Santy v. Banafsheha CA2/3

Filed 6/30/21 Santy v. Banafsheha CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ELAINA SANTY, B302388

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC704194
v.

RABBIE BANAFSHEHA et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of
Los Angeles County, Craig D. Karlan, Judge. Reversed with
directions.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome; Veacth Carlson, Peter H. Crossin; Rosario Perry, Rosario
Perry and Steven A. Coard for Defendants and Appellants.

Gilbert & Nguyen and Jonathan T. Nguyen for Plaintiff
and Respondent.
_________________________
 Defendants Rabbie Banafsheha, Shabnam Banafsheha,
George Azzi, and TGA Management & Investment appeal from
an order denying their special motion to strike under California’s
anti-strategic lawsuit against public participation (anti-SLAPP)
statute (Code Civ. Proc., § 425.16).1 The motion targeted a claim
asserted by defendants’ tenant, plaintiff Elaina Santy, asserting
defendants engaged in tenant harassment under the Santa
Monica Municipal Code by, among other things, filing an
allegedly fraudulent Petition for Determination of Tenant
Not in Occupancy with the Santa Monica Rent Control Board.
As alleged in plaintiff’s complaint, a landlord engages in tenant
harassment under the Santa Monica Municipal Code when,
among other things, the landlord “[i]nfluence[s] or attempt[s] to
influence a tenant to vacate a rental housing unit through fraud,
intimidation or coercion.” (Santa Monica Mun. Code, § 4.56.020,
subd. (f), italics added.)
The trial court denied the motion under the first prong
of the anti-SLAPP statute. Although the court acknowledged
defendants’ petition to the Rent Control Board constituted
protected activity, it reasoned plaintiff’s claim was based on
defendants’ alleged “pattern of harassment”—not the petition
itself. We conclude the trial court misapplied the analytical
framework articulated in Baral v. Schnitt (2016) 1 Cal.5th 376
(Baral) for determining when relief is sought based on allegations
arising from protected activity in a mixed cause of action. We
also conclude, with respect to the second prong of the anti-SLAPP

1 Statutory references are to the Code of Civil Procedure
unless otherwise designated.

2
statute, that plaintiff cannot establish a probability of prevailing
on her claim because defendants’ petition was privileged, as
a matter of law, under Civil Code section 47, subdivision (b).
We therefore reverse and direct the trial court to enter an order
granting defendants’ special motion to strike.
FACTS AND PROCEDURAL BACKGROUND
Defendants are the owners and property managers of
a multiunit residential property in Santa Monica. Plaintiff
has been a tenant in one of the units for about 35 years.
In April 2018, plaintiff sued defendants asserting causes
of action for tenant harassment, breach of covenant of quiet
enjoyment, conversion, intentional infliction of emotional
distress, and negligence. The complaint alleges that, beginning
in 2015, defendants “began a campaign of harassment and
intimidation of Plaintiff.” Specifically, paragraph 10 alleges:
“These acts included, without limitation, the following:”
“j. Defendants filed a Petition for Tenant
Not in Occupancy, contending that Plaintiff
did not occupy her apartment. That Petition
was a fraud and was based on false and
fraudulent statements made in declarations
by Mr. Banafsheha and Mr. Aziz, including
for example that ‘there are no indications of
personal residence therein, such as a bed
or furniture,’ when that was at all times
completely untrue. Not only that, but their
Petition was further based on extreme and
dishonest trickery. Defendants required
Plaintiff to move her furnishings supposedly
for repainting and reflooring of her apartment;

