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Wallace v McCubbin

Case No. A127287 (CA Dist. 1 Ct. App., Jun. 27, 2011)

Lois McCubbin and Joshua Merck appeal from an order denying their special motion to strike two causes of action from respondents‘ complaint under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) They contend that the acts on which the causes of action are based constitute activity protected by the statute, and the court erred in ruling that those acts were merely incidental to the causes of action. We agree, confirming that the first prong of analysis under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action as respondents urge. McCubbin and Merck further contend that respondents did not demonstrate a probability of prevailing on the merits based on the alleged protected activity. Harmonizing and applying recent precedent, we agree on this point as well and conclude that the motion to strike should have been granted.

I. FACTS AND PROCEDURAL HISTORY



We begin with the facts, as alleged by respondents in their complaint.

A. Background



Victor Wu is the owner of a four-unit apartment building at 369-375 7th Avenue in San Francisco. The building is managed by Victor Wu and his brother, Lawrence Wu. The property is allegedly subject to provisions of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance).

Appellants and respondents were tenants in the building, living in apartments across the hall from each other. Appellants McCubbin and Merck occupied 373 7th Avenue. Respondents Cheryl Wallace and John Owen moved into 375 7th Avenue in January 2004.

Around the time Wallace and Owen signed their lease in late 2003, Wallace obtained a dog named Nemo ―under the prescription of her psychiatrist.‖ Nemo is a ―mixed breed dog certified trained by the San Francisco SPCA.‖
 

 

Judge(s): Henry E. Needham, Jr.
Jurisdiction: California Court of Appeals, First District
Related Categories: Civil Procedure , Communications , Constitutional Law , Property , Torts
 
Trial Court Judge(s)
Peter Busch

 
Court of Appeals Judge(s)
Barbara Jones
Henry Needham, Jr.
Mark Simons

 
Appellant Lawyer(s) Appellant Law Firm(s)
James Kraus Zacks & Utrecht PC
Paul Utrecht Zacks & Utrecht PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
David Rouda The Rouda Law Firm

 

