Ortiz v. Eisler CA2/5

Filed 5/10/22 Ortiz v. Eisler CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

YAZMIN ORTIZ, B303780

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC125247)
v.

RUDY EISLER et al.,

Defendants and
Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed in part,
reversed in part.
Yazmin Ortiz, self-represented litigant, for Plaintiff and
Appellant.
Citron & Citron, Thomas H. Citron and Katherine A.
Tatikian for Defendants and Respondents.
 I. INTRODUCTION

Plaintiff Yazmin Ortiz appeals from an order granting, in
part, a special motion to strike pursuant to Code of Civil
Procedure section 425.16, the anti-SLAPP statute.1 We reverse,
in part, as to the 12th cause of action to the extent it concerns
activity not protected by the anti-SLAPP statute. We otherwise
affirm.

II. BACKGROUND

A. Unlawful Detainer Action

In March 1995, plaintiff entered into a rental agreement
with defendant Rudy Eisler for a unit within an apartment
building located in Santa Monica (the property). The property
was owned by defendants Stephen B. Eisler and Theresa A.
Eisler as trustees of the Eisler Family 2000 Living Trust, and
Rudy Eisler and Wendy Lou Eisler as trustees of the Eisler
Living Trust (the Eislers). In May 2015, the Eislers filed an
unlawful detainer action (the unlawful detainer action) against
plaintiff for failure to pay rent. In August 2015, the Eislers filed
the second amended complaint in the unlawful detainer action.
They alleged that plaintiff was served with a three-day notice to

1 Further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
“A ‘SLAPP’ is a ‘“strategic lawsuit against public
participation”’ [citation], and special motions to strike under
section 425.16 are commonly referred to as ‘[a]nti-SLAPP
motions’ [citation].” (Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1007, fn. 1 (Bonni).)

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pay rent or quit and that she owed past-due rent in the amount of
$3,371.91. The Eislers also sought forfeiture of the rental
agreement, reasonable attorney fees, possession of the property,
and damages.
On December 4, 2015, a court entered judgment in favor of
the Eislers on the unlawful detainer action. Plaintiff appealed,
and the Appellate Division of the Los Angeles County Superior
Court affirmed.

B. Plaintiff’s First Amended Complaint

On December 4, 2017, plaintiff filed her first amended
complaint alleging 19 causes of action against defendants.2 Only
the fifth, sixth, both 10th (plaintiff alleged two separate 10th
causes of action), 12th, 13th, and 16th causes of action are
relevant for purposes of this appeal. We will discuss the
allegations in plaintiff’s complaint in further detail below.

C. Anti-SLAPP Motion

On March 12, 2019, defendants filed a special motion to
strike the causes of action listed above. They asserted that each
of the challenged causes of action arose from protected activity,
specifically, defendants’ filing of the unlawful detainer action.
Defendants also argued that plaintiff could not demonstrate a

2 Plaintiff named as defendants the Eislers, Robert and
Carole Sundeen, Dustin Wells, Eisler Investments, and West End
Properties. Wells was a former attorney for the Eislers and the
Sundeens, Eisler Investments, and West End Properties were the
managers of the property.

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probability of success on the merits of those causes of action
because, among other arguments, defendants’ alleged conduct
was protected by the litigation privilege (Civ. Code, § 47, subd.
(b)).
On November 5, 2019, plaintiff filed her opposition to the
anti-SLAPP motion. She asserted that “plaintiff’s causes of
action do not arise from acts in furtherance of defendant[s’] right
to free speech on a public issue” (original emphasis and
capitalization omitted). She also contended that “‘she would
[prevail] due to the fact that she had a full legal defense to the
unlawful detainer as a matter of law . . . .” But in discussing the
purported minimal merits of her causes of action, she only listed
the elements of a cause of action for the intentional infliction of
emotional distress claim and negligence, neither of which was the
subject of defendants’ anti-SLAPP motion.
On November 19, 2019, the trial court conducted a hearing
on the anti-SLAPP motion. After taking the matter under
submission, the court issued its ruling. The court found that the
conduct at issue in the fifth, both 10th, 12th, 13th, and 16th
causes of action arose from defendants’ filing and prosecution of
the unlawful detainer action and were therefore protected
activity. The court concluded, however, that only a portion of
plaintiff’s sixth cause of action arose from the unlawful detainer
action. It also found that plaintiff failed to demonstrate a
probability of success on the merits of any of these causes of
action because she failed to make any relevant argument in her
opposition. The court therefore granted the anti-SLAPP motion
as to the fifth, both 10th, 12th, 13th, and 16th causes of action in
full, and, for the sixth cause of action, in part, ordering that only
“the allegations relat[ed] to the institution of the unlawful

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detainer action” be stricken. On January 21, 2020, plaintiff filed
a notice of appeal.