3
 she temporarily moved many of her
apartment’s contents into storage for that
purpose, but many other of the contents
remained. While some of the contents were
in storage, Defendants filed their Petition
claiming that Plaintiff was out of occupancy
of the Premises. Plaintiff opposed the Petition
with a large amount of evidence showing she
was at all times in possession of the Premises.
A hearing investigator also inspected the
Premises and his findings demonstrated
that Plaintiff remained in occupancy thereof.
Caught in the act of pursuing a baseless and
fraudulent Petition, Defendants withdrew it.”
In the first cause of action for “Tenant Harassment,”
the complaint alleges, “Section 4.56.020 of the Santa Monica
Municipal Code provides that with respect to any rental housing
unit, no landlord shall in bad faith do, among other things, any of
the following: . . . b. Influence o[r] attempt to influence a tenant
to vacate a rental housing unit through fraud, intimidation or
coercion.” The complaint asserts, under “section 4.56.040 of
the Santa Monica Municipal Code, Defendants, and each of them,
are liable to Plaintiff for each of their violations of section[ ]
4.56.020.”
Defendants moved to strike the allegations in paragraph
10j concerning their filing of a Petition for Tenant Not in
Occupancy. In a supporting declaration, Banafsheha explained
that his family trust purchased the property in August 2015.
During a walkthrough inspection in advance of the purchase,
Banafsheha spoke with plaintiff, who told him “she did not

4
actually reside at the premises, but only ‘stayed their [sic]
part time’ ” and “she ‘owned a house outside of Santa Monica.’ ”
Banafsheha observed “the unit appeared to be used principally
for storage of personal property” and “there was no indication
of anyone’s personal residence in Plaintiff’s unit.” After closing
escrow, Banafsheha consulted with his attorney and, on May 6,
2016, he filed a Petition for Determination of Tenant Not
in Occupancy and New Maximum Allowable Rent with
the Santa Monica Rent Control Board. The petition sought
a more than twofold increase to the rent for plaintiff’s unit.
According to Banafsheha, after he received plaintiff’s
response to the petition, he found that plaintiff “had moved
furniture into the unit and begun occupancy of the premises.”
On his attorney’s advice, Banafsheha dismissed the petition
because, according to his attorney, “the change of [plaintiff’s]
living condition” meant “the Petition would no longer be granted.”
Defendants argued their petition constituted protected
activity taken “ ‘in furtherance of the exercise of the
constitutional right of petition’ ” and a writing made in
connection with an “ ‘official proceeding authorized by law.’ ”
(Boldface omitted.) Emphasizing the complaint listed the
petition as one of several “ ‘acts’ ” allegedly constituting
“ ‘intimidation and harassment of Plaintiff,’ ” defendants
maintained plaintiff’s claims arose out of this protected activity.
And defendants argued plaintiff had no probability of prevailing
on the claims because the litigation privilege (Civ. Code, § 47,
subd. (b)) shielded defendants from liability for alleged injuries
caused by the petition.
Plaintiff opposed the motion, arguing the “petitioning
conduct” described in paragraph 10j of her complaint was not

5
the “ ‘principal thrust’ or ‘gravamen’ ” of any claim. As for
the conduct giving rise to liability, plaintiff maintained her
claims arose from defendants’ “scheme to harass and intimidate
Plaintiff” and the allegations regarding the petition merely
provided “factual context” for the harassing conduct, including
“Defendants’ attempt to trick Plaintiff by causing her to move her
furnishings . . . to generate fictitious supposed facts in order to
support the petition [defendants] filed.” Plaintiff did not dispute
that defendants’ petitioning activity was protected under the
litigation privilege, but she reiterated that “[t]he allegations of
protected activity provide necessary context to other allegations
in the Complaint relating to Defendants’ deception of Plaintiff . . .
[and] non-protected harassment and intimidation of Plaintiff.”
In her supporting declaration, Plaintiff detailed several
occasions in which defendants “unnecessary[ily]” entered
her unit, failed to make repairs, removed her potted plants,
claimed not to have received her rent checks, or made “ ‘buyout’
offers” to induce her to vacate the unit. Regarding the allegations
in paragraph 10j, plaintiff declared she moved the furnishings
in her unit because defendants told her the unit needed to be
repainted. She explained this was the reason her “belongings
were in disarray” when defendants inspected and photographed
the unit in advance of filing their petition. Plaintiff said she
“always occupied and resided” in the unit and she denied
Banafsheha’s assertion that she ever told him otherwise.
The trial court denied defendants’ special motion to strike.
While the court acknowledged that an anti-SLAPP motion
“ ‘may be used to attack parts of a count,’ ” the court reasoned
the allegations regarding defendants’ petition to the Rent Control
Board “ ‘merely provide[d] context, without supporting a claim

