The opinion
Filed 11/15/24 Art Colony Property v. Tidwell CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
ART COLONY PROPERTY LLC, B332285; B336040
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 22STCV36753
v.
SYLVIA TIDWELL,
Defendant and Respondent.
APPEALS from orders of the Superior Court of Los Angeles
County. Daniel M. Crowley, Judge. Reversed.
Gibson, Dunn & Crutcher, Kahn Scolnick, Ritchie
Vaughan, James P. Fogelman and Alayna Monroe for Plaintiff
and Appellant.
Law Offices of Neil R. Anapol and Neil R. Anapol for
Defendant and Respondent.
_____________________________
SUMMARY
Plaintiff, the owner of residential property, brought this
lawsuit alleging that defendant, a former tenant, breached her
lease and intentionally interfered with plaintiff’s contractual
relations with 20 other tenants by encouraging them to withhold
rental payments after plaintiff had legally increased rents to
market rates.
Defendant responded to the complaint with a special
motion to strike the intentional interference claim under the
anti-SLAPP (strategic lawsuit against public participation)
statute. (Code Civ. Proc., § 425.16; further undesignated
statutory references are to this section of the Code of Civil
Procedure.) Defendant contended her statements to the other
tenants were in connection with pending or anticipated litigation,
citing three separate, unrelated matters: the unlawful detainer
actions plaintiff filed after the tenants withheld rent; a pending
lawsuit that had nothing to do with rental rates; and a toxic tort
lawsuit filed more than two years later that also had nothing to
do with rental rates, and the basis for which was unknown at the
time defendant urged the tenants not to pay rent.
The trial court granted defendant’s motion, finding her
statements telling tenants not to pay their rent were protected as
prelitigation communications. The court concluded plaintiff could
not prevail on the merits because of the litigation privilege,
reasoning that “litigation was imminent when the dispute arose
concerning the amount of rent” that plaintiff could charge
tenants.
We conclude the trial court erred. The litigation privilege
does not apply to defendant’s statements urging other tenants to
withhold rent because those statements were not made in
2
furtherance of defendant’s objectives in the unlawful detainer
action against her, and she had no litigation-related interest in
the unlawful detainer actions against other tenants. The other
two lawsuits concerned entirely different issues having nothing to
do with rent. And defendant’s statements were not protected, as
she now claims, by the “catchall” provision of the statute that
protects conduct “in connection with a public issue or an issue of
public interest.” (§ 425.16, subd. (e)(4).)
Because defendant’s statements were not protected
activity, we need not and do not consider whether plaintiff
established a probability of prevailing on its intentional
interference claims. We reverse the trial court’s order granting
defendant’s anti-SLAPP motion, and likewise reverse the order
awarding defendant attorney fees.
FACTS
1. Background Facts
In 2018, Art Colony Property LLC (plaintiff) purchased
property known as the Santa Fe Art Colony, a complex of
“live/work artist spaces.” Sylvia Tidwell (defendant) was a tenant
and head of the Santa Fe Art Colony Tenants Association (tenant
association or association).
For 30 years, the property had been subject to rent
restrictions. These legal covenants expired in 2016, allowing the
owner to set rents at market rates if the owner gave various
statutory notice requirements specified by the Government Code.
The owner had to notify tenants the rent restrictions were
expiring, rents would be raised to market rates, and “qualified
entities” would have the opportunity to submit a “bona fide” offer
to buy the property at the “fair market value of the property’s
highest and best use” and maintain below-market rents. (See
3
Gov. Code, §§ 65863.10, subds. (b), (c), 65863.11, subd. (k).) The
prior owner gave notice in 2016, and in October 2017 reset the
rents to market rates, after which plaintiff bought the property in
June 2018.
In July 2018, counsel for the tenant association alleged the
notice by the prior owner did not conform to state law. Rather
than dispute the claim, plaintiff reimbursed the tenants for the
additional rent they had paid and reduced the rents back to the
restricted affordability levels. At the same time, plaintiff
delivered new notices of its intent to set rents to market rates in
one year, effective November 1, 2019.
Plaintiff also gave the required notice to the tenant
association of the right of qualified entities to make a bona fide
offer to purchase the property. The association made an offer in
April 2019 that plaintiff rejected on the ground the association
was not qualified and the offer was not bona fide. On
December 2, 2019, the tenant association filed a lawsuit against
plaintiff to enforce the statutory right “to attempt, in good faith,
to purchase the [property] and allow its tenant members to avoid
rent increases imposed by Landlord . . . .”
