Filed 3/28/18

                       CERTIFIED FOR PUBLICATION
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                         SECOND APPELLATE DISTRICT
                                        DIVISION TWO
PAUL ARON,                                                              B271271

                 Plaintiff and Appellant,                               (Los Angeles County
                                                                        Super. Ct. No. SC124344)
         v.

WIB HOLDINGS et al.,

                 Defendants and Appellants.




      APPEAL from a judgment of the Superior Court of Los
Angeles County. Mitchell L. Beckloff, Judge. Reverse August 8,
2016 order and affirm January 25, 2016 order.
      Campbell & Farahani, Frances M. Campbell and Nima
Farahani for Plaintiff and Appellant.
      Lewis Brisbois Bisgaard & Smith, Rog G. Weatherup,
David B. Shapiro, Allison A. Arabian, Linda J. Kim, and V. Alan
Arshansky; Rosario Perry, Rosario Perry and Steven Coard for
Defendants and Appellants.
      Lane Dilg, City Attorney, Adam Radinsky and Gary
Rhoades, Deputy City Attorneys for City of Santa Monica and
League of California Cities as Amicus Curiae.
      This appeal concerns the grant of a new trial motion after
entry of an order and judgment granting a special motion to
strike the complaint under Code of Civil Procedure section
425.16.1 The trial court granted the anti-SLAPP motion on the
grounds that the plaintiff’s action arose out of an underlying
unlawful detainer action, which is protected petitioning activity
under section 425.16, and that the plaintiff could not establish a
reasonable probability of prevailing on the merits because the
defendant’s appeal of the underlying unlawful detainer judgment
was pending at the time the plaintiff filed the instant action and
was still pending at the time of the hearing on the anti-SLAPP
motion. An order and judgment was entered granting the anti-
SLAPP motion and dismissing the complaint, and the plaintiff
appeals from that judgment and order.
      After entry of the judgment in this case, a remittitur was
issued in the underlying unlawful detainer case, affirming the
judgment. The plaintiff then filed a motion for a new trial in this
case, arguing that the remittitur was newly discovered evidence
that he could not reasonably have discovered at the time of the
anti-SLAPP hearing. The trial court granted the new trial
motion on that basis. The defendants appeal from that order.
      We reverse the order granting the motion for a new trial
and affirm the order and judgment granting the anti-SLAPP
motion and dismissing the complaint.




1      All further statutory references are to the Code of Civil
Procedure, unless stated otherwise. A motion brought pursuant
to section 425.16 is commonly referred to as an anti-SLAPP
motion. SLAPP is an acronym for strategic lawsuit against
public participation.




                                 2
                           BACKGROUND
The parties
       Plaintiff Paul Aron (tenant) lives in a rent controlled
apartment in the City of Santa Monica which is owned by
defendant WIB Holdings (landlord). Defendant Barbara Bills
(Bills) manages the rent controlled property and is the principal
of WIB Holdings.2
The underlying unlawful detainer action
         Landlord filed an unlawful detainer complaint against
tenant on July 1, 2014, alleging that tenant was in possession of
an apartment landlord owned in Santa Monica and that tenant
had failed to comply with a three-day notice to perform or quit.
Attached to the complaint was a three-day notice indicating it
was served on tenant on June 23, 2014, and that tenant had
breached the conditions of his lease by remodeling his apartment
without landlord’s permission and without obtaining the
requisite city permits. The notice gave tenant three days to
complete several tasks, including hiring a licensed contractor at
tenant’s expense, submitting the contractor’s name to landlord
for its approval, and having the contractor submit a proposed
scope of work and plans to restore the apartment to its original
condition. The notice also stated that tenant had been given a
warning letter on June 5, 2014, giving tenant until June 19,
2014, to begin restoration of the apartment to its original
condition.
         The matter proceeded to a jury trial. The jury was given a
special verdict form containing eight questions: “1. Do you find
that [tenant] . . . replaced his kitchen sink without first obtaining
a . . . building permit? [¶] . . . [¶] 2. Did [tenant] . . . fail to cure


