Flaker v. Butenschoen CA2/8

Filed 11/24/20 Flaker v. Butenschoen CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CYNTHIA FLAKER et al., B290109

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. KC069823)
v.

VAN BUTENSCHOEN et al.,

Defendants and Respondents.

APPEAL from a judgment and orders of the Superior Court
of Los Angeles County. Dan T. Oki, Judge. Affirmed.
Cynthia Flaker and Chris Flaker, in pro. per., for Plaintiffs
and Appellants.
The Safarian Firm, Harry A. Safarian and Christina S.
Karayan for Defendants and Respondents Van Butenschoen and
Chih-Yang Han.
Betty Agawa and Ronald Wolfgang Betty for Defendant
and Respondent Michael Brennan.
__________________________
 SUMMARY
Plaintiffs appeal from orders granting two anti-SLAPP
(strategic lawsuit against public participation) motions to strike
causes of action for malicious prosecution, civil rights violations,
and retaliation. (Code Civ. Proc., § 425.16.) They also appeal
from an award of attorney fees in connection with one of the anti-
SLAPP motions. We affirm the orders.
FACTS
Plaintiffs Cynthia Flaker and Chris Flaker were tenants
who entered into a written residential lease with defendants Van
Butenschoen and Chih-Yang Han (collectively Butenschoen) in
May 2014. The lease was for a term of one year, followed by a
month-to-month tenancy. The rent was $2,000 a month.
Defendants and their lawyer, defendant Michael Brennan,
filed an unlawful detainer case on March 1, 2016, to evict
plaintiffs for nonpayment of rent in February 2016.
Plaintiffs resisted, first filing a timely motion to quash
service of the summons and complaint. The trial court denied
that motion and ordered plaintiffs to answer the complaint in
five days. Plaintiffs filed a writ petition, challenging the denial of
their motion to quash and the order to answer the complaint;
they contended the latter order denied their right to file a
demurrer.
A few days later, on March 28, 2016, defendants filed a
request for entry of default and for clerk’s judgment for
restitution of the premises. (According to Mr. Brennan’s
declaration, while plaintiffs alleged they served a copy of the writ
petition and notice of stay on Mr. Brennan, he was unaware of
the writ filing and his law firm had “no record of receiving it prior
to filing the request for default.”)

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 On April 18, 2016, after their writ petition was denied,
plaintiffs filed a demurrer to defendants’ unlawful detainer
complaint. But on that same day, a default judgment was
entered against plaintiffs for restitution of the premises,
presumably because plaintiffs had not filed an answer.
Plaintiffs filed an appeal from the default judgment and a
petition for stay pending appeal. The stay was granted on May 5,
2016, conditioned on plaintiffs paying into Mr. Brennan’s trust
account the rental value of $2,000 per month.
In March 2017, with the appeal still pending, plaintiffs
again missed a rent payment. Defendants filed a second
unlawful detainer complaint on April 24, 2017, based on past-due
rent of $4,000.1 Various motions were filed, rulings were made,
and in September 2017, plaintiffs answered the second unlawful
detainer complaint.
In October 2017, six months after defendants filed the
second unlawful detainer action, the appellate division reversed
the default judgment in the first action. The court held that “in
denying a motion to quash an unlawful detainer summons, the
trial court may not restrict a defendant’s responsive pleading to
an answer.” (Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp.
10, 13.) The court found plaintiffs’ demurrer had been timely
filed, and the default judgment was void because it had been
entered one day before it lawfully could have been entered.
(Id. at p. 15.)

1 In their appellate briefs, defendants explain this $4,000
was unpaid rent that accrued between the first three-day notice
to quit on February 22, 2016, and the date plaintiffs began
paying rent under the May 2016 stay pending appeal.

