“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.
The Court of Appeal reversed, determining that the remittitur could not be newly discovered evidence, because it was not in existence at the time the of the anti-SLAPP hearing. It found that the trial court had incorrectly applied Pasternack v. McCullough (2015) 235 Cal.App.4th 1347: “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.”
The Court of Appeal then addressed the tenant’s argument that a reversal of the order granting new trial (on the anti-SLAPP ruling) justified consideration of tenant’s appeal on the anti-SLAPP ruling itself. Tenant argued that his lawsuit did not come within the ambit of the anti-SLAPP statute, because the landlord’s conduct was illegal as a matter of law (under Flatley v. Mauro (2006) 39 Cal.4th 299) as it violated the anti harassment ordinance. The court found, however, that “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.” Finally, because the landlord’s appeal of the unlawful detainer action was still pending at the time of the derivative action, the tenant’s lawsuit was premature when it was filed.