6
for recovery.’ ” The court explained: “Plaintiff’s suit is one that
alleges a pattern of harassment by Defendants with the intended
purpose of causing her to vacate her apartment. Part of
that harassment included tricking Plaintiff into moving her
furnishings out of the unit for repairing and reflooring so that
Defendants could file a petition stating she was not in occupancy
of the unit. [Citation.] It was necessary for Plaintiff to state
Defendants filed a fraudulent petition as context for why they
tricked her to move her furnishings out of the unit. [¶] This
allegation notwithstanding, no cause of action is based on
the petition or the filing thereof; it is based on the trickery
which occurred because of Defendants’ desire to file a petition.”
Having determined defendants failed to make a threshold
showing under the anti-SLAPP statute’s first prong, the trial
court declined to determine under the second prong whether
plaintiff demonstrated a likelihood of prevailing on the merits.
DISCUSSION
1. The Anti-SLAPP Analysis and Standard of Review
The anti-SLAPP statute, section 425.16, establishes a
procedure for expeditiously resolving “nonmeritorious litigation
meant to chill the valid exercise of the constitutional rights of
freedom of speech and petition in connection with a public issue.”
(Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th
226, 235.) “When served with a SLAPP suit, the defendant may
immediately move to strike the complaint under section 425.16.
To determine whether this motion should be granted, the trial
court must engage in a two-step process.” (Hansen v. Department
of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537,
1543; Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 67 (Equilon).)

7
 The first prong of the anti-SLAPP analysis requires
the court to decide “whether the defendant has made a threshold
showing that the challenged cause of action is one arising from
protected activity.” (Equilon, supra, 29 Cal.4th at p. 67; § 425.16,
subd. (b)(1).) “[T]he statutory phrase ‘cause of action . . .
arising from’ means simply that the defendant’s act underlying
the plaintiff’s cause of action must itself have been an act
in furtherance of the right of petition or free speech. [Citation.]
In the anti-SLAPP context, the critical point is whether
the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.”
(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In deciding
whether the ‘arising from’ requirement is met, a court considers
‘the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.’ ” (Id. at
p. 79, quoting § 425.16, subd. (b).) An “ ‘act in furtherance of a
person’s right of petition or free speech’ ” includes “any written
or oral statement or writing made in connection with an issue
under consideration or review by a . . . judicial body, or any other
official proceeding authorized by law.” (§ 425.16, subd. (e)(2).)
If the court finds the defendant has made the threshold
showing, the analysis proceeds to the second prong, under which
the court “determines whether the plaintiff has demonstrated
a probability of prevailing on the claim.” (Equilon, supra, 29
Cal.4th at p. 67; § 425.16, subd. (b)(1).) To establish the requisite
probability of prevailing, the plaintiff need only have “ ‘stated
and substantiated a legally sufficient claim.’ ” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123
(Briggs).)

8
 We independently review the trial court’s ruling on an anti-
SLAPP motion under the de novo standard. (ComputerXpress,
Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) “Only a cause
of action that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks
even minimal merit—is a SLAPP, subject to being stricken
under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89
(Navellier).)
2. The Challenged Allegations Support a Claim Arising
from Protected Activity
Defendants’ special motion to strike targeted paragraph 10j
of the complaint, which, as fully set forth in our statement of
facts, alleges defendants conducted “a campaign of harassment
and intimidation of Plaintiff” that “included” the filing of “a
Petition for Tenant Not in Occupancy, contending that Plaintiff
did not occupy her apartment.” Paragraph 10j alleges the
“Petition was a fraud and was based on false and fraudulent
statements” by defendants, including “that ‘there are no
indications of personal residence [in plaintiff’s unit], such as
a bed or furniture,’ when that was at all times completely
untrue.” (Italics added.)
The filing of a petition for a determination of occupancy
with a municipal rent control board is plainly protected activity
under section 425.16, subdivision (e)(2), and plaintiff tacitly
concedes as much. (See Salma v. Capon (2008) 161 Cal.App.4th
1275, 1285–1286 [communications with municipal departments
to request action by municipal official constitute protected
activity under the anti-SLAPP statute]; see also Briggs, supra,
19 Cal.4th at p. 1115 [“ ‘ “[T]he constitutional right to petition . . .
includes the basic act of filing litigation or otherwise seeking

