Winslett v. 1811 27th Ave., LLC

• Decision Date: 15 August 2018
• Docket Number: A146932
• Citation: 26 Cal.App.5th 239,237 Cal.Rptr.3d 25
• Court: California Court of Appeals Court of Appeals
• Parties: Shameka WINSLETT, Plaintiff and Appellant, v. 1811 27TH AVENUE, LLC, et al., Defendants and Respondents.

26 Cal.App.5th 239

237 Cal.Rptr.3d 25

Shameka WINSLETT, Plaintiff and Appellant,

v.1811 27TH AVENUE, LLC, et al., Defendants and Respondents.

A146932

Court of Appeal, First District, Division 4, California.

Filed August 15, 2018

Siegel & Callahan, Caleb Andrew Rush; Law Offices of Andrew Wolff, Andrew Wolff, Chris Beatty, Sheena Patel, Wortham Briscoe, Oakland, for Appellant.

City of Berkeley, Rent Stabilization Board, Matthew Brown ; Centro Legal de la Raza, Martina Ines Cucullu Lim; East Bay Community Law Center, Ubaldo Fernandez, for Amici Curiae for Appellant.

Burnham Brown, Charles Anthony Alfonzo, Michelle Denise Jew, Oakland, Brian R. Thompson, San Francisco, for Respondent.

Streeter, Acting P.J.Shameka Winslett filed a complaint asserting various claims against her former landlord Yugal Sagi and his LLC after he failed to make repairs to her apartment and filed an unlawful detainer action against her. Sagi responded by filing an anti-SLAPP motion to strike three of these claims, for retaliation and retaliatory eviction under Civil Code section 1942.5,¹ former subdivision (c)² and for violation of Oakland Municipal Code section 8.22.300 et seq., known as the Oakland Just Cause For Eviction Ordinance (the Just Cause Ordinance). The trial court granted the motion, with an award of attorney fees and costs to Sagi. Winslett now appeals, claiming the court erred by ruling that (1) the litigation privilege bars her retaliation and retaliatory eviction claims under section 1942.5, and (2) her claim for violation of the Just Cause Ordinance was based on protected activity under the anti-SLAPP statute. We agree on both counts and shall therefore reverse.

I.

BACKGROUND

Sometime in 2010, plaintiff Shameka Winslett and her two young children moved into an apartment in a building owned by 1811 27th Avenue LLC and Yugal Sagi (collectively Sagi).³ Winslett lived with her children in this apartment for several years and had a third child during that time. By her account, the building was in a state of gross uninhabitability throughout her tenancy. There were alcohol bottles, condoms, drugs, and trash in the hallways, and inside her apartment, there was a lack of weatherproofing, water leaking from the upstairs unit, unsanitary kitchen and counters, and severe mold and mildew contamination.

Beginning in 2013, the pestilent conditions in Winslett’s apartment became unbearable. She was pregnant at the time and wanted a healthy living environment for the day-to-day activity of her children, who at their tender ages were particularly vulnerable to filth and vermin. One of the most serious issues was the prevalence of cockroaches, which came from the refrigerator and stove in the apartment and from other units in the apartment complex. Despite her best efforts to clean, the cockroaches kept coming.

Around this same time, the mold and mildew grew so severe that it covered the refrigerator, walls, and window sills. The presence of loiterers and general lack of security added to the intolerable conditions. Winslett complained repeatedly to Sagi and his on-site property manager Edgar Vargas. In response to her numerous complaints, made both orally and in writing, Sagi and Vargas did very little. Winslett was told that the cockroaches were her own fault for not cleaning her apartment well enough and that if she paid her rent, which had fallen into delinquency, the repairs she requested would be made. But after she paid her rent bill, no repairs were made. Winslett believed Sagi and Vargas were ignoring her complaints as a way to force her to move out. If she was so unhappy, she was told, she should just leave.

Because of Sagi’s and Vargas’s inaction, Winslett called Alameda County Health Care Services, Vector Control Services District (Vector Control), which, in August 2013, sent an inspector to her apartment to document the habitability issues she identified. After the inspection, the inspector spoke with Sagi and informed him the apartment needed to be repaired. Sagi was furious at Winslett and told her she should not have contacted Vector Control and not to call them again in the future. The inspector’s visit led Sagi to make a few cosmetic repairs, such as painting over some water damage and mold, but within a few months the rot reappeared.