2. Events in November and December 2019
During the two months after the rent increases became
effective on November 1, 2019, defendant and others filed
complaints about the rent increases with the Los Angeles
Housing + Community Investment Department (Housing
Department) and with the Housing Rights Center, a nonprofit
organization that (among other things) administered an
Emergency Rental Relief Program for the City of Los Angeles.
Under the latter program, the city issued checks to plaintiff for
the difference between the old rental rates and the rates effective
4
November 1, 2019, for defendant and other tenants who applied.
This was only for the two-month period before January 1, 2020,
when a statewide cap on rent increases (the Tenant Protection
Act) was to (and did) go into effect.
The new state law limited the amount by which an owner
could increase rent, on or after March 15, 2019, to no more than
5 percent plus the percentage change in the cost of living, or
10 percent, whichever was lower, for a 12-month period.
However, this provision did not apply to “initial unassisted rental
rates,” which are the initial market rates that an owner may
charge when affordability rental restrictions expire (such as the
30-year restrictions in this case). Thus, a newly established
market rate set after March 15, 2019, was allowed under the
Tenant Protection Act, and would be subject to the statute’s
limitation on further increases after one year.
During November 2019, plaintiff’s counsel received an
inquiry from a deputy city attorney in the housing division about
the rent increases. The city’s inquiry was generated by tenant
complaints, which suggested that the increases were not
authorized under the new state law. Plaintiff’s counsel believed
the tenants had suggested the rates had already been raised in
2017. Plaintiff’s counsel explained to the city that plaintiff had
rescinded the 2017 rent increases (in response to the tenant
association’s July 2018 demand letter), reset the rates to the
prior restricted rates, refunded the increased rents that had been
collected, and sent new one-year notices. After those discussions,
neither the city attorney’s office nor the Housing Department
took any further action.
Plaintiff’s counsel also received a separate inquiry from
Leona Rollins, director of investigations at the Housing Rights
5
Center, who initially asserted that under the new state law, the
tenants’ rents were to be rolled back to their March 2019 levels.
Plaintiff’s counsel explained to her, as they had to the city
attorney, that the November 1, 2019 rates were the “initial
unassisted rental rates following the termination of the
affordability covenants,” as allowed by the new state law, and the
new law did not require the rents to roll back on January 1, 2020.
On November 21, 2019, Ms. Rollins responded with an e-mail
stating “Yes, that is correct. We are planning to relay this
information to the residents, however, the residents who are
members of the [tenant association] are already in possession of
email and written communication from your office confirming
that their current rental rates will not roll back to the rental
amounts of March 15, 2019.” The Housing Rights Center took no
further action.
3. The Unlawful Detainer Litigation
On January 1, 2020, defendant and 20 other tenants
tendered only partial rent instead of the full amount. The
property director, Javier Lazo, returned their rent checks, stating
that the management’s policy was to accept only checks in the
full amount of the rent that was due.
These 21 tenants did not pay the rent due, and plaintiff
filed unlawful detainer complaints against defendant and at least
one other tenant on or around January 14 or 15, 2020. (The
record does not disclose the filing dates of the 19 other actions,
but the complaint alleged the 21 actions were filed
“immediately.”) These were based on a three-day notice to pay
rent or quit which, in defendant’s case, was served by posting a
copy on the premises and mailing it on January 8, 2020.
6
As is recounted in plaintiff’s complaint, after the
21 unlawful detainer actions were filed, the “COVID-19 pandemic
then hit in March 2020,” and because of court rules during the
emergency, plaintiff “was unable to evict the breaching parties or
mitigate its damages for two-and-a-half years.”
In April 2021, the trial court found the 21 unlawful
detainer actions were related. In May 2021, plaintiff moved for
summary adjudication of the tenants’ affirmative defense that
“the rent was increased in excess of what is allowable under the
Tenant Protection Act.” The parties stipulated that the motion in
the lead case would apply to all related cases in the action.
On September 8, 2021, the court (Judge Monica Bachner)
granted plaintiff’s motion. The court ruled that plaintiff’s
evidence established that the property was not subject to the
Tenant Protection Act’s limits, and the landlord “was entitled to
establish the initial unassisted rental rate for units in the
property.”