9
administrative action.” ’ ”]; Aron v. WIB Holdings (2018) 21
Cal.App.5th 1069, 1074, 1083 (Aron) [landlord’s filing of unlawful
detainer action in alleged violation of Santa Monica Tenant
Harassment Ordinance constituted protected activity under
anti-SLAPP statute].) However, plaintiff argues the allegations
relating to the petition were merely “incidental or collateral”
to her claims, and it was the “pattern and practice of
intimidation”—not the filing of the petition—that was the basis
for each cause of action. The argument is inconsistent with
the prescribed first prong analysis for mixed causes of action
under Baral.
In Baral, our Supreme Court resolved a split of authorities
regarding mixed causes of action—i.e., causes of action alleging
protected and unprotected activity—and held that an anti-SLAPP
motion may be used to strike discrete allegations of protected
activity without defeating an entire cause of action. (Baral,
supra, 1 Cal.5th at p. 393.) Under Baral, “[w]hen relief is sought
based on allegations of both protected and unprotected activity,
the unprotected activity is disregarded” in conducting the
first prong analysis, and the trial court then must determine
whether “relief is sought based on allegations arising from
activity protected by the statute.” (Id. at p. 396.) “Assertions
that are ‘merely incidental’ or ‘collateral’ are not subject to
section 425.16,” and allegations of “protected activity that merely
provide context, without supporting a claim for recovery, cannot
be stricken under the anti-SLAPP statute.” (Id. at p. 394.)
However, if the targeted allegations “amount to a ‘cause of action’
in the sense that [they are] alleged to justify a remedy,” those
allegations are properly subject to a special motion to strike,
even though they may be mixed with allegations of unprotected

10
activity in a single cause of action. (Id. at p. 395, italics added.)
The critical question is whether “allegations of protected activity
. . . are asserted as grounds for relief.” (Ibid.)
In Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1063 (Park), our Supreme Court revisited
the showing necessary to establish a claim arises from protected
activity. There, the court emphasized that “ ‘[t]he only means
specified in section 425.16 by which a moving defendant can
satisfy the [“arising from”] requirement is to demonstrate
that the defendant’s conduct by which plaintiff claims to have
been injured falls within one of the four categories described in
subdivision (e).’ ” (Ibid., italics added.) Thus, Park instructs
that “in ruling on an anti-SLAPP motion, courts should consider
the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the
basis for liability.” (Ibid.)
In her first cause of action for “Tenant Harassment,”
plaintiff alleges “Defendants, and each of them, are liable
to Plaintiff for each of their violations of section[ ] 4.56.020” of
the Santa Monica Municipal Code. According to her complaint,
“Section 4.56.020 . . . provides that with respect to any rental
housing unit, no landlord shall in bad faith do, among other
things, any of the following: . . . b. Influence o[r] attempt to
influence a tenant to vacate a rental housing unit through fraud,
intimidation or coercion.” (Italics added; see Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1238
& fn. 1 (Action Apartment Assn.) [explaining Santa Monica’s
“Tenant Harassment ordinance prohibits a variety of malicious
acts by landlords directed at tenants in rental housing units,”
and quoting § 4.56.020 of the Santa Monica Mun. Code].) As

