Date: 09-26-2019

Case Style: Cinthya Olivares v. Rolando Pineda

Case Number: A154205

Judge: Fujisaki, J.

Court: California Court of Appeals First Appellate District, Division Three on appeal from the Superior Court, County of Contra Costa

Plaintiff's Attorney: Nick T. Reckas and Richard J. Alexander

Defendant's Attorney: Kyle Montes De Oca, Russell Samuel Roeca and Benjamin Gross Shatz

Description: Super. Ct. No. CIVMSC 17-02059)
Eric Meyers and Westpro Realty, Inc. (the attorney defendants) appeal from an
order denying their special motion to strike under the anti-SLAPP law. (Code Civ. Proc.,
§ 425.16.)1
They contend the claims asserted against them for wrongful eviction, misuse
of a security deposit (Civ. Code, § 1950.5, subd. (b)(1)), breach of the covenant of quiet
enjoyment, and malicious prosecution all arose out of protected activity because they
were based on acts relating to the prosecution of an unlawful detainer action. The
attorney defendants further contend the plaintiffs failed to demonstrate a probability of
prevailing on the merits on any of these claims.
We conclude the trial court properly denied the motion. The attorney defendants
did not satisfy the first prong of the anti-SLAPP statute for the claim under Civil Code
section 1950.5, subdivision (b)(1), because the allegation that they misused plaintiffs’
security deposit did not arise out of protected activity. Additionally, the plaintiffs
1 All further statutory references are to this code unless otherwise indicated.
2
satisfied their burden on the second prong of the anti-SLAPP statute by showing minimal
merit on their remaining claims. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We take the following facts from the operative first amended complaint and the
parties’ evidence on the anti-SLAPP motion.
In December 2015, Cinthya Olivares, Martin Rizo, and Allen, Jonathan and
Fabian Sanchez (collectively plaintiffs) entered into an oral agreement with Rolando
Pineda to lease a home that he owned. The tenancy was month-to-month, and the
monthly rent was $2,000. At the start of the tenancy, plaintiffs paid Pineda a $2,000
security deposit.
A. The Unlawful Detainer Action
The following events all occurred in 2017. In July, Pineda retained the attorney
defendants to begin eviction proceedings against plaintiffs. On July 24, plaintiffs were
served with a three-day notice to pay rent or quit, claiming $2,750 in rent was due ($750
for June 2017 and $2,000 for July 2017), and threatening legal action if plaintiffs did not
timely pay or give up possession of the premises (the July notice). According to
plaintiffs, however, there was no rent past due, as Pineda had overcharged them $3,350
during their tenancy. Nevertheless, in order to avoid eviction, Olivares tendered a
cashier’s check on July 27, in the amount of $2,000, but the tender was rejected as
insufficient.
On July 28, Pineda and the attorney defendants (collectively, defendants) filed an
unlawful detainer action against Olivares. During the course of discovery, Pineda
produced a rent ledger showing that as of July 1, the amount of rent past due was actually
$1,750, not $2,750.2
The rent ledger also showed that on July 1, plaintiffs’ $2,000
security deposit had been applied to their payment of rent without their knowledge or
consent.
2 Pineda testified that the rent ledger was created during the unlawful detainer
litigation by him and the attorney defendants.
3
During his deposition in August, Pineda authenticated the rent ledger and testified
that every entry was true and correct. Plaintiffs’ counsel, Nick Reckas, then introduced
into evidence five checks totaling $6,800 that appeared to have been excluded from the
rent ledger. Pineda acknowledged that the five payments had been deposited to his bank
account.
Pineda was also questioned about his efforts to sell the leased premises. He
testified that he put the property up for sale in June or July and entered into a written
contract with a third party who wanted the building to be delivered vacant. The contract
was eventually cancelled, however, because the buyer “wanted a date when the eviction
was going to be over for vacating the house,” but Pineda “couldn’t give them that date.”
Defendants continued to prosecute the unlawful detainer for approximately two
more months until October 2, when they voluntarily dismissed the action without
prejudice. That same day, defendants served plaintiffs with a new three-day notice
demanding $9,2503
in unpaid rent and threatening legal action if plaintiffs did not timely
pay or quit possession (the October notice). The October notice attached a revised rent
ledger and copies of checks for the payments that had been made.