In 2022, plaintiff either prevailed in or negotiated
stipulated judgments and settlements of all the unlawful
detainer cases, except defendant’s. Plaintiff and defendant
engaged in settlement discussions, and defendant vacated her
unit on June 30, 2022, but no settlement was ever entered.
Defendant claims the parties settled her case at a mandatory
settlement conference on April 8, 2022, but on September 13,
2022, the trial court (Judge Bachner) denied defendant’s motion
to enforce the settlement she claims was made.
On September 15, 2022, plaintiff voluntarily dismissed the
unlawful detainer action against defendant.
7
4. Plaintiff’s Complaint
Two months later, on November 21, 2022, plaintiff filed this
lawsuit against defendant and the tenant association, alleging
causes of action for breach of contract (against defendant),
intentional interference with contractual relations (against both),
and violation of the unfair competition law (UCL; Bus. & Prof.
Code, § 17200 et seq.) (against both). The tenant association was
dismissed in January 2023 as part of the settlement of its
December 2019 lawsuit to enforce its claimed right to purchase
the property. (The settlement provided “no monetary payment
whatsoever by either Plaintiff or Defendant.”)
Plaintiff’s complaint alleged that defendant registered the
tenant association with the state and “used it as a vehicle to
protest and intentionally hamper Plaintiff’s lawful rent raises.”
In January 2020, defendant interfered in plaintiff’s contractual
relationships “by encouraging tenants to withhold rent payments
to Plaintiff in order to exert leverage over Plaintiff in furtherance
of [her] scheme.” Because of COVID and anti-eviction laws
implemented in March 2020, plaintiff was unable to evict
tenants, who “lived rent-free in violation of their leases.”
Meanwhile, plaintiff had to incur all the costs of ownership, and
was prevented from carrying out its business plans for the
property, including full renovation of units to achieve higher
rents. Plaintiff’s inability to recover possession during the
unlawful detainer actions “precluded Plaintiff from securing long-
term fixed rate re-financing during a period of historically low
interest rates,” forcing plaintiff to incur “dramatically increased
expenditures to complete the same renovations in today’s much
higher interest rate environment.” Ultimately, plaintiff was able
to collect only a fraction of the back rent it was owed.
8
The complaint further alleged that defendant, after she was
no longer a resident, “continue[d] to interfere in Plaintiff’s
contractual relationships by contacting current tenants at the
Property and urging them to breach their agreements and stop
paying rent. In the process, she is also maliciously spreading lies
about Plaintiff and the Property. [Defendant] is telling current
residents that Plaintiff is selling the property, that Plaintiff is not
making repairs to the property, that residents should stop paying
their rent, and that residents have to join [the tenant association]
if they want to find out more information,” upsetting current
tenants and damaging plaintiff’s relationship with them.
The complaint alleges plaintiff, in addition to delivering the
October 2018 notices of rent increases to become effective in
November 2019, “attempted in good faith to engage with tenants
to ensure that genuinely low-income residents could continue to
afford to live in the Property” after the rent restrictions
terminated, but defendant blocked those efforts and did not share
plaintiff’s overtures with the other tenants. The complaint
alleged the tenant association was a “sham entity” defendant
used “to improperly enrich herself,” including paying herself
consulting fees for work she had already performed voluntarily.
Defendant “urged residents . . . not to respond to Plaintiff’s
communications”; and the tenants followed her advice, “never
responded to Plaintiff, and left Plaintiff unable to reach any sort
of agreement with low-income residents in the affordable units
for ongoing rent abatements.” Defendant “then lobbied tenants
at the Property to stop paying rent entirely.”
Plaintiff recovered about half of defendant’s unpaid rent
(paid by a city housing program), but defendant “still owes
Plaintiff over $40,000 in unpaid rent from January 2020 through
9
2022, in addition to legal costs and other associated damages.”
Plaintiff sought to recover the remaining balances of unpaid rent
that defendant and the tenants withheld at defendant’s direction;
interest and penalties; additional business expenses resulting
from defendant’s intentional interference with plaintiff’s
prospective business relations; “damages caused by lack of cash
and hindrance of Plaintiff’s development of Property”; legal costs;
attorney fees and punitive damages.
