Filed 4/29/14 Silva v. Spring 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


FRED SILVA,

     Plaintiff and Appellant,                                          G048485

         v.                                                            (Super. Ct. No. 30-2012-00603067)

JOHN W. SPRING et al.,                                                 OPINION

     Defendants and Respondents.



                   Appeal from a judgment and orders of the Superior Court of Orange
County, David T. McEachen, Judge. Affirmed.
                   Law Offices of Ernest Mooney and W. Ernest Mooney for Plaintiff and
Appellant.
                   Macrae & Edrington, Jean Moriarty; Law Office of Priscilla Slocum and
Priscilla Slocum for Defendants and Respondents.
                                          *                  *                  *
              The superior court granted the defendants’ anti-SLAPP motions to strike all
five causes of action in plaintiff Fred Silva’s complaint. Silva appealed and claims four
of his five causes of action did not involve protected activity. He also claims the court
erred in striking his fifth cause of action for retaliatory eviction because he established a
likelihood of prevailing on that cause of action, just as he had established a likelihood of
prevailing on the first four causes of action. In addition, Silva argues the award of
attorney fees and costs must be reversed if we reverse the superior court’s ruling on the
motions to strike. We reject his contentions and affirm.
                                               I
                                           FACTS
              Defendants John Spring, his wife Mary, and his brother Carl1 (collectively
defendants) as trustee for Carl’s family trust, own a two-unit piece of property in Sunset
Beach. By their agreement, Carl has the exclusive right to possess unit A and John and
Mary have the exclusive right to possess unit B. Unit B was vacant and John and Mary
were looking to rent it out for $2,200 a month. In July 2008, Silva entered into a lease
with John and Mary. Silva drafted the written lease. The lease provided it would run for
one year commencing August 1, 2008, with an “option for additional years.” In addition
to paying a reduced monthly rent of $2,000, Silva was to make certain listed repairs to the
property “at no cost” to John and Mary. Silva installed new kitchen cabinets, granite
countertops, a shower, sinks and faucets, flooring, ceiling fans, electrical wiring, window
coverings, front and back doors, and a new security system.
              Silva’s next door neighbor on the property lived in that portion run by Carl.
Silva’s declaration stated he complained to Carl on “numerous occasions” and
“sometimes” to John about the other tenant’s noise.


              1Because the three defendants share the same surname, we refer to each by
their given names for ease of reading. No disrespect is intended.


                                              2
                 The lease was not extended and by operation of law turned into a month-to-
month tenancy at the expiration of its term in 2009. (Civ. Code, § 1945.) Years later, at
the end of April 2012, Silva was served a 60-day notice to terminate the tenancy. John
subsequently filed an unlawful detainer action against Silva in July 2012, alleging Silva
owed $6,000 in rent. Silva initially opposed the action and filed an answer alleging three
affirmative defenses. He alleged “Spring is equitably estopped from asserting that the
subject tenancy was a month-to-month tenancy, as Spring promised Silva that, if Silva
made extensive investments and repairs to the subject property, Silva could continue to
reside in the premises, through the exercise of one-year lease options, as long as Silva
desired, providing that Silva was not in breach of the lease. In reliance upon this
promise, Silva spent in excess of $16,000 in making improvements and repairs to the
premises.” Silva further alleged the unlawful detainer was in retaliation to his pursuit of
the quiet enjoyment of the property, in that he had complained of the “noisy and
disruptive behavior” of the tenant in the adjacent unit. According to a declaration filed
by John in the present case, the last time Silva had complained about the noise was two
years before Silva was served with the notice to vacate. The unlawful detainer matter
eventually resulted in a stipulated judgment wherein John was to receive possession of
the premises and Silva agreed to pay $7,500 for rent and damages, plus $227.50 in
attorney fees.
                 Silva subsequently filed a complaint against John, Mary, and Carl for
breach of contract, fraud, quantum meruit, unjust enrichment, and retaliatory eviction.
Silva alleged there had been an agreement that if he made certain improvements to the
property and did not breach the agreement, he could stay in the property as long as he
desired, he made the improvements, he was denied the quiet enjoyment of the property,
the unlawful detainer action was a retaliatory eviction, and the improvements he made to
the property unjustly enriched the defendants.