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Click the maroon box above for a formatted PDF of the decision.
have to show that mccubbin and merck were landlords (and wu made the statement as succeed in the lawsuit, only to tie up the defendant`s resources for a sufficient length of prospective sublessee would violate the lease agreement because the lease explicitly history. a. code of civil procedure section 425.16 activity--nothing more than that, and nothing less. (maj. opn., at p. 31.) or merely assisted, exhorted, or motivated the wus to perform them, mccubbin and meritless claim based on protected activity.20 the upshot of the legislative history, therefore, is this: the legislature explicitly across the hall from each other. appellants mccubbin and merck occupied 373 7th to a slapp suit or a slapp cause of action, the essential characteristic of a slapp was directed to the first and thirteenth causes of action, the issue was not the gravamen of merck to be liable based on this threat by victor wu, however, wallace and owen would 37 claim. we believe is better geared to rendering just and efficient results in keeping with the 19 cal.app.4th 658, 672-673 [first prong of anti-slapp analysis met where the allegations wallace and owen seek punitive damages on the ground that defendants` conduct was regard to the tenantability of the dwelling, if the lessor`s actions are retaliatory. we do subdivision (e). putting this together, subdivision (b)(1) of section 425.16 may available. thus the difference between claim and cause of action. if there is no assisted the wus in endeavoring to recover possession of the premises, they still could notice. acts of the defendant that constitute protected activity under the statute, it defeats the also approve of mann in the context of a mixed cause of action, which is, of course, the probability of prevailing on negligent infliction of emotional distress and failed to section 425.16 was enacted to address the problem of slapp suits, i.e., suits that are wallace as to the nature of her disability and her need for a service dog. victor wu told different result. under taus, where a cause of action includes multiple bases of liability, rent ordinance section 37.9 and civil code section 1942.5 prohibit enumerated acts, not unprotected conduct. the mann court resolved that issue as follows: the legislature nature of appellants` and wus` actions prove that they acted in concert and with close were based. the court stated: protected speech is not the gravamen or principal thrust the other cases on which wallace and owen rely are readily distinguishable as based on facts the landlord had any basis to believe were true]; bisno v. douglas emmett exercised any rights under the law. . . . inform our inquiry. first, quite obviously, the legislature wanted to authorize courts to when the legislature enacted section 425.16, it sharpened its focus somewhat by in the rent ordinance. section 37.9 of the rent ordinance provides that [a] landlord concerns, the genesis of the mann rule, and our supreme court`s subsequent teaching in but only those premised on protected activity. prevailing on his claims of protected activity, and only those claims of protected activity, quiet enjoyment, negligence, negligent infliction of emotional distress, intentional summary adjudication motion. (compare 425.16, subd (f) [anti-slapp motion may be matter before us. application of the mann rule to causes of action that were based solely on protected 35 some of these acts clearly constitute protected activity under the anti-slapp 120 cal.app.4th at p. 106.) the court`s concern, however, seems misplaced to us. if the conduct, the statute`s directive that a cause of action is subject to a special motion to prevailing on the cause of action arising entirely from protected activity. in the case of a stricken. if the plaintiff can make that showing, the plaintiff has saved the cause of 821 (mahon).) if the statutory language is unambiguous, there is no need for judicial prepare or serve the three-day notice, or file, serve or prosecute the unlawful detainer arthur j. gallagher & co. (2004) 32 cal.4th 804, 816.) (haight ashbury free clinics, co. v. sheppard, mullin, richter & hampton (2009) 171 cal.app.4th 1617, 1628 the probability of prevailing only as to the four grounds of liability at issue, rather than as acts of the wus, as principals, to mccubbin and merck, as agents. of nemo, and they argue that this threat is not protected by the litigation privilege cal.4th 763, 775 (hughes); mahon v. county of san mateo (2006) 139 cal.app.4th 812, alleged. (italics added.) whether mccubbin and merck performed the acts themselves b. first prong: mccubbin and merck's burden to show protected activity independent activity. these are the challenged activities and the bases for [causes of then came oasis. statute and case law.8 added).) acts: in short, the statutory phrase cause of action . . . arising from` means simply that well. instead, they rely primarily on department of fair employment & housing v. 1105 alta purpose and insulate his baseless attacks on a defendant`s exercise of free speech and history and purpose, and public policy. (mahon, at p. 821.) connection with an ongoing dispute and in anticipation of litigation. (feldman, at mixed cause of action. taus, which also did not deal with a mixed cause of action, would adopting any of these three alternatives as the plain meaning of section 425.16, the majority would think that taus would be the death knell for the rule ventured control, reporting that nemo, incorrectly referred to as an x-large great dane, was a lawsuit or sent notices or threatened even to send a notice, but that the defendants 106.)13 but not another, due to a difference in the elements of the legal theory or the defenses in haight ashbury, the concurring and dissenting opinion asserted that the rule in as a threshold matter, wallace and owen`s argument that the court should look to the court in mann did not cite particular authority for its assumption that defendants harbored ill intent against wallace and owen because of their disability. burden by showing he can prevail on any of the allegations underlying the cause of alleged threats by the property owner`s agent, the service of the notice to quit, and the wallace and owen also argue that mccubbin and merck lack standing to assert 10 notice and refusal to rescind it are protected activities in furtherance of the constitutional finally, the court in mann assumed that the anti-slapp statute could not be subdivision (b)(1) of section 425.16 expressly requires the plaintiff to show a probability based on unprotected activity in a cause of action, or count, could save a plaintiff`s they contend that the acts on which the causes of action are based constitute activity defendant, not to vindicate a legally cognizable right of the plaintiff. [citations.] indeed, analysis and therefore we have no way of knowing whether any of the causes of action at as to impair the defendant`s interest in freedom from unreasonable litigation].) since conspiracy or aiding and abetting, and they scarcely attempt to do so.22 22 action; victor wu perpetrated those acts. there is no evidence that wu, in perpetrating its colloquial sense (the count or legal theory the plaintiff has alleged). the second prong probability of prevailing on at least one of the asserted bases for liability. wallace and owen also alleged that victor wu threatened to evict them because by statutory definition, an act in furtherance of a person`s right of petition or protects reports of child abuse to investigative authorities].) 180, 192.) the purpose is to curb the chilling effect that certain litigation may have on some, but not all alleged wrongful acts supporting a cause of action. and one that other courts have assumed without analysis in anti-slapp cases refers to permitting a defendant to file an anti-slapp motion after the statutory deadline. wrongdoing or activities triggering` the filing of an action that arises out of some other the court of appeal held, inter alia, that the plaintiff failed to demonstrate a also alleged a potentially meritorious claim based on unprotected activity. 9 prevailing as to his attack on the activity the statute was designed to protect--protected stands.` (oasis, supra, 51 cal.4th at p. 820, quoting mann, supra, 120 cal.app.4th at applied to a lawsuit or cause of action that also attacked unprotected activity. granted and the prevailing defendant is entitled to recover his or her attorney fees and his belongings from the apartment and canceling his sublease. finally, wallace and owen`s gestalt theory would permit crafty plaintiffs to skirt a public issue shall be subject to a special motion to strike, unless the court determines to a special motion to strike under section 425.16 if at least one of the underlying acts is 23 merit if it shows a probability of prevailing on any part of its claim. (mann, supra, 120 if a cause of action refers to the allegations based particularly on protected engage in the time-consuming task of determining whether the plaintiff can substantiate the allegations summarized ante were contained in a verified complaint that the slapp statute only if it lacks even minimal merit. (mann, supra, 120 cal.app.4th furthermore, while it is often said that the first prong of the anti-slapp analysis show a probability of prevailing on the merits. we begin with a brief description of the to being stricken, in whole or in part, to the extent it contains meritless assertions of demonstrated a likelihood of prevailing on each of its three causes of action. (oasis, at filed 6/27/11 cause of action alleges: at the time defendants took the actions alleged in paragraphs 1 c. public policy wallace and owen did not comply with the three-day notice. victor wu filed a other acts on which wallace and owen based their thirteenth cause of action mccubbin and merck as agents. their idea, apparently, is that mccubbin and merck for this reason, the legislative history is consistent with the interpretation that 4 actual or threatened eviction here including the acts of serving a three-day notice and cause of action, the reference is to requiring a showing of some merit as to the assertions engaged in a pattern of disability discrimination designed to drive the plaintiffs from their legislators discussed senate bill no. 1264 the bill that ultimately became probability of prevailing on the claim. ( 425.16, subd. (b)(1), italics added.) to in dfeh, a landlord decided to remove its apartment building from the rental scrutinize a plaintiff`s attempt to base liability on the activity identified in subdivision (e). ruled against mccubbin and merck in prong one. in such circumstances, we may remand slapp statute. the majority correctly summarizes the procedural background of oasis but of filing a legal action] (action apartment); see also slovensky v. friedman (2006) 142 commission retracted the november 14, 2007 letter on which wallace and owen rely; not see how subdivision (a) can apply in this case, however, since there is no allegation cal.4th at p. 67.) where the cause of action is based on allegations of unprotected to protect activity identified in subdivision (e), it would be reasonable to have the court defendants that he found nemo to be docile, friendly and well socialized.` 21 in san francisco. the building is managed by victor wu and his brother, lawrence wu. because the majority reaches a different conclusion, i must respectfully concur the anti-slapp analysis only that it has a probability of prevailing on any part of its action were not barred by the litigation privilege. on the allegations of protected activity alone. slapp motion, it is sufficient to focus on just one. (oasis, at p. 821, italics added.) the alleged protected activity. harmonizing and applying recent precedent, we agree on action, albeit at additional effort and expense. but if the plaintiff cannot make that anti-slapp statute, since they were not made in connection with any judicial or incidental` to the unprotected conduct. (haight ashbury, supra, 184 cal.app.4th at case. f.2d 438, 441 [trial court erred in applying statute of limitation to the essential nature of or by victor or lawrence wu as part of the defendants` campaign, include the could prevail based on any of the allegations underlying the cause of action, or whether cashman (2002) 29 cal.4th 69, 78; italicization of act added.) we are admonished to mccubbin or merck under civil code section 1942.5. on both protected and unprotected activity, the plaintiff must show in the second prong of have other ways of removing the allegations of protected activity from the case, however, some modicum of merit to its assertion of liability that targets protected activity. motive pertains to at least one of the occurrences specified in the ordinance. (sec. merck. gestalt of the cause of action as respondents urge. mccubbin and merck further contend of claims based on unprotected activity. then sued the landlord for disability discrimination, alleging causes of action for wallace and owen urge here. (id. at p. 1281.) the pleading in dfeh, however, was activity, and the trial court would never even have to look at the merit of the claims bar association (2003) 105 cal.app.4th 604, 615-616 [deciding prong two issue despite the statute. ( 425.16, subds. (b), (e).) the burden then shifts to the plaintiff to establish speech under the united states constitution or california constitution in connection with 992, 998 (schaffer).) 5 the court in mann also expressed concern that a trial court should not have to facie case as to the fourth. (taus, supra, at pp. 715, 742.) by way of summary, the lastly, we address wallace and owen`s primary argument: that their first and 52 motion to strike` unless the court determines that the plaintiff has established that there is or the landlord`s motive].) numerous threats before any litigation was actually filed. (id. at pp. 1474-1475.) the aaron gonzalez, who supported some of the allegations of the complaint and purported count one is styled first cause of action [] (wrongful eviction, that wallace or owen ever complained about the tenantability of the dwelling. protected activity, it permits the defendant to force the court to test (and strike) claims of preceding that complaint: [t]o force plaintiffs to leave the property with their companion of action that targets protected activity would dissuade plaintiffs from asserting meritless from activity protected by the anti-slapp statute and that wallace and owen did not allegations concerning victor wu`s intimidation of ybarra and refusal to allow a purported cause of action or count had any merit. in deciding what should be stricken, recover possession, or threaten to do any of those acts, for the purpose of retaliating free speech . . . in connection with a public issue` includes: (1) any written or oral wallace and owen`s arguments to the contrary are unpersuasive. they contend 46 commission about defendants` threats to remove nemo. after an investigation, the (2004) 32 cal.4th 804, 816 [principle of legislative acquiescence applied where the prejudice, before the plaintiff has had the usual opportunity to develop the case, and even their opposition to the motion to strike that civil code section 1942.5 liability lies against trial court: san francisco county superior court showed, by admissible evidence, any probability that they would prevail against premised on the same ground. while there may be evidence that wu`s motive was not (peregrine funding, supra, 133 cal.app.4th at p. 674.) 24 unprotected activity] (peregrine funding).) to have nemo. 4 intentional infliction of emotional distress. (id. at p. 278.) the trial court denied the inc. v. lawyers' mutual ins. co. (1993) 5 cal.4th 854, 860 [cause of action is based on violation of a rent ordinance, negligence, breach of the covenant of quiet enjoyment, and assume that a plaintiff has alleged a cause of action (count) containing protected strike meritless assertions of liability that were based on protected activity. when the board. has demonstrated a probability of prevailing, and if the plaintiff has failed to do so, then characterized slapps as lawsuits brought not to recover damages or vindicate a legal construction. (hughes, at p. 775; mahon, at p. 821.) if the language is susceptible to right, but merely to run up the defendant`s litigation costs. (e.g. wilcox v. superior supra, 156 cal.app.4th at p. 286.) on the other hand, we have discretion to decide the should have to establish a probability of prevailing as to his attack on the activity the these causes of action. there may be a probability of prevailing as to one cause of action obtained a dog named nemo under the prescription of her psychiatrist. nemo is a chilled by meritless claims based on protected activity, meritless claims of protected section 12955, subdivision (a), the california fair employment and housing act (gov. the unlawful detainer action clearly falls within the scope of free speech or strike. (italics added.) from this language, it is clear that we must look at the nature of 1308, 1312, 1318 (pearl street), a rent control board filed a lawsuit against a landlord for meaning of the rent ordinance. since wallace and owen nonetheless seek to hold did not make this assumption an explicit holding of the case, it reflects an analysis that applied to a cause of action that seeks relief based on allegations of both protected and eliminate theories within a cause of action that lack merit or cannot be proven, such as a under this construction, when the statute requires the plaintiff to show a probability of mccubbin and merck met their threshold burden of establishing that the first and 1. first cause of action: wrongful eviction action arose from those acts. can satisfy this burden by showing it could prevail based on any of the allegations the claims was not based on protected activity. in marlin, supra, 154 cal.app.4th, at might not constitute protected petitioning activity under the anti-slapp statute. for case. presiding judge during discovery hearings regarding the location of his former property minimize the chilling of protected activity].) on this basis, the face of the statute causes of action should have been stricken under the anti-slapp statute, the obvious thirteenth causes of action alleged in plaintiffs` complaint arise, at least in part, from examine the act underlying the cause of action, not the gist of the cause of action. the appellate court in dfeh concluded that dfeh`s lawsuit did not challenge activity, under threat of permanently eradicating those claims even if sufficient any person endeavoring to recover possession of a rental unit from a tenant or evicting a appear to be aggressive, vicious, or dominant. animal control also found that nemo was herbert hafif (2006) 39 cal.4th 260, 278; lucky united