013,
awarded the Sberlos $21,973.50 in attorney fees as prevailing parties on the motion,
reserving the issue of costs for later.
       Phillips timely appealed.3
                                          DISCUSSION
The Anti-SLAPP Statute
       “The Legislature enacted the anti-SLAPP statute to address the societal ills caused
by meritless lawsuits that are filed to chill the exercise of First Amendment rights.
[Citation.] The statute accomplishes this end by providing a special procedure for
striking meritless, chilling causes of action at the earliest possible stages of litigation.”
(Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443.)
       “ ‘Under the statute, the court makes a two-step determination: “First, the court
decides whether the defendant has made a threshold showing that the challenged cause of

       2
           Phillips’s deposition testimony suggests she asked the Housing Authority for
permission to have no copayment obligation, but understood such an arrangement could
not begin until she provided adequate supporting paperwork. She did not provide any
paperwork, however, until January 2012, after her eviction. Nonetheless, Phillips asserts
in her briefs on appeal that the Housing Authority paid 100 percent of her rent. If there is
evidence supporting this, however, she has not cited it. We need not and do not resolve
this factual “dispute” or determine the materiality of the dispute to Phillips’s claims.
         3
           “An order granting or denying a special motion to strike shall be appealable
. . . .” (§ 425.16, subd. (i).)


                                               4
action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant
meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of
the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds
that such a showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1) . . . .)”
[Citations.] “Only a cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.” [Citation.]’ ” (Tutor-
Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609, italics omitted (Tutor-Saliba).)
       An appellate court reviews de novo an order granting or denying an anti-SLAPP
motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326 (Flatley); Gerbosi v. Gaims,
Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at p. 444; Tutor-Saliba, supra,
136 Cal.App.4th at p. 609.) This includes whether the challenged activity is “protected.”
(Tutor-Saliba, supra, at p. 609.) We also independently determine whether plaintiffs
established a reasonable probability of success on their claims. (Id. at p. 610.) “ ‘We
consider “the pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh
credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.”
[Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th at p. 326.)
“Arising From” Protected Activity
       The anti-SLAPP statute applies only to causes of action “arising from” protected
activity—that is, activity “in furtherance of a person’s right of petition or free speech
under the United States or the California Constitution in connection with a public issue.”
(§ 425.16, subds. (b)(1), (e); Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154,
160 (Marlin).) Such activity includes: “(1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing made in connection with


                                              5
an issue under consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement or writing
made in a place open to the public or 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.” (Id., subd. (e).)
       The “arising from” requirement is not satisfied simply because there is some
relationship between the cause of action and protected activity. “[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.” (Navellier v. Sletten (2002)
29 Cal.4th 82, 89.) Even if a cause of action is “triggered” by protected activity, that
does not mean the lawsuit arises from it. (Ibid.) Rather, “the critical consideration is
whether the cause of action is based on the defendant’s protected free speech or
petitioning activity.” (Ibid.)
       Over the last decade, the courts of appeal have addressed anti-SLAPP motions in
unlawful detainer cases numerous times. These cases uniformly hold, or at least
presume, that service of an eviction notice and/or pursuit of an unlawful detainer action is
protected petitioning activity. (E.g., Birkner v. Lam (2007) 156 Cal.App.4th 275, 281–
282 (Birkner) [eviction notice, if legally required before instituting unlawful detainer
action, and prosecution of unlawful detainer action is protected petitioning activity];
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1483 (Feldman);
Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1245
(Copenbarger).)4 However, they also hold a landlord’s conduct preceding, following, or


       4
           While the Sberlos have cited Birkner and Feldman, holding required notices and
unlawful detainer lawsuits are protected activity under subdivision (e)(1) or (e)(2) of the
anti-SLAPP statute, they have not explicitly invoked these provisions. Rather, they argue
their conduct falls under subdivision (e)(4), which broadly concerns “other conduct,” but
only if it is “in connection with a public issue or an issue of public interest.” There is
nothing of particular significance, however, about the instant unlawful detainer case.
(See USA Waste of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53, 58,