5. Defendant’s Anti-SLAPP motion
Defendant responded on January 24, 2023, with an anti-
SLAPP motion, asking the trial court to strike the intentional
interference claim and the UCL claim. Defendant denied she
advised other tenants to not pay any rent, but she admitted she
told other tenants that, starting on January 1, 2020, they should
pay only their rental amount as of March 15, 2019, plus
8.3 percent. She contended her statements “occurred in the
context of litigation among plaintiff, [defendant], and the other
tenants against whom plaintiff filed unlawful detainer actions”;
the anti-SLAPP statute protects communications preparatory to
or in anticipation of the bringing of an action; and her statements
were “ ‘in connection with’ an issue under consideration or
review” by a judicial body. Defendant also contended her
statements were protected because they concerned tenants’ rights
that were matters of public interest.
In support of her motion, defendant submitted her own
declaration, including as an exhibit a November 8, 2019 letter to
plaintiff’s counsel from Ms. Rollins, regarding the Housing Rights
Center’s assistance to several of the tenants (including
defendant) in paying their increased rental payments for
November and December 2019. Defendant also requested
10
judicial notice of the tenant association’s December 2, 2019
complaint seeking to enforce the statutory right of a qualified
entity to attempt in good faith to purchase the property;
plaintiff’s unlawful detainer complaint against her and her June
2022 motion to enter judgment on the claimed settlement of that
action (which was denied); and the June 16, 2022 complaint in
the toxic tort litigation that defendant and other tenants filed
against plaintiff after they discovered, on or about September 21,
2021, their alleged exposure to toxic compounds on the property.
Defendant’s declaration recited various background events
already described. Defendant quoted from the November 8, 2019
letter from Ms. Rollins, which explained to plaintiff’s counsel the
program under which the Housing Rights Center was assisting
several of the tenants with their increased rental payments for
November and December 2019. The letter was written almost
two weeks before Ms. Rollins corresponded with plaintiff’s
counsel, acknowledging that the November 1, 2019 rates were
“initial unassisted rental rates following the termination of the
affordability covenants,” as allowed by the new state law, and
that the new law did not require the rents to roll back on January
1, 2020. In the earlier letter which preceded her communications
with plaintiff’s counsel, Ms. Rollins stated that housing providers
were required to accept third party rent payments such as those
made by the Housing Rights Center, and that those tenants were
“also protected” under the Tenant Protection Act as of January 1,
2020, under which “the monthly rental amount for each unit rolls
back to the monthly rental amount of March 15, 2019.”
Defendant declared that: “After consulting with Leona
Rollins of the Housing Rights Center, I was persuaded that these
rent increases were unlawful. Based on the information that I
11
received from the Housing Rights Center, I informed the other
tenants that if they chose to resist the rent hikes, starting on
January 1, 2020, they should pay their rental amount as of
March 15, 2019 (stipulated to by the TPA as their base rent), plus
8.3%. I never advised other tenants at the Santa Fe Art Colony
to not pay rent.”
Defendant also declared that “I do not owe plaintiff any
back rent. The rent that plaintiff sought in the unlawful detainer
action and is attempting to collect pursuant to its first cause of
action for breach of contract is in excess of the 8.3% rent increase
allowed pursuant to the Tenant Protection Act.” (This statement
conflicts with the court ruling to the contrary in September
2021.)
6. Plaintiff’s Opposition
Plaintiff’s opposition contended defendant failed to show
her advice to other tenants to withhold rent was protected
litigation activity for various reasons, including that plaintiff
filed the unlawful detainer actions only after defendant told other
tenants to withhold rent, and after the tenants “in fact halt[ed]
their rent payments.” Further, defendant’s communications that
caused the tenants to breach their leases by withholding rent
were not made in furtherance of the toxic tort litigation or the
tenant association’s purchase litigation, nor did they concern
issues of public interest.
Plaintiff supported its opposition with declarations from
plaintiff’s counsel Amy Forbes (the Forbes declaration) and from
Mr. Lazo and Rosie Casas, as well as a request for judicial notice
of multiple documents.
The Forbes declaration recounted background facts that are
not in dispute and also described various attempts by plaintiff in
12
July 2018 and later to explore options with counsel for the tenant
association (then the UCI Law Clinic) to create long-term
affordability for some of the units. The Forbes declaration also
described the events of November and December 2019 that we
have recounted in part 2, ante, including counsel’s showing to the
city attorney, the Housing Department, and the Housing Rights
Center that plaintiff’s rental increases were legal.