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 On October 27, 2017, shortly after the reversal of the
default judgment, defendants filed a request for dismissal of that
action. Litigation of the second unlawful detainer complaint
continued until it too was dismissed without prejudice on
December 21, 2017. (Plaintiffs tell us that a third unlawful
detainer action was filed based on a three-day notice to quit
issued February 15, 2018.)
Meanwhile, in November 2017, plaintiffs, proceeding in
propria persona, filed this lawsuit. They alleged a cause of action
for malicious prosecution of the first unlawful detainer case
against all defendants; for civil rights violations against all
defendants; and for retaliation, fraud, nuisance, and breach of
contract against Mr. Butenschoen.
Both Mr. Brennan and Mr. Butenschoen filed anti-SLAPP
motions to strike the causes of action for malicious prosecution,
civil rights violations, and (in Mr. Butenschoen’s case) retaliation.
They contended plaintiffs’ claims arose from protected activity
and lacked the minimal merit necessary to proceed.
Plaintiffs opposed the motions. They admitted it was
“undisputed” that the unlawful detainer action was protected
speech, and contended only that they were likely to prevail on
each of the three causes of action at issue.
Plaintiffs’ opposition in each case was supported by
declarations from Mr. Flaker. In essence, Mr. Flaker stated that
the “underlying issues” arose from uninhabitable conditions in
the home, and from Mr. Butenschoen’s refusal to repair those
conditions, refusal to reimburse plaintiffs for repairs, retaliation
against plaintiffs for withholding their rent under the implied
warranty of habitability, and charging illegal late fees. (Plaintiffs
offered no documentary evidence on any of those points.)

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Mr. Flaker also described the litigation leading to the reversal of
the default judgment, and the filing of the second unlawful
detainer complaint. He further explained that the civil rights
action was based on defendants’ use of the state courts to deprive
plaintiffs of their civil rights to a habitable dwelling, the right to
repair, and so on. Mr. Butenschoen filed objections to the
remaining assertions in Mr. Flaker’s declaration, and these were
sustained by the trial court.
The trial court granted both anti-SLAPP motions.
As to the Brennan motion, the court found the malicious
prosecution and civil rights causes of action arose out of
Mr. Brennan’s protected activity, and plaintiffs did not meet their
burden of producing admissible evidence that would support a
judgment in their favor. The malicious prosecution action was
deficient because defendants’ October 27, 2017 dismissal of the
first unlawful detainer complaint did not reflect on the
substantive merits of the complaint, and the second unlawful
detainer action had already been pending for six months.
The court also found plaintiffs did not show lack of probable
cause; Mr. Flaker’s declaration about uninhabitable conditions
and repairs was unsupported by any documentary evidence, and
his other statements were argumentative and conclusory. The
court saw no evidence of malice. The civil rights claim under
Title 42 United States Code section 1983 was deficient because
Mr. Brennan was a private attorney, not a state actor.
For like reasons, the trial court granted Mr. Butenschoen’s
anti-SLAPP motion with respect to the malicious prosecution and
civil rights claims. The retaliation claim was also legally
deficient; Mr. Flaker’s declaration was conclusory and did not
affirm that plaintiffs were not in default as to payment of rent.

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 The trial court entered a judgment of dismissal as to
Mr. Brennan, who filed a motion for attorney fees. Plaintiffs did
not oppose the motion. The court awarded Mr. Brennan attorney
fees of $10,800 and $564 in costs.
Plaintiffs filed timely notices of appeal from the orders
granting the anti-SLAPP motions and from the award of attorney
fees. The appeals were consolidated.
DISCUSSION
1. The Legal Principles
The anti-SLAPP statute and procedures have been
described many times.
A defendant may bring a special motion to strike any cause
of action “arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. The moving defendant bears the
initial burden of establishing that the challenged allegations or
claims “ ‘ “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the
plaintiff must then demonstrate its claims have at least “minimal
merit.” ’ [Citation.] If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson).)
In making these determinations, the trial court considers
“the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.” (Code Civ.
Proc., § 425.16, subd. (b)(2); HMS Capital, Inc. v. Lawyers Title
Co. (2004) 118 Cal.App.4th 204, 212 [“In opposing an anti-SLAPP