                                                  6
otherwise distinct from the service of an eviction notice and/or prosecution of an
unlawful detainer action, does not “arise from” that activity and a tenant’s claims based
on such conduct are not subject to a special motion to strike.
          For example, in Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003)
109 Cal.App.4th 1308, 1316–1319 (Pearl Street), the Court of Appeal held the lawsuit,
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 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.) Rather, it was
based on the landlords’ alleged violation of the rent control ordinance. “Not surprisingly,
[the landlords] have not presented any 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.)
          Marlin, supra, 154 Cal.App.4th 154, and Clark v. Mazgani (2009)
170 Cal.App.4th 1281 (Clark ) employed the same reasoning. In Marlin, tenants sued for
declaratory relief after being served with eviction notices under the Ellis Act. (Marlin,
supra, 154 Cal.App.4th at p. 157; Gov. Code, § 7060.4(a).) The landlords responded
with an anti-SLAPP motion, claiming the tenants’ complaint arose from the filing and
serving of the Ellis Act notices. (Id. at pp. 157–158.) The Marlin court explained: “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

65–66 [lease between city and company not a matter of public interest]; Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1366 [no public interest in activity that does not go
“beyond a particular interaction between the parties”]; see generally Rivero v. American
Federation of State, County and Municipal Employees, AFL–CIO (2003) 105
Cal.App.4th 913, 924 [statements made in connection with a public issue or an issue of
public interest are generally those that “concerned a person or entity in the public eye . . .
, conduct that could directly affect a large number of people beyond the direct
participants . . . or a topic of widespread public interest”].)


                                               7
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. 161–162.)
       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.” (Clark, supra,
170 Cal.App.4th 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.) The appellate court 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.)
       Following Pearl Street, Marlin, and Clark , other appellate courts have similarly
held anti-SLAPP motions were not properly advanced in the context of a landlord-tenant
dispute. (See Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 133
(Moriarty) [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, supra, 215 Cal.App.4th at p. 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 detainer action and prior communications, but on


                                                8
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 (Delois) [“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”].)
       The Sberlos’ anti-SLAPP motion was improperly brought for the reasons
discussed in the cases above. Phillips’s cross-claims do not seek relief “arising from”—
or as the courts have emphasized, based on—the Sberlos’ service of eviction notices and
prosecution of the instant unlawful detainer case. Rather, Phillips’s cross-claims arise
from the alleged mishandling of her personal property, termination of her tenancy and
refusal to put her back into possession even after the unlawful detainer judgment was
vacated, failure to credit rent (which allegedly began before eviction proceedings were
started), and discrimination. She does not claim reliance on or damages flowing from the
contents or receipt of the Sberlos’ notices or from the prosecution of the unlawful
detainer action, itself.
       In fact, to the extent Phillips made any reference to the three-day notice in her
opposition to the Sberlos’ motion, it was only to rebut their argument on the merits that
Phillips was properly evicted because she failed to pay even her portion of the monthly
rent. In response, Phillips asserted the Sberlos’ management company told her she could
safely ignore the three-day notice. She further argued the notice evidenced the Sberlos’
willful decision to terminate her tenancy—conduct preceding any notice and lawsuit—by
demanding that she pay the full rental amount, in breach of the Sberlos’ agreement with
the Housing Authority. That an eviction notice and lawsuit may follow from a landlord’s
underlying conduct, such as a decision to terminate a tenancy in violation of rent laws or
in breach of a lease agreement, does not transform that underlying conduct into protected
activity when a tenant, such as Phillips, asserts claims based on that underlying conduct.
(See Marlin, supra, 154 Cal.App.4th at pp. 161–162 [“notices may be evidence in


