Filed 4/28/22 Goens v. Monsef CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSHUA GOENS, D079618
Plaintiff,
v. (Super. Ct. No. 37-2019-
00052868-CU-BC-CTL)
REZA MONSEF,
Defendant.
REZA MONSEF,
Plaintiff and Respondent,
(Super. Ct. No. 37-2019-
v. 00053318-CU-FR-CTL)
JOSHUA GOENS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Jeffrey B. Barton, Judge. Affirmed.
Kelly E. DuFord for Plaintiff, Defendant and Appellant.
Christian J. Albut for Defendant, Plaintiff and Respondent.
Reza Monsef entered into a lease with Joshua Goens for certain
commercial property. Subsequently, Monsef and Goens disagreed regarding
what was promised under the lease, including whether Monsef was to operate
a car dealership on the entire property. Goens began the eviction process to
remove Monsef from the property. In response, Monsef told Goens that he
would bring a civil suit if Goens proceeded with an unlawful detainer action.
Four days after Goens filed an unlawful detainer action, Monsef sued Goens,
alleging, among other things, that Goens made certain misrepresentations
during the negotiation of the lease.
In response to Monsef’s complaint, Goens brought a special motion to
strike the complaint under the anti-SLAPP (Strategic Lawsuit Against Public
Participation) statute, Code of Civil Procedure section 425.16.1 The court
denied the motion, finding the complaint was not based on Goens’s right to
petition the court or bring an unlawful detainer action.
Goens appeals the court’s order denying his anti-SLAPP motion,
arguing the court erred in determining that the complaint was not subject to
the anti-SLAPP statute.
We agree with the superior court that Goens did not show the
complaint arose out of protected activity. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Complaint
Monsef, doing business as La Mesa Pre-owned/RN Motors, Inc., is an
automotive dealer who purchases and sells motor vehicles. In early August
2019, Monsef saw an advertisement on Craigslist regarding certain real
1 Statutory references are to the Code of Civil Procedure unless
otherwise specified.
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property located on Mission Gorge Road in San Diego (the Premises). The
advertisement stated the entire Premises was for lease. Monsef’s
representative then emailed Goens to request additional information.
After receiving no response to the email, Monsef went to Goens’s office
to discuss leasing the Premises. At that time, Goens and Monsef did not
walk through the Premises. Goens informed Monsef that the rent for the
Premises would be $5,000 per month.
Goens then requested and Monsef provided financial information.
Goens “approved [Monsef] within minutes” and told him to return the next
day to sign the lease.
The next day, Monsef signed a lease agreement (Lease) for the
Premises. Per the Lease, Monsef was only entitled to use the “ ‘Front
Portion’ ” of the Premises. Monsef did not have an opportunity to adequately
review the Lease before executing it. Monsef “was forced to sign the Lease
under duress.” He asked for a day to review the Lease, but Goens told him
that other parties were interested in the Premises and the Premises would
not be available for rent the next day. However, Goens assured Monsef that
“ ‘everything was in order’ ” and “ ‘there was no need to worry.’ ”
Before signing the Lease, Monsef was led to believe, based on the
Craigslist advertisement, that he would be entitled to use the entire
Premises. He also believed that Goens owned the Premises. Monsef was not
aware that Goens was a tenant under a master lease of the Premises.
Before and after he signed the Lease, Goens promised Monsef that
everything would be ready for Monsef to move into the Premises on
August 15, 2019. Specifically, Goens told Monsef the Premises would be
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repainted and the signage from the prior tenant would be removed or
unplugged. Nevertheless, the Premises was not ready when Monsef’s client
moved vehicles onto the Premises on August 15, 2019.
Monsef placed his signage over the signage of the prior tenant.
However, at night, the prior tenant’s signage would “show[ ] through
[Monsef’s] signage” because Goens had not turned off the lighting of the
previous tenant’s sign.
Also, Monsef had to share the Premises with another tenant. During
the day, “an unlicensed body shop” operated and painted vehicles on the
Premises. The body shop’s activities caused “a major interruption to
[Monsef’s] business operations.” Monsef informed Goens of the situation, but
Goens did nothing about it.
Goens and Monsef agreed there would be a chain link fence and two
locks on the Premises. However, the pole that would support the fence “was
run over and destroyed.” On his security cameras, Monsef observed
strangers driving through the car lot at night. Monsef brought this situation
to Goens’s attention, but Goens did not remedy it.
In a letter dated September 3, 2019, Goens informed Monsef that
Monsef would receive a $300 credit for October rent because the Premises
was not ready. The next day, Monsef sent a letter to Goens requesting a copy
of the master lease. Shortly thereafter, Goens refused to provide any rental
credits to Monsef, including the previously promised $300.
