Filed 8/29/14 Meredith v. Plant CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


ROGER L. MEREDITH et al.,
         Plaintiffs and Appellants,
                                                                     A138925
v.
MARDEN NOEL PLANT et al.,                                            (Marin County
                                                                     Super. Ct. No. CIV1203827)
         Defendants and Respondents.


         Roger L. Meredith and Cheryll A. Barron (appellants) sued their former landlord
Marden Noel Plant and affiliated parties (respondents), alleging multiple causes of action
in connection with their residential lease. Appellants appeal the trial court’s order
granting respondents’ motion to strike three causes of action. We affirm.
                                                  BACKGROUND
         In June 2012, appellants entered into a residential lease with respondents.1 Under
the terms of the lease, rent was due on the first of each month. On three occasions
between June 30 and July 15, appellants experienced problems with the property’s
sewage system which caused wastewater to back up into the bathtubs and toilets.
Appellants complained to respondents, who sent repair workers.


1
         On the lease, only Plant is identified as the landlord. The complaint alleges that
Plant was an officer of respondent Plant & Associates, Inc., and that Plant and respondent
Thomas L. Davis own the leased property through a self-settled trust. For purposes of
this appeal, the parties do not differentiate between the respondents’ individual roles or
liabilities; we shall do the same.


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       On July 16, Plant wrote appellants: “I will make financial accommodations with
you for your loss of a living space. Give me some numbers of what will make you
comfortable.” When appellants did not respond, Plant wrote again on July 28, “Pl[ease]
tell me what you have in mind for settling up with me on the inconveniences that the
septic system has caused.” On August 1, appellants wrote Plant demanding the following
payments: (1) $4,500 for “physical and emotional stress”; (2) reimbursement for a
restaurant meal eaten during one of the plumbing incidents and a locksmith charge for an
unrelated problem; and (3) abatement of one-half of one month’s rent. Appellants did not
pay any part of the August rent due on August 1.
       On or about August 10, respondents served appellants with a three-day notice to
pay rent or quit and subsequently filed an unlawful detainer action. This action was
dismissed, apparently because of defects in the form and service of the three-day notice.
A second three-day notice and unlawful detainer action followed. On or about September
11, appellants vacated the property and respondents dismissed the second unlawful
detainer action. Appellants did not pay any rent for August or September.
       Appellants filed the instant lawsuit alleging thirteen claims. Respondents moved
to strike three of these claims pursuant to Code of Civil Procedure section 425.16:
retaliatory eviction, wrongful eviction, and eviction in violation of Civil Code section
1942.5, subdivision (a) (section 1942.5(a)).2 The trial court granted the motion.
                                       DISCUSSION
       “The anti-SLAPP statute, [Code of Civil Procedure] section 425.16, allows a court
to strike any cause of action that arises from the defendant’s exercise of his or her
constitutionally protected rights of free speech or petition for redress of grievances.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (Flatley).) The statute sets forth “a
two-step process for determining whether an action is a SLAPP. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of action
is one arising from protected activity. [Citation.] ‘A defendant meets this burden by

2
       All undesignated section references are to the Civil Code.


                                              2
demonstrating that the act underlying the plaintiff’s cause fits one of the categories
spelled out in [Code of Civil Procedure] 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.” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.) To establish this probability of prevailing, “ ‘the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.” ’ ” (Id. at pp. 88-89.) We review de novo the trial
court’s order granting the anti-SLAPP motion. (Flatley, at p. 325.)
I. Protected Activity
       The trial court found the conduct on which the challenged causes of action are
based—the three-day notices and unlawful detainer actions—protected activity under the
anti-SLAPP statute. Appellants do not dispute the three-day notices and unlawful
detainer actions are the basis for the challenged causes of action. Appellants also
concede that, if conducted in accordance with the law, such conduct is protected activity.
Indeed, “[t]he prosecution of an unlawful detainer action indisputably is protected
activity within the meaning of [Code of Civil Procedure] section 425.16.” (Birkner v.
Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).) Moreover, where, as here, a
prelitigation notice “is a legal prerequisite for bringing an unlawful detainer action, . . .
service of such a notice does constitute activity in furtherance of the constitutionally
protected right to petition” and is therefore also protected. (Id. at p. 282.)
       Appellants contend the conduct in this case was nevertheless not protected
because it was in violation of section 1942.5(a) and illegal activity is not protected
activity for purposes of the anti-SLAPP statute. In Flatley, supra, 39 Cal.4th at p. 320,
our Supreme Court held, if “either the defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition activity was illegal as a matter
of law,” the activity is not protected. However, “the Supreme Court’s use of the phrase
‘illegal’ was intended to mean criminal, and not merely violative of a statute. . . . [A]
reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP


                                               3
statute would greatly weaken the constitutional interests which the statute is designed to
protect . . . . and we decline to give plaintiffs a tool for avoiding the application of the
anti-SLAPP statute merely by showing any statutory violation.” (Mendoza v. ADP
Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Appellants do
not contend the challenged conduct violated any criminal statutes.
       Appellants also argue the litigation privilege does not apply to the three-day
notices and subsequent unlawful detainer actions. We discuss the application of the
litigation privilege to the challenged causes of action in more detail below, in connection
with the second step of the SLAPP analysis. For purposes of analyzing whether conduct
is protected activity under the anti-SLAPP statute, however, the relevance of the privilege
is limited. Although at times courts have “looked to the litigation privilege as an aid” in
determining whether conduct is protected under the anti-SLAPP statute (Flatley, supra,
39 Cal.4th at p. 323), “the two statutes are not substantively the same” and do not “serve
the same purposes.” (Id. at pp. 323-324.) Accordingly, the litigation privilege “does not
operate as a limitation on the scope of the anti-SLAPP statute.” (Id. at p. 325.)
Respondents met their burden of demonstrating the challenged conduct was protected
activity under section Code of Civil Procedure 425.16 and were not required to show the
conduct was also protected by the litigation privilege. (See Birkner, supra, 156
Cal.App.4th at p. 284.)
II. Probability of Prevailing
       The trial court found appellants failed to demonstrate a probability of success on
the challenged causes of action because all are barred by the litigation privilege (§ 47,
subd. (b)). Appellants rely in part on Action Apartment Assn, Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1241–1242 (Action Apartment) to challenge this
determination.
       “The litigation privilege, codified at Civil Code section 47, subdivision (b),
provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is
privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective
of their maliciousness.’ ” (Action Apartment, supra, 41 Cal.4th at. p. 1241.) “ ‘The


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principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation]
the utmost freedom of access to the courts without fear of being harassed subsequently by
derivative tort actions.’ ” (Ibid.)
       “The litigation privilege, however, is not without limit.” (Action Apartment,
supra, 41 Cal.4th at p. 1242.) As relevant here, the privilege will not apply to a claim
brought under a state statute if it is “clear that the Legislature did not intend its
enforcement to be barred by the litigation privilege.” (Id. at p. 1245.) In Action
Apartment, our Supreme Court found this intent clear when the state statute “is more
specific than the litigation privilege and would be significantly or wholly inoperable if its
enforcement were barred when in conflict with the privilege.” (Id. at p. 1246.)
       This exception to the litigation privilege has no bearing on appellants’ common
law claims for wrongful eviction and retaliatory eviction. (See discussion post at p. 7-8.)
However, the exception arguably applies to appellants’ section 1942.5(a) claim.
(Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323.) Section 1942.5(a)
provides, if a landlord retaliates against a tenant and the tenant is not in default as to rent,
the landlord “may not” engage in specified conduct, including “recover[ing] possession
of a dwelling in any action or proceeding,” within 180 days of certain acts, including a
tenant’s “oral complaint to the lessor regarding tenantability.”3 A landlord retains the

3
       In its entirety, section 1942.5(a) provides: “If the lessor retaliates against the
lessee because of the exercise by the lessee of his rights under this chapter or because of
his 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 his rent, the lessor may not recover
possession of a dwelling in any action or proceeding, cause the lessee to quit
involuntarily, increase the rent, or decrease any services within 180 days of any of the
following: [¶] (1) After the date upon which the lessee, in good faith, has given notice
pursuant to Section 1942, or has made an oral complaint to the lessor regarding
tenantability. [¶] (2) After the date upon which the lessee, in good faith, has filed a
written complaint, or an oral complaint which is registered or otherwise recorded in
writing, with an appropriate agency, of which the lessor has notice, for the purpose of
obtaining correction of a condition relating to tenantability. [¶] (3) After the date of an
inspection or issuance of a citation, resulting from a complaint described in
paragraph (2) of which the lessor did not have notice. [¶] (4) After the filing of
appropriate documents commencing a judicial or arbitration proceeding involving the