On October 5, Reckas wrote to Meyers and offered to “accept service of the
summons and complaint” on his clients’ behalf. Meyers responded the next day, saying
“No suit has yet been filed,” and asking if plaintiffs disputed the revised amount
demanded in the October notice. Meyers requested that Reckas send “any additional
payments they have made and we can adjust the balance and perhaps settle this amicably,
without the need to evict your clients.”
B. Plaintiffs’ Action
On October 25, plaintiffs filed the instant action against defendants. Reckas then
wrote to Meyers and asked if he would accept service of the complaint on Pineda’s behalf
even though Reckas assumed Meyers would not be representing Pineda because of “the
inherent conflict of interest” due to the attorney defendants’ inclusion in the action. In
3 According to the October notice, $3,250 was due for the period of June 18 to July
17, and $2,000 was due for each of three month-long rental periods thereafter.
4
response, Meyers wrote, “I was waiting for a response to my last email to you of Oct. 6,
concerning the latest 3 day notice and payment ledger, hoping to agree upon the amount
of back rent your clients owe. . . . [¶] . . . [¶] Again we ask that you negotiate or mediate
the rent owing and pay my client, then dismiss your action. If you persist in suing us,
you will create a conflict of interest between my client and myself/firm as you point out.”
A few days later, Meyers wrote to Reckas again, making further factual and legal
contentions and stating, “If I do not hear from you by 12:00 noon, tomorrow 11/13/2017,
we will assume that you do not wish to reasonably settle these matters now, and shall
proceed accordingly.”
The matter did not settle. Nor did defendants file an unlawful detainer based on
the October notice.
In late December, plaintiffs filed the operative first amended complaint, which
asserts six causes of action, four of which are at issue here and described below.
In the first cause of action for wrongful eviction, plaintiffs allege that defendants
violated a city rent ordinance by serving the October notice and demanding rent in excess
of the maximum amount allowable. Plaintiffs allege the notice was designed to trick
them into either paying an excessive amount of rent or vacating the premises, and there
was “no good faith contemplation of litigation, and, in fact, Defendants never filed an
unlawful detainer based upon the October 2 Notice prior to it being superseded” by a
subsequent three-day notice.
In the fourth cause of action for violation of Civil Code section 1950.5,
subdivision (b)(1),4 plaintiffs allege that “defendants” violated this statute by applying
plaintiffs’ security deposit towards the payment of rent when they were not actually in
default on rent payments.
4 This statute defines a “security” as any payment, fee, deposit or charge imposed at
the beginning of the tenancy to be used for any purpose, including “[t]he compensation of
a landlord for a tenant’s default in the payment of rent.” (Civ. Code, § 1950.5,
subd. (b)(1).)
5
In the fifth cause of action for breach of the covenant of quiet enjoyment, plaintiffs
incorporate the prior paragraphs of the first amended complaint and allege that “[b]y the
acts and omissions described above,” defendants deprived them of the full and beneficial
use of the leased premises and disturbed their peaceful possession.
Finally, in the sixth cause of action for malicious prosecution, plaintiffs allege that
defendants, maliciously and without probable cause, filed and continued to prosecute the
unlawful detainer action even though they knew that no rent was past due, and that
plaintiffs had been overcharged $3,350 during their tenancy. Plaintiffs allege the
unlawful detainer action terminated in their favor, as defendants voluntarily dismissed it
without prejudice and without payment of any consideration because they knew they
could not prevail.
C. The Anti-SLAPP Motion
The attorney defendants filed a special motion to strike these claims, in which
defendant Pineda joined. They argued the claims arose from protected activity because
they were based on the July 28 unlawful detainer action and were requisite precursors to
it. They further argued plaintiffs could not demonstrate a probability of prevailing on the
merits.
As to the claim for malicious prosecution, defendants argued the voluntary
dismissal of the unlawful detainer was not a termination on the merits in plaintiffs’ favor.
To the contrary, they say, after additional records were obtained from plaintiffs and from
Pineda’s bank, Pineda realized that he had understated the amount of rent owed in the
July notice, which is not fatal to an eviction action. Thus, Pineda elected to dismiss the
action and, on the same day, served plaintiffs with the updated October notice and revised
ledger showing $3,250 owing as of July 1, 2017 (and $9,250 overall). The attorney
defendants argued they had probable cause to file and continue prosecuting the unlawful
detainer because they were entitled to rely on the information provided by their client,
who executed the three-day notices under penalty of perjury, and probable cause was also
shown when Olivares tendered a partial rent payment within the July notice period. In
his supporting declaration, Meyers stated that all relevant times, he believed Pineda’s
6
unlawful detainer claim was factually and legally tenable, and he never had any malicious
intent or ill will towards the plaintiffs.