2    WIB Holdings and Bills are referred to collectively as
defendants.




                                    3
the violation of installing the kitchen sink without a building
permit . . . ? [¶] . . . [¶] 3. Did [landlord] . . . properly give
[tenant] . . . reasonable time before serving [tenant] . . . with . . .
3-Day Notice to Cure or Quit, to enable him to cure the violation
of the kitchen sink? [¶] . . . [¶] 4. As of June 23, 2014, had
[tenant] . . . painted any part of his apartment; and/or altered his
apartment; and/or defaced, damaged or removed any facility,
equipment or appurtenance at this apartment? [¶] . . . [¶] 5. As
of June 23, 2014, was [tenant]’s . . . painting . . . ; and/or altering .
. . ; and/or defacing, damaging, or removal . . . a substantial
breach of a material obligation under the rental agreement? [¶] .
. . [¶] 6. Do you find through clear and convincing evidence that
[landlord] waived . . . the right to evict [tenant]?” With the
exception of question 3, the jury answered “yes” to these
questions.
        The special verdict form instructed the jury that “If your
answer to question 6 is ‘yes,’ answer no further and sign and date
this form. If your answer to question 6 is ‘no,’ answer question
7.” Despite answering yes to question 6, the jury failed to follow
the instructions and answered yes to question 7: “Did [landlord]
maliciously bring this action based upon facts which [landlord]
had no reasonable cause to believe were true?”
        On February 4, 2015, the court ordered tenant’s counsel to
prepare a judgment omitting any reference to the jury’s answer to
question 7. The judgment entered in tenant’s favor on February
11, 2015, did not include question 7 or the jury’s response thereto.
Landlord appealed from that judgment on March 19, 2015.
The instant action
        While landlord’s appeal of the unlawful detainer judgment
was pending, tenant filed, on June 18, 2015, the instant action for
damages in violation of the Santa Monica Tenant Harassment
Ordinance, Santa Monica Municipal Code (S.M.C.C.) sections




                                   4
4.56.010-4.56.050 (the harassment ordinance). The harassment
ordinance prohibits landlords from taking certain actions in bad
faith, including actions to terminate a tenancy based on facts the
landlord has no reasonable cause to believe to be true:
             “No landlord shall, with respect to property
       used as a rental housing unit under any rental
       housing agreement or other tenancy or estate at will,
       however created, do any of the following in bad faith:

            “[¶] . . . [¶]

             “(i)(1) Take action to terminate any tenancy
      including service of any notice to quit or other
      eviction notice or bring any action to recover
      possession of a rental housing unit based upon facts
      which the landlord has no reasonable cause to believe
      to be true or upon a legal theory which is untenable
      under facts known to the landlord. No landlord shall
      be liable under this subsection for bringing an action
      to recover possession unless and until the tenant has
      obtained a favorable termination of that action.”

(S.M.C.C., § 4.56.020(i)(1).)
      The harassment ordinance imposes criminal and civil
penalties on landlords who violate its provisions. It also
authorizes civil actions to enforce those provisions:
      “(a) Criminal Penalty. Any person who is
      convicted of violating this Chapter shall be
      guilty of a misdemeanor and upon conviction
      shall be punished by a fine of not greater than
      one thousand dollars or by imprisonment in the
      County Jail for not more than six months, or by
      both such fine and imprisonment.

      “(b) Civil Action. Any person, including the
      City, may enforce the provisions of this Chapter
      by means of a civil action. The burden of proof




                                5
      shall be preponderance of the evidence. A
      violation of this Chapter may be asserted as an
      affirmative defense in an unlawful detainer
      action.