properties investment, inc. v. because no unlawful detainer action was ever filed on that ground. for mccubbin and unlawful detainer are some of the acts on which liability is premised, and those acts are produced no evidence that mccubbin or merck could be held responsible for the three- activity. while there might be important policy reasons for so limiting it as we have wallace about nemo being overly friendly and noisy; and lawrence wu threatened costs rather than obtaining relief, the part frivolously targeting protected activity still in the court of appeal of the state of california dog. (italics in original.) but causes of action do not arise from motives; they arise not depend on the requisites for a motion under section 435, but uses a different pictures, inc. v. paladino (2001) 89 cal.app.4th 294, 308 [a plaintiff cannot frustrate not once does the legislative history state mccubbin and merck contend that, if wallace and owen had raised the issue in court only has the options of striking all of the cause of action or none of it. as of the (sen. com. on judiciary, sen. bill no. 1264, feb. 25, 1992 hearing, p. 5.) all of these attempt to base liability on protected activity. the fact that there are three alternatives jones, p.j., at p. 3.) a slapp cause of action, however, would not be a mixed cause of conference. (id. at p. 702.) might constitute a threat to evict or to cause them to involuntarily terminate their tenancy landlord wu). they fail to present admissible evidence to support either proposition. in any event, the report to animal control was absolutely privileged. reports to that the lease expressly prohibits unreasonable refusal of a new subtenant. victor wu against the lessee because he or she has lawfully organized or participated in a lessees` those claims. (id. at p. 711.) only the defendants filed a petition for review; therefore, section 425.16 precluded the striking of part of a cause of action. the statute simply the subdivision`s reference to a cause of action as a count (everything the plaintiff the court in mann stated: where a cause of action refers to both protected and this appeal followed. owen believe that nemo has never damaged the apartment unit, growled, barked at, zacks & utrecht, paul f. utrecht and james b. kraus for defendants and any merit, the entire cause of action can still proceed merely because there is some merit entirety of the cause of action to go forward, it precludes consideration of the merit of than the claim for which there must be a probability of prevailing. (sjp limited section 1942.5, which bars retaliatory acts of increasing rent, decreasing services, causing c. relief not merely incidental to the alleged unprotected conduct. the three-day notice and declarations predating this case were submitted from a number of persons declaring there was no rule that barred the attorney from doing what he did. wallace and owen allege that all defendants violated civil code section 1942.5 not hesitated to amend the statute when it believed courts were interpreting it incorrectly. possession of a dwelling, causing the lessee to quit involuntarily, increasing rent, or are incidental to the thrust of the plaintiffs` complaint. and while they are pleaded, they as a reasonable accommodation, and the law very clearly affirms ms. wallace`s right appellants and respondents were tenants in the building, living in apartments 14 declaration of rights with respect to the landlords` rights to evict them under the ellis 1 attack on a defendant`s pursuit of his rights of free speech and petition by adding jones, p.j. there is no evidence that the legislature explicitly debated how its concerns would be taken as a whole, it is plain from the words in section 425.16 that its purpose is to of protected activity could not save a meritless claim of protected activity in taus, a quit the premises. the eviction notice stated that eviction would be sought on the ground mccubbin and merck contend that the first and thirteenth causes of action arose connection with a public issue shall be subject to a special motion to strike, unless the day notice or the unlawful detainer action at all, but about discrimination. in the analyze mann in light of the anti-slapp statute`s language, legislative history, or public purpose of punishing the defendant for speaking and petitioning activity, and thus attribute the acts to them. there is no showing, for example, that wu did those things to cal.app.4th at p. 106, italics added.) that is not, however, the language of the statute. section 425.16 authorizes a defendant to file a special motion to strike when a ordinance are the filing of the three-day notice and prosecution of the unlawful detainer 47 they do argue that mccubbin and merck assisted the wus and the timing and inc. v. happening house ventures (2010) 184 cal.app.4th 1539, 1554-1555.) control; (5) victor wu`s treatment of wallace and owen`s subtenant and refusal of their bringing an unlawful detainer action. (birkner, supra, 156 cal.app.4th at pp. 281-282.) count rather than just the claims targeting protected activity, would turn the statute`s on protected activity nothing more and nothing less even though they comprised a may support this interpretation as well. claim, we therefore must decide what claim means: is it the same as cause of to more than one cause of action, whether a cause of action is meant in its technical (1997) 59 cal.app.4th 1155, 1159-1160 (mcdowell); see bay cities paving & grading, was disabled or over the age of 60 and had lived there for a specified number of years. as the court in peregrine funding observed in another to the landlord`s subsequent violation of the rent ordinance and statute. (as to clark, 26 one reasonable way of looking at the statutory language is that, by the in october 2007, mccubbin informed lawrence wu in writing that wallace and on both protected and unprotected activity. we do so by analyzing the statutory (1) discrimination in connection with housing accommodation under government code theory falls short as a matter of law. their claims ultimately have no merit anyway, due (2002) 29 cal.4th 53, 67 (equilon).) if the plaintiff fails to do so, the motion to strike is opinion. we do so by first considering how a plaintiff might demonstrate a probability of 6 43 activity should not be spared merely because of other claims based on unprotected section 425.16 has described it as a slapp statute. (see, e.g., soukup v. law offices of as to another defendant, based on different statements she made in another article and at a it is not clear how wallace and owen could have produced expert testimony and public authorities whose responsibility is to investigate and remedy wrongdoing are effort to obtain city council approval of a redevelopment project. the attorney later because wallace and owen failed to establish a probability of prevailing on their the actions alleged in paragraphs 1 through 51, without distinguishing between the acts 12 if not lazy dog` who likes getting petted` . the officer stated that he was appalled (platypus wear, supra, 166 cal.app.4th at p. 780.) in rejecting the defendant`s argument supra, 161 cal.app.4th at pp. 1293-1294; sylmar air conditioning v. pueblo contracting unprotected conduct. the court noted that section 425.16 was enacted . . . to address in taus, supra, 40 cal.4th 683, the plaintiff sued the defendants for acts of following. in 2006 and 2007: mccubbin and merck complained to the wus about acts of discrimination. while causes of action for discrimination might arise from acts of complaint to animal control but from the unstated independent dominant motive could not strike just part of the plaintiff`s count in a mixed cause of action, it might be wallace and owen argued that they had a probability of proving mccubbin and merck pet. this rather odd theory would ultimately run into serious problems, of course, since accommodation of a service/comfort dog. the compliance officer informed action, but a cause of action that is entirely meritless and entirely premised on protected to other claims in the same causes of action, because the striking of only those four p. 1551; peregrine funding, inc. v. sheppard mullin richter & hampton llp (2005) 133 section 425.16. (taus, at p. 702.) the trial court denied the motion to strike the causes prevailing on the claim ( 425.16, subd. (b)(1)), where the plaintiff has based liability wallace and owen showed, by admissible evidence, any probability that they would 29 meritorious claim of unprotected activity should not be able to save a meritless assertion wrongdoing summarized ante. specifically, it alleges that when defendants took the precisely, the question was whether the plaintiff had established a probability of a threshold showing that wallace and owen`s first and thirteenth causes of action arose neither of those cases, however, cited or applied mann to permit a plaintiff to show a some merit to the allegations of unprotected activity. (mann, 120 cal.app.4th at pp. 100, a letter to san francisco animal care and control (animal control), asserting that possession of the premises was not a permissible ground under the rent ordinance, and of section 425.16. petition, merely by also alleging some unprotected activity for which there is some person arising from any act of that person in furtherance of the person`s right of petition termination notice, but on whether the ellis act granted authority for termination of the to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to context: the gestalt approach adopted by the district court might cause a number of unlawful detainer, they assert in their respondent`s brief that they need not prove service of a three-day notice and prosecution of an unlawful detainer action are motion to strike under section 436, eliminating those parts of a cause of action that a action including wrongful eviction and retaliatory eviction]. (id. at p. 1483.) activity, the court in taus looked at whether those assertions not any others in the lee (2010) 185 cal.app.4th 125, 130.) but one of the defining characteristics of a ground that the causes of action in birkner did not challenge the validity of the rent extensively in the complaint that all defendants [including mccubbin and merck] took although mentioned in the complaint, is largely unrelated to and entirely distinct from the arise under a conspiracy theory. the specific act that allegedly gives rise to the cause of action, not the gestalt or gist of eviction civil code 1942.5 et seq.). it also incorporates all of the allegations of activity was also so meritless as to justify dismissal of the entire count. only in the result. the anti-slapp procedure at an early stage of the litigation would be used to deal with their agent), or that mccubbin and merck made the statement themselves (as agents of conceivably, wallace and owen are pursuing a tenuous theory that they were electric supply, inc. (2006) 137 cal.app.4th 1118, 1124-1125 (a.f. brown), and premises, as permitted by statute, but failed to substantiate her disability to the landlord`s approached, we conclude it would be more efficient for us to resolve the matter in this oasis clearly holds that, where a cause of action (count) is based on protected (taus). (maj. opn., at pp. 42-45.) in taus, the plaintiff sued the defendants for investigating, publishing, and publicly discussing the plaintiff`s background and private the intended protections of the anti-slapp statute, by characterizing their attack on 30 lack of merit is not of concern to the plaintiff because the plaintiff does not expect to notice. instead, they premised liability under the rent ordinance on the termination alone. (maj. opn., at pp. 26-27.) i view it as settled law that a plaintiff can satisfy his the fundamental purpose of the anti-slapp statute to minimize the chilling of conduct in this case. some of mccubbin and merck`s alleged acts might be used as evidence of unprotected activity under the banner of a statute that does not even purport to protect moved in a claim which could only be raised after the landlord accomplished the anti-slapp procedure. (ibid.) 7 slapp statute. overrule the holdings of other cases on an entirely different point. (see stats. 2005, protected activity refers to the allegations purporting to base liability specifically on motion was not to be used for that purpose. (platypus wear, at p. 786.) platypus wear 1 states that a cause of action may be subject to a special motion to strike.19 property owner filed an anti-slapp motion to strike the cross-complaint, on the ground motion to strike two causes of action from respondents` complaint under the anti-slapp from collateral acts by [defendant] involving commercial speech. (id. at p. 188, italics discrimination per se. nonetheless, we proceed to the merits of their gestalt argument. any particular act the landlord took with respect to its filings in the removal process or its procedure when a defendant`s liability is based on activity set forth in section 425.16, and owen unless nemo was removed; (4) mccubbin and merck`s complaint to animal p. 702.) defendants appealed. based on protected and unprotected activity. perpetrated these acts as agent of the lessor victor wu, and they are therefore liable under infliction of emotional distress, unfair business practices, housing discrimination under intended to preclude slapps or slapp causes of action. (conc. and diss. opn. of prevailing as to certain contentions of liability that were a subset of the plaintiff`s the mann court relied on this fact when determining how the slapp statute the claim. (italics added.) 4. respondents' gestalt characterization of their causes of action is incorrect presented within a single cause of action and need not parse the cause of action so as to unprotected activity and a plaintiff can show a probability of prevailing on any part of its emotional distress. hand. action arises from the defendant`s free speech or petitioning activity, the burden shifts to we note as well that wallace and owen`s gestalt approach would result in an mccubbin and merck`s complaints to the wus about nemo would be covered by the appropriate to award defendants their costs on appeal. (id. at pp. 742-743, italics legislature enacted section 425.16 to address the problem of actual slapps lawsuits [summary judgment motion may be filed after 60 days from opponent's general whereabouts. invalid theory of liability, in addition to a valid theory of liability, may be so burdensome employed to strike only part of a cause of action. (mann, supra, 120 cal.app.4th at also approve of mann in the context of a mixed cause of action, it appropriately slapp statute. taus necessarily assumed it can. indeed, the fact that the issue in taus b. second prong: wallace and owen's burden to show probability of prevailing 24 disabled; to the contrary, the causes of action are based on acts of evicting or attempting administrative proceeding and probably do not constitute statements in connection with a here). the point is that, because the thirteenth cause of action is based on some acts other wallace and owen opposed the motion to strike. they claimed that the gravamen plaintiff has alleged in a count or as to a primary right, the claim if it is to mean defendant`s agent campbell peters in december 2003 allowed three occupants because would be minimal (as in the matter before us) or substantial (as in a situation where the the defendant concedes the illegality of its conduct or the illegality is conclusively case but the others are stricken. under oasis, where a cause of action includes multiple 12 nonetheless, it is also true that the court in oasis did not explicitly limit the disabled and intended to discriminate on the basis of their disabilities, their more specific should be applied to a cause of action that includes allegations of both protected and day notice to quit and his filing of the unlawful detainer action. indeed, this is the as we shall the actions alleged in paragraphs 1 through 51, either by mccubbin and merck primary right of the plaintiff, a corresponding primary duty of the defendant, and an act wallace and owen`s rent, decrease services, cause wallace and owen to vacate their unit cal.app.4th 204, 212 [requiring admissible evidence].) and the plaintiff must usually do around the time wallace and owen signed their lease in late 2003, wallace submissions and legal arguments to rule on such a motion, whether their additional effort elusive, subjective, and unpredictable exercise that would likely lead to inconsistent ( 425.16, subd. (b)(1).) cause of action arises from the defendant`s free speech or petition activity, as specified in primary right alleged to have been violated, not by the remedy sought]; mcdowell, reasonably be read as follows: a cause of action arising from protected activity is subject activity. if the plaintiff failed in this regard, the meritless claims based on protected control is not before this court. they contend their cause of action arises not from the according to the complaint, the acts by which the defendants attempted to recover that had been alleged but not others. (id. at p. 702.) the defendants appealed, and the denied the request and threatened legal action if wallace and owen subleased the inc. (2004) 120 cal.app.4th 90 (mann). the court ruled that, if a cause of action is based officer wrote to mccubbin and merck, stating that he had spoken with victor wu misdemeanor and shall be subject, upon conviction, to the fines and penalties set forth in in the first place, wallace and owen did not raise this argument in the trial court. probability of prevailing in the context of a mixed cause of action. to the contrary, in of a more exhaustive analysis consider what we might glean from the legislative history that their activity was not illegal. to support this contention, they seek judicial notice (by petitioning rights. (sen. com. on judiciary, feb. 25, 1992, p. 3.) cases thereafter merely precede or trigger the lawsuit by wallace and owen; nor were these acts alleged three alternatives point to the same conclusion; any ambiguity as to whether cause of evidence indicated that the landlord would have proceeded with an unlawful detainer stricken, the statute allows the plaintiff to avoid that consequence by showing a protected activity in broad terms such as discrimination. (see fox searchlight month and the next month, merck telephoned the wus weekly to complain about nemo`s simons, j. other allegations in the same count. ( 425.16, subd. (b)(1).) but even if cause of rebut mccubbin and merck`s contention that any conspiracy and aiding and abetting however, determined that the issue should be left to a future case where it is squarely costs. ( 425.16, subd. (c).) we review an order granting or denying a motion to strike as it presently reads. cause of action arising in part from protected activity. this, however, merely begs the not be liable for wrongful eviction under the rent ordinance as a matter of law, whether unless the plaintiff is extremely confident that it can establish this merit at such an early unlawful detainer action, but on the claim that the landlord removed the apartment from includes both protected and unprotected activity, and none of the protected activity has legislature amended section 425.16 twice after mann was decided. in enacting those liability was based on protected activity, but it plainly meant the acts on which the claims cause of action against a person arising from any act of that person in furtherance of the under this construction, a cause of action arising entirely from protected activity bitten, or attacked anyone. fair political practices commission v. american civil rights coalition, inc. (2004) 121 causes of action: negligent infliction of emotional distress; invasion of privacy; fraud; detainer action, or any alleged unprotected activity. 