                                               3
              John and Mary filed anti-SLAPP motions (Code Civ. Proc., § 425.16; all
undesignated statutory references are to this code) to strike the complaint. Carl joined in
Mary’s motion. The court granted the motions, striking all five causes of action. The
court awarded John and Mary $8,291.50 in attorney fees and $229.75 in costs.
                                              II
                                       DISCUSSION
              “SLAPP is an acronym for ‘strategic lawsuit against public participation.’
[Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 816, fn. 1.) In
order to combat what the Legislature described as “a disturbing increase in lawsuits
brought primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for redress of grievances,” it enacted section 425.16. (§ 425.16, subd.
(a).) That section provides for early dismissal of a SLAPP via a special motion to strike
causes of action “arising from” the exercise of the right of free speech or the right to
petition. (§ 425.16, subd. (b)(1).) These are commonly known as “anti-SLAPP”
motions. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732-733.)
              The determination of whether an action is a SLAPP involves a two-step
process. First, the defendant bears the initial burden of demonstrating the challenged
cause of action arose from protected activity set forth in subdivision (e) of section 425.16.
“As used in this section, ‘act in furtherance of a person’s right of petition or free speech
under the United States or California Constitution in connection with a public issue’
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 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)



                                              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).)
              “[T]he 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. [Citations.]” (City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) A defendant’s filing of a lawsuit
qualifies as an act in furtherance of the defendant’s right to petition. There is no need to
establish the litigated matter concerned a matter of public interest. (Feldman v. 1100
Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478.)
              If a defendant makes this initial showing, the burden then shifts to the
plaintiff to demonstrate a probability of prevailing on his or her claim. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88.) The plaintiff’s burden corresponds to the burden borne
by a party opposing a motion for summary judgment. (Delois v. Barrett Block Partners
(2009) 177 Cal.App.4th 940, 947; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th
298, 317.) “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.” (Navellier v. Sletten, supra, 29
Cal.4th at p. 89; § 425.16, subd. (b)(1).)
              We review de novo an order granting or denying a motion to strike under
section 425.16, and consider the pleadings and affidavits submitted in support of and in
opposition to the motion, accepting as true evidence favorable to the plaintiff and
evaluate the defendant’s evidence to determine whether it defeats the plaintiff’s evidence
as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)



                                              5
Silva’s Causes of Action Arose out of the Unlawful Detainer Action
              Defendants claim the present causes of action arose out of the earlier
unlawful detainer action. “‘The prosecution of an unlawful detainer action indisputably
is protected activity within the meaning of section 425.16.’ [Citations.]” (Feldman v.
1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1479.) Consequently, the first
step in our analysis is to determine whether each of Silva’s causes of action arose out of
the unlawful detainer action. (See City of Cotati v. Cashman, 29 Cal.4th at p. 78.) In the
anti-SLAPP context, a cause of action arises from protected activity if the action is
“based on” such activity. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) The mere fact
that an unlawful detainer may have “‘preceded’ or ‘triggered’” the instant lawsuit is not
enough; the issue is whether the unlawful detainer action was the “‘basis’ or ‘cause’ of
that suit.” (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1289.)
              The breach of contract cause of action alleged a partly written, partly oral
contract was breached when the unlawful detainer action was filed. The written
provision provided for a one-year lease. Silva alleged the oral portion of the lease
consisted of a representation by Carl that Silva could remain on the property as long as he
desired, provided he met his other contractual obligations under the lease—presumably
payment of rent and making the listed improvements at no cost to John and Mary. Under
the circumstances alleged in the complaint, the breach of contract action arose out of the
unlawful detainer action. (Feldman v. 1100 Park Lane Associates, supra, 160
Cal.App.4th at pp. 1483-1484 [breach of contract claim based on unlawful detainer
subject to section 425.16].)
              Silva’s fraud cause of action alleges the defendants had no intention of
fulfilling Carl’s promise to let him remain in possession of the property as long as he
desired. Again, that alleged representation was conditioned on Silva making the listed
repairs and improvements at no expense to John and Mary, and implicitly based on Silva