The remaining claims, defendants argued, were barred as a matter of law by the
litigation privilege.
Plaintiffs’ opposition argued the anti-SLAPP motion should be denied as to the
fourth cause of action under Civil Code section 1950.5, subdivision (b)(1), because the
claim arose out of defendants’ misuse of plaintiffs’ $2,000 security deposit, which was
not protected activity. As to the remaining claims for wrongful eviction, breach of the
covenant of quiet enjoyment, and malicious prosecution, plaintiffs argued there was
sufficient merit to withstand the anti-SLAPP motion.
After a hearing, the trial court denied the motion in its entirety. The court found
that the fourth cause of action under Civil Code section 1950.5, subdivision (b)(1), did
not arise out of protected activity, and that plaintiffs showed a probability of prevailing
on their remaining claims.
The attorney defendants appealed. (§ 904.1, subd. (a)(13).)
DISCUSSION
The anti-SLAPP statute authorizes a special motion to strike claims arising from
any act “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).) Such acts include “any written or oral statement or writing”
made before a “judicial proceeding.” (Id., subd. (e).)
Resolution of an anti-SLAPP motion involves two steps. First, the defendant must
identify the activity each challenged claim rests on and demonstrate that that activity is
protected by the anti-SLAPP statute. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061.) To determine whether a claim arises from
protected activity, courts must consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently form the basis for
liability, and then evaluate whether the defendant has shown any of these actions fall
within the categories of acts protected by the anti-SLAPP statute. (Park, at p. 1063.) If
7
the defendant makes the required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability of success. (Baral v.
Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) We review the trial court’s decision to deny
an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326.)
A. First Prong – Arises Out of Protected Activity
The critical consideration on the first prong is whether the cause of action is based
on the defendant’s protected free speech or petitioning activity. (Feldman v. 1100 Park
Lane Associates (2008) 160 Cal.App.4th 1467, 1477–1478 (Feldman).) “Our focus is on
the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and
injury-producing conduct that provides the foundation for the claims.” (Castleman v.
Sagaser (2013) 216 Cal.App.4th 481, 490–491.) “Allegations of protected activity that
merely provide context, without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)
Plaintiffs do not dispute that the claims for wrongful eviction, malicious
prosecution, and breach of the covenant of quiet enjoyment arise out of protected activity.
(See Feldman, supra, 160 Cal.App.4th at pp. 1479–1480 [prosecution of unlawful
detainer action “indisputably” protected activity under anti-SLAPP law]; Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [communications
preparatory to or in anticipation of action are protected activities under anti-SLAPP
law].)
The debate here centers on the attorney defendants’ argument that the fourth cause
of action under Civil Code section 1950.5, subdivision (b)(1), also arises out of protected
activity because it expressly incorporates the prior allegations of protected activity (i.e.,
service of the three-day notices and prosecution of the unlawful detainer). The attorney
defendants deduce that the fourth cause of action could only arise out of their activities as
litigation counsel, inasmuch as Meyers established in his supporting declaration that he
had no involvement in Pineda’s handling of plaintiffs’ security deposit.
We conclude the fourth cause of action does not arise out of protected activity on
the part of the attorney defendants. The principal thrust of this claim is the application of
8
plaintiffs’ security deposit towards the payment of rent when they were not in default.
Misuse of a security deposit is not an act in furtherance of the attorney defendants’ rights
of free speech or petition, nor is it a communication preparatory to or in anticipation of
litigation. Although the fourth cause of action incorporates all prior paragraphs of the
first amended complaint, the incorporated allegations of protected activity merely provide
context and are not the basis for plaintiffs’ claim for recovery under Civil Code section
1950.5. Thus, such allegations do not support striking the fourth cause of action. (Baral,
supra, 1 Cal.5th at p. 394.)