13 of action for personal injury, where liability for those claims was based not on the 527, 541; paul for council v. hanyecz (2001) 85 cal.app.4th 1356, 1365, disapproved subdivision (f) of section 425.16 of the code of civil procedure, to overrule the part of what the plaintiff had called a cause of action. given that a meritorious claim court. the narrow focus of taus and the court`s narrow ruling was simply a product of partnership v. city of los angeles (2006) 136 cal.app.4th 511, 518 [use of different prevailing on the claim, it would mean a probability of prevailing on the allegations if indeed the statutory goal is to make sure that free speech and petition are not because the parties have different views as to how prong two should be rights commission about mccubbin and merck: victor wu denied wallace`s request the discriminatory gestalt of their allegations rings hollow, in light of what they actually activity. the proffered rationale therefore does not justify the mann rule in the matter at for defendants` attempt to evict them wrongfully is not based on defendants` alleged constitutional right of free speech].) was criminal extortion as a matter of law]. see hutton v. hafif (2007) 150 cal.app.4th the actions alleged in paragraphs 1 through 51 and each and every of the defendants intrusion into private matters) and defamation, based on some of the defendants` alleged is based on both protected activity and unprotected activity. is forced to devote its time, energy and financial resources to combating the lawsuit its ( 425.16, subd. (b)(1)). psychiatrist in october 2007 and claimed there was no basis for prescribing a service dog the claims stay in the case and none are stricken. indeed, not only does oasis permit the 45 examine whether the plaintiff`s attack on that activity has any inkling of merit. by (chabak v. monroy (2007) 154 cal.app.4th 1502, 1511-1512 [anti-slapp statute cal.4th 1232, 1248-1249 [gravamen of a cause of action based on a rent ordinance petition or free speech in connection with a public issue shall be subject to a special concerning the complaint and the animal control hearing, and that nemo was not an subdivision (b). (action apartment, supra, 41 cal.4th at pp. 1243-1252 [rent ordinance unlawful detainer litigation, because those acts are merely incidental to their claim. for subdivision (a) of civil code section 1942.5 precludes a lessor from recovering (see taus, supra, 40 cal.4th at pp. 742-743 [purpose of anti-slapp statute is to presented for decision. (haight ashbury, supra, 184 cal.app.4th at p. 1555.) that was framed for review in terms of whether independent bases of liability should be we therefore reexamine what a plaintiff must do to show a probability of cease to do so merely because other claims, whether meritorious or not, have been added terminated the representation and became involved in a campaign to thwart that very pattern of disability discrimination. (italics added.) because the anti-slapp motion on landlord`s unlawful detainer action and three-day notice to quit, since the unlawful the anti-slapp statute if it arises from protected speech or petitioning activity and lacks of liability that targeted protected activity.16 probability of success, and inserting it into the same count. indeed, all the plaintiff would wallace and owen filed in may 2009 against victor wu, lawrence wu, mccubbin, and cause of action and claim in section 425.16, subdivision (b)(1) both refer to the consuming task of determining whether the plaintiff can substantiate all theories the most obvious bases for the cause of action the three-day notice and unlawful prosecution of the ensuing unlawful detainer case which do constitute protected 184 cal.app.4th at pp. 1544-1545, 1552), without clear indication from the statute or the as is relevant here, the issue in mann was how the slapp statute should be section 51.2 et seq.; and (3) denial of civil rights under government code section 12948 services, inc. (2004) 122 cal.app.4th 1049, 1054-1056.) which was premised on the ground that wallace and owen wrongfully had three adults to the lawsuit. while a mixed cause of action does not present a situation where the that in their entirety are both meritless and target protected activity. acknowledging that which the liability or defense is based. ( 425.16, subd. (b)(1), (2).) at the time the the complaint is construed to allege that mccubbin and merck actually performed the california`s feha (govt. code, 12955 et seq.), housing discrimination under landlord`s anti-slapp motion, concluding the causes of action were not based upon or acts that breach the duty and infringe the plaintiff`s right. (mcdowell v. watson vicious and dangerous dog. in late october 2007, animal control notified wallace law; (3) any written or oral statement or writing made in . . . a public forum in connection less. wallace as to wallace`s need for a service dog and warned that wallace and owen would based on the unprotected activity, not only to save the allegations of protected activity misconduct and theories of recovery, but for purposes of reviewing the ruling on an anti- [plaintiff cannot rely even on verified pleadings].) wallace and owen have failed to there is no probability of prevailing is stricken. (see post.) testimony and documentation demonstrating that the lease signed by plaintiffs and acts were shown to be illegal as a matter of law. their argument is unavailing. consider the pleadings, and supporting and opposing affidavits stating the facts upon in their first purported cause of action, wallace and owen alleged that the been followed by other courts, citing a.f. brown electrical contractor, inc. v. rhino mccubbin and merck`s complaint to animal control also falls within wallace required a service animal for health reasons. victor wu telephoned the we tread lightly in our discussion of mann, not only out of respect for our (birkner, at pp. 278-279.) the tenants notified the landlord that they fell within this sense (an act that breaches a duty, thus infringing upon a primary right; see south sutter, bases of liability, and a probability of prevailing is shown only as to one of them, all of incorporated paragraphs 1 through 51. need for a service dog precluded evicting them on the ground of having an impermissible ( 425.16, subd. (f), (g).) it is one thing to impose this burden on the plaintiff for claims 31 cause of action arises from an act in furtherance of the defendant`s constitutional right of investigating, publishing and publically discussing her background and private life consistent with the statute`s goal as expressed in its legislative history, is a reasonable 3 not vicious or dangerous. around june 2007, wallace complained to the san francisco human rights 3. respondents' illegality argument is meritless nemo shakes the building when running and barking. we grant the request for judicial complaint also attacks some of the alleged acts of mccubbin and merck that preceded the 3 the allegations a plaintiff has grouped together under the heading of cause of action, never mentioned mann, and said nothing about what a plaintiff must do to establish a in reaching this conclusion, oasis did not mention taus, which would dictate a trial court`s failure to reach it].) (civ. code, 1942.5, subd. (a), (c)), and mccubbin and merck were not the lessor of deterring the defendant and others from exercising their first amendment rights in the investigation constitute activity in furtherance of the right of free speech or petition. action (count) arising from protected activity. we must indeed be mindful of the burdensome nature of the procedure mandated future case is here, as wallace and owen`s first and thirteenth causes of action are [allegations about a law firm`s protected communications for purposes of showing the procedure. [] stated differently, the anti-slapp procedure may not be used like a where a cause of action is based on both protected activity and unprotected allegations asserted that the defendants had threatened to evict other tenants in the to recover possession or to evict a tenant except as provided in section 37.9(a) and (b). (haight ashbury); schaffer v. city and county of san francisco (2008) 168 cal.app.4th around september 2007, victor wu and another man forcefully interrogated meet this burden. action. wallace and owen do not explain how the acts attributed directly and specifically p. 106.) it expressly related this assumption to its conclusion that a plaintiff`s claims avenue. respondents cheryl wallace and john owen moved into 375 7th avenue in was apparently meant to incorporate paragraphs 1 through 51, however, because the first may even hope to use the unlawful detainer and three-day notice as evidence that all the section 37.9, subdivision (e) of the rent ordinance provides: it shall be slapp statute and the trial court granted the motion as to some of the causes of action were the wus` agents in the prosecution of the unlawful detainer action and the causes of judicial notice of the complaint in clark on the ground it was necessary to explain what unprotected activity have merit. 5 owner served tenants with a three-day notice to quit, alleging they were unapproved pages 157-158, a tenant lawsuit against a number of landlords sought a judicial 425.16, subd. (e)] (feldman).) wallace and owen`s first cause of action is based on of action for negligent infliction of emotional distress and invasion of privacy. as to the principal acts or omissions on which each cause of action is founded are independent privacy, trespass, violation of civil code section 1954 (pertaining to a landlord`s motion to strike unless the plaintiff shows a probability of prevailing on the cause of (taus, at p. 714, italics added.) these depictions explain, essentially, that each that specifically premise liability on the protected activity, not a probability of prevailing persons themselves and a subtenant occupying the apartment. later in october, agent were also within the scope of the anti-slapp statute, as communications in the majority also questions whether the adoption of the mann rule in oasis is (2) mccubbin and merck`s complaints to the wus; (3) the wus threat to evict wallace protected activity under code of civil procedure section 425.16, subdivision (e). however, i respectfully disagree with my colleagues` criticism of the rule 7 the defendant`s act underlying the plaintiff`s cause of action must itself have been an act motion to strike under section 436, eliminating those parts of a cause of action that a connection with a judicial proceeding and do not fall within the scope of code of civil was in full blossom before the potentially protected conduct occurred. mccubbin and merck were not the ones who prosecuted the unlawful detainer action, the far as to deny or obstruct ms. wallace`s right as a disabled person to have a service dog the trial court denied the motion to strike. the court explained: defendants landlord] discriminated against [the tenant] by failing to accept the fact of, and rights of free speech or petition if the termination notice is the legal prerequisite for to protect. the bottom line, however, is that the legislature expressed no grant of in the second prong of the anti-slapp analysis, the court must determine whether 18 we would be remiss if we did not express our view that the justifications that were neither what the statute says nor the law. (shekhter v. financial indemnity co. (2001) 89 (2011) 51 cal.4th 811 (oasis). liability is based, by contrast, is clearer, simpler, and more predictable. wallace and owen do not cite any case holding that a court should look at the based on the fact that the attorney had agreed to represent oasis in securing approvals for 8 a cause of action arising out of protected activity. (see taus, supra, 40 cal.4th at pp. section 37.10a. . . .. subdivision (f) reads: whenever a landlord wrongfully state and consumer services agency, dated aug. 25, 1992, p. 1 [this bill states that a language and intent of the statute. complaint, if there were any merit to some other cause of action in the complaint. that is argument is misplaced, however, because even if that were true, and mccubbin and activity as well as allegations of protected activity as with the first and thirteenth causes prohibiting landlord from maliciously serving eviction notice or bringing an action to pp. 1550-1551; see action apartment assn., inc. v. city of santa monica (2007) 41 based on the material submitted to the trial court, wu served the three-day notice, strike unless the plaintiff shows a probability of prevailing on those allegations of owen`s causes of action for wrongful eviction and retaliatory eviction arise from acts of brought as to an entire complaint containing several causes of action, a part of a cause of 2. thirteenth cause of action: retaliatory eviction (civ. code, 1942.5) deciding whether those grounds of liability which comprised part of their respective a127287 160 cal.app.4th at pp. 1486-1488 [litigation privilege applicable to unlawful detainer plaintiffs` complaint is based upon protected conduct as that term is defined in section of action here, according to wallace and owen the question arises whether the plaintiff the same legislation that enacted section 425.16, appears to use cause of action and (ibid.) the trial court denied the landlord`s anti-slapp motion to strike the damages protected conduct (salma)].) court (1994) 27 cal.app.4th 809, 815-817.) by this definition, a lawsuit would not be a first appellate district lead to essentially the same question: is the primary right, count, or assertion of liability on which the claims are based, does not change the fact that, in this case, the causes of subdivision (e). (birkner, supra, 156 cal.app.4th at pp. 281-283; feldman, supra, 160 entirety of a complaint was filed solely for the purpose of running up the defendant`s 41 cal.4th at pp. 1243-1252; feldman, supra, 160 cal.app.4th at pp. 1486-1488.) person arising from any act of that person in furtherance of the person`s right of petition under section 425.16 de novo. (flatley, supra, 39 cal.4th at p. 325.) (haight ashbury legislative history refers to subjecting a cause of action to a special motion to strike, the prong two analysis expressed by mann and more recently by our supreme court in oasis critical point that should inform our interpretation of prong two of section 425.16. thirteenth causes of action arise from protected activity. we therefore turn to the second 37.9(a)-(c).) 15 arising from any act of that person in furtherance of the person`s right of petition or free allegations of their complaint; it is also based on a misconception of the anti-slapp assume that, where a cause of action arises from both protected activity and unprotected based on the defendant`s protected activity? we will therefore use the term cause of landlord could usually terminate a tenancy so that a relative could occupy the premises as it establishes a procedure by reference in their respondents` brief. given the language of section 425.16, its legislative history, public policy cause of action arising from protected activity, based only on its allegations of protected building for having dogs as well. given this allegation, it is difficult to see how the statutes require the court to determine the merit of a particular basis for liability, not an would be stricken as the basis of liability. (see also analysis of sen. bill no. 1264 by the legislature was advised that slapps are legally unsuccessful lawsuits that replace the previous subtenant (ybarra) with another individual, noting to defendants our supreme court accepted review to decide whether the court of appeal the filing of the unlawful detainer and the service of the notice to quit constituted filed a cross-complaint for wrongful eviction, retaliatory eviction, and numerous other the first prong of the anti-slapp analysis required mccubbin and merck to make second, it is also clear and unassailable that the legislature did not explicitly a. statutory language cases taus v. loftus (2007) 40 cal.4th 683 (taus) and oasis west realty v. goldman and treatment and both wallace and owen suffered inconvenience, annoyance, and indeed, our supreme court has made clear that the statutory language focuses on questions of statutory interpretation must start with the statutory language, bill gives the defendant the right to file a special motion to strike` the claim] (italics a probability of prevailing on the claim. (equilon enterprises v. consumer cause, inc. the complaint, but the acts on which those two causes of action premised liability. that the plaintiff has established that there is a probability that the plaintiff will prevail on the market and fraudulently evicted the tenant to install a family member who never (see soukup v. law offices of herbert hafif (2006) 39 cal.4th 260, 287 [plaintiff must proceeded instead to the second, pertaining to the probability of prevailing. the court trial court under the anti-slapp statute. under these circumstances, and consistent with challenged basis for liability must be examined individually to determine if the plaintiff appearance or by court order, upon 28 days notice].) in our view, that is not sound cause of action for wrongful eviction under rent ordinance section 37.9, which addresses alleges, among other things: the executive director of the san francisco human rights the concurring and dissenting opinion further contends that the doctrine of one need look no further than the language of the anti-slapp statute to conclude targeting protected activity. that seems to be an odd way of protecting the activity the court has now cited it with approval in oasis. we also recognize that mann did not articulated in mann v. quality old time service, inc. (2004) 120 cal.app.4th 90 (mann), ordinance`s provision for owner-relative move-ins, seeking possession of the apartment wallace and owen rely, a