                                             6
paying the rent. An action for fraud has five elements: “‘[1] a misrepresentation . . . ; [2]
knowledge of its falsity. . . ; [3] intent to defraud, i.e., to induce reliance; [4] justifiable
reliance; and [5] resulting damage.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
638.) The damage purportedly suffered by Silva was being dispossessed of the property.
               The stipulated judgment in the unlawful detainer matter included an award
of damages to John in the amount of $7,500 for rent and damages owed by Silva.
Although the alleged fraud occurred in 2008 when the lease was signed, without the
existence of the unlawful detainer action and the judgment entered therein, Silva would
have no cause of action for fraud, not only because he would have no evidence upon
which he could hang his allegation of fraudulent intent, but also because he would not
have suffered any damages. Consequently, we find his cause of action for fraud arose out
of the unlawful detainer action.
               The same is true of Silva’s causes of action for quantum meruit and unjust
enrichment. The gist of each is that defendants benefited from the improvements made
by Silva without his being justly compensated. As the compensation he claims was
due—his continued possession of the property—was frustrated and eliminated solely by
the unlawful detained action, we find these actions also arose out of the unlawful detainer
action.
               Silva conceded at oral argument, and we agree, the retaliatory eviction
cause arose out of the unlawful detainer action. Having found all of Silva’s action arose
out of the unlawful detainer action and thus, section 425.16 applies in this matter, we turn
to the second inquiry: whether Silva demonstrated a probability of prevailing on his
claims. (Jarrow Formulas, Inc. v. La Marche, supra, 31 Cal.4th at p. 733.)




                                                 7
Silva did not Demonstrate a Probability of Prevailing
              As stated above, once a defendant establishes a cause of action arose from
protected activity, the section 425.16 special motion to strike must be granted unless the
plaintiff demonstrates a probability of prevailing on his or her claim if the matter were to
proceed to trial. (§ 425.16, subd. (b)(1).) To carry this burden, a plaintiff must present
“‘competent and admissible evidence.’” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13,
26.) Allegations in the complaint are insufficient (ComputerXpress, Inc. v. Jackson
(2001) 93 Cal.App.4th 993, 1010) and “declarations that lack foundation or personal
knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or
conclusory are to be disregarded. [Citation.]” (Gilbert v. Sykes, supra, 147 Cal.App.4th
at p. 26.)
              Silva failed to introduce evidence demonstrating a likelihood of prevailing
on the merits of any of his claims. First, although Silva averred that Carl said he could
remain in the property as long as he desired, assuming he made the listed repairs and
improvements, the lease prepared by Silva stated the term of the lease was for one year
with an “option for additional years,” which Silva did not exercise. The term of the lease
expired in August 2009, and there was no evidence demonstrating the parties agreed to
any additional one-year terms. Silva’s payment and John’s acceptance of rent after the
lease term expired did not operate to extend the term of the lease. Rather, it merely
converted Silva’s tenancy to a month-to month tenancy. (Civ. Code, § 1945.) Therefore,
even were we to assume Carl’s purported representation became part of the lease, Silva
did not demonstrate he exercised the option to extend the term of the lease.
              Second, the unlawful detainer complaint alleged Silva owed John $6,000 in
past due rent. Silva stipulated in the unlawful detainer judgment that he owed John
$7,500 in back rent and damages. This evidence demonstrated Silva was not in
compliance with the conditions attached to Carl’s purported promise to permit Silva to



                                             8
remain as long as he desired. Consequently, Silva failed to establish he was likely to
prevail on his breach of contract action.
              Neither did Silva show he was likely to prevail on his fraud cause of action.
Even under Silva’s version of Carl’s purported representation, Silva was obligated to
remain current in his payment of rent. Having failed to do so, Silva is not free to insist
that he be permitted to remain in possession of the property. Moreover, John permitted
Silva to remain in the property for years after the term of the lease prepared by Silva
expired without having been renewed. Additionally, Silva introduced no evidence that
when Carl purportedly made the statement to him about staying as long as he liked, Carl
was not being truthful. The fact that John finally decided to retake possession of the
property years after the lease ended does not fill in that evidentiary gap.
              “The elements for a claim of unjust enrichment are ‘receipt of a benefit and
unjust retention of the benefit at the expense of another.’ [Citation.] ‘The theory of
unjust enrichment requires one who acquires a benefit which may not justly be retained,
to return either the thing or its equivalent to the aggrieved party so as not to be unjustly
enriched.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1132.) According to Silva’s declaration, he made a number of
improvements and repairs to the property. However, according to the lease and John’s
declaration, which are not inconsistent with Silva’s declaration, John gave Silva a
discount on the rent because Silva promised to make the repairs and improvements. The
one-year term of the lease ended in 2009, and although John and Silva did not extend the
term of the lease, John permitted Silva to remain in possession of the property for an
additional 35 months, presumably with the discounted rent. Accordingly, we cannot say
Silva demonstrated he was likely to prevail on his unjust enrichment claim.
              “Quantum meruit is a Latin phrase meaning ‘as much as he deserves,’ and
is based on the idea that someone should get paid for beneficial goods or services which