                                               9
support of plaintiffs’ complaint, but they were not the cause of plaintiffs’ complaint” and
“[t]erminating a tenancy [is] . . . not [an act] . . . in furtherance of the constitutional rights
of petition or free speech”]; Copenbarger, supra, 215 Cal.App.4th at p. 1240 [suit does
not arise from protected activity when “underlying dispute over . . . repair and
maintenance obligations under the sublease”].) Indeed, Phillips could have advanced her
claims against the Sberlos had she had been dispossessed by means other than an eviction
notice and unlawful detainer action. In short, all of Phillips’s cross-claims are based on
allegedly wrongful conduct independent of the eviction notices and lawsuit, in and of
themselves.
       The few landlord-tenant cases that have concluded special motions to strike were
appropriately brought—Birkner, Feldman, and Wallace v. McCubbin (2011)
196 Cal.App.4th 1169 (Wallace)—are distinguishable. In Birkner and Feldman, the
eviction notices and unlawful detainer actions were not “not merely cited as evidence” of
the landlord’s allegedly wrongful conduct (Feldman, supra, 160 Cal.App.4th at p. 1483,
italics omitted), but were the “sole basis for liability” (Birkner, supra, 156 Cal.App.4th
at p. 283). (See Copenbarger, supra, 215 Cal.App.4th at pp. 1248–1249 [distinguishing
both cases].) In Birkner, the landlord served an eviction notice and refused, at first, to
rescind it. The tenant was never evicted, and the notice was eventually rescinded.
(Birkner, supra, 156 Cal.App.4th at pp. 278–280, 283.) In Feldman, tenants refused to
vacate after the landlord demanded higher rent. (Feldman, supra, 160 Cal.App.4th at
pp. 1473–1474.) The landlord ultimately filed an unlawful detainer action, but dismissed
it after the tenants vacated the premises. (Id. at pp. 1473, 1475.) Focusing closely on the
allegations, Feldman determined the tenants’ cross-complaint against the landlord, with
the exception of a negligence claim, was “based entirely upon the alleged threats by [the
landlord], the service of the notice to quit, and the filing of the unlawful detainer action
itself.” (Id. at p. 1479.) Notably, the same court that decided Feldman, distinguished it
for this very reason in Delois, supra, 177 Cal.App.4th at page 955 and footnote 6.
       Wallace is distinguishable on multiple grounds. First, the anti-SLAPP motion in
that case was directed at only two of the 13 causes of action the tenant advanced in his


                                               10
complaint. This left unchallenged the remainder of the claims, including claims like
those asserted by Phillips here, such as breach of the implied covenant of quiet
enjoyment, infliction of emotional distress, housing discrimination, and trespass.
(Wallace, supra, 196 Cal.App.4th at pp. 1178–1179.) There was no suggestion in
Wallace that these claims, which necessarily bore at least some relation to the eviction
notice and unlawful detainer action, arose from protected conduct. Second, again taking
a close look at the allegations, the court explained the eviction notice and/or unlawful
detainer action “did not merely precede or trigger the lawsuit.” (Id. at p. 1194.) Rather,
the allegations explicitly cited the “three-day notice to quit and [the] filing of the
unlawful detainer action” as wrongdoing in and of themselves. (Id. at p. 1182.) The
appellate court further concluded that, while not based solely on protected activity, the
allegations made sufficient reference to such activity to make it more than “incidental” to
the two claims at issue, thus bringing them within the ambit of the anti-SLAPP statute.
(Id. at pp. 1178, 1182–1184.) Third, the special motion to strike in Wallace was not
brought by the landlord, but by two other tenants accused of instigating the eviction,
making Wallace a particularly peculiar scenario. (Id. at pp. 1212, 1214.) None of the
unique features of Wallace are present in this case. (See also Moriarty, supra,
224 Cal.App.4th at p. 139 [distinguishing Wallace and also finding it “unpersuasive”].)
       As we have discussed, this case falls squarely in the now well developed line of
cases concluding wrongful eviction and other claims asserted against a landlord do not
“arise from” protected petitioning activity. Accordingly, the Sberlos’ special motion to
strike fails the first prong of the anti-SLAPP analysis, and the trial court erred both in
proceeding to the merits and in granting the motion.5




       5
         Because we reverse on the first prong of the anti-SLAPP analysis, we do not
consider whether Phillips demonstrated any probability of success on the merits of her
claims. Nor do we express any opinion in that regard.


                                              11
                                      DISPOSITION
      The order striking Phillips’s cross-complaint, as well as the related fee award, are
reversed. Appellant to recover costs on appeal.




                                                  _________________________
                                                  Banke, J.


We concur:


_________________________
Dondero, Acting P. J.


_________________________
Becton, J.




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