Olive Properties, L.P. v. Coolwaters Enterprises, Inc.

Filed 10/30/15
CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

OLIVE PROPERTIES, B261105

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NC059768)
v.

COOLWATERS ENTERPRISES, INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Ross M. Klein, Judge. Affirmed.

Kimball, Tirey & St. John and Eli A. Gordon, for Plaintiff and Respondent.

The Justice Law Center and Lee H. Durst, for Defendant and Appellant.

_________________________


Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for partial publication. The portions of this opinion to be deleted from
publication are those portions enclosed within double brackets, [[ ]].
 Defendant and appellant Coolwaters Enterprises, Inc., a commercial lessee
(hereinafter, Tenant), appeals an order denying its special motion to strike an unlawful
detainer complaint filed by plaintiff and respondent Olive Properties, L.P. (hereinafter,
Landlord) and awarding Landlord attorney fees as sanctions for the expense of
responding to the special motion to strike.1
Notwithstanding the plethora of appellate opinions “that [have] made the SLAPP
acronym[2] a household word – at least in legal households” (Paterno v. Superior Court
(2008) 163 Cal.App.4th 1342, 1345, fn. 1), we publish our opinion in this matter to
address the potential for abuse of the anti-SLAPP statute in unlawful detainer litigation.
The purpose of the unlawful detainer statutes “ ‘is to provide the landlord with a
summary, expeditious way of getting back his property when a tenant fails to pay the rent
or refuses to vacate the premises at the end of his tenancy.’ [Citations.]” (Board of
Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 338.)
Here, however, Tenant succeeded in stalling the unlawful detainer action for a protracted
period of time by bringing a meritless special motion to strike.
Three weeks before Landlord filed the instant unlawful detainer action against
Tenant for failure to pay rent and common area maintenance (CAM) charges, Tenant
filed suit against Landlord for breach of the covenant of quiet enjoyment and negligent
interference with prospective economic relations. Then, in response to the unlawful
detainer complaint, Tenant filed a special motion to strike, asserting the unlawful detainer
complaint arose out of Tenant’s protected petitioning activity in filing the initial lawsuit.
However, the unlawful detainer action clearly arose out of Tenant’s unprotected activity

1
An order granting or denying a special motion to strike is appealable. (Code Civ.
Proc., § 425.16, subd. (i), § 904.1, subd. (a)(13).)

All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.
2
SLAPP stands for strategic lawsuit against public participation, and is codified in
section 425.16. (Paterno v. Superior Court, supra, 163 Cal.App.4th at p. 1345, fn. 1.)

2
in failing to pay rent and CAM charges, rather than out of Tenant’s protected petitioning
activity in filing the prior lawsuit against Landlord. A nonpaying tenant should not be
permitted to frustrate an unlawful detainer proceeding by initiating litigation against the
landlord in order to bring a special motion to strike the landlord’s subsequently filed
unlawful detainer complaint, on the asserted ground that the unlawful detainer action
arose out of the tenant’s protected activity in filing the initial lawsuit. For these reasons,
we affirm the trial court’s order denying Tenant’s special motion to strike and imposing
monetary sanctions against Tenant for filing a frivolous special motion to strike.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prior lawsuit.
On October 15, 2014, Tenant, a shopping center lessee, filed a complaint against
Landlord, alleging causes of action for breach of the covenant of quiet enjoyment and
negligent interference with prospective economic relations. The gravamen of the action
was that Landlord had leased a space “to a pizza and Italian Restaurant, which for the last
18 months has been taking all of the parking spaces in the shopping center,” resulting in
Tenant’s customers being unable to patronize its business.
2. The instant proceeding.
a. Landlord’s unlawful detainer action against Tenant.
On November 5, 2014, Landlord filed the instant unlawful detainer action against
Tenant, seeking possession of the premises, past due rent of $16,940, past due CAM
charges of $3,856, and attorney fees.
b. Tenant’s special motion to strike.
On November 10, 2014, Tenant filed a special motion to strike the unlawful
detainer complaint. Tenant asserted it “has a present pending lawsuit against [Landlord]
and . . . the subject matter of that litigation is the basis for this unlawful detainer action.”
Tenant requested judicial notice of the complaint it filed against Landlord on
October 15, 2014, and contended Landlord brought the unlawful detainer complaint