three-day notice and an unlawful detainer action were the basis motion to strike, contending that all of the causes of action arose from protected activity. b. respondents' "gestalt" approach is wrong plaintiff cannot substantiate. rather, once a plaintiff shows a probability of prevailing on alleged to be the basis for liability. (haight ashbury, supra, 184 cal.app.4th at p. 1550; view, the premise for the majority`s concern is flawed. while the majority states that apartment. wallace wrote another letter to victor wu, reminding him that the lease unlawful for a landlord or any other person who willfully assists the landlord to endeavor a cause of action fall within the anti-slapp statute`s protection, and (as to the second two other tenants in the building for having dogs. they also demanded a third tenant to involuntarily, or constitute an action to recover possession. nor did the report threaten to 404, 414-417 [defendant`s advertising activity was merely incidental to plaintiff`s causes increases the defendant`s costs not for the purpose of obtaining relief, but for the decide whether there was a probability of prevailing on protected activity once it found a pure and the lawsuit was meritless, there is no evidence that the service of the three-day consuming task of determining whether the plaintiff can substantiate all theories the issue before our supreme court was quite narrow: whether the court of appeal and a probability of prevailing is shown only as to one of them, that claim stays in the 15 in march 2008, victor wu served wallace and owen with a three-day notice to furthermore, as a matter of law, wallace and owen have no cause of action action means what the plaintiff has alleged as a count, the statute does not state that a about nemo, and the wus` refusal to permit a new subtenant, mccubbin and merck hearing to testify on nemo`s behalf, he was greatly disturbed that anyone would go so grounds of liability were before the court. taus cannot be disregarded so easily. in plaintiff is required to demonstrate some merit in the part of his count that is based on of the wus and the acts of mccubbin and merck. as mentioned, the complaint asserts purported causes of action and lawsuit. (ibid.) and ensuing unlawful detainer action. birkner and feldman].)12 that having a third adult reside in the apartment breached the lease. tenancy. clark v. mazgani (2009) 170 cal.app.4th 1281, 1286, 1289-1290 (clark) held satisfaction. (id. at p. 1277-1279.) after an unlawful detainer action, the tenant was entirely clear what the legislature meant by cause of action. as defined under the the plaintiff to establish a probability of prevailing on the claim. (equilon, supra, 29 so his mother could live there. (birkner, at p. 279.) under the rent ordinance, a facet of one of the numerous causes of action alleged in the complaint, it is apparent follow[s] the rule pronounced by our supreme court. (maj. opn., at pp. 46, 47.) in my demonstrate a probability of prevailing as to some, but not all, of the acts allegedly the allegations generally. (see also mcdowell, supra, 59 cal.app.4th at p. 1159 [cause there was some evidence to support a finding of illegality, does not preclude protection the harm suffered, not the legal theory of liability alleged].) at least two cases have in january 2005, wallace`s psychiatrist informed landlord victor wu and the action and count are sometimes used interchangeably].) as we shall see post, cause specific allegations of protected activity that the plaintiff contends could give rise to on other grounds in equilon, supra, 29 cal.4th at p. 68, fn. 5.) here, however, mccubbin it makes sense in the context of section 425.16 to equate the statute`s concept of a 39 in evaluating the probability of prevailing on assertions of liability based on protected supra, 59 cal.app.4th at p. 1159 [same].)9 voluntarily deleting the allegations of protected activity from its complaint. (see salma, wallace and owen for exercising their rights within 180 days of their complaint to [landlord`s termination notice did not fall outside the scope of the anti-slapp statute contend that the underlying acts are not protected by the anti-slapp statute because the a probability` that the plaintiff will prevail on the claim.] (italics added); id. at p. 3 [the documentation if the case was dismissed during jury selection. on protected activity might dissuade or preclude the plaintiff from thereafter using the invasion of privacy (more specifically, improper disclosure of private facts and improper b. complaint that actually target the activity protected under subdivision (e). it is quite another thing to the claim, the plaintiff must show such a probability as to the assertion of liability reasonable accommodation for the tenant`s disability. (dfeh, supra, 154 cal.app.4th. allegations of unprotected activity. slapp suit is its lack of merit. as one of the early cases interpreting section 425.16 adults may reside at the premises, and from the inception of the lease they had three cause of action arising out of protected activity with the specific part of a count that bases shown by the evidence. (flatley, supra, 39 cal.4th at p. 316, 320 [defendant`s conduct subtenant; and mccubbin and merck filed a complaint with animal control about nemo. added.) furthermore, the court explained, section 425.16, subdivision (b)(1) affords the as applied here, the service of the three-day notice was the legal prerequisite for bringing reach that conclusion. the oasis court declined to conduct a first prong slapp statute defendant the opportunity, at the earliest stages of litigation, to have the claim stricken if subdivision (c) of civil code section 1942.5 provides: it is unlawful for a lessor acts that might violate civil code section 1942.5, which makes lessors and their agents decisions in decker v. u.d. registry, inc. (2003) 105 cal.app.4th 1382, 1387-1390, and of action, has been approved by our supreme court, and has withstood the test of time. arguably, a trial court`s determination that there was no probability of prevailing under subdivision (a) of civil code section 1942.5, subdivision (c) of the statute, or both. their rights under law may suggest subdivision (c), and it is this subdivision they claim interchangeably in this very manner. and, as discussed post, legislative history by this egregious mischaracterization of this harmless dog, he intended to appear at the causes of action arose from protected activity. alleged to have violated as a matter of law].) they fail to demonstrate why they should to plaintiff`s claims relating to . . . four incidents of conduct. (taus, at p. 711.) more issue here are counts one and thirteen, for wrongful eviction and retaliatory eviction. alleged on information and belief, in the first half of 2007 mccubbin and merck legislature that such effort is required. portion of the complaint. (id. at pp. 1280-1281.) 11 22 the procedural posture of the case. enactment of section 425.16, it was well recognized that a motion to strike could result decisions. as the fifth circuit court of appeals observed in a different but similar the complaint asserts claims for wrongful eviction, breach of the covenant of section 425.16, subdivision (b)(1) provides that a cause of action against a evidentiary support could eventually be collected in the normal course of litigation. what it arose out of protected activity and the alleged wrongdoing was protected by the recover possession of the apartment for mccubbin or merck; to the contrary, he did them action and claim mean the same thing or different things is overcome by the statute`s establish a probability of prevailing based on protected or unprotected activity. we firm had a conflict of interest]; scott v. metabolife internat., inc. (2004) 115 cal.app.4th have done so. (church of scientology v. wollersheim (1996) 42 cal.app.4th 628, 645, allegations in other ways does not curb the chilling effect on the exercise of free speech petitioning activity. the court of appeal reversed, finding the claims arose from according to the concurring and dissenting opinion, the court in taus looked at discloses only one reasonable answer to the question of what a plaintiff must do to show that the wrongful eviction cause of action does not arise from the three-day notice and of liability targeting unprotected activity much less allow a plaintiff to continue his ordinance, because their dominant motive was not one of the permissible grounds listed purpose apparent from the face of the statute as a whole, suggest the contrary. be able to argue the matter now.7 to one of them. that basis for liability is stricken from the plaintiff`s pleading. subdivision (f) of civil code section 1942.5. herein were responsible in some manner for the acts, omissions, and occurrences herein detainer proceedings. they contend that, because mccubbin and merck did not 14 20 plaintiff could merely end-run the statute by alleging unprotected activity as well as proceeding on the lease occupancy restriction was a pretext and retaliation for have been concerned with more than precluding true slapps. otherwise, a meritless see post, mann`s assumption in this regard is inconsistent with our supreme court`s issue ourselves, since it is subject to independent review. (roberts v. los angeles county shortcoming of the mann rule when applied to a mixed cause of action. broadly to accomplish that goal. ( 425.16, subd. (a).) of protected activity in a mixed cause of action.21 (id. at p. 1287.) responded that she was disabled and requested an extension of the deadline to vacate the wallace and owen fail to establish a probability of prevailing under civil code proceed with a claim targeting protected activity merely because the plaintiff may have defendants and appellants. his or her principal residence, unless the landlord received notice that a tenant in the unit litigation privilege therefore applies to bar the cause of action. (action apartment, supra, 180 days of wallace`s june 2007 complaint to the san francisco human rights the defendants filed motions to strike the amended complaint under action that were at issue and ruled that the lawsuit could go forward based on four of legislative, executive, or judicial body, or any other official proceeding authorized by evidence to prove appellants assisted the wu defendants in endeavoring to recover the portion of the mann decision that i have italicized captures what i believe is a is a weak reed upon which to lean ` ]; cf. olmstead v. arthur j. gallagher & co. but do not rely on the complaint in rendering our decision, because clark is dog, and that a landlord must allow a tenant to keep a service dog even if pets are home, and that therefore the allegations of what would otherwise be protected conduct activity set forth in section 425.16, subdivision (e). we need not decide this issue for 25 the plaintiff`s claim may be proven without reference to the protected activity. cal.app.4th 1171, 1174-1178.`].) furthermore, because the legislature has amended mechanisms that motivated our legislature to enact the anti-slapp statute in the first detainer was seriously contemplated when the notice was served, regardless of its merits at p. 106.) therefore, the court reasoned that when a cause of action refers to both activity. claims that target the exercise of constitutional rights of free speech and section 425.16, because it was not made in connection with any judicial or administrative quoted the following from mann: if the plaintiff can show a probability of prevailing 1100 park lane associates (2008) 160 cal.app.4th 1467, 1479-1481 [service of a three- the background to explain why a rift between the parties arose]; united states fire ins. sen. com. on judiciary, analysis of sen. bill no. 1264 (1991-1992 reg. sess.) feb. 25, and emotional distress. in addition to trebled damages under the rent ordinance, these acts, was acting as an agent for mccubbin and merck, in a manner that would every element the plaintiff needs to prove at trial and at least one element of any detainer, or anything else that would constitute increasing rent, decreasing services, statements].) it makes no sense for wallace and owen to argue that their cause of action protected activity and unprotected activity should have to establish a probability of the first prong of the anti-slapp analysis as to the thirteenth cause of action. (haight prevailing on any act alleged under the heading of a cause of action, then the cause of once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff since its enactment in 1992 (stats. 1992, ch. 726, 2, p. 3523), and the legislature has that his tardy anti-slapp motion would give the trial court greater discretion to parse precluding a landlord from maliciously bringing an action to recover possession is the act otherwise prohibited. owen was later diagnosed with post-traumatic stress disorder as when the legislative history refers to requiring a probability of prevailing on a claim or that each defendant is liable for the acts of the other. policy, as we do here. wallace and owen offered declarations in opposition to the motion to strike. in under civil code section 1942.5, but it would not be protected under subdivision (e) of action; and so i cannot join the majority`s view that a plaintiff basing liability on both defined cause of action in section 425.16 using the primary right theory. (south sutter, authority to the courts to do what the mann rule would have them do. governmental agencies and otherwise exercising their rights under law. as a proximate or free speech may be subject to a special motion to strike. (italics added.) it is not statute [is] to minimize the chilling of conduct undertaken in furtherance of the law which are intended to screen out meritless cases at an early stage, referring to and the entire cause of action stands. thus, a court need not engage in the time- 2. wrongful eviction california`s unruh act (civ. code, 51 et seq.), unlawful competition, violation of remains the same: it is meritless. the the matter to the trial court to conduct the second prong analysis. (see, e.g., birkner, a. wallace and owen did not allege discriminatory acts to analyze legislative history, we must appreciate its context. when the as to that particular part. purportedly aggressive behavior. in mid-2006, mccubbin and merck started an 40 [their] complaint to a governmental agencies [sic] and otherwise exercising their rights to strike the complaint pursuant to the anti-slapp statute properly was denied as to one acts, but not as to other alleged acts. (id. at p. 711.) were informed that the proposed anti-slapp law would be similar [to] provisions in the liability, the legislative concerns expressed in the statute would be satisfied. unprotected activity as well as protected activity. wallace and owen argue that mccubbin and merck were agents of the wus. the what a court should do when a lawsuit, cause of action, or even claim is based on ii. discussion designed to prevent citizens from exercising their political rights or to punish those who claims for wrongful eviction and retaliation, the trial court erred in denying the motion to more specifically to liability based on act[s] . . . in furtherance of the person's right of tenant in a manner not provided for in section 37.9(a) or (b) without having a substantial apparently did not involve a mixed cause of action. (maj. opn., at p. 46.) nevertheless, cause of action based solely on protected activity would not be stricken from a termination of the tenancy (the three-day notice) and instigated a frivolous and malicious llc v. lj sutter partners, l.p. (2011) 193 cal.app.4th 634, 659; marlin v. aimco merck may assert their rights under the anti-slapp statute. (ludwig v. superior court enacted section 425.16 to address problems created by meritless lawsuits brought to they believe are analytical errors in clark. we now grant the request for judicial notice action if his mother had not died. (id. at p. 280.) the tenant sued for wrongful eviction- arising in part from protected activity with the part that targets protected activity, or the action in our first prong analysis in the sense of what wallace and owen alleged as their realty fund 1988 (2009) 174 cal.app.4th 1534, 1552-1553 [cause of action for wrongful day notice to quit, filing of an unlawful detainer action, and threats by the landlord`s code, 12900 et seq.); (2) denial of civil rights under government code section 12955, trial judge: hon. peter j. busch whether the act is prohibited by civil code section 1942.5. the report did not increase detainer action are acts in connection with a judicial proceeding and accordingly supporting liability under theories of invasion of privacy and defamation. (taus, at c. respondents' cases are inapposite p. 822.) speech and petition. [citations.] however, a cause of action may only be stricken under provide notice to defendant and the trial court about the particular statute the defendant is way of asserting the cause of action, usually by legal theory, is a count; but cause of the court in birkner also distinguished dfeh, marlin, and pearl street, on the 19 the valid exercise of free speech and petition rights, and the statute is to be interpreted 23 of action may have a narrower definition, such that a cause of action arising from through 51 of this complaint . . . . all of the other causes of action in the complaint and merck do not admit any illegality; nor does the evidence conclusively establish that 44 mixed cause of action. oasis does not explicitly hold that, where a cause of action victor wu and an assistant intimidated the new subtenant, reno ybarra, into removing wrongful, injury-causing conduct by [defendant] on which plaintiffs` claims are 27 dismissal of each claim under section 425.16, plaintiff bore the burden of demonstrating a did not address the issue before us. nor did a.f. brown electrical or platypus wear section 425.16, twice since mann was decided (see stats. 2005, ch. 535, 1; stats. 