Mr. Lazo was plaintiff’s property director. His declaration
stated that “[o]ne day in January 2020,” he overheard defendant
tell a group of tenants “that they should all stop paying their rent
entirely.” Mr. Lazo stated that “two of the tenants in th[e]
group—who I knew were then-current on their rent—appeared
hesitant and began to push back on [defendant’s] advice by
pointing out that it could be risky,” and defendant “tried to
convince them otherwise.” Mr. Lazo stated he then “intervened
and told [defendant] that whatever issues she may have with the
condition of the property, the landlord, or the rent raises, she
cannot go around telling tenants to withhold their rent.” He also
told the group that if any of them needed rental assistance, he
could help them work with upper management to see if an
agreement could be reached, “but I reiterated that they cannot
simply withhold rent until they get approved.” Defendant “told
[Mr. Lazo he] didn’t know what [he] was talking about.”
Ms. Casas was “responsible for overseeing all aspects of
property management” at plaintiff’s property. Her declaration
stated that she learned in mid-January that 21 tenants had
attempted to pay only part of the rent due on January 1, 2020,
and when the policy of not accepting partial payments was
explained to them, “they refused to pay the full amount due.”
Ms. Casas stated that “[a]round that time, [she] also learned”
13
that Mr. Lazo had overheard defendant telling the other tenants
“to stop paying their rent all together.” Ms. Casas also described
the amounts of rent withheld by the tenants, the amounts
recovered from them, amounts not yet recovered, and legal costs
incurred in connection with the unlawful detainer actions.
Defendant filed a reply to plaintiff’s opposition, and the
following day, May 9, 2023, plaintiff dismissed its UCL claim.
7. The Trial Court’s Ruling
On September 5, 2023, the trial court granted defendant’s
motion to strike the intentional interference and UCL claims.
(Oddly, defendant argues plaintiff waived any argument on
appeal regarding the UCL claim. We have no idea why
defendant made that peculiar contention, since plaintiff
voluntarily dismissed its UCL claim and appeals only the grant
of the anti-SLAPP motion on the cause of action for intentional
interference with contract.)
The court found the complaint was “based on alleged
statements that occurred in the context of litigation between
Plaintiff, [defendant], and other tenants against whom Plaintiff
filed unlawful detainer actions.” The claims against defendant
were “based on [defendant] communicating with other tenants
about enforcing their rights under the Tenant Protection Act; the
presence of toxic chemicals at the Property and Plaintiff’s failure
to remediate the toxic chemicals, which is the subject matter of
[the June 2022 toxic tort action]; and [defendant’s]
communications [on October 31, 2021,] with another tenant about
the possibility of Plaintiff selling the Property, and [the tenant
association’s] right to buy the Property at its market value in [the
tenant association’s right to purchase lawsuit].”
14
As for plaintiff’s likelihood of success, the court found
plaintiff submitted admissible evidence of all the elements of an
intentional interference claim: valid leases with the tenants;
defendant’s knowledge of those leases; “admissible evidence of
[defendant’s] intent to commit a wrongful act” (the Lazo
affidavit); evidence the tenants withheld rent and never paid rent
for over two years; and evidence plaintiff suffered economic harm.
But the court found defendant’s advice to tenants to withhold
rent was privileged “because litigation was imminent when the
dispute arose concerning the amount of rent that Plaintiff could
charge tenants.”
The court continued: “Further, [defendant’s] alleged
comments to other tenants [in October 2021 and after she left in
June 2022] that Plaintiff was not maintaining the property were
in furtherance of [the right to purchase lawsuit and the toxic tort
lawsuit], as [defendant] is a plaintiff in [the toxic tort action],
which arose from [defendant’s] petitioning activity at issue in the
instant case,” and “[a]s such, the litigation privilege applies to
[defendant’s] alleged advice to tenants.”
In sum, the court conflated all the disparate lawsuits to
which plaintiff and defendant were parties as if they were all one
and the same, despite the completely different and inconsistent
allegations, different alleged harms and defenses, and disparate
time frames involved in the unrelated lawsuits.
The trial court later awarded defendant $61,360 in
attorney fees.
Plaintiff filed timely notices of appeal from the trial court’s
orders.