We reject the attorney defendants’ contention that this cause of action could only
have been based on their litigation activities, as they overlook the allegation that
“defendants,” collectively, misapplied the security deposit. Although plaintiffs submitted
no evidence disputing Meyers’s sworn statement that he had no involvement in the
handling of plaintiffs’ security deposit, plaintiffs were under no obligation to demonstrate
a probability of prevailing on the merits of this claim because the attorney defendants did
not carry their initial burden to show the claim arose out of protected activity. (Baral,
supra, 1 Cal.5th at p. 396.) We conclude the trial court properly denied the motion as to
the fourth cause of action on the first prong of the anti-SLAPP analysis.
B. Second Prong – Probability of Prevailing
Because it is undisputed that the remaining claims for wrongful eviction, breach of
the covenant of quiet enjoyment,5
and malicious prosecution arose out of protected
activity, the burden shifted to plaintiffs to show a probability of prevailing on these
claims. To satisfy their burden, plaintiffs had to demonstrate the challenged claims were
5
In light of our conclusion that the fourth cause of action does not arise out of
protected activity, we conclude the fifth cause of action is a so-called “mixed cause of
action” because it is based on incorporated allegations that include both unprotected
activity (misapplying the security deposit) and protected activity (prosecuting the
unlawful detainer). Because the allegations of protected activity do not merely provide
context, but also support a claim for recovery for breach of the covenant of quiet
enjoyment, this claim arises out of protected activity for purposes of the anti-SLAPP law.
(Baral, supra, 1 Cal.5th at pp. 394–396.)
9
(1) legally sufficient,
6
and (2) supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if their evidence is credited. (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821 (Wilson), superseded on other grounds as stated in
Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547.)
This is a “ ‘summary-judgment-like procedure.’ ” (Baral, supra, 1 Cal.5th at
p. 384.) The pleadings and evidentiary submissions of both parties are considered
(§ 425.16, subd. (b)(2)), and the evidence favorable to plaintiffs is accepted as true.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).) Plaintiffs
need only establish that their claim has “ ‘minimal merit’ ” to avoid being stricken as a
SLAPP. (Ibid.) Although courts may not weigh the credibility or comparative strength
of the evidence, the motion is properly granted if the defendant’s evidence defeats the
plaintiff’s attempt to establish evidentiary support for the claim as a matter of law. (Ibid.)
1. Malicious Prosecution
To establish a claim for malicious prosecution, a plaintiff must plead and prove
that the prior action: (1) was commenced by or at the direction of the defendant and was
pursued to a legal termination in the plaintiff’s favor; (2) was brought without probable
cause; and (3) was initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965–
966 (Zamos).)
a. Favorable Termination
A voluntary dismissal is presumed to be a favorable termination on the merits
unless proved otherwise to a jury because the natural assumption is that one does not
simply abandon a meritorious action. (Sycamore Ridge Apartments LLC v. Naumann
(2007) 157 Cal.App.4th 1385, 1400 (Sycamore Ridge).) When termination is other than
by a judgment on the merits, the court examines the record to see if the disposition
reflects the opinion of the court or the prosecuting party that the action would not
succeed, and if there is a dispute as to the circumstances of the termination, the
6 The attorney defendants did not attack the adequacy of the allegations supporting
any of the challenged causes of action.
10
determination of the reasons underlying the dismissal is a question of fact. ( Id. at
p. 1399.)
A landlord cannot recover in an unlawful detainer based on a three-day notice that
seeks rent in excess of the amount due. (Levitz Furniture Co. v. Wingtip
Communications (2001) 86 Cal.App.4th 1035, 1038.) In support of their contention that
the rent demand in the July notice was excessive, plaintiffs presented a copy of Pineda’s
initial rent ledger showing that the amount of rent outstanding as of July 1, 2017, was
$1,750—$1,000 less than the amount demanded. Plaintiffs also presented evidence that
Pineda failed to credit them for five rent payments totaling $6,800, which permits the
inference that no rent was due as of July 1. Because the action was voluntarily dismissed
after the disclosure of this evidence, plaintiffs made a prima facie showing that the
dismissal reflected the attorney defendants’ opinion that the unlawful detainer action
could not succeed based on the July notice.7
In response, the attorney defendants offer the alternative explanation that the case
was dismissed so that a more accurate three-day notice demanding additional amounts of
unpaid rent could be served. But that explanation merely raises a triable factual dispute
as to the true circumstances of the termination and does not defeat plaintiffs’ prima facie
showing as a matter of law. (Soukup, supra, 39 Cal.4th at p. 291.)
b. Lack of Probable Cause
“An action is deemed to have been pursued without probable cause if it was not
legally tenable when viewed in an objective manner as of the time the action was initiated
or while it was being prosecuted.” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1402.)