2009, i concur in the disposition and judgment. subletting would result in legal action. vastly different than the causes of action that are the subject of the anti-slapp motion subdivision (d), the unruh civil rights act (civ. code, 51), and civil code taus, supra, 40 cal.4th at pp. 742-743 [the fundamental purpose of the anti-slapp life without her consent. (id. at p. 689.) the first amended complaint set forth four subject to a special motion to strike ( 425.16, subd. (b)(1)), and that portion for which 4 question: how does the plaintiff show a probability of prevailing on the cause of action according each word a commonsense meaning in light of both the language used and the of liability that had been asserted and not any others. that was the only issue before the loma road apartments llc (2007) 154 cal.app.4th 1273 (dfeh), apparently because victor wu, lawrence wu, and also tenants mccubbin and merck threatened to evict the tenant to quit, or bringing an action to recover possession. instead, the causes of victor wu is the owner of a four-unit apartment building at 369-375 7th avenue nemo removed. probability of prevailing on claims based on unprotected activity in order to save a legislative acquiescence insulates mann from judicial reconsideration, because the 6 federal bank (2004) 32 cal.4th 350, 360-361 (italics omitted).) added.) mann. although taus did not involve a mixed cause of action, the implications are clear. defendants` attempts to recover possession of their apartment violated the rent for purposes of the anti-slapp statute, the first and thirteenth prong, so it did not have to consider whether the plaintiff demonstrated a probability of subsequent holding in taus; but first, let us see why it discloses an additional within 180 days after wallace`s november 2007 complaint to the san francisco human informed and believe and on that basis allege that defendants engaged in such conduct to furtherance of the person`s right of petition or free speech is subject to a motion to ( 425.16, subd. (b).) the trial court in this case did not decide this issue, because it impose this burden on the plaintiff for claims that have nothing to do with that protected stabilization and arbitration ordinance (rent ordinance). even minimal merit. [citation.] where a cause of action refers to both protected and delois, supra, 177 cal.app.4th 940, 953-955 [distinguishing marlin and clark from ashbury, supra, 184 cal.app.4th at p. 1551, fn. 7 [where the defendant shows that the leave only those portions it has determined have merit. (mann, supra, 120 cal.app.4th smoking on the enclosed balcony that was shared by the two apartments. later that we turn next to wallace and owen`s arguments that are relevant to both the first pp. 704-709.) the court of appeal ruled that the lawsuit could go forward on theories of petition or free speech in connection with a public issue.4 cal.4th 53, 68, fn. 5.) the legislative history of the section makes this clear (see, e.g., certainly not collateral to a cause of action that seeks relief for causing a lessee to quit day notice or the unlawful detainer action. it is undisputed mccubbin and merck did not claim against a person arising out of his or her exercise of a constitutional right of manager, campbell peters, and that he had assisted peters in evading service and refusing that a court is empowered to let baseless claims targeting protected activity stay in the p. 106, italics in original.) the court then considered all of the causes of action together, count alleges that the defendants` dominant motive for attempting to recover the protected conduct alleged in wallace and owen`s thirteenth cause of action is not, in itself, protected activity, the court in birkner ruled that the service of a termination in february 2008, wallace sent a letter to victor wu stating her intention to subdivision (b)(1) might reasonably be read such that cause of action and claim a probability of prevailing, and there is no need to resort to legislative history or other rights of free speech and petition. this is a good thing. in fact, it comports with a mccubbin and merck for wrongful eviction based on the three-day notice, the unlawful victor wu served a three-day notice to quit and filed the unlawful detainer action. the thirteenth cause of action does not specify what acts purportedly violated first and thirteenth causes of action, for wrongful eviction and retaliation respectively, under law. it is not clear from this allegation whether wallace and owen seek recovery generally in paragraph 51 that the defendants acted as part of a campaign against the protected activity itself supports a cognizable cause of action in short, that he or she has protected by the statute, and the court erred in ruling that those acts were merely undertaken in furtherance of the constitutional right of free speech, we conclude that it is wallace that her service dog designation was invalid and that she and owen would be notice. (birkner, supra, 156 cal.app.4th at p. 283 & fn. 3.) here too, the complaint does exact a high toll from targeted defendants and deter others from exercising their though there is no stated authority in the statute or legislative history for testing the merit in good faith, in the sense that it was seriously considered, whether or not the notice was unlawful detainer action comprise petitioning activity under section 425.16, to mccubbin and merck (complaining to the landlord, complaining to animal control, actual or attempted eviction. nor was it based on the anti-retaliation statute of civil code commission about mccubbin and merck. on november 14, 2007, the san francisco (1995) 37 cal.app.4th 8, 16-18 [defendant may claim protection under the anti-slapp the court in mann concluded a plaintiff can establish that its cause of action has e. the lessons of taus slapp motion should have been granted as to three of them, but that the action could they committed conduct that was illegal as a matter of law: wallace and owen do not california constitution rather than the united states constitution or the california in march 2006, wallace complained to merck and mccubbin about merck`s unlawful detainer actions, but for the landlord`s alleged acts in failing to make a at p. 106, italics added, second italics omitted.) as to their retaliation cause of action, the question is whether wallace and owen meritless claims based on protected activity in the same count. (ibid.) indeed, if a court to evict wallace and owen, not discriminating against them. appellants. of the three-day notice, and the agent`s statements] are not merely cited as evidence of january 2004. would be subject to a motion to strike unless the plaintiff showed a probability of statute and insulate their meritless attacks on protected activity by merely joining them protected activity].) ability to combat the plaintiff in the political arena is substantially diminished. on some other aspect of what the plaintiff has pled as a cause of action.14 offered in mann do not support the rule. 3 commission`s fair housing and public accommodations compliance officer warned if we look no further than the words in subdivision (b)(1) of the statute, we might under civil code section 1942.5 on the basis of those acts. sections 37.9 and/or 37.10 as enacted herein, the tenant or board may institute a civil before an inference of acquiescence is elevated to implied legislation; legislative inaction action so as to leave only those portions it has determined have merit. (mann, supra, therefore, mann not only permits the plaintiff to shield meritless claims of accordingly, the trial court should have granted defendants` motion to strike. super. ct. no. cgc-09-488803) under these circumstances, i see no reason to criticize an analysis that is entrance into a dwelling unit), and retaliatory eviction (civ. code, 1942.5 et seq.). at liability on protected activity. after all, if any part of the count asserts that the defendant (ornelas v. randolph (1993) 4 cal.4th 1095, 1108 [more than mere silence is required disapproved on other grounds in equilon enterprises v. consumer cause, inc. (2002) 29 explained, slapp suits are brought to obtain an economic advantage over the agent in connection with the dispute constituted protected activity under code civ. proc., at the unlawful detainer trial, victor wu allegedly admitted that he had lied to the primary right doctrine, a cause of action refers to a singular harm and consists of a figure out what the plaintiff must do to establish a probability of prevailing on the petition or free speech i.e., protected activity. ( 425.16, subd. (b)(1), italics added.) thirteenth causes of action, and their complaint as a whole, are not really about the three- to appear for a deposition. at trial, wallace and owen allegedly produced expert one would think that taus would be the death knell for the rule ventured earlier in history, or address at length the policy concerns we identify in this opinion. nonetheless, section 47, subdivision (b). as a matter of law, mccubbin and merck could not be liable properly concluded that dismissal under the anti-slapp statute was improper with regard indicated. explained ante, however, those acts are subject to the absolute privilege of civil code oasis cited mann with approval, albeit in a case that apparently did not involve a allegations of protected activity leads to a rather puzzling result. one would think that claim, the cause of action is not meritless and will not be subject to the anti-slapp section 425.16, subdivision (e). reports to governmental agencies intended to prompt an violated by the three-day notice and the unlawful detainer action. to the extent the with a public issue or an issue of public interest. ( 425.16, subd. (e).) to the claim based on unprotected activity. constitution. this change making no difference to our analysis, we refer to the statute their anti-slapp motion as to the first cause of action, based on the filing of the unlawful the landlord served a 60-day notice to terminate a tenancy pursuant to the rent activity and unprotected activity. the defendant files a special motion to strike. in prong anti-slapp statute. (code civ. proc., 425.16.) they argued that the first and 18 from acts in furtherance of [their] right[s] of petition or free speech under the united added.) the motion to strike authorized by section 425.16 is special, because it does because they were not premised on the landlord`s protected activity of prosecuting an words in same section of the law as to the same subject indicates the words were meant to allegations of the complaint]; hailstone v. martinez (2008) 169 cal.app.4th 728, 735 cause of action from a complaint if the plaintiff happened to include in that cause of exhorted victor wu to file it, the filing was not in furtherance of mccubbin and merck's arise from protected activity, our colleague concludes that the legislature actually 41 32 there is sufficient evidence to establish a prima facie case with respect to the claim. free clinics, inc. v. happening house ventures (2010) 184 cal.app.4th 1539, 1547 cheryl wallace et al., causing the tenants to involuntarily quit, evicting them, or threatening to do so. pled in connection with their first and thirteenth causes of action. although they alleged and decline to join their offer of an alternative to what i view as the long established later decided to publicly oppose the same project, the court concluded that oasis has involuntarily or bringing an action to recover possession. mccubbin and merck satisfied dozens of acts in this regard, most of which were not performed by mccubbin and a third reading of the statute would again conclude that cause of action and with non-frivolous allegations of unprotected activity. the majority in haight ashbury, second prong of the anti-slapp analysis. the court observed that in order to avoid 1124-1125; platypus wear, inc. v. goldberg (2008) 166 cal.app.4th 772, 786.) the court in taus deemed it appropriate to strike the meritless assertions of liability based in november 2007, wallace complained to the san francisco human rights merck. of those that were, the acts include acts of harassment and the complaint to his client. the court stated: the complaint identifies a number of acts of alleged has been satisfied. i also agree plaintiffs failed to carry their burden of any part of its claim, the plaintiff has established that its cause of action has some merit (id. at p. 711.) our supreme court evaluated those four incidents at length and ruled the wallace and owen fail to show any probability of prevailing on their claim against the trial court found that the gravamen of the plaintiffs` complaint was a argued, wallace and owen could not prevail on these causes of action, because vehicle to promptly and efficiently identify and dismiss unmeritorious lawsuits or causes nomenclature of the anti-slapp statute, they contend the first and thirteenth causes of action arise generally from unlawful discriminatory efforts to oust them from the disapproved on other grounds in equilon enterprises v. consumer cause, inc., supra, 29 ordinance (rent ordinance, 37.9, subd. (e)), their actions were retaliatory (civ. code, d. the reasoning in mann is not persuasive the police admonished wallace to keep nemo leashed at all times when in public; and two things that the legislative history does make abundantly clear, however, threshold question is whether part of a cause of action can be stricken under the anti- _________________________ obvious purpose of protecting meritless attacks on the activity set forth in subdivision (e). permitted three adult residents. she also provided information concerning the victor wu that, due to the nature of wallace`s disability, she required the subdivision (b) would compel a plaintiff to demonstrate a probability of prevailing on his in the striking of the whole or any part of a pleading. ( 435, subd. (b)(1), italics any part of its claim, the plaintiff has established that its cause of action has some merit defendants` motivation in attempting to evict wallace and owen. wallace and owen wallace and owen were advertising for a new subtenant; victor wu intimidated the new the plaintiff`s claim that the protected activity, in itself, gives rise to liability under constitute protected activity and bring the cause of action under the ambit of the anti- human rights commission fair housing and public accommodations compliance needham, j. for these reasons, a rule by which the plaintiff must show the probability of charging allegations that are based exclusively on protected activity. 15 cal.app.4th at pp. 1479-1480.) attempt to evict them. 2 11 legislature`s use of different terms, a cause of action must mean something different (san francisco county liability based on protected activity, the court in taus looked at whether those assertions 49 plaintiffs and respondents, 188, used the phrase gravamen or principal thrust of the claims when deciding whether when the determinations of the court of appeal and this court are viewed as a whole that ordinance or any activity by the landlord that preceded the service of the termination the statutory protections to a mixed cause of action in some manner, since otherwise a at p. 106, italics in original.) 1 remove their dog, after which the dog disappeared without its owner knowing the dog`s the legislature ultimately did not preclude just slapps, but also causes of action that 42 reference to the 180 days period suggests subdivision (a); reference to exercising be evicted if they did not get rid of nemo; mccubbin informed lawrence wu that activity, the entire cause of action may proceed as long as the plaintiff shows a moreover, the fact that a defendant`s conduct was alleged to be illegal, or that our supreme court did not address the first prong of anti-slapp analysis and a. background purposes of anti-slapp analysis, however, an alleged act is incidental to a claim, and conduct, while the anti-slapp procedure, imposed so early in the case, would be used to presented within a single cause of action and need not parse the cause of action so as to mccubbin and merck met their initial burden of showing that wallace and prove that mccubbin and merck willfully assisted the wus in violating the rent the plaintiff has shown, by admissible evidence, a probability of prevailing on the claim. time to accomplish plaintiff`s underlying objective. [citation.] as long as the defendant and the entire cause of action stands. thus, a court need not engage in the time- much closer to the matter at hand is birkner, supra, 156 cal.app.4th 275. there, protections such persons are afforded by the san francisco rent ordinance and other colleagues in the fourth appellate district who authored it, but also because our supreme victims of discrimination because victor wu tried to evict them on a ground that was division five which the trial court evaluates the merits of the plaintiff`s claim using a summary- 48 of greater concern to the matter before us, oasis apparently did not involve a in essence, oasis embraces the view in mann that, if there is any probability of language, legislative history, public policy, mann, and two california supreme court also on point is feldman, supra, 160 cal.app.4th 1467. in feldman, a property statute was designed to protect protected activity nothing more than that, and nothing lois mccubbin and joshua merck appeal from an order denying their special incidental to the causes of action. we agree, confirming that the first prong of analysis eviction under rent ordinance was barred by litigation privilege to the extent it was based categories of acts: (1) mccubbin and merck`s complaints to wallace and owen; activity would be stricken as a basis for liability. is aligned with public policy and consistent with the statute`s language and legislative salma v. capon (2008) 161 cal.app.4th 1275, 1287 [mixed causes of action are subject count 13 is entitled, thirteenth cause of action [] (retaliatory against disabled tenants with limited means. the reference to paragraphs 1 through 41 filed within 60 days of service of complaint or by court order] with 437c, subd. (a) commission about defendants` threats to remove nemo: victor wu interrogated 51 market, providing notice pursuant to the municipal code and the ellis act (gov. code, argument with wallace about nemo being overly friendly and noisy. because they were all based on the attorney`s breach of his duties as a former attorney to more than one reasonable meaning, we turn to standard rules of statutory construction prospective subtenant. lawrence wu warned wallace and owen in writing that dfeh is clearly distinguishable from the matter at hand. dfeh did not involve a one of the common characteristics of a slapp suit is its lack of merit. [citation.] but 5 limited means, designed to force plaintiffs from their home of four years. plaintiffs are possession and retaliate after plaintiffs asserted their rights to keep nemo. they list constitute protected activity.11 cal.4th at p. 68, fn. 5.) and owen`s gestalt approach is simply untenable. cal.4th 299, 312 (flatley); varian medical systems, inc. v. delfino (2005) 35 cal.4th did not want the statutory procedure ever to apply to activity the statute was not intended claim as to one defendant, related to statements made in a certain article, and a claim applicability of taus and oasis to the matter at hand, therefore, we find it best to begin at to . . . four incidents or conduct allegedly engaged in by one or more of the defendants[.] evicted if they did not get rid of nemo. in the same month, wallace`s psychiatrist wrote capital, supra, 118 cal.app.4th at p. 212 [requiring admissible evidence, not merely [mccubbin and merck] have not carried their initial burden to prove that the gravamen of action against attorneys for certain civil conspiracies with clients (civ. code, 1714.10), point in the case, the plaintiff would also attempt to show a probability of prevailing on activity protected by the statute. in other words, a cause of action arising from may suggest subdivision (b)(1) is ambiguous, but the ambiguity is of no moment since all i agree with the majority to the extent my colleagues hold that the first and protected activity, but it did not explicitly authorize courts to examine or strike assertions anti-slapp statute and then proceed with our analysis. the court in martinez v. metabolife internat., inc. (2003) 113 cal.app.4th 181, acts, participated in them, or are otherwise responsible for them. indeed, it is alleged owen`s wrongful eviction cause of action arose from activity protected under the anti- p. 44.) in my view, it is apparent why the supreme court looked only at the four grounds 425.16)24 contained in paragraphs 1 through 41 of the complaint, which would omit the petition chill the future exercise of our rights of free speech and petition, and they do not 20 harass those who have exercised their first amendment constitutional rights of free i concur. leave only those portions it has determined have merit. (mann, supra, 120 cal.app.4th section 425.16, subdivision (e), (taus, at p. 712), our supreme court honed in on the statement or writing made in connection with an issue under consideration or review by a we will follow the rule pronounced by our supreme court. we will therefore consistent with a rule that requires the plaintiff to demonstrate a probability of prevailing privilege of civ. code, 47, subd. (b), as to unlawful detainer action, eviction notice, and been the unchallenged law of this state for several years. (see, e.g., a.f. brown the plaintiff must show it could prevail based on the allegations of protected activity probability of prevailing on unprotected activity. v. though the acts violated child support evasion statutes].) an exception exists only where plaintiff to demonstrate with admissible evidence a probability that it would prevail on its probability that she would prevail on the particular claim. (taus, at p. 713, italics california constitution in connection with a public issue shall be subject to a special owen were advertising for a new subtenant. wallace and owen`s lease states that three after noting that the alleged conduct fell within the scope of activity protected by liability based on protected activity. by striking the protected activity as a basis for filing of the unlawful detainer action. (feldman, supra, 160 cal.app.4th at p. 1479.) showing, the entire count protected activity and unprotected is stricken with in the first place, despite the allegations of the complaint, wallace and owen adjudication. (mann, supra, 120 cal.app.4th at p. 106.) the fact that a defendant may the beginning, examining the language of the statute itself. statute. as we have explained ante, service of the three-day notice and the filing of the 426.16 [sic]. the gravamen of the plaintiffs` complaint is not that the defendant filed a 2005 the year after mann was decided the legislature explicitly noted its intent to platypus wear, inc. v. goldberg (2008) 166 cal.app.4th 772, 786 (platypus wear). unprotected activity and a plaintiff can show a probability of prevailing on any part of its the entirety of the complaint had consisted of a meritless attack on protected activity. protected and nonprotected activity under the label of one cause of action`].) wallace is more, since a plaintiff cannot effectively amend a complaint after an anti-slapp section 1942.5. has established that its cause of action has some merit and the entire cause of action action an allegation of liability based on protected activity. plaintiff cannot substantiate. rather, once a plaintiff shows a probability of prevailing on order striking the first cause of action as to mccubbin and merck and the thirteenth cause solely as evidence of other wrongdoing that was the actual basis of the lawsuit. (see assertion of liability based on protected activity, and nothing else. and not to wallace and owen`s causes of action for discrimination. 10 have to do would be to show some modicum of merit to his claims based on unprotected the issue was addressed several years ago in mann v. quality old time service, against the defendants for wrongful eviction based on the unlawful detainer action or ch. 535, 3, p. 3252.) much more than this is required for legislative acquiescence. in pertinent part, section 425.16 provides: (b)(1) a cause of action against a jones, p.j. that a tenant`s causes of action did not fall within the scope of the anti-slapp statute, it held that the gravamen of a complaint was for disability discrimination the outcome claim, whether it be by showing some merit to the allegations of protected activity or particular act in itself. as we shall see, appellants` contention is inconsistent with the should be held liable based on protected activity, the plaintiff is in effect saying that the etc.) could constitute endeavoring to recover possession of a rental unit within the or free speech under the united states constitution or the california constitution in contrast, it would be unreasonable to purport to protect the activity in subdivision (e) by [t]he claim 17 claims is likely to be highly metaphysical. . . . (king v. otasco, inc. (5th cir. 1988) 861 with an issue of public interest; or (4) any other conduct in furtherance of the exercise of evicted. (id. at p. 1280.) the department of fair employment and housing (dfeh) on his attempt to base liability on protected activity, and not to permit the plaintiff to problems created by meritless lawsuits and that a cause of action may be stricken under 16 protected activity. without her consent. (taus, at p. 689.) the defendants filed a motion to strike under the action must be based on the three-day notice and the unlawful detainer litigation, whether of a systematic campaign of harassment and intimidation against disabled tenants with by section 425.16. to demonstrate a probability of prevailing, the plaintiff must produce proceeding: the ensuing unlawful detainer action was not based on nemo, but on an 34 actions alleged in paragraphs 1 through 51, their purpose was to retaliate against first and thirteenth causes of action, and reserve our more thorough consideration of the 38 gravamen is defined by the acts on which liability is based, not some philosophical thrust procedure. [] stated differently, the anti-slapp procedure may not be used like a of action, as classically defined under the primary right doctrine, consists of a wrongful venture that the legislature, by its silence on this point, was content to allow a plaintiff to akin to birkner and feldman, and unlike dfeh and the other cases on which malicious and oppressive. 17 impermissible subtenant. as to mccubbin and merck`s complaints to wallace and owen possession of the apartment were, or at least included, victor wu`s service of his three- because the majority finds no suggestion in oasis that our supreme court would not when the defendant has made a threshold showing that the plaintiff`s cause of person`s right of petition or free speech under the united states constitution or the maintained only against the landlord, wu. (rent ordinance, 37.9, subd. (f).)23 recover possession without a reasonable and factual basis was preempted by litigation so within about two months after filing the complaint and without conducting any would provide that a cause of action (count) arising from protected activity is subject to a activity, it is subject to section 425.16 unless the protected conduct is merely been adopted by our supreme court. (see oasis, supra, 51 cal.4th at p. 820.) other pre-litigation communication relating to litigation that was contemplated in good subdivision (b)(1) of section 425.16 provides: a cause of action against a person in december 2007, a veterinarian examined nemo and concluded that he did not any part of its claim, the cause of action is not meritless and will not be subject to the ch. 65, 1), the doctrine of legislative acquiescence has application. (see olmstead v. in a.f. brown electrical contractor, the court cited mann for the proposition wallace and owen premised liability in part on mccubbin and merck`s report to 1388.) project. oasis then sued the attorney and his law firm for breach of fiduciary duty, next, the concurring and dissenting opinion contends that mann`s analysis has cheryl wallace et al. v. lois mccubbin et al. (a127287) proceedings, and the allegation of a systematic campaign of harassment and intimidation on any part of its claim, the cause of action is not meritless` and will not be stricken; liability. from this it would follow that, in establishing a probability of prevailing on procedure section 425.16, subdivision (e)(1) or (2). but that does not change the fact that request to have a third adult reside in the apartment; and (6) the three-day notice to quit 1124-1125.) the court found that the defendants failed to meet their burden on the first purposes of the first prong of anti-slapp analysis, however, since all of these definitions special motion to strike ( 425.16, subd. (b)(1)) into a broad-brushed premature protected activity as a basis for liability, even if the allegations were not actually stricken. professional negligence, and breach of contract. the defendants filed an anti-slapp calls us to ascertain the gravamen of the cause of action, for anti-slapp purposes this very context in which mann was decided. subtenant, the filing of the unlawful detainer complaint and the unlawful detainer platypus wear, the court was concerned with whether the trial court had erred in mann was unwise, largely because it would allow plaintiffs to end-run the anti-slapp as a proximate result of defendants` wrongful acts alleged herein, wallace suffered prevail against mccubbin or merck on their claim for wrongful eviction. (see hms defendants in filing or prosecuting the unlawful detainer action itself. as to the merits, whether this was because the legislature did not consider the issue, or because it simply that there would be a hearing to determine whether nemo should be killed. wallace and 1942.5), or they could be liable for the wus` acts. (see discussion of prong two, post.) association or an organization advocating lessees` rights or has lawfully and peaceably nemo to be friendly. 2 1. determining the probability of prevailing protected activity, the trial court would not have to determine the merits of all theories, or legal essence of the cause of action. (haight ashbury, supra, 184 cal.app.4th at mr. peters had changed the occupants from two to three. during jury selection, victor iii. disposition activity. indeed, mccubbin and merck`s anti-slapp motion was directed only to the the plaintiff is unable to demonstrate both that the claim is legally sufficient and that 13 result of defendants` wrongful acts alleged herein, wallace suffered hospitalization claims that are based on protected activity, leaving summary judgment and other motions to animal control.6 cal.app.4th 1518, 1535 [the gravamen . . . of a cause of action is determined by the thirteenth causes of action arose from conduct the statute protects. specifically, they at p. 1285.) the court explained: this suit is instead based on dfeh`s claims [the p. 1280.) the dfeh did not assert a cause of action for wrongful eviction or retaliation. action is not meritless and should not be stricken. in effect, section 425.16 was not to elaborate a bit further, a complaint may allege that protected activity gives rise protected activity. (ibid.) unlawful detainer action, both of which constituted protected activity. furthermore, they (strategic lawsuit against public participation) statute. (code civ. proc., 425.16.)1 court determines that the plaintiff has established that there is a probability that the before us. gravamen of the first or thirteenth causes of action could be discrimination against the of course, no one could seriously contend the legislature would not want to apply statute calls us to protect.18 to recover possession for himself, as landlord and property owner. furthermore, wallace third and fourth purported causes of action for fraud and defamation, the court granted underlying the cause of action, or whether the plaintiff must show it could prevail based based on protected activity, and if the plaintiff fails in this regard, the protected activity question arises whether the plaintiff can satisfy this [prong two] burden by showing it different than the one he employed against other tenants: he attempted to get rid of electrical contractor, inc. v. rhino electric supply, inc. (2006) 137 cal.app.4th 1118, strike plainly provides for those specific allegations to be stricken, without regard to any action could be stricken because the plaintiff failed to establish a probability of prevailing d. denial of motion to strike that wallace and owen`s gestalt theory is incorrect. according to subdivision (b)(1) of the trial court, mccubbin and merck would have responded with a declaration showing c. mccubbin and merck's anti-slapp motion to strike decreasing services within 180 days of certain complaints or actions the tenant takes in lawsuit refer to assertions of liability based on unprotected conduct. we do not know protected activity. the point remains, however, that the legislative history is silent on such activity. allowing a defendant to do this, with the hopes of getting rid of the entire f. oasis contact endeavoring to push plaintiffs/nemo out for over 2 1/2 years. but they fail to applicable affirmative defense. (hms capital, inc. v. lawyers title co. (2004) 118 taus, we would conclude that the second prong of anti-slapp analysis requires a added.) in short, our supreme court ruled that, in response to an anti-slapp motion activity, the plaintiff may satisfy its obligation in the second prong by simply showing a nonprotected activity, it has satisfied the first prong of the [anti-]slapp analysis]; 33 llc, supra, 193 cal.app.4th at p. 659; marlin, supra, 154 cal.app.4th at p. 162) or in charging illegal rents; the court held that the anti-slapp statute did not apply because activity. not once in the legislative history do the terms cause of action, claim or the trial court held that the anti-slapp statute did not apply because the of prevailing not on any part of its claim (mann, at p. 106), but on the claim usually according to a particular legal theory or remedy sought, and which is more claims based on protected activity and chilling the free exercise of first amendment 28 action to recover possession in retaliation for the tenant`s exercise of certain rights. as advertising but on the product`s failure to conform to the defendant`s warranties and litigation privilege (civ. code, 47, subd. (b)). (feldman, supra, at pp. 1475-1476.) accommodate, her disability by granting her an extension of her tenancy to one year. gravamen of the cause of action is based on nonincidental protected activity as well as 21 evident purpose of the statute. (hughes v. board of architectural examiners (1998) 17 i. facts and procedural history contended, the gravamen of [the] claim was that all defendants served a bogus notice of 50 and civil code section 54.1, subdivision (d) for disability discrimination. (dfeh, at the plaintiff`s claims, rather than each individual claim].) focusing on the acts on which context: where, as here, a cause of action alleges the plaintiff was damaged by specific refers back to this same concept. given these definitions, the statute would effectively under the anti-slapp statute focuses on the acts on which liability is based, not the lois mccubbin et al., of the action was one for disability discrimination and did not attack any act of the petitioning activity protected by the anti-slapp statute. the prosecution of an unlawful additionally, as i noted recently, the slapp statute has been litigated heavily mccubbin and merck liable for wrongful eviction, their wrongful eviction cause of certified for publication on all theories within the cause of action. (a.f. brown, supra, 137 cal.app.4th at pp. all further statutory references are to the code of civil procedure. b. legislative history in sum, while the legislative history is not dispositive of the issue, it is certainly filing of the three-day notice and unlawful detainer action, those earlier acts are not in endeavoring to recover possession of a rental unit under section 37.9 of the rent the constitutional right of petition or the constitutional right of free speech in connection all further footnotes are to the code of civil procedure unless otherwise the appellate court reversed. recognizing that the act of terminating a tenancy is x-large great dane` or vicious and dangerous, but was in fact a laid back docile by contrast, under the mann rule permitting the plaintiff to show a probability of the overwhelming majority of plaintiff`s claims properly should have been struck in the discriminate against plaintiffs on the basis of their disabilities because of the special and defamation. (id. at pp. 701-702.) the defamation cause of action contained a than the report to animal control, three-day notice, and unlawful detainer proceedings, it wallace and owen argue that mccubbin and merck`s complaint to animal dismissed, rather than entire causes of action, underscores that assumption. while taus and consider other indicia of legislative intent, including the statutory scheme, legislative true slapp if it included a claim that had some merit. the legislature, however, must wallace and owen argue that they presented more than sufficient admissible bulk of allegations are based on unprotected activity; see, e.g., haight ashbury, supra, of the claims asserted in plaintiff`s complaint. [defendant`s] commercial speech, the problem, however, is that, under the mann rule, a trial court would not have to causes of action, claiming among other things that the property owner`s agent had made (under the mann rule), but also to save the remainder of the cause of action from being in furtherance of the right of petition or free speech. [citation.] (city of cotati v. critically and as the majority concedes, the mann court`s analysis of this issue has now prerequisite for bringing the unlawful detainer action. (id. at pp. 281-282; feldman v. the court in mann further pointed out that a defendant has other options to questions the applicability of the decision to a mixed cause of action, because oasis notice was a hollow threat or unconnected to the unlawful detainer proceedings. the demonstrating it was probable they would prevail on either cause of action and, the court of appeal in feldman held that the causes of action arose from the gestalt of a cause of action in order to determine whether the anti-slapp statute applies. p. 1481.) the court concluded: these activities [filing of the unlawful detainer, service subtenants, and then filed an unlawful detainer action. (id. at p. 1475.) the subtenants and petition rights as intended by the statute. to set forth the history of dogs and tenants at the building during the time he was a tenant. animal control. although civil code section 1942.5 regulates actions by a lessor something else must refer to the antecedent concept in subdivision (b)(1) pertaining in any event, even if mccubbin and merck were agents of the wus, or if they we therefore turn to what our supreme court said in taus. a second reasonable reading of the statute would lead to the same result. discovery whatsoever except by court order after yet further motion practice. intended to relieve a defendant from the burden of defending against meritless allegations all theories presented within a single cause of action and need not parse the cause of of the anti-slapp analysis tests whether the plaintiff has a probability of prevailing on action and to three-day notice issued when the unlawful detainer action was contemplated appears beside the point. after all, it was the insufficiency of these other procedural wallace and owen`s unit, civil liability for the violation of the statute may extend to an shall not endeavor to recover possession of a rental unit unless the landlord`s dominant motion filed november 29, 2010) of their verified answer to the complaint, which 1992, pp. 3-5), and as far as i can determine, every published case that has analyzed nemo is not well-behaved; nemo charged mccubbin while she was holding her baby; alleged in what it termed, e.g., its thirteenth cause of action). in effect, the subdivision mean the same thing, with both terms referring to a plaintiff`s assertion of liability based but let us assume there is some material ambiguity in the statute, and for the sake (see, e.g., sen. com. on judiciary, sen. bill no. 1264, feb. 25, 1992 hearing, p. 4.) the order is reversed. upon remand, the trial court shall issue a new and different claim refer to the same thing, but this time in the sense that the claim refers back to deal with claims based on unprotected conduct. any other claims in the cause of action once a probability of prevailing is demonstrated as court of appeal evaluated the individual factual claims contained within the causes of we begin with the facts, as alleged by respondents in their complaint. 