11
our Supreme Court explained in Action Apartment Assn., the
Santa Monica ordinance authorizes a “civil enforcement action
. . . by ‘[a]ny person,’ ” and provides for civil penalties amounting
to “the greater of statutory damages in the amount of $1,000 or
actual damages, attorney fees and costs, and punitive damages”
for each violation of the ordinance. (Action Apartment Assn.,
at p. 1239, citing Santa Monica Mun. Code, § 4.56.040, subds.
(b), (d).)
In accepting plaintiff’s argument that the allegations
related to defendants’ filing of the petition “ ‘merely provide[d]
context, without supporting a claim for recovery,’ ” the trial court
reasoned it was “necessary for Plaintiff to state Defendants filed
a fraudulent petition as context for why they tricked her to move
her furnishings out of the unit.” However, under Baral, the court
was required to focus on the allegations of protected activity to
determine whether those allegations were necessary “to justify
a remedy.” (Baral, supra, 1 Cal.5th at pp. 395–396.) And, under
Park, the court was required to “consider the elements of the
challenged claim” and determine whether the alleged protected
actions “supply those elements and consequently form the basis
for liability.” (Park, supra, 2 Cal.5th at p. 1063.) When analyzed
in accordance with this prescribed framework, it is clear that
the “allegations of protected activity” in paragraph 10j of the
complaint were “asserted as grounds for relief.” (Baral, at p. 395,
italics omitted.)
As plaintiff’s first cause of action states, a landlord violates
section 4.56.020 of the Santa Monica Municipal Code when
the landlord “[i]nfluence[s] or attempt[s] to influence a tenant
to vacate a rental housing unit through fraud, intimidation or
coercion.” (Santa Monica Mun. Code, § 4.56.020, subd. (f),

12
italics added.) Defendants’ alleged “baseless and fraudulent
Petition” to declare plaintiff not in occupancy and to obtain
a more than twofold increase to the rent for her unit plainly
constitutes a basis for liability under this provision of the
Santa Monica ordinance. And, because fraud is a necessary
element of plaintiff’s claim for tenant harassment, defendants’
protected activity—the filing of a fraudulent petition with
the Rent Control Board—was necessarily “alleged to justify a
remedy” under the ordinance. (Baral, supra, 1 Cal.5th at p. 395;
Park, supra, 2 Cal.5th at p. 1063.) Defendants’ special motion
to strike satisfied the first prong of the anti-SLAPP statute.2
3. The Litigation Privilege Bars Plaintiff’s Claim
Based on Defendants’ Alleged Fraudulent Petition
to the Rent Control Board
Because the trial court concluded the targeted allegations
did not assert a cause of action arising from protected activity,
it refrained from reaching the second prong of the anti-SLAPP
statute. Nonetheless, given that the issue is subject to our
de novo standard of review and that defendants raised the issue,
giving plaintiff the opportunity to fully brief it, it is proper for

2 Our holding does not preclude plaintiff from seeking leave
to amend her complaint to the extent she can allege, separate and
apart from defendants’ petition to the Rent Control Board, that
defendants harassed her by requiring her to move her furniture
without a legitimate reason or engaged in other harassing
conduct. (See Park, supra, 2 Cal.5th at p. 1063 [a claim is subject
to a special motion to strike only if “ ‘the defendant’s conduct
by which plaintiff claims to have been injured falls within one
of the four categories described in’ ” the anti-SLAPP statute
(italics omitted)].)

13
this court to decide in the first instance whether there is a
probability that plaintiff can prevail on her tenant harassment
claim based on the allegedly fraudulent petition. (See Navellier,
supra, 29 Cal.4th at p. 95 [remanding to the Court of Appeal to
decide in the first instance whether the plaintiffs had established
a probability of prevailing on the merits, even though trial court
did not expressly rule on second prong]; Jarrow Formulas, Inc.
v. LaMarche (2003) 31 Cal.4th 728, 732, 742 [affirming Court
of Appeal judgment regarding second prong although trial court
did not reach the issue].)
Defendants contend, as they did in their special motion
to strike, that plaintiff’s claim based on their petition to the
Rent Control Board is barred under the litigation privilege.
“The litigation privilege, codified at Civil Code section 47,
subdivision (b), provides that a ‘publication or broadcast’ made
as part of a ‘judicial proceeding’ is privileged. . . . ‘The usual
formulation is that the privilege applies to any communication
(1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that [has] some connection or logical
relation to the action.’ ” (Action Apartment Assn., supra, 41
Cal.4th at p. 1241.) “If there is no dispute as to the operative
facts, the availability of the privilege is a matter of law.”
(Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93
(Susan A.); Gootee v. Lightner (1990) 224 Cal.App.3d 587, 591.)
“The litigation privilege is absolute and broadly applied
regardless of malice.” (Falcon v. Long Beach Genetics, Inc.
(2014) 224 Cal.App.4th 1263, 1272; Action Apartment Assn.,
supra, 41 Cal.4th at p. 1241.) Its purpose is to “ ‘afford litigants
freedom of access to the courts . . . and to promote the unfettered