“Only those actions that ‘ “any reasonable attorney would agree [are] totally and
7 The attorney defendants interpret the first rent ledger as showing $3,750 in unpaid
rent. They reach this total by “excluding any possible credit for the $2,000 security
deposit,” even though the ledger expressly states that the security deposit was applied on
July 1. In any event, plaintiffs’ evidence that they were not credited for payments
totaling $6,800 was sufficient to raise a triable issue that the unlawful detainer could not
succeed based on the July notice.
11
completely without merit” ’ may form the basis for a malicious prosecution suit.”
(Wilson, supra, 28 Cal.4th at p. 817.)
The tort of malicious prosecution includes the continuing prosecution of an action
found to lack probable cause. (Zamos, supra, 32 Cal.4th at p. 973.) While an attorney is
entitled to rely on information from his or her client for purposes of assessing a claim’s
legal tenability, “[a]n exception to this rule exists where the attorney is on notice of
specific factual mistakes in the client’s version of events.” (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513, overruled in part on other grounds in Zamos, supra, 32
Cal.4th at p. 973.)
Even if we assume the attorney defendants had probable cause to initially file suit
in July based on the information provided by their client, as well as Olivares’s tender of
partial payment within the July notice period, it is undisputed that defendants continued
prosecution of the unlawful detainer action until October 2. In this regard, we conclude
plaintiffs made a prima facie showing that probable cause was lost when the attorney
defendants were made aware, in August, of significant errors in Pineda’s rent ledger,
including the omission of five payments totaling $6,800. Indeed, Pineda acknowledged
at his August deposition that the payments were made to his account. Furthermore, as
plaintiffs point out, the revised rent ledger attached to the October notice appears to
include these same missing payments, lending credence to plaintiffs’ claim that
defendants failed to take these payments into account when initially demanding rent in
the July notice and pursuing the unlawful detainer action up through October 2.
The attorney defendants argue that, in any event, following Pineda’s deposition,
they conducted a further investigation and determined from bank and other unspecified
records that the total amount of rent owing as of July 1 was actually $3,250. In support,
they submit the revised rent ledger and copies of checks for the payments that were made.
The attorney defendants contend they had the right to bring an arguably meritorious
claim based on this evidence, and probable cause was not lacking simply because
plaintiffs had competing evidence. (Wilson, supra, 28 Cal.4th at p. 822.)
12
Given the record, we cannot conclude that the attorney defendants’ evidence
defeated plaintiffs’ prima showing as a matter of law. (Soukup, supra, 39 Cal.4th at
p. 291.) Plaintiffs raised a triable factual issue that the revised ledger was “manipulated”
because it omitted payments that had previously been listed in the first ledger, including a
$2,000 payment dated June 8, 2017. Notably, the attorney defendants did not respond to
plaintiffs’ manipulation argument or attempt to explain the ledger discrepancies.
In sum, the record demonstrates plaintiffs made a prima facie showing that the
attorney defendants continued to prosecute the unlawful detainer action even though they
knew Pineda’s claim was no longer tenable because the demand in the July notice was
excessive and did not credit plaintiffs with $6,800 in rent payments. Moreover, the
attorney defendants’ reliance on the revised ledger did not defeat plaintiffs’ showing as a
matter of law because plaintiffs raised a triable issue that the revised ledger was
manipulated to understate the total amount they paid to Pineda.
c. Malice
The malice element goes to the defendant’s subjective intent in initiating or
continuing the prior action. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th
1135, 1156–1157 (Sierra Club).) It is not limited to actual hostility or ill will and may be
present when proceedings are instituted or maintained primarily for an improper purpose.
(Ibid.)
Evidence tending to show that an attorney did not subjectively believe the action
was tenable is relevant to whether an action was instituted or maintained with malice.
(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881.) Here, the evidence of
manipulation discussed above permits the inference that the attorney defendants
subjectively did not believe the unlawful detainer action was tenable.