15
DISCUSSION
1. The Law
A defendant may bring a special motion to strike any cause
of action “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 . . . .” (§ 425.16, subd. (b)(1).) Acts in furtherance of
free speech rights in connection with a public issue include, as
relevant to this appeal, statements “made before a . . . judicial
proceeding” or “made in connection with an issue under
consideration or review by a . . . judicial body” (id., subds. (e)(1) &
(2)); and “any other conduct” in furtherance of rights of petition or
free speech “in connection with a public issue or an issue of public
interest” (id., subd. (e)(4)).
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. The moving defendant must
establish the challenged allegations or claims arise from the
defendant’s protected activity. If the defendant does so, “ ‘the
plaintiff must then demonstrate its claims have at least “minimal
merit.” ’ ” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 884.) “ ‘[C]laims with the requisite minimal merit may
proceed.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 385.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. Prong 1: The Claims Do Not Arise from Protected
Activity.
Step one of the anti-SLAPP analysis requires us to decide
whether defendant as the moving party has shown the
intentional interference claim arises from her protected speech or
petitioning activity. (§ 425.16, subd. (b)(1); Castleman v. Sagaser
16
(2013) 216 Cal.App.4th 481, 490.) “A claim arises from protected
activity when that activity underlies or forms the basis for the
claim.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1062.) We review the parties’ pleadings,
declarations, and other supporting documents at this stage of the
analysis “only ‘to determine what conduct is actually being
challenged, not to determine whether the conduct is actionable.’ ”
(Castleman, at p. 491.)
We conclude plaintiff’s intentional interference claim does
not arise from any activity protected by the anti-SLAPP statute.
The communications that give rise to plaintiff’s intentional
interference claim are defendant’s January 2020 statements to
20 other tenants urging them to stop paying rent. The
complaint’s allegations that defendant “continue[s] to interfere in
Plaintiff’s business affairs” by telling “at least one current tenant
. . . that Plaintiff will not conduct repairs” and “is planning to
sell,” and that “the tenants should stop paying their rent” are not
the basis for its intentional interference claim (and cannot be,
because no actual breach or disruption of any other lease
occurred or is alleged as a consequence of defendant’s later
interference after she vacated her unit).
Both defendant and the trial court conflated these later
communications (in October 2021 and after June 2022) with
defendant’s January 2020 statements advising tenants to
withhold their rent payments. As plaintiff’s counsel told the trial
court, “this tortious interference claim is about one thing, the
January 2020 statement.” The later statements do not form the
basis of the interference claim and thus there is no occasion to
discuss them in our analysis.
17
Section 425.16, subdivision (e)(1) protects “any written or
oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law.” (Ibid.) Subdivision (e)(2) protects “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.”
(§ 425.16, subd. (e)(2).) The statements defendant made to
induce other tenants to withhold their rent payments were not
made in a judicial proceeding. They were not made in connection
with any issue “under consideration or review” by a judicial body.
(Ibid.) They were not made in furtherance of defendant’s
objectives in any pending or imminent litigation. And they were
not “other conduct” in furtherance of the exercise of free speech
rights in connection with an issue of public interest.
a. Defendant’s statements were not protected,
prelitigation communications.
The trial court held that defendant’s prelitigation
statements were in connection with “an issue under consideration
or review” in the tenant association’s then-pending right to
purchase case, and in the toxic tort case defendant and other
tenants brought more than two years later. This was erroneous
as a matter of law.
As plaintiff points out, the toxic tort litigation “was not
contemplated, imminent, or even knowable [in] late 2019 and
January 2020,” when defendant urged tenants to stop paying
rent. The complaint alleges the tenant-plaintiffs did not discover
their alleged exposure to toxic compounds until September 2021.
The toxic tort case had nothing to do with the amount of rent that
was due or tenants’ ability to pay partial rent or no rent at all.
18
The tenant association’s right to purchase case was
pending when defendant told other tenants to withhold rent in
2019 and 2020. But that case had nothing to do with the amount
of rent that was due either. That action involved only whether
the tenant association’s offer to purchase the property was bona
fide and therefore obligated plaintiff to negotiate a purchase price
in accordance with the statute. Significantly, the tenant
association only had a right to negotiate with plaintiff to buy the
property if plaintiff lawfully exercised its right to raise rents to
market rates—which, of course, the tenants disputed in their
unlawful detainer cases. The mere existence of another lawsuit
involving the same parties does not immunize statements or
conduct unrelated to the issues in that lawsuit. (Cf. Episcopal
Church Cases (2009) 45 Cal.4th 467, 478 [“The additional fact
that protected activity may lurk in the background—and may
explain why the rift between the parties arose in the first place—
does not transform a [nonprotected] property dispute into a
SLAPP suit.”].)
