Opinion

Art Colony Property v. Tidwell CA2/8

Court
California Court of Appeal
Filed
Nov 15, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 33.0%

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

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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.

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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

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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

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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.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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