Furthermore, plaintiffs raised a triable issue that the action was brought for the
improper purpose of depriving them of the beneficial use of the premises even though
they were not in default on rent. (Sierra Club, supra, 72 Cal.App.4th at p. 1157.)
Pineda’s testimony that he entered into a contract to sell the leased premises to a buyer
who wanted the building vacant, combined with his failure to credit plaintiffs for all
13
payments made, could support an improper purpose theory of malice. The attorney
defendants argue the theory is meritless because the proposed sale was cancelled and
never went forward. But the record does not disclose when the contract was cancelled,
and Pineda’s testimony that the buyer specifically asked for “a date when the eviction
was going to be over” permits the inference that the filing of the unlawful detainer action
was directly related to the proposed deal to deliver the building vacant.
For all of these reasons, we conclude plaintiffs showed at least minimal merit on
their malicious prosecution claim to withstand the anti-SLAPP motion.
2. Litigation Privilege
We now turn to the remaining claims for wrongful eviction and breach of the
covenant of quiet enjoyment, which the attorney defendants contend are barred by the
litigation privilege. The litigation privilege codified in Civil Code section 47,
subdivision (b), extends 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 has some connection or logical relation to the action.
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The litigation privilege is broadly
applied (id. at p. 211) and applies to all torts other than malicious prosecution (Edwards
v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29 (Edwards)).
The challenged claims are based on the October notice. A prelitigation
communications such as this is privileged only when it relates to litigation that is
contemplated in good faith and under serious consideration. (Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) “ ‘No public policy supports
extending a privilege to persons who attempt to profit from hollow threats of litigation.’ ”
(Ibid.) Whether a prelitigation communication relates to litigation that is contemplated in
good faith and under serious consideration is an issue of fact. (Ibid.)
The failure to file a threatened action is one factor supporting a contrary inference
of good faith and serious contemplation of future litigation. (Laffer v. Levinson, Miller,
Jacobs & Phillips (1995) 34 Cal.App.4th 117, 124–125.) Here, no unlawful detainer
action was filed pursuant to the October notice. The attorney defendants argue they were
14
prevented from immediately filing suit because plaintiffs created a conflict of interest
between them and Pineda by naming them as codefendants. But a trier of fact could
reasonably reject this explanation, as several weeks elapsed between the expiration of the
October notice period (October 5) and the filing of the instant action on October 25,
during which an unlawful detainer action could have been filed but was not. This
contrasts with the events of July, when defendants filed the unlawful detainer complaint
the day after the July notice period expired.
Furthermore, a threat to file a lawsuit is insufficient to activate the privilege if it is
merely a negotiating tactic and not a serious proposal made in good faith contemplation
of going to court. (Edwards, supra, 53 Cal.App.4th at p. 35.) When a cause of action
arises from conduct that is a “ ‘necessary prerequisite’ ” to litigation, but that will lead to
litigation only if negotiations fail, then future litigation is merely theoretical rather than
anticipated and the conduct is therefore not protected prelitigation activity. (Bel Air
Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 941.) Here, the evidence permits
the inference that defendants served the October notice merely as a negotiating tactic.
The notice was followed not by litigation, but by several communications in which
Meyers attempted to resolve the matter short of litigation. Even when plaintiffs’ attorney
Reckas responded to the October notice by offering to accept service of the complaint
and summons, Meyers did not take Reckas up on his offer but solicited additional
evidence of payments to adjust the balance of outstanding rent and “perhaps settle this
amicably.” Given the already-disclosed evidence suggesting serious recordkeeping errors
and failure to credit all of plaintiffs’ payments, the attorney defendants’ apparent
hesitation to sue in October 2017 permits the inference that litigation was not genuinely
contemplated at the time.
On this record, plaintiffs sufficiently raised a triable issue of fact as to whether
litigation was contemplated in good faith and under serious consideration to withstand the
defense of the litigation privilege.
15
3. Evidentiary Objections
Finally, the attorney defendants contend the trial court erred in overruling most of
their evidentiary objections. However, they make no attempt to explain how the claimed
evidentiary errors—most of which pertained to inconsequential statements in the
challenged declarations that had no apparent impact on the trial court’s ruling—resulted
in a miscarriage of justice. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446–447;
Evid. Code, § 353, subd. (b).)

Outcome: The order denying the special motion to strike is affirmed. Plaintiffs shall recover their costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments: