1100 Park Lane Associates v. Feldman

• Decision Date: 25 February 2008
• Docket Number: No. A113034.,A113034.
• Citation: 74 Cal.Rptr.3d 1,160 Cal.App.4th 1467
• Court: California Court of Appeals Court of Appeals
• Parties: 1100 PARK LANE ASSOCIATES, Plaintiff and Appellant, v. Konrad FELDMAN et al., Defendants and Appellants. Konrad Feldman et al., Cross-complainants and Appellants, v. 1100 Park Lane Associates et al., Cross-defendants and Appellants.

74 Cal.Rptr.3d 1

160 Cal.App.4th 1467

1100 PARK LANE ASSOCIATES, Plaintiff and Appellant, v. Konrad FELDMAN et al., Defendants and Appellants.

Konrad Feldman et al., Cross-complainants and Appellants, v. 1100 Park Lane Associates et al., Cross-defendants and Appellants.

No. A113034.

Court of Appeal, First District. Division 2.

February 25, 2008.

L. Jay Pedersen, Bledsoe, Cathcart, Diestel & Pedersen, LLP, San Francisco, CA, for Plaintiff and Appellant.

Curtis F. Dowling Beckman & Marquez LLP Richard L. Beckman, San Francisco, CA, for Appellants.

KLINE, P.J.

INTRODUCTION

Plaintiff and appellant 1100 Park Lane Associates (Park Lane) filed an unlawful detainer action against its tenant Peter Levis and Levis's subtenants, defendants and cross-appellants Konrad Feldman and Jennifer Foote-Feldman. The Feldmans filed a cross-complaint for damages against Park Lane, Walter Lembi and Andrew Hawkins (collectively Park Lane cross-defendants). Following dismissal of the unlawful detainer action upon Levis's giving up his tenancy and the Feldmans' vacating the apartment, Park Lane cross-defendants filed a special motion to strike the cross-complaint pursuant to the provisions of California's anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc, § 425.16).¹ The trial court granted the anti-SLAPP motion as to the Feldmans' cause of action for retaliatory eviction and denied it as to the remaining six causes of action of the cross-complaint. Park Lane cross-defendants appeal from the denial of their motion as to the six causes of action. The Feldmans cross-appeal from the grant of the anti-SLAPP motion on the retaliatory eviction cause of action.² We shall determine that the anti-SLAPP motion should have been granted as to all causes of action, except that of negligent misrepresentation.

BACKGROUND

According to the cross-complaint and the declaration of Konrad Feldman in opposition to the anti-SLAPP motion to strike the cross-complaint, in April of 2005, the Feldmans were seeking to move to San Francisco from New York. They found an advertisement for a potential sublet of an apartment on Nob Hill in San Francisco. The Feldmans contacted the poster of the ad, tenant Levis, who agreed to sublet. Levis directed the Feldmans to Jon Seigel, whom Levis identified as the attorney for the owner of the building. The Feldmans contacted Seigel and exchanged emails regarding the sublet of the apartment in a building known as the Park Lane at 1100 Sacramento Street. The Feldmans forwarded personal private financial information to Seigel. On April 11, 2005, Seigel sent Konrad Feldman an email stating: "You are accepted, conditioned on you, your wife, and Mr. Levis signing a document that I will email to you later today. Additionally, I will not be involved with the lease arrangement between you and Mr. Levis. Feel free to email me or call me ... with any questions." The Feldmans and Levis completed their revisions to the proposed Additional Occupant Addendum to Rental Agreement (Addendum) provided by Seigel. The Feldmans then met with Levis on May 4, 2005, to sign the proposed Addendum as Seigel had instructed. They each signed two copies of the Addendum. The Feldmans authorized Levis to deliver the document to Seigel. Levis did so by leaving the document with the doorman at the Park Lane. Levis sent an email that same day to Seigel confirming the executed Addendum had been delivered to Seigel via the "intra-building post." Believing they had done all that was required and that they were fully approved subtenants of Levis, the Feldmans moved into the apartment on or about May 9, 2005.

On May 13, 2005, the Feldmans received an email from Seigel stating he had not received the Addendum, and reiterating that the sublet was approved conditioned upon his receipt of the signed Addendum. He stated: "Consequently, the sublet has not been approved. I will take action unless I receive the Addendum immediately." Levis and the Feldmans notified Seigel that Levis had handed the Addendum to the doorman in the usual manner. Seigel responded that the mail had been checked, but the Addendum had not been found, and that the Feldmans should "[t]ake care of this immediately." Jennifer Foote-Feldman delivered another copy of the fully executed Addendum to Seigel on May 25, 2005, which he acknowledged by email on that date. At no time did Seigel state or imply that the signature of anyone other than the Feldmans and Levis was necessary for approval of the sublease or that the Addendum needed to be signed or approved by anyone other than himself.