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“because [Tenant] . . . has exercised its rights to seek redress for a wrong in the court
system and use its right of freedom of speech.”
c. Landlord’s opposition to the special motion to strike.
In opposition, Landlord contended Tenant failed to meet its initial burden to show
that the unlawful detainer complaint arose from an act by Tenant in furtherance of its
rights of petition or free speech. Landlord explained, “[w]hile [Tenant’s] filing the
[earlier] Civil Action is certainly an act in furtherance of the right to petition, the
[Unlawful Detainer] Complaint was based upon a failure to pay rent and CAM charges –
not on [Tenant’s] filing of the Civil Action. The motion completely fails to explain how
an unlawful detainer action based upon a failure to pay rent could plausibly be brought to
chill [Tenant’s] exercise of a [F]irst [A]mendment right.”
Landlord further argued that even assuming Tenant had met its initial burden,
Landlord could establish a prima facie case for unlawful detainer based upon Tenant’s
failure to pay rent and CAM charges.
Landlord also requested $3,392.50 in monetary sanctions for 11.5 hours of
attorney time expended in responding to the special motion to strike. Landlord contended
sanctions were warranted because the special motion to strike was frivolous and intended
to cause unnecessary delay.
d. Trial court’s ruling denying special motion to strike and imposing
sanctions against Tenant.
After taking judicial notice of Tenant’s earlier complaint against Landlord, the
trial court rejected Tenant’s argument that the unlawful detainer complaint was
retaliatory. “There are no declarations or any other type of evidence which would
establish a retaliatory motive. [¶] The Court finds that [Tenant] failed to satisfy the first
prong; the burden does not shift to [Landlord] to establish a prima facie case. [¶] . . . . [¶]
The present [unlawful detainer] complaint does not reflect on its face that it is based on
[Tenant’s] petitioning activity. It is not sufficient that the unlawful detainer case follows

4
the Tenant’s own complaint. Otherwise, every tenant could avoid an anticipated
unlawful detainer by filing his own complaint, regardless of the merits.”
The trial court further ruled that even assuming Tenant could satisfy the first prong
of the section 425.16 analysis, Landlord’s evidence was sufficient to establish a prima
facie case.
The trial court also awarded $3,392.50 in attorney fees to Landlord, finding the
special motion to strike was a “weak motion at best,” and that Tenant filed the special
motion to strike “for the purpose of delay.”
Tenant filed a timely notice of appeal from the order denying its special motion to
strike.3
CONTENTIONS
Tenant contends the trial court erred in finding that it failed to meet its initial
burden to establish that the unlawful detainer complaint arose from protected activity.
Tenant also contends the trial court erred in awarding attorney fees to Landlord.
DISCUSSION
1. General principles regarding a special motion to strike.
A special motion to strike “involves a two-step process. First, the defendant must
make a prima facie showing that the plaintiff’s ‘cause of action . . . aris[es] from’ an act
by the defendant ‘in furtherance of the [defendant’s] right of petition or free speech . . . in
connection with a public issue.’ (§ 425.16, subd. (b)(1).) If a defendant meets this
threshold showing, the cause of action shall be stricken unless the plaintiff can establish
‘a probability that the plaintiff will prevail on the claim.’ ” (Simpson Strong-Tie Co., Inc.
v. Gore (2010) 49 Cal.4th 12, 21, fn. omitted.)
On the first prong of the two-part test, in determining whether the anti-SLAPP
statute applies, we analyze whether the defendant’s (Tenant’s) acts underlying the

3
This court granted Landlord’s motion for calendar preference and expedited the
appeal. (§ 1179a [proceedings to recover possession of real property entitled to
precedence].)

5
plaintiff’s (Landlord’s) cause of action were in furtherance of Tenant’s right of petition or
free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
The “principal thrust or gravamen” of Landlord’s claim determines whether
section 425.16 applies. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th
181, 188; accord Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th
309, 319.) The “ ‘meaning of “gravamen” is clear; “gravamen” means the “material part
of a grievance, charge, etc.” [Citation.]’ [Citation.] [¶] In the context of the anti-
SLAPP statute, the ‘gravamen is defined by the acts on which liability is based . . . .’
[Citation.] The ‘focus is on the principal thrust or gravamen of the causes of action, i.e.,
the allegedly wrongful and injury-producing conduct that provides the foundation for the
claims. [Citations.]’ [Citation.]” (Renewable Resources Coalition, Inc. v. Pebble Mines
Corp. (2013) 218 Cal.App.4th 384, 396, original italics.)
Appellate review “of an order granting or denying a motion to strike under
section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and
opposing affidavits . . . upon which the liability or defense is based.’ (§ 425.16,
subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3.)
2. Trial court properly denied special motion to strike because Tenant failed to
meet its initial burden to show that Landlord’s unlawful detainer complaint arose from
protected activity.
The theory of Tenant’s special motion to strike is that its filing of the earlier
lawsuit was protected activity from which Landlord’s unlawful detainer action arose.
However, the most that can be said about Tenant’s theory is that its lawsuit against
Landlord arguably “triggered” the unlawful detainer complaint. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 89 (Navellier).)