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motion, the plaintiff cannot rely on the allegations of the
complaint, but must produce evidence that would be admissible
at trial.”].)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. Contentions and Conclusions
Plaintiffs concede the unlawful detainer actions were
protected activity (although they mistakenly assert, as discussed
post, that their civil rights and retaliation claims were not subject
to an anti-SLAPP motion). They contend, however, that they
have shown a probability of prevailing on the merits of each
cause of action. We do not agree.
a. The malicious prosecution claim
To establish malicious prosecution, plaintiffs must show
the unlawful detainer actions were pursued to a legal
termination in plaintiffs’ favor, were initiated or maintained
without probable cause, and were initiated or maintained with
malice. (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775
(Parrish).) Plaintiffs did not produce evidence that, if believed,
would establish any of those necessary elements. While the
failure to establish any one of the three elements would defeat
the cause of action, we discuss each element.
i. Favorable termination
The unlawful detainer actions were voluntarily dismissed,
and defendants then pursued (plaintiffs tell us) a third unlawful
detainer action. The voluntary dismissal of an action may
constitute a legal termination in a defendant’s favor, but the
termination “must reflect on the merits of the underlying action.”
(Lackner v. LaCroix (1979) 25 Cal.3d 747, 750 (Lackner), italics
omitted.) “It is apparent ‘favorable’ termination does not occur

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merely because a party complained against has prevailed in an
underlying action. While the fact he has prevailed is an
ingredient of a favorable termination, such termination must
further reflect on his innocence of the alleged wrongful conduct.
If the termination does not relate to the merits—reflecting on
neither innocence of nor responsibility for the alleged
misconduct—the termination is not favorable in the sense it
would support a subsequent action for malicious prosecution.”
(Id. at p. 751.)
That is the case here. The appeal of the first unlawful
detainer action had nothing to do with its substantive merit, and
neither did its voluntary dismissal. Defendants filed the second
action during the appeal of the first case (more than a year after
initiating the first action). Defendants’ declarations state they
did so to expedite the eviction process, after plaintiffs’ rent
payment made in March 2017 did not clear. The appeal of the
first case remained pending for another six months, and when it
was finally decided in plaintiffs’ favor, defendants voluntarily
dismissed it, while continuing the second action. Under these
circumstances, the voluntary dismissal plainly did not “relate to
the merits” (Lackner, supra, 25 Cal.3d at p. 751), and thus was
not a termination in plaintiffs’ favor that would support a
malicious prosecution action.2

2 Plaintiffs appear to contend the second unlawful detainer
action was also maliciously prosecuted. The second action was
not the subject of plaintiffs’ complaint, and the anti-SLAPP
motions address the causes of action pled in the complaint. In
any event, defendants voluntarily dismissed the second action
without prejudice after plaintiffs filed this lawsuit, and shortly
thereafter defendants filed a third unlawful detainer action. As
with the first action, plaintiffs have produced no evidence the

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 ii. Probable cause
“ ‘[T]he probable cause element calls on the trial court to
make an objective determination of the “reasonableness” of the
defendant’s conduct, i.e., to determine whether, on the basis of
the facts known to the defendant, the institution of the prior
action was legally tenable.’ ” (Parrish, supra, 3 Cal.5th at p. 776.)
A claim is unsupported by probable cause only if it is legally
untenable, that is, only if “ ‘ “ ‘any reasonable attorney would
agree [that it is] totally and completely without merit.’ ” ’ ” (Ibid.)
Plaintiffs argue in substance that they were legally entitled
to withhold payment of rent because of uninhabitable conditions,
unreimbursed repairs, and illegal late fees, and that these
defenses demonstrate there was no probable cause to file the
action. That is not the case.
It is undisputed that plaintiffs did not pay rent when due.
To establish lack of probable cause, plaintiffs had the burden of
producing evidence that, if believed, would show defendants
knew that, because of uninhabitable conditions (or for some other
reason), no rent was due, but filed the action anyway. (See
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881
[“when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were
untrue, the jury must determine what facts the defendant knew
before the trial court can determine the legal question whether
such facts constituted probable cause to institute the challenged

voluntary dismissal of the second action reflected on the
substantive merits of the case.