      “[¶] . . . [¶]

      “(d) Penalties and Other Monetary
      Awards. Any person who violates or aids or
      incites another person to violate the provisions
      of this Chapter is liable for each and every such
      offense for the actual damages suffered by any
      aggrieved party or for statutory damages in the
      sum of between one thousand dollars and ten
      thousand dollars, whichever is greater, and
      shall be liable for such attorneys’ fees and costs
      as may be determined by the court in addition
      thereto. Any violator shall be liable for an
      additional civil penalty of up to five thousand
      dollars for each offense committed against a
      person who is disabled or aged sixty-five or
      over. The court may also award punitive
      damages to any plaintiff, including the City, in
      a proper case as defined by Civil Code Section
      3294. The burden of proof for purposes of
      punitive damages shall be clear and convincing
      evidence.”

(S.M.C.C., § 4.56.040(a), (b), (d).)
Defendant’s anti-SLAPP motion
       Defendants filed a special motion to strike tenant’s
complaint under section 425.16, arguing that the complaint
was based entirely on the filing of the unlawful detainer
action, a constitutionally protected right of petition, that
the warning letter and three-day notice to quit were
protected by the litigation privilege, and that the litigation
privilege preempts the harassment ordinance. Defendants




                                 6
further argued that tenant could not demonstrate a
reasonable probability of prevailing on the merits because
the action was premature, given their appeal from the
underlying unlawful detainer action was still pending.
       Tenant opposed by arguing that the complaint arose, not
out of protected activity, but from landlord’s violation of the
harassment ordinance, and that the litigation privilege did not
apply because tenant’s claim sounded in malicious prosecution,
which was an exception to the privilege. Tenant also argued that
he had a reasonable probability of prevailing because the jury in
the underlying unlawful detainer action had found that
defendants had “maliciously” brought the unlawful detainer
action based upon facts which they had no reasonable cause to
believe were true.
Trial court’s ruling on the anti-SLAPP motion
       On January 25, 2016, the trial court granted the anti-
SLAPP motion, ruling that tenant’s complaint was based on
defendants’ filing of the unlawful detainer action, a protected
activity under section 425.16. The trial court then determined
that tenant could not establish a probability of prevailing on his
claims because the underlying unlawful detainer judgment was
not final in light of landlord’s pending appeal of that judgment.
The trial court concluded that dismissal of the complaint was the
proper remedy under section 425.16 and Pasternack v.
McCullough (2015) 235 Cal.App.4th 1347 (Pasternack). An order
and judgment granting the anti-SLAPP motion and dismissing
tenant’s complaint was filed on March 4, 2018. Tenant filed a
notice of appeal from that order and judgment on March 24, 2016.
Appellate Division affirms the unlawful detainer
judgment
       On March 17, 2016, the appellate division of the superior
court issued an opinion affirming the underlying unlawful




                                7
detainer judgment. A remittitur affirming the unlawful detainer
judgment was issued on June 10, 2016.
Tenant’s motion for new trial
       On June 30, 2016, tenant filed a motion for a new trial
pursuant to section 657, subdivision (4), arguing that the
remittitur issued by the superior court’s appellate division
regarding the unlawful detainer action constituted newly
discovered evidence. Tenant further argued that the anti-SLAPP
ruling was “against law” under section 657, subdivision (6)
because tenant’s action was based on defendants’ violation of the
harassment ordinance. Tenant contended the jury’s finding of
malice in the unlawful detainer action was relevant and should
be considered because it established that defendants had violated
the harassment ordinance, which was a criminal statute.
       Defendants opposed the motion, arguing (1) that the jury’s
finding of malice in the unlawful detainer action should not be
considered because it was never incorporated into the unlawful
detainer judgment, (2) that the alleged violation of the
harassment ordinance was not “against law” within the meaning
of section 657, subdivision (6), and that there had been no
conclusive proof in the unlawful detainer action that defendants
had engaged in illegal conduct; (3) that the appellate division’s
opinion affirming the unlawful detainer judgment was not “newly
discovered evidence” within the meaning of section 657,
subdivision (4); and (4) tenant’s complaint should be dismissed
because the judgment in the underlying unlawful detainer action
established that landlord had probable cause to evict tenant as a
matter of law and because the harassment ordinance was
preempted by the litigation privilege.
Trial court’s ruling on the new trial motion
       On August 8, 2016, the trial court granted tenant’s new
trial motion, ruling that the remittitur issued on June 10, 2016,




