Wallace v. McCubbin

• Decision Date: 26 October 2011
• Docket Number: No. A127287.,A127287.
• Citation: 2011 Daily Journal D.A.R. 9569,196 Cal.App.4th 1169,128 Cal.Rptr.3d 205,11 Cal. Daily Op. Serv. 8002
• Court: California Court of Appeals Court of Appeals
• Parties: Cheryl WALLACE et al., Plaintiffs and Respondents, v. Lois McCUBBIN et al., Defendants and Appellants.

196 Cal.App.4th 1169

128 Cal.Rptr.3d 205

11 Cal. Daily Op. Serv. 8002

2011 Daily Journal D.A.R. 9569

Cheryl WALLACE et al., Plaintiffs and Respondents,

v.Lois McCUBBIN et al., Defendants and Appellants.

No. A127287.

Court of Appeal, First District, Division 5, California.

June 27, 2011.

As Modified on Denial of Rehearing July 26, 2011.^*

Review Denied Oct. 26, 2011.^*

Zacks & Utrecht, San Francisco, Paul F. Utrecht and James B. Kraus for Defendants and Appellants.

The Rouda Law Firm and David Rouda for Plaintiffs and Respondents.

NEEDHAM, J.

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.) ¹ 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.”

In January 2005 (or 2004), Wallace's psychiatrist informed landlord Victor Wu and the building manager, Campbell Peters, that Wallace was disabled and required a service dog, and that a landlord must allow a tenant to keep a service dog even if pets are otherwise prohibited. Owen was later diagnosed with post-traumatic stress disorder as well.

In the first half of 2006, “Defendants and each of them”—allegedly including Victor Wu, Lawrence Wu, and also tenants McCubbin and Merck—threatened to evict two other tenants in the building for having dogs. They also demanded a third tenant to remove their dog, after which the dog disappeared without its owner knowing the dog's whereabouts.

In March 2006, Wallace complained to Merck and McCubbin about Merck's smoking on the enclosed balcony that was shared by the two apartments. Later that month and the next month, Merck telephoned the Wus weekly to complain about Nemo's purportedly aggressive behavior. In mid–2006, McCubbin and Merck started an argument with Wallace about Nemo being “overly friendly” and “noisy.”

Alleged on information and belief, in the first half of 2007 McCubbin and Merck continued their “campaign of complaining falsely about Nemo's behavior” to Victor Wu. Lawrence Wu threatened Wallace and Owen that “Defendants” would eventually have Nemo removed.

Around June 2007, Wallace complained to the San Francisco Human Rights Commission about “Defendants' ” threats to remove Nemo. After an investigation, the commission's Fair Housing and Public Accommodations Compliance Officer warned Victor Wu that, due to the nature of Wallace's disability, she required the accommodation of a “service/comfort” dog. The compliance officer informed “Defendants” that he found Nemo to be “ ‘docile, friendly and well socialized.’ ”

Around September 2007, Victor Wu and “another man” “forcefully interrogated” Wallace as to the nature of her disability and her need for a service dog. Victor Wu told Wallace that her service dog designation was invalid and that she and Owen would be evicted if they did not get rid of Nemo. In the same month, Wallace's psychiatrist wrote a letter to San Francisco Animal Care and Control (Animal Control), asserting that Wallace required a service animal for health reasons. Victor Wu telephoned the psychiatrist in October 2007 and claimed there was no basis for prescribing a service dog for Wallace; the psychiatrist replied that Wallace was disabled.

In October 2007, McCubbin informed Lawrence Wu in writing that Wallace and Owen were advertising for a new subtenant. Wallace and Owen's lease states that three adults may reside at the premises, and from the inception of the lease they had three persons—themselves and a subtenant—occupying the apartment. Later in October, Victor Wu and an “assistant” intimidated the new subtenant, Reno Ybarra, into removing his belongings from the apartment and canceling his sublease.