III. DISCUSSION

A. The Anti-SLAPP Procedure

“‘[The anti-SLAPP] statute authorizes a special motion to
strike a claim “arising from any act . . . in furtherance of the
[plaintiff’s] right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.” (§ 425.16, subd. (b)(1).)’ (Wilson[ v. Cable
News Network, Inc. (2019)] 7 Cal.5th [871,] 883–884.) [¶]
Litigation of an anti-SLAPP motion involves a two-step process.
First, ‘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.’ (Park[ v. Board of
Trustees of California State University (2017)] 2 Cal.5th [1057,]
1061 [(Park)].) Second, for each claim that does arise from
protected activity, the plaintiff must show the claim has ‘at least
“minimal merit.”’ (Ibid.) If the plaintiff cannot make this
showing, the court will strike the claim.” (Bonni, supra, 11
Cal.5th at p. 1009.) We review de novo the grant or denial of an
anti-SLAPP motion. (Park, supra, 2 Cal.5th at p. 1067.)

B. First Prong—Protected Activity

“A claim arises from protected activity when that activity
underlies or forms the basis for the claim. [Citations.] Critically,
‘the defendant’s act underlying the plaintiff’s cause of action must

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itself have been an act in furtherance of the right of petition or
free speech.’ [Citations.] ‘[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.’
[Citations.] Instead, the focus is on determining what ‘the
defendant’s activity [is] that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech
or petitioning.’ [Citation.] ‘The 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) . . . .’
[Citation.] In short, 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.” (Park, supra, 2 Cal.5th at pp. 1062–
1063.)
“Analysis of an anti-SLAPP motion is not confined to
evaluating whether an entire cause of action, as pleaded by the
plaintiff, arises from protected activity or has merit. Instead,
courts should analyze each claim for relief—each act or set of acts
supplying a basis for relief, of which there may be several in a
single pleaded cause of action—to determine whether the acts are
protected and, if so, whether the claim they give rise to has the
requisite degree of merit to survive the motion.” (Bonni, supra,
11 Cal.5th at p. 1010.)
It is well-settled that the filing of an unlawful detainer
action and service of a three-day notice to quit are protected
activities. (See Aron v. WIB Holdings (2018) 21 Cal.App.5th
1069, 1083 (Aron); Feldman v. 1100 Park Lane Associates (2008)

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160 Cal.App.4th 1467, 1480 (Feldman).) Thus, we examine the
pleadings to determine whether the challenged causes of action
are based on these protected activities.

1. Fifth Cause of Action: Civil Code section 1942.5

In her fifth cause of action, plaintiff alleged that defendants
retaliated against her for making complaints about the
tenantability of the property, in violation Civil Code section
1942.5. In order to prevail on this cause of action, a plaintiff
must show that “the lessor retaliate[d] against the lessee because
of the exercise by the lessee of the lessee’s rights under this
chapter or because of the lessee’s complaint to an appropriate
agency as to tenantability of a dwelling, and if the lessee of a
dwelling is not in default as to the payment of rent . . . .” (Id.,
§ 1942.5, subd. (a); see Winslett v. 1811 27th Avenue LLC (2018)
26 Cal.App.5th 239, 247.)
According to plaintiff’s first amended complaint, defendants
“commenced an ongoing campaign of harassment and retaliation,
including the filing of unlawful detainer/eviction actions against”
her. Plaintiff, however, did not allege any acts of harassment or
retaliation other than the filing of the unlawful detainer action.
The conduct alleged in the fifth cause of action therefore all arose
from protected activity.