                                8
affirming the underlying unlawful detainer judgment constituted
newly discovered evidence within the meaning of section 657,
subdivision (4). The trial court determined that because the
remittitur did not exist until June 10, 2016, it would have been
impossible for tenant to have provided the court with that
evidence at the time of the January 2016 hearing on the anti-
SLAPP motion, and accordingly there could be “no dispute
concerning [tenant’s] diligence in discovering and producing the
new evidence. The trial court further determined that the
remittitur was material evidence because the sole basis for the
court’s decision to grant the anti-SLAPP motion was the lack of
finality of the underlying unlawful detainer action, and the
existence of a final judgment undermined that basis.
        The trial court acknowledged that it was bound by
Pasternack, in which the court held that a premature filing
cannot be cured, and if the complaint was premature when it was
filed, it is subject to dismissal on a special motion to strike.
(Pasternack, supra, 235 Cal.App.4th at p. 1358.) The trial court
reasoned, however, that Pasternack was distinguishable: “The
Court of Appeal in Pasternack was not faced with a situation
where the prematurity of a complaint was cured before the trial
court’s order dismissing the complaint was final. The Pasternack
court noted that the complaint was ‘premature when it was filed
and [was] still premature when the special motions to strike were
heard.’ (Ibid.) The Pasternack court did not address the legal
result when the prematurity was cured by the time the court
considered a special motion to strike.”
        The trial court ordered tenant’s complaint to be reinstated
and ordered defendants to file a responsive pleading. On
September 6, 2016, defendants filed a notice of appeal from the
trial court’s August 8, 2016 order granting the motion for a new
trial “and from all intermediate orders and rulings embraced




                                 9
within it, including the order of January 25, 2016, granting
defendant’s motion to strike on only one ground, and the formal
order of March 4, 2016.
       Tenant filed a protective cross-appeal from the judgment in
this action, and moved to consolidate its previous appeal from the
January 25, 2016 order granting defendants’ anti-SLAPP motion
with its protective cross-appeal. We granted tenant’s motion and
ordered the appeals to be consolidated.
                             DISCUSSION
I. Landlord’s appeal of the new trial motion
       A. Applicable law and standard of review
       Section 657, subdivision (4) provides: “The verdict may be
vacated and any other decision may be modified or vacated, in
whole or in part, and a new or further trial granted on all or part
of the issues, on the application of the party aggrieved, for any of
the following causes, materially affecting the substantial rights of
such party: [¶] . . . [¶] (4) Newly discovered evidence, material for
the party making the application, which he could not, with
reasonable diligence, have discovered and produced at the trial.”
       “‘In ruling on a motion for new trial based on newly
discovered evidence, the trial court considers the following
factors: “‘1. That the evidence, and not merely its materiality, be
newly discovered; 2. That the evidence be not cumulative merely;
3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable
diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case
admits.’” [Citations.]’ ‘In addition, “the trial court may consider
the credibility as well as materiality of the evidence in its
determination [of] whether introduction of the evidence in a new
trial would render a different result reasonably probable.”