That brings us to the unlawful detainer actions that were
the result of defendant telling other tenants (in contrast to the
premise of the tenant association’s right to purchase case) that
plaintiff had not lawfully raised rents to market rates. The trial
court stated that the intentional interference claims against
defendant were “based on [defendant] communicating with other
tenants about enforcing their rights under the Tenant Protection
Act” (as well as about the other two lawsuits just discussed). The
court’s conclusion as to the unlawful detainer cases is also
erroneous as a matter of law.
The relationship between the anti-SLAPP statute and the
litigation privilege is described in Flatley v. Mauro (2006)
19
39 Cal.4th 299, 322-324. Courts “have looked to the litigation
privilege as an aid in construing the scope of section 425.16,
subdivision (e)(1) and (2) with respect to the first step of the two-
step anti-SLAPP inquiry—that is, by examining the scope of the
litigation privilege to determine whether a given communication
falls within the ambit of subdivision (e)(1) and (2).” (Id. at
pp. 322-323.)
The litigation privilege is codified in Civil Code section 47,
subdivision (b). “The usual formulation is that the privilege
applies to any communication (1) made in judicial or quasi-
judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that have some connection or logical relation to the action.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
Defendant was not a party to any of the 20 unlawful
detainer actions against other tenants, so defendant had no
privilege in connection with those actions to tell other tenants to
stop paying rent. Nothing about defendant advising other
tenants to breach their leases was in furtherance of defendant’s
own right of resort to the courts for assistance in resolving her
own dispute with plaintiff. No litigation-related interest of
defendant’s was served by telling other tenants to breach their
leases in solidarity with her. Precipitating eviction litigation
against other tenants by urging them to withhold their rent
undermines the policy reasons for the litigation privilege. (See
Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 [“The
litigation privilege exists so that persons who have been harmed
or have other grievances calling for redress through the judicial
processes can and will use the courts, rather than self-help, to
obtain relief.”]; see ibid. [for litigation privilege to apply,
20
statement “must function as a necessary or useful step in the
litigation process and must serve its purposes. This is a very
different thing from saying that the communication’s content
need only be related in some way to the subject matter of the
litigation.”].)
Defendant argues her statements urging tenants to
withhold rent were consistent with the policy that allows tenants
to do so when landlords violate the implied warranty of
habitability, citing Green v. Superior Court (1974) 10 Cal.3d 616
(breach of the implied warranty of habitability may be raised as a
defense in an unlawful detainer action). Green does not help
defendant, who produced no evidence whatever of habitability
issues.
Then defendant contends she “reasonably believed, based
on advice from counsel who represented her and the other
tenants in the unlawful detainer actions, that the tenants owed
only their 2019 rents plus 8.3%.” There is no evidence of this
either. The evidence defendant cites is paragraph 13 of her
declaration (quoted at pp. 11-12, ante), about information she
received from the Housing Rights Center. This is not evidence
(and there is no evidence) that Ms. Rollins “represented her and
the other tenants in the unlawful detainer actions” (or even that
Ms. Rollins is an attorney). There is no evidence Ms. Rollins or
any counsel advised defendant to withhold rent. And there is
evidence that as of November 21, 2019, Ms. Rollins herself agreed
that plaintiff’s rent increases were permitted under the Tenant
Protection Act and that she was planning to convey that
information to the residents.
In short, the contention in the respondent’s brief—that
defendant “relay[ed] information that she obtained from
21
attorneys who represented the other tenants” in furtherance of
the tenants’ right to petition the court—finds no support in the
evidence or the law. The anti-SLAPP statute does not protect
prelitigation statements made to encourage third parties to
breach their contracts.