Also in October 2007, McCubbin and Merck filed a complaint with Animal Control, reporting that Nemo, “incorrectly referred to as an X-large Great Dane,” was a “vicious and dangerous” dog. In late October 2007, Animal Control notified Wallace that there would be a hearing to determine whether Nemo should be killed. Wallace and Owen believe that Nemo has never damaged the apartment unit, growled, barked at, bitten, or attacked anyone.

In November 2007, Wallace complained to the San Francisco Human Rights Commission about McCubbin and Merck. On November 14, 2007, the San Francisco Human Rights Commission Fair Housing and Public Accommodations Compliance Officer wrote to McCubbin and Merck, stating that he had spoken with Victor Wu concerning the complaint and the Animal Control hearing, and that Nemo was not an “ ‘X–Large Great Dane’ ” or vicious and dangerous, but was “ ‘in fact a laid back docile if not lazy dog’ ” who “ ‘likes getting petted’ ”. The officer stated that he was “appalled by this egregious mischaracterization of this harmless dog,” he intended to appear at the hearing to testify on Nemo's behalf, he was “greatly disturbed that anyone would go so far as to deny or obstruct Ms. Wallace's right as a disabled person to have a service dog as a reasonable accommodation,” and the law “very clearly affirms Ms. Wallace's right to have Nemo.”

In December 2007, a veterinarian examined Nemo and concluded that he did not appear to be aggressive, vicious, or dominant. Animal Control also found that Nemo was not vicious or dangerous.

In February 2008, Wallace sent a letter to Victor Wu stating her intention to replace the previous subtenant (Ybarra) with another individual, noting to “Defendants” that the lease expressly prohibits unreasonable refusal of a new subtenant. Victor Wu denied the request and threatened legal action if Wallace and Owen sublet the apartment. Wallace wrote another letter to Victor Wu, reminding him that the lease permitted three adult residents. She also provided information concerning the prospective subtenant. Lawrence Wu warned Wallace and Owen in writing that subletting would result in legal action.

In March 2008, Victor Wu served Wallace and Owen with a three-day notice to quit the premises. The eviction notice stated that eviction would be sought on the ground that having a third adult reside in the apartment breached the lease.

Wallace and Owen did not comply with the three-day notice. Victor Wu filed a complaint for unlawful detainer on April 2, 2008, alleging that subletting to the prospective sublessee would violate the lease agreement because the lease explicitly states the apartment would be used as a residence with no more than two adults.

At the unlawful detainer trial, Victor Wu allegedly admitted that he had lied to the presiding judge during discovery hearings regarding the location of his former property manager, Campbell Peters, and that he had assisted Peters in evading service and refusing to appear for a deposition. At trial, Wallace and Owen allegedly produced “expert testimony and documentation demonstrating that the lease signed by Plaintiffs and Defendant's agent Campbell Peters in December 2003 allowed three occupants because Mr. Peters had changed the occupants from two to three.” During jury selection, Victor Wu dismissed the unlawful detainer action.²

B. Complaint

The allegations summarized ante were contained in a verified complaint that Wallace and Owen filed in May 2009 against Victor Wu, Lawrence Wu, McCubbin, and Merck. Paragraph 51 of the complaint further alleges: “The foregoing conduct was part of a systematic campaign of harassment and intimidation against disabled tenants with limited means, designed to force Plaintiffs from their home of four years. Plaintiffs are informed and believe and on that basis allege that Defendants engaged in such conduct to discriminate against Plaintiffs on the basis of their disabilities because of the special protections such persons are afforded by the San Francisco Rent Ordinance and other state and federal laws. Plaintiffs are informed and believe that Defendants['] eviction proceeding on the lease occupancy restriction was a pretext and retaliation for Defendants['] discriminatory intent to remove Plaintiffs from the premises for having a prescribed service dog.”

The complaint asserts claims for wrongful eviction, breach of the covenant of quiet enjoyment, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, unfair business practices,housing discrimination under California's FEHA (Govt.Code, § 12955 et seq.), housing discrimination under ...