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proceeding”].) Plaintiffs say “[a] jury could find the facts as
claimed by the Flakers.” We disagree.
Plaintiffs presented no evidence supporting the existence of
uninhabitable conditions, except for Mr. Flaker’s declaration
stating plaintiffs “discovered the uninhabitable conditions” and
asked defendants to correct them but they failed to do so. The
declaration did not identify any uninhabitable conditions (or any
unreimbursed repairs or illegal fees), simply stating Mr. Flaker’s
own conclusion that such conditions existed. A jury could not
conclude from Mr. Flaker’s vague and conclusory declaration that
there were any such conditions, much less that defendants knew
no rent was due because of them. As the trial court observed,
Mr. Flaker’s declaration was “unsupported by any documentary
evidence, such as photographs depicting the substandard
conditions, copies of rent checks, copies of repair invoices and/or
receipts, and/or communications between plaintiffs and
defendants.”
Because plaintiffs made no showing that defendants filed
the unlawful detainer actions knowing no rent was due, they
failed to establish the actions were legally untenable.
iii. Malice
The malice element of a malicious prosecution claim
“ ‘relates to the subjective intent or purpose with which the
defendant acted in initiating the prior action. [Citation.] The
motive of the defendant must have been something other than . . .
the satisfaction in a civil action of some personal or financial
purpose. [Citation.] The plaintiff must plead and prove actual ill
will or some improper ulterior motive.’ ” (Soukup v. Law Offices
of Herbert Hafif, supra, 39 Cal.4th at p. 292.)

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 Plaintiffs produced no evidence defendants prosecuted
these actions for any other purpose than to regain possession of
the property after a failure to pay rent, i.e., the satisfaction of a
financial purpose. Plaintiffs argue that Mr. Flaker’s declaration
“has a long description of malicious tactics” used by defendants,
including claims that Mr. Brennan “suborned . . . perjury” by the
process server, “manipulated” the trial court into ordering
plaintiffs to answer rather than demur, “trick[ed] the untrained
and unsupervised court clerks into entering [plaintiffs’] default,”
and so on. The trial court rightly rejected Mr. Flaker’s
statements as argumentative and conclusory. Plaintiffs make no
showing in their opening brief, nor could they, that the court
abused its discretion in so ruling.3
b. The civil rights claim
Plaintiffs contend the civil rights violation alleged under
Title 42 United States Code section 1983 was “not subject to a
SLAPP motion.” The authorities plaintiffs cite do not support
that claim. Indeed, one of them shows plaintiffs are mistaken,
citing cases holding that Code of Civil Procedure section 425.16
“applies to federal claims under [section] 1983.” (Tichinin v. City
of Morgan Hill (2009) 177 Cal.App.4th 1049, 1055-1056; see also

3 Plaintiffs also repeatedly complain that defendants refused
to continue taking the payments ordered by the trial court as a
condition of the stay pending appeal, and then served the second
eviction notice for nonpayment of that money as rent, and this
showed malice. That is not the case. Mr. Brennan explained in a
reply declaration his understanding that once a three-day notice
to pay rent or quit is served on a residential tenant, “any
acceptance of rent, whether the full amount or a partial payment,
nullifies the notice,” and that defendants’ refusal to accept rent
from plaintiffs occurred after that notice had been served.