2. Sixth Cause of Action: Breach of the Covenant of
Quiet Enjoyment

In her sixth cause of action, plaintiff alleged a breach of the
covenant of quiet enjoyment. “‘In the absence of language to the

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contrary, every lease contains an implied covenant of quiet
enjoyment, whereby the landlord impliedly covenants that the
tenant shall have quiet enjoyment and possession of the
premises.’” (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873,
896; Civ. Code, § 1927.) The covenant of quiet enjoyment can be
breached upon actual or constructive eviction of a tenant.
(Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th
1281, 1299.)
According to plaintiff, defendants breached the covenant of
quiet enjoyment by, among other things, “instituting unlawful
detainer/eviction actions” against her. Accordingly, to the extent
this cause of action is based on defendants’ filing of the unlawful
detainer action, it is subject to the anti-SLAPP statute. (See
Olivares v. Pineda (2019) 40 Cal.App.5th 343, 352 [finding breach
of quiet enjoyment cause of action arose from protected activity;
conduct at issue was filing of unlawful detainer action].)

3. Tenth Cause of Action (First): Malicious Prosecution

In this cause of action, plaintiff alleged that defendants
engaged in malicious prosecution by filing the unlawful detainer
action. “To prevail in a malicious prosecution action under
California law, a malicious prosecution plaintiff (the defendant in
the underlying action) must show that (1) the plaintiff in the
underlying action pursued a claim with subjective malice, (2) the
claim was brought without objective probable cause, and (3) the
underlying action was terminated on the merits in favor of the
defendant.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 63–64.) It is
well-settled that a defendant in a malicious prosecution cause of
action meets its burden of demonstrating the first prong of the

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anti-SLAPP statute. (Citizens of Humanity, LLC v. Ramirez
(2021) 63 Cal.App.5th 117, 127; Area 55, LLC v. Nicholas &
Tomasevic, LLP (2021) 61 Cal.App.5th 136, 151.)

4. Tenth Cause of Action (Second): Santa Monica
Charter Amendment section 1806

Section 1806 of the Santa Monica Charter Amendment
regulates the process by which landlords evict tenants in Santa
Monica. Plaintiff alleged that defendants violated section 1806
by serving the three-day notice to pay rent or quit, instituting an
unlawful detainer action against her, threatening to terminate
her tenancy, and demanding possession of the property. Again,
all such conduct was is in furtherance of protected activity.
(Feldman, supra, 160 Cal.App.4th at p. 1480.)

5. Twelfth Cause of Action: Santa Monica Charter
Amendment section 1809

Section 1809 of the Santa Monica Charter Amendment
provides for civil remedies by tenants against landlords who
demand rent in excess of the maximum allowed. Specifically,
section 1809 provides in pertinent part: “Any landlord who
demands, accepts, receives, or retains any payment of rent in
excess of the maximum lawful rent, in violation of the provisions
of this Article or any rule, regulation or order hereunder
promulgated, including the provisions ensuring compliance with
habitability standards and registration fee requirements, shall be
liable in a civil action to the tenant from whom such payments
are demanded, accepted, received or retained . . . .”

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 Plaintiff alleged that “[d]efendants violated Santa Monica
Charter Amendment § 1809 by their demand that [p]laintiff pay
increased rent in the sum [sic] and by institution of the unlawful
detainer action for [p]laintiff’s failure to pay said increased rent
which is in excess of the current lawful maximum . . . .” Plaintiff
further alleged that defendants “intended to circumvent” section
1809 by attempting to evict her and filing the unlawful detainer
action and notice-to-quit.
The portions of plaintiff’s 12th cause of action premised on
defendants’ acts of filing the unlawful detainer action and the
notice-to-quit were based on conduct that arose from protected
activity. (See Aron, supra, 21 Cal.App.5th at p. 1083 [tenant’s
cause of action against landlord for violation of harassment
ordinance arose out of unlawful detainer action].) Plaintiff’s
allegation that defendants demanded rent in excess of the
maximum lawful rent, however, did not arise from protected
activity. (See, e.g., Clark v. Mazgani (2009) 170 Cal.App.4th
1281, 1288 [finding first prong of anti-SLAPP not met because
plaintiff’s lawsuit was based on unlawful eviction, not the filing of
unlawful detainer].) Accordingly, we will reverse the trial court,
in part, as to the portion of plaintiff’s cause of action premised on
defendants’ alleged act of demanding rent in excess of the legal
maximum pursuant to section 1809 of the Santa Monica Charter
Amendment.