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right to engage in the specified conduct “for any lawful cause.” (§ 1942.5, subd. (d).) To
recover possession for a good faith, nonretaliatory reason, the landlord must give the
tenant notice of such grounds; and if controverted, the landlord must prove the truth of
the reason stated. (§ 1942.5, subd. (e).) While section 1942.5(a) can be used as an
affirmative defense in an unlawful detainer action (see Drouet v. Superior Court (2003)
31 Cal.4th 583, 587), the Legislature also provided that the provision may be the basis for
a damages action against a violating landlord (§ 1942.5, subd. (f) [landlord “who violates
this section shall be liable to the lessee in a civil action for” actual and punitive
damages]).
       We need not decide if the Action Apartment analysis applies when a tenant sues a
landlord under section 1942.5. Even if we adopted appellants’ interpretation of the
scope of the litigation privilege, they still would fail to establish a probability of
prevailing on that claim.
       The conduct identified in section 1942.5(a) is prohibited only if the tenant “is not
in default as to the payment of his rent.” It is undisputed that appellants did not pay rent
for the month of August. This failure to pay rent occurred before the first three-day
notice was served.
       Appellants first contend respondents induced them to default on their rent
payments by asking appellants what financial compensation they sought for the sewage
problems. Assuming such an inducement could excuse default for purposes of
section 1942.5(a), the facts do not show it here. Appellants submitted no evidence that
respondents stated or even suggested appellants could withhold rent to compensate for
the sewage problems; respondents simply sought to open negotiations on the amount of
financial compensation. Moreover, had appellants understood respondents’ inquiry as an



issue of tenantability. [¶] (5) After entry of judgment or the signing of an arbitration
award, if any, when in the judicial proceeding or arbitration the issue of tenantability is
determined adversely to the lessor. [¶] In each instance, the 180-day period shall run from
the latest applicable date referred to in paragraphs (1) to (5), inclusive.”


                                               6
invitation to withhold rent, service of the three-day notice alerted appellants of their
mistake, yet they still did not pay the rent due.
         Appellants next argue the sewage problems constituted a breach of respondents’
warranty of habitability, thereby voiding appellants’ obligation to pay rent. We assume
without deciding such a scenario could, as a legal matter, excuse their default; we also
assume appellants’ evidence shows respondents’ breach. Nonetheless, under the
authority cited by appellants, their default was only partially excused. When a landlord
breaches the warranty of habitability, “ ‘the tenant is not absolved from all liability for
rent, but remains liable for the reasonable rental value of the premises.’ ” (Green v.
Superior Court (1974) 10 Cal.3d 616, 629.) According to appellants’ August 1 email to
respondents, any breach by respondents only relieved appellants of the obligation to pay
one-half of one month’s rent. On appeal, appellants do not contend the breach rendered
the reasonable rental value of the property zero, nor do the facts support such a finding.
Accordingly, after August 1, appellants were in default as to at least a partial payment of
rent.4
         Finally, appellants suggest section 1942.5(a) only required them to be current in
rent at the time of their tenantability complaint. This interpretation is not supported by
the statutory language. The statute provides if a landlord retaliates against a tenant and
the tenant is not in default as to rent, then the landlord may not take certain actions within
180 days of specified conduct by the tenant. (See fn. 3, ante.) The language makes clear
that the critical period for the tenant’s rent default is when the landlord takes the
prohibited actions, not when the tenant makes the complaint.
         The exception to the litigation privilege in Action Apartment does not apply to
appellants’ common law claims for wrongful eviction and retaliatory eviction. We agree


4
        Although appellants also sought reimbursement for their out of pocket expenses of
the restaurant dinner and locksmith charge, these expenses amounted to substantially less
than one-half of one month’s rent. Appellants do not contend they were lawfully entitled
to deduct from their rent payments the additional $4,500 they sought for emotional and
physical stress.