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Patel v. Chavez (2020) 48 Cal.App.5th 484, 488 [“section 1983
does not preempt application of the anti-SLAPP statute to
section 1983 claims in state court”].) The other case plaintiffs
cite involves the litigation privilege, not the anti-SLAPP statute,
and has no relevance here.
Plaintiffs challenge the trial court’s conclusion that the civil
rights cause of action does not lie because defendants are private
parties and thus not acting under color of law, as required for a
Title 42 United States Code section 1983 claim. Plaintiffs cite
United States v. Price (1966) 383 U.S. 787, 794 (acting under
color of law does not require the accused be an officer of the state;
“[i]t is enough that he is a willful participant in joint activity with
the State or its agents”). Here, there was no joint activity with
any state officer. Filing an unlawful detainer action on behalf of
a client does not constitute joint activity with the state or its
agents.
c. The retaliation claim
Plaintiffs’ complaint alleged Mr. Butenschoen, by
prosecuting the unlawful detainer actions, retaliated against
plaintiffs for exercising their rights to repair and deduct (Civ.
Code, § 1942) and to complain about uninhabitable conditions
(see §§ 1941 & 1941.1). Under section 1942.5, if the lessor
“retaliates against the lessee because of the exercise by the lessee
of the lessee’s rights under this chapter . . . , and if the lessee of a
dwelling is not in default as to the payment of rent, the lessor
may not recover possession . . . within 180 days . . . . [¶] . . .
[a]fter the date upon which the lessee, in good faith, has given
notice pursuant to Section 1942 . . . or has made an oral
complaint to the lessor regarding tenantability.” (§ 1942.5,

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subd. (a)(1).) Plaintiffs contend their retaliation cause of action is
not subject to the anti-SLAPP statute.
For this claim, they cite Banuelos v. LA Investment, LLC
(2013) 219 Cal.App.4th 323, 335. Banuelos has nothing to do
with the anti-SLAPP statute. Banuelos held the plaintiff’s
complaint stated a cause of action for retaliatory eviction under
Civil Code section 1942.5, and further that the cause of action
was not barred by the litigation privilege. (Banuelos, at pp. 326,
335.) Those are not the issues here. Indeed, the trial court
expressly stated, citing Banuelos, that the litigation privilege did
not bar plaintiffs’ section 1942.5 cause of action.
The issues here are whether plaintiffs’ retaliation claim
arose from defendants’ protected activity, and if so, whether
plaintiffs have shown the claim has at least minimal merit. If
defendants’ “ ‘speech or petitioning activity itself is the wrong
complained of’ ” (Wilson, supra, 7 Cal.5th at p. 884), then the
claim arose from protected activity. Clearly the wrong that is the
basis for plaintiffs’ retaliatory eviction claim is defendants’
eviction-related conduct, all of which is protected activity. That
leaves only the question whether plaintiffs have shown a
probability of prevailing on their claim defendants’ eviction
efforts were retaliatory under Civil Code section 1942.5. They
have not.
Plaintiffs were in default as to the payment of rent and, as
we have already discussed, they did not present any evidence of
uninhabitable conditions or expenses for repairs they made that
could be deducted from the rent due. (Indeed, the only evidence
presented of repairs plaintiffs made was presented by
defendants, who showed that in September 2014, Mr. Flaker
informed defendants of a needed repair he would make, for which

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plaintiffs deducted $40 from the October 2014 rent.) As the trial
court observed, Mr. Flaker’s declaration was “conclusory and
[did] not state when he and/or his wife made oral complaints to
defendants regarding tenantability in relation to the
commencement of the unlawful detainer proceedings, or affirm
that they were not in default as to the payment of their rent.” In
short, plaintiffs did not show a probability of prevailing on the
merits of a retaliatory eviction claim.
d. The Brennan attorney fees
Plaintiffs also appeal from the award of attorney fees to
Mr. Brennan, saying the amount awarded ($10,800) was
unreasonable and excessive. Plaintiffs did not oppose the motion
for attorney fees, and have forfeited this claim. In any event,
their one-paragraph argument without citation of authority does
not establish any abuse of discretion.
DISPOSITION
The orders are affirmed. No costs are awarded.

GRIMES, J.
WE CONCUR:

BIGELOW, P. J.

STRATTON, J.

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