                                 10
[Citation.]’ [Citation.]” (People v. Howard (2010) 51 Cal.4th 15,
43.)
       A motion for a new trial on the grounds of newly discovered
evidence is generally “a matter which is committed to the sound
discretion of the trial court,” and “a reviewing court will not
interfere unless a clear abuse of discretion is shown. [Citation.]”
(Cansdale v. Board of Administration (1976) 59 Cal.App.3d 656,
667 (Carnsdale).) The instant case, however, raises issues as to
what constitutes “newly discovered evidence” within the meaning
of section 657, subdivision (4), an issue of statutory interpretation
that we review de novo. (Regents of University of California v.
Superior Court (1999) 20 Cal.4th 509, 531.)
       B. The remittitur is not newly discovered evidence
       Defendants argue that the appellate division’s remittitur
affirming the underlying unlawful detainer judgment, issued
after the trial court’s order granting the anti-SLAPP motion and
dismissing tenant’s complaint in the instant case, is not newly
discovered evidence and cannot be the basis for a new trial
because it did not exist at the time of the anti-SLAPP hearing.
We agree.
       Although there is no definitive California case authority on
this issue, at least one appellate court has articulated the general
principle that “newly discovered evidence” within the meaning of
section 657, subdivision (4) must be evidence that was in
existence at the time of the trial or hearing on the dispositive
motion: “Normally, to support a motion for a new trial on this
ground, the court must determine if the evidence was in existence
at the time of the trial and could not have been discovered with
reasonable diligence.” (Cansdale, supra, 59 Cal.App.3d at p.
667.) That a court ruling on a new trial motion pursuant to
section 657, subdivision (4) must first determine whether the
proffered evidence existed at the time of trial is consistent with




                                 11
the statutory language that the evidence be “newly discovered.”
Implicit in that term is the concept that the evidence existed, but
remained undiscovered at the time of trial. The remittitur
affirming the underlying unlawful detainer judgment is of an
entirely different nature. It did not exist at the time of the anti-
SLAPP hearing, because it was based on an event that had not
yet occurred.
       The cases on which tenant relies in support of his position,
Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330
(Kabran) and Scott v. Farrar (1983) 139 Cal.App.3d 462 (Scott),
are distinguishable and do not persuade us that the remittitur
should be considered newly discovered evidence. In Kabran, a
jury found the defendant hospital negligent in a medical
malpractice action but also found that such negligence was not a
substantial factor in causing the plaintiff’s injuries. (Kabran,
supra, at p. 333.) After the trial, the plaintiff died, and an
autopsy revealed evidence that his widow claimed undermined
the jury’s causation determination. (Ibid.) The widow moved for
a new trial on the basis of this evidence, and the trial court
granted the motion. (Ibid.) The newly discovered evidence in
Kabran -- the plaintiff’s physical condition -- existed at the time
of trial but could not be discovered without an autopsy. In
contrast, the remittitur in the instant case did not exist at the
time of the trial court’s ruling on the anti-SLAPP motion.
       Scott is similarly distinguishable. That case involved a
school crossing guard’s alleged negligence in an action by an
injured child. After the plaintiffs noticed the deposition of a key
witness, the defendant filed a motion for summary judgment,
noticing the motion for a date in advance of the deposition.
(Scott, supra, 139 Cal.App.3d at p. 465.) Although the plaintiffs
opposed the summary judgment motion, they did not seek a
continuance to enable them to take the deposition prior to the




                                 12
hearing on the motion. After judgment was entered, the
plaintiffs filed a motion for a new trial based on evidence
obtained during the witness’s post-hearing deposition, but the
trial court denied the motion. The Court of Appeal reversed,
concluding the plaintiffs had acted with reasonable diligence in
discovery, given the time constraints in opposing the summary
judgment motion. (Id. at p. 468.) The evidence proffered in Scott
was the testimony of a key witness who could attest to events
that occurred at the time of the accident, and whom plaintiffs had
identified and noticed for deposition before the trial. In contrast,
the remittitur proffered in the instant case did not exist at the
time of the anti-SLAPP hearing, because landlord’s appeal of the
underlying unlawful detainer judgment was still pending.
       Case law interpreting rule 60(b)(2) of the Federal Rules of
Civil Procedure (FRCP), an analogous federal statute, supports
our interpretation of Code of Civil Procedure section 657,
subdivision (4). FRCP rule 60(b)(2), like section 657, subdivision
(4), enables a party to obtain relief from a judgment, order, or
proceeding based on “newly discovered evidence that, with
reasonable diligence, could not have been discovered.”3 Federal
courts construing the term “newly discovered evidence” under
FRCP rule 60(b)(2) have uniformly held that evidence of events
occurring after the trial is not newly discovered evidence. (See,
e.g., Corex Corp. v. United States (9th Cir. 1981) 638 F.2d 119,
121; United States ex rel. Harman v. Trinity Indus. (5th Cir.