14
administration of justice even though as an incidental result it
may [sometimes] . . . provide . . . immunity to the . . . malignant
slanderer.’ ” (Tiedemann v. Superior Court (1978) 83 Cal.App.3d
918, 925 (Tiedemann), italics omitted.) “In order that the
privilege apply, it is unnecessary that the defamatory matter be
relevant or material to an issue before the tribunal but need only
have some proper connection or relation to the proceeding and
in achieving its objectives.” (Id. at pp. 924–925.) “The privilege
‘is not limited to statements made during a trial or other
proceedings, but may extend to steps taken prior thereto,
or afterwards.’ ” (Action Apartment Assn., supra, 41 Cal.4th
at p. 1241.)
“Similarly, strong policy reasons exist to assure free
and open channels of communication between citizens and
public agencies and authorities charged with the responsibility
of investigating wrongdoing [citations], without which protection
would effectively close such important channels.” (Tiedemann,
supra, 83 Cal.App.3d at pp. 925–926.) Thus, the “statutory
phrase ‘in any other official proceeding authorized by law’
has been broadly interpreted to include those proceedings
which resemble judicial and legislative proceedings such as
administrative boards and quasi-judicial and quasi-legislative
proceedings.” (Id. at p. 924, citing Ascherman v. Natanson
(1972) 23 Cal.App.3d 861, 865.) “In determining whether an
administrative body or agency possesses such quasi-judicial
power, the preliminary factors to be determined are ‘(1) whether
the administrative body is vested with discretion based upon
investigation and consideration of evidentiary facts, (2) whether
it is entitled to hold hearings and decide the issue by the
application of rules of law to the ascertained facts and,

15
more importantly, (3) whether its power affects the personal
or property rights of private persons.’ ” (Tiedemann, at p. 925.)
We agree with defendants—plaintiff cannot demonstrate
a probability of prevailing on the merits because the litigation
privilege bars her claim based on defendants’ petition to the
Rent Control Board, as a matter of law.3 The Santa Monica
Rent Control Law created the Rent Control Board as “an
integral part of the government of the City,” with the authority
to “enact rules and regulations governing hearings and appeals
of individual adjustment of ceilings on allowable rents.”
(Santa Monica City Charter, art. XVIII, §§ 1802 & 1805,
subd. (d).) As relevant here, Santa Monica Rent Control Board
Regulation 3304 establishes a procedure for a landlord to petition

3 Plaintiff does not dispute that the litigation privilege
applies to defendants’ petition—she did not dispute the
privilege’s applicability in the trial court and she does not
dispute it on appeal. Instead, plaintiff suggests she can plead
around the privilege by amending her complaint to state a claim
for malicious prosecution. (See Action Apartment Assn., supra,
41 Cal.4th at p. 1242 [observing litigation privilege does not
extend to malicious prosecution claims].) Defendants of course
dispute the proposed claim’s viability, but we need not address
the issue here. Because a plaintiff cannot amend a pleading
to defeat an anti-SLAPP motion that satisfies the first prong,
plaintiff’s proposed amendment (even if it may be viable) is not
a valid basis to affirm the trial court’s ruling. (See Simmons v.
Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [allowing
leave to amend after the defendant makes a prima facie showing
“would totally frustrate the Legislature’s objective of providing
a quick and inexpensive method of unmasking and dismissing
[SLAPP] suits”].)

