Aron v. WIB Holdings (2018): Tenant’s Premature Filing of “Malicious Prosecution” Action Justifies Affirming Anti-SLAPP Motion Following Remittitur in Underlying Action

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“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.”

In Aron v. WIB Holdings, a tenant prevailed in an unlawful detainer lawsuit for breach of lease. The landlord appealed, and while the appeal was pending, the tenant sued his landlord for damages. The landlord filed an anti-SLAPP motion, arguing that the tenant’s complaint for damages, based on Santa Monica’s tenant harassment ordinance, arose from the landlord’s unsuccessful prosecution of the unlawful detainer – conduct that is protected activity. It also found that the tenant couldn’t prevail on the merits, because the unlawful detainer judgment was not final; the tenant’s lawsuit was premature. Tenant appealed.

Then, when remittitur issued (i.e., when the baton was passed from the reviewing court back down to the trial court), the tenant moved for a new trial in his own lawsuit. He argued that the remittitur was newly discovered evidence justifying a new “trial” (in this case, a new hearing on the anti-SLAPP motion). The trial court agreed, granting the motion, and the landlord appealed.
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Contreras v. Dowling (2016) – Anti-SLAPP Protection for Attorney-Client Relationships in the Face of “Unadorned” Allegations of Attorney-Client Conspiracy

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“We decline to infer Dowling’s concurrence in his clients’ acts from the mere existence of their attorney-client relationship. Contreras cites no authority holding that an attorney-client relationship is evidence of a conspiracy between the attorney and client, and our own research discloses none. Moreover, we share Dowling’s expressed concern about the implications of such a holding. He contends there will be a chilling effect on attorneys if their communicative acts can be placed outside the protection of section 425.16 by the unadorned allegation that they conspired in their clients’ torts. Contreras airily dismisses this concern, arguing ‘any chilling effect that conclusion may have on conspiracies between lawyers and their clients must be counted an unalloyed benefit.’ We are not so sanguine. ‘The fears of chilled speech and hindered justice are too much a part of our case law to be disregarded as unproved.’ . . . We refuse Contreras’s invitation to infer an attorney-client conspiracy from the mere existence of an attorney-client relationship.”

California’s Anti-SLAPP Law (Cal. Code Civ. Proc., §425.16) is designed to question, at an early stage of litigation, whether certain claims that arise from a defendant’s petitioning conduct has sufficient, minimal merit to proceed. If not, the defendant may use a special motion to strike to eliminate certain claims that the plaintiff cannot prevail on.

“Petitioning conduct” can refer to a fairly wide-range of a defendant’s exercises of free speech rights. When that defendant is also an attorney, and the conduct is closely connected with her provision of legal advise in the context of an attorney-client relationship, this activity should fall squarely within the ambit of the anti-SLAPP statute.

Nonetheless, the landlords in the controversy underlying Contreras v. Dowling engaged in activity that allegedly constituted wrongful eviction. And, because they had counsel at the time of the alleged tort, the tenant sued the landlords for the wrongful eviction and sued the attorney, Dowling, for “conspiracy” to commit the tort.

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Anti-SLAPP Role Reversal in Olive Properties v. Coolwaters Enterprises, Inc.

The Second Appellate District’s decision, Olive Properties v. Coolwaters Enterprises, Inc., features an unusual role-reversal in the interplay of unlawful detainer actions and special motions to strike.

Special motions to strike under Cal. Code Civ. Proc., §425.16 (i.e., “anti-SLAPP motions”) are designed to defeat at the pleadings stage lawsuits that arise from “protected conduct”. The California Legislature views these lawsuits – Strategic Lawsuits Against Public Participation – as being more about chilling participation in public forums (e.g., petitioning a court for relief) than about litigating a claim.

Anti-SLAPP motions often come up in the context of evictions and derivative lawsuits following evictions. An unlawful detainer lawsuit proceeds on a unique, five-day summons (i.e., they move very fast through the courts, so a landlord can recover property and re-rent it in order to keep paying the bills).

The effect of this preference in the trial court is that only the causes of action based on unlawful detainer of property can be litigated in that initial lawsuit. Anything else (like a claim for breach of the lease where the remedy is something other than possession of the property, or a tenant’s claim for breach of the warranty of habitability or covenant of quiet enjoyment) must be litigated in a separate lawsuit instead of being joined in the unlawful detainer action.

Therefore, when tenants also have affirmative claims against their landlord, they will almost necessarily be litigated after the issue of possession is determined. And, where the landlord recovers possession, a tenant is wise to make sure their affirmative claims have absolutely nothing to do with the service of a termination notice or the lawsuit to recover possession, or else they are targeted at their former landlord’s privileged conduct in filing and prosecuting the eviction lawsuit.

Unusually in Olive Properties, the tenant filed their lawsuit first (alleging negligent interference with prospective economic relations and breach of the covenant of quiet enjoyment relating to their landlord leasing to another commercial tenant at a shopping center whose customers were using all of the available parking spaces). Meanwhile, the tenant failed to pay rent and CAM charges due under the lease – the basis for an unlawful detainer action based on non-payment of rent.

When the tenant moved to strike the unlawful detainer complaint, arguing that it was based on their filing of their general civil claims, the trial court denied their motion, citing the seminal anti-SLAPP case Navellier v. Sletten (2002) 29 Cal.4th 82, for the proposition that simply because a lawsuit is arguably triggered by another lawsuit does not necessarily mean that it “arises from” that lawsuit. The trial court awarded fees to the landlord, finding that the motion was intended merely to cause delay and adding that it “was a weak motion, at best, and an ordinary review of established legal authorities would have disclosed the inadequacies of the motion”.

The Court of Appeals affirmed, noting that “we publish our opinion in this matter to address the potential for abuse of the anti-SLAPP statute in unlawful detainer litigation”. Recent years have seen a trend against a mechanical application of the litigation privilege to all of landlord’s conduct surrounding a landlord-tenant relationship, simply because an eviction lawsuit was involved. (Moriarty v. Laramar Management Corporation (2014) 224 Cal.App.4th 125 comes to mind.) However, suing somebody for suing you will surely always be met with a successful anti-SLAPP motion.

Olive Properties is also noteworthy for its use of a motion for calendar preference at the appellate level. While the five-day summons and twenty-day trial setting move an unlawful detainer action through the trial courts quickly, these actions can slow down considerably on appeal. The California Legislature expressed its preference for unlawful detainers over most other civil matters in California Code of Civil Procedure, section 1179a. The landlord was able to successfully move the appellate court to accelerate the appeal in this action by invoking section 1179a.