Filed 4/8/14 Dahan v. Barnes CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


SHMUEL DAHAN et al,                                                  B246370

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. SC119499)
         v.

WILLIAM J. BARNES et al,

         Defendants and Appellants.




         APPEAL from an order of the Superior Court of Los Angeles County, Craig D.
Karlan, Judge. Affirmed.


         Law Offices of Douglas E. Klein and Douglas E. Klein, for Defendants and
Appellants.


         Wolf, Rifkin, Shapiro, Schulman & Rabkin, Mark J. Rosenbaum and Stephen M.
Levine, for Plaintiffs and Respondents.


                                        _________________________
       Defendants and appellants William J. Barnes and Ruth Barnes (the tenants) appeal
from an order denying their special motion to strike under Code of Civil Procedure
section 425.16, the “anti-SLAPP statute,”1 in this unlawful detainer case filed by
plaintiffs and respondents Shmuel Dahan and Theodora Dahan (the landlords). We
affirm, finding that the lawsuit did not arise from activity protected by the statute.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On May 4, 2012, the parties entered into a written lease for a residence in Beverly
Hills (the lease). The lease was for a period of two years commencing on July 1, 2012,
and ending on June 30, 2014. Rent of $8,900 was due on the first day of each month
payable by personal check or other direct deposit to respondent Shmuel Dahan. The
tenants failed to pay rent for October and November 2012.
       On October 17, 2012, the landlords’ attorney wrote to the tenants’ attorney,
advising that the tenants’ deposit of their rent into an escrow-bearing account was
“improper” and that the landlords were amenable to mediation of any issues the tenants
had regarding the residence other than unlawful detainer for nonpayment of rent. The
tenants’ attorney wrote the next day that he would respond shortly.
       Instead, on October 19, 2012, the tenants filed a lawsuit against the landlords for
fraud, negligent misrepresentation, breach of contract and unfair business practices,
alleging that at the time the landlords entered into the lease they failed to disclose to the
tenants that they were delinquent on their payments on a second mortgage on the
residence.
       On November 26, 2012, the landlords served the tenants with a three-day notice to
pay rent or quit for failure to pay rent of $17,800, and a three-day notice to pay/cure or



1      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
       SLAPP is an acronym for strategic lawsuits against public participation. An order
granting or denying a special motion to strike under section 425.16 is directly appealable.
(§§ 425.16, subd. (i), 904.1, subd. (a)(13).)


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quit for failure to pay late charges of $300. After the tenants failed to comply with the
notices, the landlords filed the instant unlawful detainer action on December 19, 2012.
       The tenants filed an anti-SLAPP motion, arguing that they had engaged in the
protected activities of filing a lawsuit against the landlords and depositing the rent into an
escrow account. The landlords opposed the motion, which the trial court denied. The
court stated: “[B]ased upon the pleadings and evidence provided, the court finds that this
unlawful detainer complaint arises from defendants’ alleged failure to pay rent, not the
filing of [the tenants’] action. . . . In this case . . . there is no dispute that defendants are
not current on their rent to plaintiffs. Nor is there anything to show that defendants have
the option of paying the rent into an escrow account to avoid this requirement. While
defendants may be able to assert retaliatory eviction as a defense in the action . . . , such
[does] not provide a basis to strike the complaint in its entirety.” This appeal followed.
                                         DISCUSSION
I. The Anti-SLAPP Statute and the Standard of Review
       The anti-SLAPP statute provides that “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 shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)
       There are two components to a motion to strike brought under section 425.16. The
defendant has the threshold burden to show that the cause of action arises from an act in
furtherance of the right of petition or free speech. (Zamos v. Stroud (2004) 32 Cal.4th
958, 965; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once
that burden is met, the burden shifts to the plaintiff to demonstrate a probability of
prevailing on the claim. (Zamos v. Stroud, supra, at p. 965; City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 76.)
       We independently review the record to determine whether the asserted causes of
action arise from the defendant’s free speech or petitioning activity, and, if so, whether

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the plaintiff has shown a probability of prevailing. (City of Alhambra v. D’Ausilio (2011)
193 Cal.App.4th 1301, 1306; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212.)
II. No Protected Activity
        The theory of the tenants’ anti-SLAPP motion is that the filing of their lawsuit
against the landlords and their deposit of the rent into a segregated bank account while
their lawsuit was pending are protected activities from which the instant unlawful
detainer action arose.
        In opposing the anti-SLAPP motion, the landlords conceded that the filing of the
tenants’ lawsuit is an activity protected by section 425.16. “But the mere fact an action
was filed after protected activity took place does not mean it arose from that activity.
The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action
which arguably was filed in retaliation for the exercise of speech or petition rights falls
under section 425.16, whether or not the claim is based on conduct in exercise of those
rights.’” (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 76–77.) “[T]he 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.” (Id. at p. 78.)
        Here, the unlawful detainer action is based on the tenants’ failure to pay rent for
two months to the landlords, per the terms of the lease. The tenants’ theory that the
unlawful detainer action arises from the tenants’ actions of suing their landlords and
placing the rent into a segregated account is unpersuasive. As the landlords aptly state:
“If refusal to pay rent (or purported payment into a segregated bank account) were an
activity protected by the First Amendment, no tenants would have the obligation to pay
rent so long as they beat their landlord to the courthouse door and file a complaint against



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their landlord prior to a landlord’s unlawful detainer for failure to pay rent.” (Bolding
omitted.)
       The most that can be said about the tenants’ theory is that their action in suing the
landlords arguably “triggered” the unlawful detainer complaint. “[T]hat a cause of action
arguably may have been ‘triggered’ by protected activity does not entail that it is one
arising from such. [citation.] In the anti-SLAPP context, the critical consideration 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 refusal to pay rent is not an act in furtherance of the right of petition or free
speech. Thus, the tenants failed to meet their initial burden of showing that the unlawful
detainer action arose from protected activity. Accordingly, the burden never shifted to
the landlords of showing a probability of prevailing on their action.
                                      DISPOSITION
       The order denying the anti-SLAPP motion is affirmed. The landlords are entitled
to recover their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                    _____________________________, Acting P. J.
                                          ASHMANN-GERST

We concur:


______________________________, J.
           CHAVEZ


______________________________, J.*
           FERNS


*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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