6. Thirteenth Cause of Action: Breach of Rental
Agreement

“‘The standard elements of a claim for breach of contract
are[:] “(1) the contract, (2) plaintiff's performance or excuse for

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nonperformance, (3) defendant's breach, and (4) damage to
plaintiff therefrom. [Citation.]” [Citation.]’” (Darbun
Enterprises, Inc. v. San Fernando Community Hospital (2015)
239 Cal.App.4th 399, 409.) Plaintiff alleged that defendants
breached the rental agreement by refusing to accept plaintiff’s
tender of rent and “sought to evict [p]laintiff by way of the
unlawful detainer [cause of] action for failure to pay rent . . . .”
Such activity is in furtherance of activity protected by the anti-
SLAPP statute. (See Feldman, supra, 160 Cal.App.4th at
pp. 1483–1484 [“conduct alleged to constitute a breach of contract
may also come within the statutory protections for protected
speech or petitioning”].)

7. Sixteenth Cause of Action: Unlawful Business
Practices

A cause of action under Business and Professions Code
section 17200 “‘“to redress an unlawful business practice
‘borrows’ violations of other laws and treats these violations,
when committed pursuant to business activity, as unlawful
practices independently actionable under [Business and
Professions Code] section 17200 et seq. and subject to the distinct
remedies provided thereunder.”’” (Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659, 677.) Plaintiff alleged defendants’
unlawful business practice was to “deceive[ ] [p]laintiff as to their
true purposes [of] evicting [her] from the Premises, which true
purpose [was] the illegal conversion [of the building] . . . into a
non rent-controlled rental unit.” The “activity . . . in furtherance
of the unlawful business practice” about which plaintiff
complained was the service of the notice to quit and the filing and

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service of the complaint in the unlawful detainer action. As
discussed, the filing of the notice and the unlawful detainer
action are protected activity under the anti-SLAPP statute. (See
Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 32
[finding first prong met for unlawful business practice cause of
action based on protected activity].)

D. Second Prong—Probability of Success

“To establish the requisite probability of prevailing, the
plaintiff need only have ‘“‘stated and substantiated a legally
sufficient claim.’”’ (Navellier[ v. Sletten (2002)] 29 Cal.4th [82,]
88.) ‘“Put another way, the plaintiff ‘must demonstrate that the
complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is credited.’”’ (Id. at
pp. 88–89.) The plaintiff need only establish that his or her claim
has minimal merit to avoid being stricken as a SLAPP. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 . . . .)
Nevertheless, a plaintiff cannot simply rely on his or her
pleadings, even if verified. Rather, the plaintiff must adduce
competent, admissible evidence.” (Grenier v. Taylor (2015) 234
Cal.App.4th 471, 480.)
Plaintiff devotes much of her brief to responding to one of
defendants’ arguments, raised in the trial court, that plaintiff
could not prevail on her causes of action because they are barred
by the doctrine of collateral estoppel and res judicata. The trial
court, however, did not grant the anti-SLAPP motion on the basis
of collateral estoppel or res judicata and thus plaintiff’s
arguments are misplaced. The court instead found plaintiff’s

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opposition “ma[de] no argument whatsoever as to the merits of”
the causes of action at issue in defendants’ motion. Plaintiff on
appeal likewise makes no cogent argument as to how her causes
of action have minimal merit. We therefore conclude that
plaintiff has waived any such argument on appeal. (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

E. Other Matters

Plaintiff additionally argues that the trial court erred by
declaring her a vexatious litigant pursuant to section 391.7,
subdivision (a) on January 26, 2021. That order was filed one
year after plaintiff filed the notice of appeal in this case. Thus, it
is not a subject of this appeal.
Plaintiff additionally challenges defendants’ request for
attorney fees. She concedes, however, that she “does not know
how the trial court will rule on [defendants’] motion [for attorney
fees] as this hearing has not occurred but she feels the amount of
over $60[,000] is excessive, unreasonable and padding, and
should not be allowed if the laws are to be followed.” Because
this appeal does not include a challenge of any attorney fee order,
plaintiff’s contention is not ripe for adjudication. (Redondo Beach
Waterfront, LLC v. City of Redondo Beach (2020) 51 Cal.App.5th
982, 1000.)

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 IV. DISPOSITION

The order granting the special motion to strike in part is
reversed in part as to the 12th cause of action with respect to
defendants’ alleged act of demanding rent in excess of the legal
maximum pursuant to section 1809 of the Santa Monica Charter
Amendment. We otherwise affirm. In the interests of justice, the
parties are to bear their own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

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