According to Winslett, even after she called Vector Control, her continued complaints to Sagi and Vargas were still ignored. At no point was she informed she had rights under the Oakland Municipal Code or that she could contact the Oakland Rent Board. Finally, in December 2014, Winslett felt she could not tolerate the situation anymore. She told Sagi the mold was causing her children to be sick and that the cockroaches were unbearable. She also told him she would not be paying her rent for January 2015 if these conditions were not resolved.

By January, no repairs having been made, Winslett withheld her rental payment. In response, Sagi served Winslett with a three-day notice to pay rent or quit and then an unlawful detainer action when she failed to pay, which she believed was in retaliation for her requests for repairs and her exercise of her right to withhold rent. Before the commencement of the unlawful detainer trial, the matter settled. Winslett and Sagi agreed that Winslett could remain in the apartment rent free for three months while looking for a new place to live; that she would then move out at Sagi’s expense ($1,250 in moving expenses); and that in return for her departure, Sagi would drop the unlawful detainer action.⁴

Not long after this settlement, Winslett sued Sagi for damages, ultimately alleging 15 causes of action in the operative first amended complaint.⁵ In response, Sagi filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute. By this motion, he sought to strike three of Winslett’s claims—the eighth (retaliation in violation of § 1942.5 ), the tenth (violation of the Just Cause Ordinance), and the fifteenth (retaliatory eviction). Sagi argued that these causes of action are based on the protected acts of serving a three-day notice and filing an unlawful detainer action. The motion centered on an argument that the litigation privilege (§ 47, subd. (b) ) bars liability for such acts.

In opposition to Sagi’s anti-SLAPP motion, Winslett argued that none of her claims arises out of protected activity and that her claim for violation of the Just Cause Ordinance is not based on Sagi’s litigation activity. Winslett also argued that the litigation privilege does not bar claims for retaliation in violation of section 1942.5. She supported her opposition with an evidentiary showing reciting and documenting the facts summarized above, in her own declaration and various exhibits documenting her tenancy. Sagi lodged a raft of objections on relevance, hearsay, and lack of foundation grounds.

After hearing argument on the anti-SLAPP motion, the trial court granted it, striking all three of the challenged causes of action. The court ruled that these claims are based on protected activity because "the filing of unlawful detainer actions [is] protected activity," and "the gravamen of this case is ... the UD case itself." The court also ruled, as a matter of law, that the litigation privilege prevents Winslett from succeeding on any of the three claims. It overruled Sagi’s evidentiary objections, except for the relevance objection, which it sustained in light of its ruling on the litigation privilege.

Prominent in the court’s reasoning was the voluntary settlement of the unlawful detainer action. The court noted that the unlawful detainer case was dismissed 12 days before Winslett filed her lawsuit against Sagi and indicated that it was bearing in mind the way that action ended—in the form of an agreed resolution. "[I]n looking at the probability of success in this case," the court said, the settlement was significant, since it bore on "the potential relevancy" to the merits of her current claims.

This timely appeal followed. Three days after Winslett filed her notice of appeal, Sagi filed a motion in the trial court for attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c)(1). That motion was eventually granted, with the court awarding him $9,465 in fees and costs. Along with her appeal of the order on the underlying anti-SLAPP motion, Winslett now seeks review of the award of fees and costs.

II.

DISCUSSION

A. Standard of Review

Anti-SLAPP analysis under Code of Civil Procedure section 425.16 proceeds in two familiar steps. In the first step, the defendant must make " ‘ "a threshold showing that the challenged cause of action is one ‘arising from’ protected activity." ’ " ( Barry v. State Bar of California (2017) 2 Cal.5th 318, 321, 212 Cal.Rptr.3d 124, 386 P.3d 788 ( Barry ); Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703 ( Navellier ).) In this context, the term " ‘ "protected activity" ’ " refers to speech or petitioning activities. ( Barry , supra , 2 Cal.5th at p. 321, 212 Cal.Rptr.3d 124, 386 P.3d 788.) If the court finds the defendant succeeds at the first step, then the burden shifts to the plaintiff to " ‘ "demonstrate[ ] a probability of prevailing on the claim." ’ " ( Ibid. )

A claim arises from protected activity when that activity underlies or forms the basis for the claim. We look to whether " ‘the defendant’s act underlying the plaintiff’s cause of action [was] itself ... an act in furtherance of the right of petition or free speech.’ " ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905, italics added ( Park ).) "[T]he focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ " ( Ibid . ) In teasing out whether we are dealing with protected conduct, "courts...