                                               7
with the trial court the litigation privilege applies and bars these claims. (Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, 1213 [litigation privilege bars common law
wrongful eviction claim based on three-day notice and unlawful detainer action].)5
       Appellants first contend the litigation privilege does not apply because these
common law claims are akin to a malicious prosecution claim. It is well settled that the
litigation privilege does not apply to malicious prosecution claims. (Action Apartment,
supra, 41 Cal.4th at p. 1242.) However, our Supreme Court has rejected the argument
that the litigation privilege does not apply to a cause of action that is similar to malicious
prosecution when that cause of action does not require all of the same conditions:
favorable termination, lack of probable cause, and malice. (Id. at p. 1249.) Neither
common law retaliatory eviction nor wrongful eviction requires favorable termination of
a prior proceeding. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 773-774 [affirming
judgment for common law retaliatory eviction where no unlawful detainer action filed];
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1039
[elements of common law wrongful eviction are plaintiff’s possession of premises and
defendant’s forcible entry].) Accordingly, any similarity to claims for malicious
prosecution does not render the litigation privilege inapplicable.
       Appellants note the litigation privilege does not bar the use of privileged
statements or acts as evidence. This proposition is not relevant here. While privileged
statements can be used as evidence of, for example, a party’s intent (Flatley, supra,
39 Cal.4th at p. 325), appellants do not seek to use the three-day notices and unlawful
detainer actions in this manner but rather seek to hold respondents liable based on these
protected acts.



5
  For the first time at oral argument, appellants argued their common law claims are not
barred by the litigation privilege because they are based on conduct other than the three-
day notices and unlawful detainer actions. As appellants failed to raise this argument in
their briefs, they have forfeited it. (Lyons v. Chinese Hosp. Assn (2006) 136 Cal.App.4th
1331, 1336, fn. 2.)


                                              8
       Appellants next contend the three-day notices are not protected by the litigation
privilege because a prelitigation communication is only privileged when it relates to
litigation that is contemplated in good faith. “ ‘[T]he good faith, serious consideration of
litigation test is not . . . a test for malice and it is not a variation of the “interest of justice”
test.’ [Citation.] Rather, it is ‘addressed to the requirement the statements “have some
connection or logical relation to the action.[”] [Citations.]’ [Citation.] Thus, if the
statement is made with a good faith belief in a legally viable claim and in serious
contemplation of litigation, then the statement is sufficiently connected to litigation and
will be protected by the litigation privilege. [Citation.]” (Blanchard v. DIRECTV, Inc.
(2004) 123 Cal.App.4th 903, 919.) Appellants argue the unlawful detainer action was not
contemplated in good faith because of the habitability issues and respondents’
“inducement” of appellants to default on their rent by opening discussions about financial
compensation. We have rejected appellants’ argument that these excused appellants’
obligation to pay any rent; they similarly fail to remove the three-day notices from the
protection of the litigation privilege.
       Appellants argue their claim for wrongful eviction can proceed despite the
litigation privilege on a theory of constructive eviction. We disagree. Appellants’
complaint sets forth a separate claim for constructive wrongful eviction that is not
challenged by respondents’ anti-SLAPP motion. If appellants’ wrongful eviction claim
stated a claim for constructive wrongful eviction, it would be subject to dismissal as
duplicative of the constructive wrongful eviction claim. (Award Metals, Inc. v. Superior
Court (1991) 228 Cal.App.3d 1128, 1135.) Moreover, as noted above, for purposes of
the first step of the anti-SLAPP analysis, appellants do not dispute that the challenged
claims, including the claim for wrongful eviction, are based on the three-day notice and
unlawful detainer actions. This is confirmed by the allegations of this cause of action,
which specifically rely on the three-day notices.
       Finally, appellants contend, with respect to all three challenged causes of action,
striking them is contrary to public policy because appellants filed their lawsuit in good
faith and did not intend to chill protected speech. To prevail on their anti-SLAPP motion,


                                                 9
respondents need not prove appellants intended to chill protected speech. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Our Supreme Court has
held our construction of the statute does not violate public policy, in part because only
claims with no probability of prevailing are stricken. (Id. at p. 65.)
                                       DISPOSITION
       The order is affirmed. Costs on appeal are awarded to respondents.




                                                  SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




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