6
 In Navellier, the Supreme Court explained, “the mere fact that an action was filed
after protected activity took place does not mean the action arose from that activity for
the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action
arguably may have been ‘triggered’ by protected activity does not entail that it is one
arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is
whether the cause of action is based on the defendant’s protected free speech or
petitioning activity. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 89, certain italics
added.) Therefore, merely because Tenant’s lawsuit for breach of the covenant of quiet
enjoyment and negligent interference with prospective economic relations preceded
Landlord’s unlawful detainer action does not mean that the unlawful detainer action
arose from Tenant’s protected activity in bringing the prior lawsuit.
Rather, the critical consideration is whether Landlord’s unlawful detainer action is
based on Tenant’s protected free speech or petitioning activity. (Navellier, supra,
29 Cal.4th at p. 89.) Review of the unlawful detainer complaint discloses that its
gravamen is that Tenant allegedly failed to pay rent and CAM charges due under the
lease agreement. A tenant’s failure to pay rent and CAM charges is not an act in
furtherance of the lessee’s right of petition or free speech.
The trial court properly discerned that the unlawful detainer complaint was not
based on Tenant’s protected petitioning activity. As the trial court observed, for a tenant
to bring a proper special motion to strike an unlawful detainer complaint, it is insufficient
simply to show that the unlawful detainer complaint was filed after the lessee’s complaint
against the lessor. Navellier demonstrates that the sequence of the two lawsuits is not the
test. (Navellier, supra, 29 Cal.4th at p. 89.) Thus, a nonpaying tenant should not be able
to frustrate or stall an anticipated eviction by filing a preemptive complaint against the
landlord, followed by a special motion to strike the landlord’s unlawful detainer
complaint on the ground it arose out of the tenant’s protected petitioning activity in filing
the first lawsuit.

7
 We conclude the unlawful detainer complaint arose from Tenant’s unprotected
activity in allegedly failing to pay rent and CAM charges, rather than from its protected
petitioning activity in filing the prior lawsuit. Because Tenant failed to meet its initial
burden to show that the unlawful detainer complaint arose from protected activity, the
burden never shifted to Landlord to show a probability of prevailing in the unlawful
detainer action. Accordingly, the trial court properly denied Tenant’s special motion to
strike the unlawful detainer complaint.
3. Tenant has not shown an abuse of discretion in the trial court’s award of
attorney fees to Landlord.
Tenant’s remaining contention is that the trial court erred in awarding attorney
fees to Landlord pursuant to section 425.16, subdivision (c)(1). That section states in
relevant part: “If the court finds that a special motion to strike is frivolous or is solely
intended to cause unnecessary delay, the court shall award costs and reasonable attorneys
fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
The trial court ruled that Tenant’s special motion to strike “was a weak motion, at
best, and an ordinary review of established legal authorities would have disclosed the
inadequacies of the motion. The Court concludes that the motion was filed for the
purpose of delay and awards $3,392.50 to [Landord] as prayed.”
An order “awarding attorneys’ fees pursuant to section 128.5, as incorporated in
section 425.16, subdivision (c), is reviewed under the abuse of discretion test.
[Citation.]” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
450.) The “burden is on the party complaining to establish that discretion was abused.
[Citation.]” (Ibid.)
On this record, the trial court properly found that Tenant’s special motion to strike
was clearly without merit and was brought for the purpose of stalling the unlawful
detainer action. There is no question but that Landlord’s unlawful detainer action arose
out of Tenant’s alleged nonpayment of rent and CAM charges, not out of its protected

8
activity in filing the earlier lawsuit. Accordingly, Tenant has not demonstrated an abuse
of discretion in the trial court’s award of attorney fees to Landlord.
[[ Begin nonpublished portion ]]
[[ 4. Landlord’s motion for monetary sanctions on appeal.
Landlord filed a motion to dismiss the instant appeal on the ground it is frivolous
and was intended only to further delay the unlawful detainer proceeding. Landlord also
filed a motion for monetary sanctions for having to respond to a frivolous appeal, as well
as a separate motion for additional monetary sanctions for Tenant having filed an opening
brief which was not in compliance with the California Rules of Court, for a total request
of $73,352.50. This court deferred ruling on these various motions until consideration of
the merits of Tenant’s appeal.
Leaving aside whether this appeal is frivolous, the $73,352.50 requested by
Landlord in appellate sanctions is excessive and is subject to denial on that basis alone.
Landlord’s respondent’s brief essentially was a reiteration of its opposition papers below
that Tenant failed to meet its burden to show that the unlawful detainer complaint arose
out of protected activity. At the trial court level, Landlord sought and obtained an award
of $3,392.50 for the expense of opposing Tenant’s special motion to strike.4 Landlord
has requested more than 21 times that sum to compensate it for having to respond to this
appeal. As explained in Serrano v. Unruh (1982) 32 Cal.3d 621, “ ‘If . . . the Court were
required to award a reasonable fee when an outrageously unreasonable one has been
asked for, claimants would be encouraged to make unreasonable demands, knowing that
the only unfavorable consequence of such misconduct would be reduction of their fee to
what they should have asked for in the first place.’ ” (Id. at p. 635.)

4
In the court below, Landlord’s papers showed that its attorneys had spent a total of
11.5 hours in opposing the special motion to strike, including 7.5 hours preparing a
memorandum of points and authorities and declarations.

9
 Accordingly, Landlord’s request for $73,352.50 in sanctions on appeal,
particularly in light of the $3,392.50 attorney fee award which it sought and obtained in
the court below, is denied as excessive. ]]
[[ End nonpublished portion ]]
DISPOSITION
The trial court’s order denying the special motion to strike and awarding attorney
fees to Respondent is affirmed. Respondent’s motions to dismiss the appeal as frivolous,
and for monetary sanctions on appeal, are denied. Respondent shall recover its costs on
appeal.

CERTIFIED FOR PUBLICATION

EDMON, P. J.

We concur:

ALDRICH, J.

JONES, J.*

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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