Birkner v. Lam

• Decision Date: 20 September 2007
• Docket Number: No. A116262.,A116262.
• Citation: 156 Cal.App.4th 275,67 Cal.Rptr.3d 190
• Court: California Court of Appeals Court of Appeals
• Parties: Regina BIRKNER et al., Plaintiffs and Respondents, v. Kwai Ho LAM, Defendant and Appellant.

67 Cal.Rptr.3d 190

156 Cal.App.4th 275

Regina BIRKNER et al., Plaintiffs and Respondents, v. Kwai Ho LAM, Defendant and Appellant.

No. A116262.

Court of Appeal, First District, Division 3.

September 20, 2007.

Stephen Collier, Dean Preston, San Francisco, CA, for Plaintiffs and Respondents.

Andrew M. Zacks, James Brandan Kraus, Zacks Utrecht & Leadbetter, San Francisco, CA, for Defendant and Appellant.

POLLAK, Acting P.J.

Defendant Kwai Ho Lam appeals from the denial of his special motion to strike the complaint of plaintiffs Regina Birkner, Nyri Scanlon, Charles Birkner, and William Rogers Burton as a strategic lawsuit against public participation pursuant to Code of Civil Procedure¹ section 425.16 (commonly known as the anti-SLAPP statute). The trial court determined plaintiffs' causes of action were not based upon petitioning activity protected by section 425.16. We disagree, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The four causes of action in the complaint designated wrongful eviction-violation of a rent ordinance, negligence, breach of the covenant of quiet enjoyment, and intentional infliction of emotional distress are all based on the following factual allegations. Plaintiffs are tenants of a single unit in a San Francisco apartment building owned by Lam² under a month-to-month rental agreement. The tenancy is subject to the San Francisco Residential Rent Stabilization and Arbitration Ordinance, San Francisco Administrative Code, chapter 37, originally enacted on June 13, 1979 (Rent Ordinance). At issue is Rent Ordinance section 37.9(a)(8), concerning relative move in evictions. That provision allows a landlord to terminate a tenancy "in order that the premises may be occupied, in good faith, without ulterior reasons and with honest intent, by" a relative of a landlord, to be used as the relative's principal residence, within three months of the termination and for a period of at least 36 continuous months. (Ibid.) However, "[a] landlord may not recover possession of a unit from a tenant under Section 37.9(a)(8) if the landlord receives notice, [at] any time before recovery of possession, that any tenant in the rental unit: [¶] (A) is 60 years of age or older and has been residing in the unit for 10 years or more; or [¶] (B) is disabled [as defined in] Section 37.9(i)(1)(B)(i) and has been residing in the unit for 10 years or more, or is catastrophically ill [as defined in] section 37.9(i)(1)(B)(ii) and has been residing in the unit for five years or more...." (Rent Ord, § 37.9(i)(l)(A) & (B).) Protected tenant status does not apply, however, "where there is only one rental unit owned by the landlord in the building, or where each of the rental units owned by the landlord in the same building where the landlord resides (except the unit actually occupied by the landlord) is occupied by a tenant otherwise protected from eviction by section 37.9(i)(1)(A) and (B) and where the landlord's qualified relative who will move into the unit pursuant ,to Section 37.9(a)(8) is 60 years of age or older." (Rent Ord., § 37.9(h)(2).) "A landlord may challenge a tenant[`]s claim of protected status either by requesting a hearing with the Rent Board or, at the landlord[`]s option, through commencement of eviction proceedings, including service of a notice of termination of tenancy. In the Rent Board hearing or the eviction action, the tenant shall have the burden of proof to show protected status. No civil or criminal liability under 37.9(e) or (f) shall be imposed upon a landlord for either requesting or challenging a tenant[`]s claim of protected status." (Rent Ord, § 37.9(h)(4).)