Goens threatened to file an unlawful detainer against Monsef.
On October 8, 2019, Monsef filed suit against Goens, alleging the
following causes of action: (1) intentional misrepresentation; (2) negligent
misrepresentation; (3) rescission and restitution; (4) unjust
enrichment/constructive trust; (5) declaratory relief; and (6) injunctive relief.
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The gravamen for Monsef’s claims focused on Goens’s misrepresentations to
Monsef during the Lease negotiations, especially Monsef’s claim that Goens
represented that Monsef would be able to use the entire Premises.
The Anti-SLAPP Motion
In response to the Monsef’s complaint, Goens filed an anti-SLAPP
motion. In that motion, Goens claimed that Monsef sued him “in retaliation
of” an unlawful detainer action Goens filed against Monsef.2 To this end,
Goens argued that Monsef breached the Lease, and thus, Goens sent Monsef
a letter to vacate the Premises on September 13, 2019. On September 20,
2019, after Monsef did not cure the breaches under the Lease, Goens sent
Monsef a notice to vacate the Premises in three days. In response, Monsef’s
attorney sent a Goens a letter dated October 2, 2019, threatening to bring a
civil action if Goens filed an unlawful detainer action.
In insisting that the underlying complaint was subject to an anti-
SLAPP motion, Goens did not evaluate any of the individual causes of action
in the complaint or explain how those claims were based on protected
conduct. Instead, Goens argued that Monsef “filed a civil lawsuit against
[Goens], in furtherance of his threat to do so upon [Goens’s] valid exercise of
evicting [Montel]. In his own words and subsequent actions, [Monsef’s]
attorney admits that this current lawsuit is one meant to chill [Goens’s] right
to evict a tenant for failure to perform under the lease.”
Monsef opposed the anti-SLAPP motion, contending the causes of
action in the underlying complaint did not arise out of any protected activity.
Specifically, he maintained his claims arose out of misrepresentations Goens
made during the negotiation and signing of the Lease.
2 Goens filed the unlawful detainer action on October 4, 2019, four days
before Monsef filed the underlying complaint.
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Goens filed a reply in support of his anti-SLAPP motion.
After considering the papers filed and the evidence submitted as well
as entertaining oral argument, the superior court denied the anti-SLAPP
motion. The court explained:
“[Goens] contends . . . Monsef filed this action to chill his
First Amendment right to petition and broadly asserts that
this action arises from [Goens’s] filing of an unlawful
detainer action against [Monsef]. However, the mere fact
that this action was filed a few days after [Goens’s]
unlawful detainer action was filed does not bring it within
the scope of the anti-SLAPP statute. (See Navellier v.
Sletten (2002) 29 Cal.4th 82, 89 [(Navellier)].) [Monsef’s]
fraud based claims in this action are not based on [Goens’s]
right to petition the court or bring an unlawful detainer
action. The Complaint only mentions in passing that
[Goens] "has threaten[ed] to file an unlawful detainer
against" [Monsef]. [Citation.] There are no other
references to the unlawful detainer action in the
Complaint. Instead, the Complaint's factual assertions
stem from [Goens’] alleged representations to [Monsef]
during the negotiation of the lease and leading up to its
execution. [Citation.] [Goens] has not met his burden to
demonstrate [Monsef’s] Complaint or any of the causes of
action therein arise from protected activity. Accordingly,
the court did not consider the second prong of the anti-
SLAPP analysis, whether [Monsef] has a probability of
prevailing on his claims.”
Goens timely filed a notice of appeal.
DISCUSSION
A. Law Governing Anti-SLAPP Motions
“Enacted by the Legislature in 1992, the anti-SLAPP statute is
designed to protect defendants from meritless lawsuits that might chill the
exercise of their rights to speak and petition on matters of public concern.
[Citations.] To that end, the statute authorizes a special motion to strike a
claim ‘arising from any act of that person in furtherance of the person’s right
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of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue.’ ” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).)
“A court evaluates an anti-SLAPP motion in two steps. ‘Initially, the
moving defendant bears the 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, supra, 7 Cal.5th at p. 884.)
“The defendant’s first-step burden is to identify the activity each
challenged claim rests on and demonstrate that that activity is protected by
the anti-SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability is asserted.’
[Citation.] To determine whether a claim arises from protected activity,
courts must ‘consider the elements of the challenged claim and what actions
by the defendant supply those elements and consequently form the basis for
liability.’ [Citation.] Courts then must evaluate whether the defendant has
shown any of these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute.” (Wilson, supra, 7 Cal.5th at
p. 884.)