We do not base our conclusion on plaintiff’s theory that the
unlawful detainer actions against defendant and the other
20 tenants were not imminent when defendant told a group of
tenants to stop paying rent. As recounted above, defendant
testified in her declaration that she told other tenants to pay
partial rent on January 1, 2020, but denied later telling them to
stop paying rent. Plaintiff’s onsite property director, Mr. Lazo,
and plaintiff’s portfolio property manager, Ms. Casas, both
testified—consistently with defendant’s testimony—that
21 tenants tendered only partial rent payments on January 1,
2020, which plaintiff did not accept. Plaintiff filed unlawful
detainer complaints against defendant and at least one other
tenant on or around January 14 or 15, 2020, presumably because
they tendered only partial rent on January 1, 2020. The record
does not include evidence of when the unlawful detainer actions
were filed against the other 19 tenants. (The complaint alleges
the 21 tenants stopped paying rent in January 2020 and that
plaintiff “immediately” filed actions against the 21 tenants.)
Both Ms. Casas and Mr. Lazo testified that on an
unspecified date in January 2020, Mr. Lazo overheard defendant
telling a group of other tenants to stop paying their rent,
presumably beginning February 1, 2020. But there is no record
evidence that plaintiff filed unlawful detainer actions because
tenants stopped paying rent on defendant’s advice beginning
February 1, 2020. Thus, we do not find on this record the
22
unlawful detainer cases were not imminent or pending when
defendant made her statements in January 2020 that form the
basis for the intentional interference claim.
We find the anti-SLAPP statute does not protect
defendant’s statements irrespective of whether the unlawful
detainer actions were imminent or pending when defendant told
tenants to stop paying rent. Defendant’s statements were not
protected because, as we have explained, they were not made in a
judicial proceeding or in connection with any issue under
consideration in a judicial proceeding, and defendant had no
litigation-related interest in the unlawful detainer actions
against other tenants.
b. Defendant’s statements were not made in
connection with a public issue or an issue of
public interest.
Defendant contends her communications urging tenants to
withhold rent “clearly contributed to a matter of public interest”
and were therefore protected under section 425.16, subdivision
(e)(4). That provision is known as the “catchall” provision, and it
protects “any other conduct” in furtherance of the exercise of free
speech rights “in connection with a public issue or an issue of
public interest.” (Ibid.) It does not apply here.
The relevant analysis appears in FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn), which provides
direction on how a court should analyze whether communications
qualify for anti-SLAPP protection under the catchall provision.
We are required to consider the content and the context of a
statement. (Id. at p. 149.) We first look to the content of the
speech by asking what public issue or issue of public interest is
implicated by the speech in question. (Ibid.) And then we
23
consider “what functional relationship exists between the speech
and the public conversation about some matter of public
interest.” (Id. at pp. 149-150.) “[W]e examine whether a
defendant—through public or private speech or conduct—
participated in, or furthered, the discourse that makes an issue
one of public interest.” (Id. at p. 151.) “[A] statement is made ‘in
connection with’ a public issue when it contributes to—that is,
‘participat[es]’ in or furthers—some public conversation on the
issue.” (Ibid.)
Defendant identifies the public issue implicated by her
conduct as “the availability of adequately maintained, affordable
housing.” Assuming that satisfies the first (content) step of the
FilmOn analysis, we are required to consider the second
(functional relationship) step. Defendant’s communications did
not satisfy FilmOn’s functional relationship test. (See FilmOn,
supra, 7 Cal.5th at p. 150 [“ ‘[I]t is not enough that the statement
refer to a subject of widespread public interest; the statement
must in some manner itself contribute to the public debate’ ”].)
Defendant did not participate in or further any public
conversation on the issue of affordable housing. Indeed,
defendant’s one-sentence argument on this point is that her
actions “raised the profile of habitability and affordability issues
to such a degree that both issues resulted in litigation concerning
these issues,” citing the tenant association’s right to purchase
action and her toxic tort action. As we have already seen, those
lawsuits had nothing to do with defendant’s statements in 2020
urging 20 other tenants to withhold rent. Defendant’s
statements were “too tenuously tethered to the issues of public
interest they implicate, and too remotely connected to the public
24
conversation about those issues, to merit protection under the
catchall provision.” (FilmOn, supra, 7 Cal.5th at p. 140.)
3. Conclusion
Having found no protected activity, we need not address
whether plaintiff established the requisite minimal merit of its
claim, and we necessarily reverse the trial court’s order awarding
defendant attorney fees.
DISPOSITION
The trial court’s orders granting defendant’s anti-SLAPP
motion and granting defendant’s motion for attorney fees are
reversed. Appellant shall recover its costs on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
25