16 wallace and owen (and nemo) for having an illegal subtenant, since their disability and accurately called a count. (see slater v. blackwood (1975) 15 cal.3d 791, 795-796 [a subject to the privilege in civil code section 47, subdivision (b). (hagberg v. california of action as to mccubbin and merck. appellants shall recover their costs on appeal. act; the anti-slapp statute did not apply, because the challenge was not to the as to mccubbin and merck`s alleged report to animal control, we question venezia, llc (2007) 154 cal.app.4th 154, 162 (marlin).) a more colloquial meaning protected activity and oasis had failed to demonstrate a probability of prevailing because the motion to strike the cause of action as to one defendant, but not the other. (id. at detainer action indisputably is protected activity within the meaning of section 425.16. violating section 37.9 of the rent ordinance, it also provides that a civil action may be . . . in mann because [i]n evaluating the probability of prevailing on assertions of example, victor wu`s threat to evict wallace and owen unless they got rid of nemo the mann rule. first, our colleague embraces mann on the assumption that the 7060 et seq.). (dfeh, supra, 154 cal.app.4th. at pp. 1275-1277.) one of the tenants prevailing based on unprotected activity the plaintiff could circumvent this laudatory prima facie case on any cause of action based on three of the four instances of protected applying the statute not just to slapp suits, but to causes of action that can be in the first half of 2006, defendants and each of them allegedly including future. (see crowley v. katleman (1994) 8 cal.4th 666, 687 [defending against an proceeding for injunctive relief, money damages of not less than three times actual meritless claims of protected activity should not be insulated by claims of unprotected oasis apparently did not involve a mixed cause of action our supreme court did not in oasis, supra, 51 cal.4th 811, an attorney represented oasis west realty in its ordinance declares it to be unlawful for anyone to willfully assist the landlord in and owen now insist that mccubbin and merck did not even exhort wu to pursue the to deal with claims based on unprotected conduct. under mann, however, summary for a subtenant, lawrence wu stated that subletting would result in legal action, and agent of the lessor. (civ. code, 1942.5, subd. (f).) wallace and owen stressed in properly concluded that dismissal under the anti-slapp statute was improper with regard (feldman, at pp. 1479-1480.) the court also held that threats by the property owner`s (birkner v. lam (2007) 156 cal.app.4th 275, 281 (birkner). furthermore, a notice of in fact, mann`s reliance on the availability of other motions to get rid of meritless states constitution or the california constitution in connection with a public issue. liable for, inter alia, threatening to cause a tenant to quit involuntarily or instituting an thus, while indicating that a cause of action targeting protected activity may be 9 in addition to any other existing remedies which may be available to the tenant or the basis in fact for the eviction as provided for in section 37.9(a) shall be guilty of a supreme court asserted: finally, although we have determined that defendants` motion in regard to the first cause of action for wrongful eviction, the question is whether 6 motion to strike . . . . ( 425.16, subd. (b)(1).) but in my view, whether the challenge is then, is that a plaintiff basing liability on both protected activity and unprotected activity to the litigation privilege and for other reasons, discussed post. and that this participation should not be chilled through abuse of the judicial process. to requiring the plaintiff to show a probability of prevailing on the part of his causes plaintiff will prevail on the claim. [] (2) in making its determination, the court shall we also find unconvincing our concurring and dissenting colleague`s analysis of cabral v. martins (2009) 177 cal.app.4th 471, 479-481 [lodging a will, pursuing probate this end, this section shall be construed broadly. ( 425.16, subd. (a), italics added, see states the apartment would be used as a residence with no more than two adults. motion has been filed, a plaintiff cannot avoid the draconian result of the mann rule by hospitalization and treatment and both she and owen suffered inconvenience, annoyance, anti-slapp motion was filed in this case, the statute referred to the united states or letter and spirit of section 425.16 to hold it inapplicable because the liability element of punitive damages claims for medical malpractice (code civ. proc., 425.13), causes of characterized as a slapp. this is demonstrated by the wording of the statute itself: a amendments, however, the legislature did not address the relevant subdivision (b)(1), state and federal laws. plaintiffs are informed and believe that defendants[`] eviction the first cause of action actually states that it incorporates the allegations of loss resulting from protected activity were not merely incidental or collateral to rights of free speech and petition. wallace and owen did not make this standing statement or writing made before a . . . judicial proceeding . . . ; (2) any written or oral not any others in the purported cause of action or count had any merit. (maj. opn., at this point as well and conclude that the motion to strike should have been granted. means of statutory construction: a plaintiff must show a probability of prevailing on the and thirteenth causes of action. as to both of these causes of action, wallace and owen also in october 2007, mccubbin and merck filed a complaint with animal (relevant to the first prong) that defendants need not prove that all of their acts alleged in in sum, wallace and owen base their thirteenth cause of action on the following post-dissolution motion, in violation of california rules of court, was protected activity]; argument in the trial court, and the argument is meritless given their allegations in this 5 living in the premises, as a precursor to his filing the unlawful detainer action, which was success, rendering its reference to mann mere dictum. (a.f. brown, at p. 1130.) in of liability based on protected activity; instead, it was intended to remove a meritless premises, rather than from the termination notice, unlawful detainer, or any other however, the fact that these acts might be used as evidence of intent, as well as the acts motion to strike under code of civil procedure section 436 or a motion for summary protected activity does not mean a count that includes protected activity, but the specific subject to a motion to strike unless the plaintiff showed a probability of prevailing on the consistent with the supreme court`s decision in taus v. loftus (2007) 40 cal.4th 683 defendants[`] discriminatory intent to remove plaintiffs from the premises for having a not challenge the validity of the rent ordinance, but contends the rent ordinance was wallace and owen that defendants would eventually have nemo removed. within probability of prevailing on any part of the cause of action. we now apply this rule to the protected activity. under this interpretation as well, the plaintiff would have to show history of the reenactment expressly acknowledged those decisions].) prevailing on a claim, and then determining whether wallace and owen met that standard the project, acquired confidential information from oasis during the representation, and faith meaning not a hollow threat and under serious consideration]; feldman, supra, from acts. the act, in the context of wallace and owen`s allegations, was the complaint see episcopal church cases (2009) 45 cal.4th 467, 477-478 [allegation that lurk[s] in would quickly find, however, that other provisions of the same statute, as well as the two, the plaintiff would try to show the merit of its claims based on protected activity. strike. the first and thirteenth causes of action must be stricken as to mccubbin and (see, e.g., stats. 2005, ch. 535, 3 [it is the intent of the legislature, in amending for wallace; the psychiatrist replied that wallace was disabled. admissible evidence from which a trier of fact could find in the plaintiff`s favor, as to 717-718, 722.) we also note that code of civil procedure section 425.15, reenacted by section 425.16: a cause of action against a person arising from any act of that person in premised. an examination of each of the pleaded theories of liability illustrates that the issue in that case could be characterized as mixed. the property is allegedly subject to provisions of the san francisco residential rent authorize a trial court to examine or strike allegations that did not target protected merely because it allegedly violated the rent ordinance]; see g.r. v. intelligator (2010) matter for the second prong analysis. protected and unprotected activity and a plaintiff can show a probability of prevailing on damages, (including damages for mental or emotional distress), and whatever other relief legislature reenacted a statute after judicial decisions construed it, and the legislative prong of the anti-slapp analysis. alleged wrongful conduct was protected by the litigation privilege, and no liability could activity whether meritorious or not there is no reason to decide whether claims of eviction or termination of a tenancy is protected activity where, as here, it is a legal they based their cause of action on protected or unprotected activity. while the rent of wallace and owen`s first and thirteenth causes of action. these alleged acts did not action in dfeh were brought under anti-discrimination statutes specifically targeting judgment and other motions might be used to deal with claims based on protected discussed ante we can find no suggestion in oasis that our supreme court would not as mentioned, the acts alleged in the complaint that could most likely constitute 36 act that breaches the defendant`s duty and infringes the plaintiff`s right].) the rouda law firm and david rouda for plaintiffs and respondents. either subdivision of civil code section 1942.5. instead, it asserts that defendants took prong) the plaintiff need only demonstrate the cause of action has some merit, not merit undertake a formal construction of the language of section 425.16, analyze its legislative by retaliating against wallace and owen for exercising their rights within 180 days of nemo`s purported aggressive behavior; mccubbin and merck started an argument with appropriate to look beyond the allegations of protected activity, to see if the unprotected significant problems. first, a court`s determination of the essence` of the plaintiff`s judgment-like procedure at an early stage of the litigation. (flatley v. mauro (2006) 39 8 causes of action, the appellate court cited mann for the proposition that an anti-slapp number of documents referenced in the complaint. also attached was the declaration of the mann court`s analysis of this issue has been followed by other courts and has gravamen of the causes of action was a breach of the duty of loyalty rather than discrimination (which the landlords in dfeh did not claim were protected), wallace and protection, but the landlord refused to rescind the termination notice. furthermore, proceed as to one of them. (id. at p. 742.) taus never analyzed the propriety of striking and that is precisely what our supreme court did. the court concluded that the in august 2009, mccubbin and merck filed a special motion to strike under the make no argument that those acts constitute protected activity. we also question whether statute, even though he only supported another person who actually performed the personally file the unlawful detainer complaint, and it is not expressly alleged that they conduct, but the court of appeal was correct that the plaintiff had established a prima incidental to any unprotected activity on which the claim is based, only if the act is not authorized courts to examine and strike meritless assertions of liability targeting wrongdoing alleged in the complaint that is most obviously related to a wrongful eviction continued their campaign of complaining falsely about nemo`s behavior to victor wu. action, or different? and if it is the same, what does cause of action mean? we see but what about mann? mccubbin and merck filed a request for judicial notice (sept. 20, 2010), asking us to take reference pertains to striking assertions of liability that were based on protected activity. endeavors to recover possession or recovers possession of a rental unit in violation of that respondents did not demonstrate a probability of prevailing on the merits based on be understood differently].) thus, while cause of action commonly refers to all the [citations.] . . . . (wilcox v. superior court (1994) 27 cal.app.4th 809, 816, merck`s acts might be attributed to the wus, there would be no basis for attributing the 7 the purposes of the slapp statute through a pleading tactic of combining allegations of another reference in the legislative history may be instructive as well. legislators 2 seem to lead to a result different than the one reached in oasis. to evaluate the protected activity and that the first prong of the slapp statute (code civ. proc., public policy. nor does it seem wise to force trial judges to wade through the evidentiary the unlawful detainer action, and both the three-day notice and the unlawful detainer probability of prevailing on a claim targeting protected activity, the cause of action is and punitive damage claims against religious organizations (code civ. proc., 425.14). 185 cal.app.4th 606, 612-616 [attorney`s filing of a credit report in connection with a building manager, campbell peters, that wallace was disabled and required a service section 425.16 the legislators had before them examples of slapp lawsuits in which do any of those things. claim, the cause of action is not meritless and will not be subject to the anti-slapp mixed breed dog certified trained by the san francisco spca. legislative desire expressed in the statute: the legislature finds and declares that it is in entire count or lawsuit. ( 425.13, subd. (a), 425.14; civ. code, 1714.10.)17 10 prescribed service dog. provide: allegations of liability arising from protected activity are subject to a motion to cal.app.4th 141, 150; coretronic corp. v. o'connor (2011) 192 cal.app.4th 1381, west realty v. goldman (2011) 51 cal.4th 811 (oasis). my colleagues posit that the court of appeal erred in finding that plaintiff had satisfied her burden of establishing a landlord`s protected activity of filing an unlawful detainer action or prerequisite complaint for unlawful detainer on april 2, 2008, alleging that subleasing to the animal control, but nothing in regard to assisting the three-day notice or unlawful in its motion, the defendant must make a threshold showing that the plaintiff`s distinguishable on its facts.) the public interest to encourage continued participation in matters of public significance, public issue or an issue of truly public interest (a matter we need not and do not decide violation of rent ordinance). it incorporates the allegations summarized ante.3 three-day notice, in light of the litigation privilege of civil code section 47, place. forcing a defendant to go to the expense, time, and effort to remove the proceedings, and defending in litigation matters constituted protected activity, even wu dismissed the unlawful detainer action.2 eviction such that the eviction notices and unlawful detainer were merely background her declaration, wallace affirmed certain allegations of the complaint and attached a are pleaded as evidentiary support for the course of conduct which went on before and three alternative reasonable readings of the statute in this regard. lawrence wu threatened wallace and owen that defendants would eventually have well. in santa monica rent control bd. v. pearl street, llc (2003) 109 cal.app.4th part that does not? looking at the merit of activity not mentioned in subdivision (e). the logical inference, under the anti-slapp law. (birkner, supra, 156 cal.app.4th at pp. 278-279, 285 3. retaliation the court deems appropriate. . . . the remedy available under this section 37.9(f) shall be mixed cause of action, a cause of action arising in part from protected activity would be merck. paragraph 51 of the complaint further alleges: the foregoing conduct was part


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