3      FRCP rule 60(b)(2) provides in relevant part: “On motion
and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: [¶] . . . [¶] (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time
for a new trial under Rule 59(b).” Rule 59(b) states that “[a]
motion for a new trial must be filed no later than 28 days after
the entry of judgment.”




                                 13
2017) 872 F.3d 645, 652; United States v. Hall (D.C. Cir. 2003)
324 F.3d 720; 11 Wright, et al., Fed. Practice & Procedure (3d. ed.
2012) § 2859, p. 387, fn. 5.)
       The remittitur affirming the underlying unlawful detainer
judgment, issued after the trial court’s ruling and order granting
the anti-SLAPP motion, was not “newly discovered evidence”
within the meaning of section 657, subdivision (4). The trial
court abused its discretion by granting tenant’s motion for a new
trial on that basis.
       C. The trial court’s ruling is contrary to Pasternack
       The trial court’s ruling granting the new trial motion on the
basis of the remittitur also conflicts with Pasternack, an appellate
decision by which the trial court was bound. In that case, the
plaintiff, Pasternack, was sued by a contractor in an underlying
collection action concerning the construction of a home.
Pasternack cross-complained against the contractor for
fraudulently concealing construction defects. The contractor’s
collection claim was bifurcated from Pasternack’s cross-
complaint, tried separately, and adjudicated in Pasternack’s
favor. No judgment was entered in favor of Pasternack on the
collection claim, however, because his cross-complaint against the
contractor was still pending. (Pasternack, supra, 235 Cal.App.4th
at pp. 1352-1353.)
       While his cross-complaint against the contractor in the
underlying action was still pending, Pasternack sued the
contractor and others for malicious prosecution, alleging that the
underlying collection claim was filed maliciously, without
probable cause, and for the sole purpose of extracting a general
release. (Pasternack, supra, 235 Cal.App.4th at p. 1353.) The
defendants filed special motions to strike the complaint, and the
trial court granted the anti-SLAPP motions. (Ibid.) The
appellate court affirmed the order granting the anti-SLAPP




                                14
motions, stating as follows: “Pasternack’s malicious prosecution
complaint was not rendered premature by the filing of an appeal
in the underlying action; it was premature when it was filed and
was still premature when the special motions to strike were
heard. The proper remedy, here, we believe, is to affirm the order
dismissing Pasternack’s malicious prosecution complaint . . . .
Pasternack chose not to wait until his malicious prosecution
claim had accrued before filing and proceeding on his malicious
prosecution complaint. He should bear the consequences of that
decision.” (Id. at p. 1358, italics added.)
       The Pasternack court’s reasoning applies equally here.
Tenant chose to file his complaint against landlord before his
cause of action to enforce the harassment ordinance had accrued.
His complaint was properly dismissed for that reason.
(Pasternack, supra, 235 Cal.App.4th at p. 1358.) Reinstating the
complaint because tenant’s cause of action accrued after
landlord’s anti-SLAPP motion had been granted and a judgment
of dismissal had been entered conflicts with the court’s holding in
Pasternack.
       We are not persuaded by the trial court’s reasons for
distinguishing Pasternack. Tenant’s action was premature when
the trial court granted the anti-SLAPP motion and remained
premature when the judgment dismissing his complaint was
entered. Tenant’s cause of action accrued while his appeal of the
judgment entered against him in this action was pending, but for
reasons discussed, the subsequent accrual of his cause of action
was not a valid basis for reinstating his complaint.
       The trial court abused its discretion by granting the motion
for a new trial and reinstating tenant’s complaint.4

4     In view of our holding we do not address defendants’
arguments regarding alternative grounds on which the trial court
could have denied the motion for a new trial.




                                15
II. Tenant’s appeal of the anti-SLAPP ruling
         Tenant argues that if the order granting his motion for a
new trial is reversed, his appeal from the judgment and order
granting the anti-SLAPP motion and dismissing his complaint
should be heard. We therefore address tenant’s arguments that
his complaint does not come within the ambit of the anti-SLAPP
statute, and even if it does, he established a reasonable
probability of prevailing on the merits.
         A. Applicable law and standard of review
         Section 425.16 was enacted “to provide for the early
dismissal of unmeritorious claims filed to interfere with the valid
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. [Citation.]” (Club Members
for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315
(Club Members).) As relevant here, subdivision (b)(1) of section
425.16 provides: “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.”
         Determining whether section 425.16 bars a given cause of
action requires a two-step analysis. (Navellier v. Sletten (2002)
29 Cal.4th 82, 88 (Navellier).) First, the court must decide
whether the party moving to strike a cause of action has made a
threshold showing that the cause of action “aris[es] from any act
. . . in furtherance of the [moving party’s] right of petition or free
speech.” (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.) “‘A
cause of action “arising from” [a] defendant’s litigation activity
may appropriately be the subject of a section 425.16 motion to
strike.’ [Citations.] ‘Any act’ includes communicative conduct




                                 16
such as the filing, funding, and prosecution of a civil action.
[Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056
(Rusheen).) The scope of the statute is broad. In authorizing the
filing of a special motion to strike, the Legislature “expressly
provided that section 425.16 should ‘be construed broadly.’
[Citations.]” (Club Members, supra, 45 Cal.4th at p. 315.)
       If the court finds that a defendant has made the requisite
threshold showing, the burden then shifts to the plaintiff to
demonstrate a “probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p.
88.) In order to demonstrate a probability of prevailing, a party
opposing a special motion to strike under section 425.16 “‘“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.”’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 741, fn. omitted.)
       A trial court’s order granting a special motion to strike
under section 425.16 is reviewed de novo. (ComputerXpress, Inc.
v. Jackson (2001) 93 Cal.App.4th 993, 999.)
       B. Tenant’s cause of action against landlord arose
from protected activity
       Tenant’s cause of action asserted against landlord for
violation of the harassment ordinance arises out of landlord’s
filing of the underlying unlawful detainer action -- protected
petitioning activity under section 425.16. Filing a lawsuit is an
exercise of a party’s constitutional right of petition. (Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1115 (Briggs); Chavez v. Mendoza (2001) 94 Cal.App.4th 1083,
1087 (Chavez).) “‘“[T]he constitutional right to
petition . . . includes the basic act of filing litigation or otherwise
seeking administrative action.”’ [Citations.]” (Briggs, supra, at




                                  17
p. 1115.) Thus, “a cause of action arising from a defendant’s
alleged improper filing of a lawsuit may appropriately be the
subject of a section 425.16 motion to strike. [Citation.]” (Chavez,
supra, at p. 1087.)
       Not all petitioning activity is protected, however, by the
anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299, 313
(Flatley).) “[S]ection 425.16 cannot be invoked by a defendant
whose assertedly protected activity is illegal as a matter of law
and, for that reason, not protected by constitutional guarantees of
free speech and petition.” (Id. at p. 317.) “This exclusion from
the anti-SLAPP statute’s protections may be applied only when
‘the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was
illegal as a matter of law.’ [Citation.]” (Collier v. Harris (2015)
240 Cal.App.4th 41, 55, quoting Flatley, at p. 320.) “‘“[I]llegal” in
this context refers to criminal conduct; merely violating a statute
is not sufficient because the broad protection the anti-SLAPP
statute provides for constitutional rights would be significantly
undermined if all statutory violations were exempt from the
statute. [Citation.] In establishing this exclusion from the anti-
SLAPP statute, the Supreme Court [in Flatley] ‘“emphasize[d]
that the question of whether the defendant’s underlying conduct
was illegal as a matter of law is preliminary, and unrelated to the
second prong question of whether the plaintiff has demonstrated
a probability of prevailing, and [that] the showing required to
establish conduct illegal as a matter of law -- either through [the]
defendant’s concession or by uncontroverted and conclusive
evidence -- is not the same showing as the plaintiff’s second prong
showing of probability of prevailing.”’ [Citation.]” (Collier, supra,
at p. 54.)
       Tenant argues that his action against defendants does not
come within the ambit of the anti-SLAPP statute because it is




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based on acts by defendants that constitute a misdemeanor under
the harassment ordinance and that are accordingly illegal as a
matter of law. He cites the jury’s affirmative response to
question 7 of the special verdict form asking whether the
unlawful detainer action was brought with malice based upon
facts which landlord had no reasonable cause to believe were true
as evidence of illegality.
       The jury’s answer to question 7 on the special verdict form
does not conclusively establish that defendants’ actions were
illegal. Rather, the jury’s responses to questions 1, 2, 4, and 5,
indicate that landlord’s unlawful detainer action may justifiably
have been based on tenant’s material breach of his obligations
under the rental agreement. The jury’s responses on the special
verdict form create questions of fact that preclude us from
concluding that landlord’s conduct violated the harassment
ordinance as a matter of law. (See Collier, supra, 240
Cal.App.4th at p. 56.) The evidence does not conclusively
establish that defendants’ assertedly protected petitioning
activity was illegal as a matter of law, and defendants do not
concede illegality. The trial court accordingly did not err by
concluding that tenant’s cause of action against landlord was
based on protected petitioning activity that comes within the
ambit of the anti-SLAPP statute.
       C. Tenant failed to demonstrate a reasonable
probability of prevailing
       Because the trial court correctly determined that tenant’s
claims against defendants arose from conduct that is protected
under section 425.16, we address tenant’s arguments as to
whether he met his burden of “demonstrat[ing] a probability of
prevailing on the claim[s].” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67.) To satisfy this burden, “the
plaintiff must ‘state[] and substantiate[] a legally sufficient




                                19
claim.’ [Citation.] ‘Put another way, 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.”’ [Citation.]” (Jarrow, supra, 31 Cal.4th at p. 741, fn.
omitted.) In doing so, the court considers the pleadings and
evidentiary submissions of both the plaintiff and the defendant.
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
      Because landlord’s appeal of the underlying unlawful
detainer action was still pending when tenant filed the instant
lawsuit, tenant’s action was premature when it was filed and
remained premature when the trial court granted the special
motion to strike, tenant was unable to establish at the time of the
anti-SLAPP hearing that he had “obtained a favorable
termination” of the underlying unlawful detainer action, a
prerequisite to establishing landlord’s liability under the
harassment ordinance. (S.M.C.C., § 4.56.020(i)(1).) Tenant’s
inability to establish this element of his action to enforce the
harassment ordinance was a valid basis for granting the anti-
SLAPP motion and dismissing his complaint. (Pasternack, supra,
235 Cal.App.4th at pp. 1355-1358.) The trial court accordingly
did not err by granting the anti-SLAPP motion and dismissing
the complaint.5




5     We do not address defendants’ arguments regarding
alternative grounds on which the anti-SLAPP motion could have
been granted.




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                         DISPOSITION
       The August 8, 2016 order granting the motion for a new
trial is reversed. The January 25, 2016 order and judgment
granting the anti-SLAPP motion and dismissing tenant’s
complaint is affirmed. Defendants shall recover their costs on
appeal.
       CERTIFIED FOR PUBLICATION


                             ____________________________, J.
                             CHAVEZ

We concur:


__________________________, Acting P. J.
ASHMANN-GERST


__________________________, J.
HOFFSTADT




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