The second step of the anti-SLAPP analysis has been described as a
summary-judgment-like procedure. (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater Union).) The
court determines whether “ ‘the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable
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judgment.’ ” (Ibid.) The plaintiff “ ‘may not rely solely on its complaint, even
if verified; instead, its proof must be made upon competent admissible
evidence.’ ” (Ibid.) The defendant may submit evidence in support of its
motion. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)
However, “ ‘[t]he court does not weigh evidence or resolve conflicting factual
claims.’ ” (Sweetwater Union, at p. 940.) Rather, the court “ ‘accepts the
plaintiff's evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff's claim as a matter of law. [Citation.]
“[C]laims with the requisite minimal merit may proceed.” ’ ” (Ibid.)
We review an order granting an anti-SLAPP motion de novo.
(Sweetwater Union, supra, 6 Cal.5th at p. 940.) We therefore engage in the
same two-step process that the trial court undertakes in assessing an anti-
SLAPP motion. (See Mendoza v. ADP Screening & Selection Services, Inc.
(2010) 182 Cal.App.4th 1644, 1651-1652.) “Only a [claim] 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, supra, 29 Cal.4th at p. 89.)
B. Prong One: Protected Activity under the Anti-SLAPP Statute
Goens contends that the superior court erred in concluding Monsef’s
causes of action do not arise from protected activity, as defined by the anti-
SLAPP statute. We disagree.
A defendant satisfies the first prong of the anti-SLAPP analysis by
demonstrating that the allegedly injurious conduct falls within one of four
categories of protected activity described in section 425.16, subdivision (e),
and that the claim asserted by the plaintiff arises from that conduct. (Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) Alternatively
stated, “the moving party must establish both (1) that its act constituted
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protected activity and (2) the opposing party’s cause of action arose from that
protected activity.” (Colyear v. Rolling Hills Community Assn. of Rancho
Palos Verdes (2017) 9 Cal.App.5th 119, 130.)
Section 425.16, subdivision (e) states: “As used in this section, ‘act in
furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue’ includes:
(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law, (2) any written or oral statement or writing made in connection with
an issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any written or
oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.”
“A claim does not arise from constitutionally protected activity simply
because it is triggered by such activity or is filed after it occurs. [Citation.]
Rather, the focus is on the substance of the lawsuit. ‘[T]he 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.’ ” (World
Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172
Cal.App.4th 1561, 1568 (World Financial Group).)
Goens’s primary argument here is that Monsef filed his compliant in
response to Goens’s filing of the unlawful detainer action. “There is no
question that the prosecution of an unlawful detainer action is indisputably
protected activity within the meaning of section of section 426.16.” (Clark v.
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Mazgani (2009) 170 Cal.App.4th 1281, 1286.) However, Monsef’s complaint
is not premised on Goens’s protected activities of initiating and prosecuting
an unlawful detainer action. Instead, Monsef is suing Goens based on alleged
misrepresentations that Goens made during the negotiations of the Lease.
And Goens does not explain how these alleged misrepresentations are
protected activity under the anti-SLAPP statute. Instead, he merely asserts
that Monsef threatened to file his complaint if Goens filed an unlawful
detainer action and then followed through on that threat once the unlawful
detainer action was initiated. Yet, neither that timeline nor the act of filing
suit automatically trigger anti-SLAPP protections. “ ‘[T]he 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.’ ”
(Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160, quoting
Navellier, supra, 29 Cal.4th at p. 89.) The pivotal question “ ‘is whether the
cause of action is based on the defendant's protected free speech or
petitioning activity.’ ” (Ibid.)
Here, Goens provides no analysis whatsoever of any of Monsef’s causes
of actions. He does not explain how claims based on alleged
misrepresentations he made during the negotiations and execution of the
Lease constitute protected activity. This failure is fatal to his appeal here.
“The burden of affirmatively demonstrating error is on the appellant.”
(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th
966, 971.) Here, Goens has utterly failed to explain how the allegations in
the underlying complaint were based on an act in furtherance of his right of
petition or free speech. (See Navellier, supra, 29 Cal.4th at p. 89; World
Financial Group, supra, 172 Cal.App.4th at p. 1568.) Thus, he has not
carried his burden of showing the superior court erred in finding Monsef’s
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complaint did not arise out of protected activity. Because we conclude Goens
has not satisfied the first prong under the applicable anti-SLAPP analysis,
we do not reach the anti-SLAPP statute’s secondary question whether Monsef
established there is a probability that he will prevail on his claims. (See City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81.)
DISPOSITION
The order is affirmed. Monsef is entitled to his costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
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