On June 2, 2005, the Feldmans received notice from Andrew Hawkins, who identified himself as the "trouble shooter" for the owner of the apartments, that their sublease application had not been approved and they were in possession of the premises unlawfully. Although the Feldmans showed Hawkins their documentation from Seigel, Hawkins insisted that they were unapproved occupants and that they would either have to leave or pay "market rent" for the premises, estimated to be over $2,000 more per month than the monthly rental the Feldmans were paying under the sublease.

According to Konrad Feldman's declaration, on June 24, 2005, Hawkins made the following threatening comments to him: "(A) That he has done hundreds of evictions, so he knows the landlord will win, and how many had we done? [¶] (B) That regardless of the outcome of the current case, my wife and I will never be able to rent another apartment in San Francisco; [¶] (C) That he understands the law and has discussed the case with his uncle, who is a federal judge; [¶] (D) That we will not be able to file suit against them because they will win; [and] [¶] (E) That we could not have read the Addendum properly."

Unlawful detainer filing

On or about June 28, 2005, Park Lane served the Feldmans with a three-day notice to quit, alleging that the Feldmans were unapproved subtenants in unlawful possession of the premises and had altered the premises without Park Lane's written approval (by replacing the carpet). On July 15, 2005, Park Lane filed an unlawful detainer complaint against Levis and the Feldmans alleging both grounds set forth in the three-day notice to quit. The unlawful detainer complaint alleged that the Feldmans had moved into the property without having obtained the prior written consent of Park Lane or its authorized representative. Levis, who had left for Spain in the interim, settled with Park Lane on August 8, 2005, terminated his month-to-month lease and surrendered his possession of the property. On August 31, 2005, in response to alleged "constant harassment" from Park Lane, its owner Walter Lembi, and Hawkins, and following Levis's surrender of his lease, the Feldmans vacated the premises.

Cross-complaint for damages

On October 6, 2005, the Feldmans filed a cross-complaint for damages against Park Lane, its alleged "managing member" Walter Lembi, and Hawkins. The cross-complaint alleged causes of action for: (1) retaliatory eviction, (2) negligence, (3) negligent misrepresentation, (4) breach of the implied covenant of quiet enjoyment—tort and contract, (5) wrongful eviction, (6) breach of contract, and (7) unfair business practices (Bus. & Prof.Code, § 17200).

In addition to the facts set forth above, the Feldmans alleged that Park Lane cross-defendants had "embarked on a course of conduct designed to deny then-existing tenants of the Apartments the benefits accorded to such tenants under applicable state and local laws, including but not limited to the San Francisco Rent Stabilization and Arbitration Ordinance (hereinafter `Rent Ordinance'), in an illegal effort to increase the income received by Park Lane from tenants of the Apartments."

Anti-SLAPP motion

On November 15, 2003, Park Lane cross-defendants filed an anti-SLAPP motion to strike the cross-complaint on the grounds that the causes of action alleged therein arose "out of the alleged conduct of Cross-Defendants in furtherance of their rights to free speech and petition" under the United States and California Constitutions and that the Feldmans had not established a probability that they would prevail on their claims, because the alleged unlawful conduct was absolutely privileged pursuant to the litigation privilege of Civil Code section 47. The motion was accompanied by the declarations of Hawkins and Seigel, a declaration relating that Levis had surrendered possession of the apartment, and a copy of the rental agreement with Levis and the Addendum to the rental agreement.

Hawkins declared that he had four conversations with one or both of the Feldmans. In the first, he advised them that he believed their occupancy was in violation of the master lease and he "provided them with the following choices: vacate voluntarily, enter into a direct tenancy with the ownership, or face an unlawful detainer lawsuit...." The second and third conversations were related to service of the unlawful detainer, and the last was when Konrad Feldman provided Hawkins with the keys upon surrender of the apartment. Attorney Seigel's declaration stated that he had "reviewed" the Feldmans' sublet application, that consent to the sublet was granted conditioned upon the execution of the Addendum, and that the Addendum not only required the signatures of Levis and [the Feldmans], but also the signature of one of the principals of the entity that owned the building, Park Lane. He also declared that the Feldmans took possession on May 8, 2005, but that he never received notice until late May or early June and that he had warned them on May 18th that Levis's tenancy would be terminated and the Feldmans evicted if they took occupancy prior to the full execution of the Addendum. He acknowledged receiving the Addendum executed by Levis and the Feldmans after May 19th, but stated that it had never been signed by a principal of Park Lane.

The Feldmans filed their...