16
the Board to set a new maximum allowable rent for a unit upon
the Board’s determination that a tenant is not in occupancy. The
regulation sets the landlord’s and tenant’s respective evidentiary
burdens (Santa Monica Rent Control Bd. Regs., ch. 3, § 3304,
subds. (b), (e), (g)); it outlines a process for a Board staff member
to review the evidentiary submissions (id., § 3304, subds. (d), (f));
it provides for an evidentiary investigation and hearing before
a Board Administrator or Hearing Supervisor to determine
whether the tenant is not in occupancy (id., § 3304, subd. (d)(2))
and an appeal to the Board to affirm, reverse, or modify
the determination (id., § 3304, subd. (j)); and, critically,
the regulation authorizes the Board to increase the maximum
allowable rent that a private landlord can charge for rental
property based on set criteria (id., § 3304, subd. (i)). The
regulation plainly establishes the sort of quasi-judicial
“official proceeding authorized by law” to which the litigation
privilege applies. (Civ. Code, § 47, subd. (b); Tiedemann,
supra, 83 Cal.App.3d at p. 925.)
As for the privilege’s other requirements, the undisputed
evidence proves the alleged “false and fraudulent statements”
described in paragraph 10j of the complaint were
communications, made by authorized individuals in a
quasi-judicial proceeding, to achieve the objects of the rent
control petition, that had a logical relation to the proceeding.
(See Action Apartment Assn., supra, 41 Cal.4th at p. 1241.)
The challenged allegations specifically refer to
“statements,” contained in “declarations made by Mr. Banafsheha
and Mr. Aziz” in support of the petition, that asserted there
were “ ‘no indications of personal residence [in plaintiff’s unit],
such as a bed or furniture.’ ” Santa Monica Rent Control Board

17
Regulation section 3304, subdivision (g) provides that a landlord
can prove a unit is not tenant occupied by presenting evidence
that “the tenant’s personal possessions are not located in the
unit” or that “the tenant does not carry on basic living activities
at the unit for extended periods of time.” Under this regulation,
the declarants’ statements were clearly designed to obtain an
official determination from the Rent Control Board and therefore
“must be considered part of the official proceeding itself.”
(Tiedemann, supra, 83 Cal.App.3d at p. 926.)
The fact that the Board acted on the petition by requesting
a response from plaintiff also proves the statements had some
logical relation or connection to the official proceeding. (See
Santa Monica Rent Control Bd. Regs., ch. 3, § 3304, subd. (d)
[“If the petition and supporting documents state a prima facie
case, the Board shall mail a copy of the petition and a blank
response form to the tenant(s) and occupant(s) of the unit.”].)
And, as the landlord for the unit, Banafsheha’s status fulfills the
litigation privilege’s final condition of authorized participation
in the proceeding. (See id., § 3304, subd. (b) [authorizing
“Landlords” to submit petition seeking a determination the
tenant is “ ‘not in occupancy’ ”].) Thus, the undisputed “operative
facts” establish “the availability of the privilege [as] a matter
of law.” (Susan A., supra, 2 Cal.App.4th at p. 93.)
Because the litigation privilege protects defendants from
liability for the statements contained in their petition to the
Rent Control Board, plaintiff cannot demonstrate a reasonable
probability of prevailing on her claim under the anti-SLAPP

18
statute’s second prong. The trial court erred in denying
defendants’ special motion to strike.4
DISPOSITION
The order is reversed and the trial court is directed to
enter a new order (1) striking the allegations contained in
paragraph 10j of the complaint, and (2) awarding attorney fees
as directed in section 425.16, subdivision (c). Defendants
Rabbie Banafsheha, Shabnam Banafsheha, George Azzi,
and TGA Management & Investment are entitled to costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. KALRA, J.*

4 Plaintiff filed a motion for sanctions, arguing defendants’
appeal was frivolous and without merit. We need not catalogue
all of plaintiff’s arguments. It will suffice to say that, because
we have concluded the trial court prejudicially erred, we deny
plaintiff’s sanctions motion.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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