On or about December 8, 2005, Lam, through counsel, served a 60-day notice to terminate tenancy (the termination notice), pursuant to Rent Ordinance section 37.9(a)(8). Lam sought possession of plaintiffs' apartment to allow his mother to reside in the building. On or about January 6, 2006, plaintiffs' counsel notified Lam in writing that plaintiffs could not be evicted because they were protected tenants under the Rent Ordinance. Lam refused to rescind the termination notice.

The declarations filed in opposition to and support of Lam's special motion to strike added the following relevant information. After Lam moved into the apartment building, he decided to move his mother into plaintiffs' ground floor apartment. Lam's mother used a walker and had a disabled person placard to use when being driven. At the time the termination notice was served on plaintiffs in December 2005, Lam's mother was living in an apartment that required her to climb 38 stairs to reach her unit. However, on February 2, 2006, Lam's mother died. On February 13, Lam's attorney wrote plaintiffs' attorney, informing him of the mother's death and rescinding the termination notice. .

According to plaintiffs, the termination notice had been unlawful for two reasons: three of the tenants were protected from eviction because of their age or disability and length of tenancy, and the termination notice failed to comply with procedural requirements of the Rent Ordinance. Plaintiffs alleged that Lam was aware of their protected status before he served the termination notice, their apartment was not the only rental unit in the building that was available for use by Lam's mother, another unit was then occupied by tenants who were not protected under the Rent Ordinance, and Lam had made no offer to move plaintiffs to any other rental unit owned by Lam or his family. The termination notice assertedly exacerbated plaintiffs' preexisting medical conditions, and caused them stress, frustration, insomnia and anxiety. Also, Regina Birkner alleged that she and the other plaintiffs had "many problems" with the building's owners over the years. She recounted a December 26 2002, incident involving Lam's sister, and a November 2005, incident involving Lam.

In a reply declaration, one of Lam's attorneys asserted she was notified of the death of Lam's mother on February 7, 2006, but did not notify plaintiffs' counsel immediately because she was busy and knew plaintiffs were not going to vacate the unit. Had Lam's mother not died, counsel would have proceeded to file an unlawful detainer action. Lam also filed a reply declaration, asserting he did not own an interest in another apartment at the time the termination notice was served, and his sole intent in serving the notice was to provide a place for his mother to live to accommodate her difficulty in walking up and down stairs. If his mother had not died, he intended to file an unlawful detainer action, if necessary, but he was hoping to settle the dispute.

In denying Lam's special motion to strike, the trial court found Lam's "asserted petitioning activity was not illegal as a matter of law." However, the court concluded that Lam's conduct was not in furtherance of his right to petition within the meaning of section 425.16, so that the complaint was not based on activity protected by that section. The court did not address whether plaintiffs had made a prima facie showing they were likely to prevail on their causes of action. Lam timely appeals from the denial of his motion, as he is entitled to do by sections 425.16, subdivision (i), and 904.1, subdivision (a)(13).

DISCUSSION

Section 425.16, subdivision (b)(1), provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Thus, a special motion to strike involves a two-part inquiry. First, .the defendant must make a prima facie showing that a cause of action arises from an act in furtherance of his or her constitutional rights of petition or free speech in connection with a public issue. (Ibid.; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) If such a showing has been made, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to carry that burden, the cause of action is "subject to be stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier ).) We review the trial court's decision de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325, 46 Cal.Rptr.3d 606, 139 P.3d 2 (Flatley).)

I. Lam has satisfied the first prong of the section 425.16 analysis

In analyzing defendant's burden under the first prong of the section 425.16 analysis, "the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier, supra, 29 Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703). "The anti-SLAPP statute's definitional focus is not on the form of the plaintiffs cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Id at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Defendant does not have to "establish [his] actions are constitutionally protected under the First Amendment as a matter of law." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, 33 Cal.Rptr.2d 446, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The statute requires a defendant to make only a prima facie showing that plaintiffs' causes of action arise from an act in furtherance of defendant's constitutional rights of petition or free speech in connection with a public issue. (Wilcox v. Superior Court, supra, at p. 820, 33 Cal. Rptr.2d 446.)

The prosecution...