                                              9
he or she bestows on another.” (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 445, fns.
omitted.) Quantum meruit is a quasi-contractual remedy (Hedging Concepts, Inc. v. First
Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419) based on “the law’s distaste
for unjust enrichment” (Maglica v. Maglica, supra, 66 Cal.App.4th at p. 449). However,
as stated above, Silva did not demonstrate a likelihood he could show defendants were
unjustly enriched. Additionally, there is no reason to apply the equitable remedy of
quantum meruit “when the parties have an actual agreement covering compensation.
[Citations.]” (Hedging Concepts, Inc. v. First Alliance Mortage Co., supra, 41
Cal.App.4th at p. 1419.) There was such an agreement here. It was the lease and, as
drafted by Silva himself, it not only stated he would have possession of the property for a
one-year period (with an option for additional years) if he made the listed repairs,
improvements, and paid $2,000 a month, it also provided the improvements were to be
made “at no cost to” John and Mary. Silva was not likely to prevail on his quantum
meruit claim if it proceeded to trial.
              Silva also failed to prove he was likely to prevail on his retaliatory eviction
claim. John’s declaration stated he and Mary “had not received any noise complaints
from Mr. Silva for the two years prior to the time” they served Silva with the notice to
vacate, and that their decision to retake their property almost four years after initially
leasing it to Silva was not motivated by any prior complaints by Silva. Silva claimed he
made written complaints about a noisy tenant in the adjacent unit from January 2009
through August 2012. He attached to his declaration copies of letters and e-mails he
wrote during that period, including e-mails he wrote to Carl. That documentation
confirms John’s statement and shows the complaints about the neighbor ended
approximately two years before the eviction effort began and resumed months after
eviction proceedings began. A two-year lapse between a tenant’s complaint and the
landlord’s initiation of eviction proceedings does not lend itself to an inference the



                                              10
eviction was retaliatory in nature. (See Civ. Code, § 1942.5, subd. (a) [180-day
timeframe].) There is no reason to believe Silva was likely to prevail on his retaliatory
eviction cause of action.
               Because we find Silva failed to present evidence showing he would likely
prevail on his claims were the matter to proceed to trial, we need not address defendants’
argument concerning whether Silva is precluded from making the requisite showing due
to principles of res judicata. We note, however, that despite the fact an unlawful detainer
action is a summary proceeding and cross-complaints as to issues that do not go to the
issue of possession are not permitted (S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d
719, 723; see also Barela v. Superior Court (1976) 30 Cal.3d 244, 254 [retaliatory
eviction defense would not be significantly impair summary nature of unlawful detainer
actions]), Silva raised as affirmative defenses in the unlawful detainer action his right to
remain in possession of the property because (1) he made the listed repairs and
improvements and (2) the eviction was retaliatory. After raising these issues, Silva
abandoned them by stipulating to a judgment returning the property to John and awarding
John damages for the nonpayment of rent. (See California State Auto. Assn. Inter-Ins.
Bureau v. Superior Court (1990) 50 Cal.3d 658, 664, fn. 2, 667 [“stipulated judgment
bars subsequent litigation of all issues which were or could have been raised in the
original suit”].)


Attorney Fees
               The trial court awarded John and Mary attorney fees in prevailing on their
motion to strike pursuant to section 425.16. Silva challenged the award, arguing only
that the attorney fee award would have to be reversed if we reverse the underlying order
striking his complaint. As we affirm the trial court’s ruling on the motion to strike, we
have no occasion to reverse the award of attorney fees.



                                             11
                                           III
                                       DISPOSITION
              The orders and judgment of the superior court are affirmed. John and Mary
shall recover their costs on appeal.



                                                 MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




                                           12
