Filed 11/18/22 Pegues v. Charles Cobb Apartments 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CARLIS PEGUES, B313391
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV30464)
v.
CHARLES COBB APARTMENTS L.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Daniels, Fine, Israel, Schonbuch & Lebovits and
Bernadette Castillo Brouses, for Defendant and Appellant.
Onwaeze Law Group and Ogochukwu Victor Onwaeze for
Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant Charles Cobb Apartments L.P. (Cobb) appeals
from an order denying its special motion to strike pursuant to the
anti-SLAPP statute, Code of Civil Procedure1 section 425.16. We
conclude Cobb failed to establish that the challenged claims
against it arose from acts in furtherance of its rights of petition or
free speech, and thus we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Unlawful detainer action
Cobb is the owner of an apartment building located at
521 South San Pedro Street in Los Angeles. Plaintiff Carlis
Pegues (plaintiff) leased a unit in the apartment building
(the unit) from Cobb from September 2018 until January 2020.
On May 22, 2019, Cobb filed an unlawful detainer action
against plaintiff for failure to pay rent. On August 12, 2019, the
parties stipulated to the entry of judgment, which provided that
plaintiff would not pay past due rent, but would vacate the unit
and remove her personal property by December 10, 2019.
Plaintiff did not vacate the unit by December 10, 2019. On
January 9, 2020, the Los Angeles County Sheriff’s Department
served plaintiff with a writ of possession for the unit and carried
out the eviction and judgment for possession.
II. Present action.
On August 11, 2020, plaintiff and Jeffrey Scott Davis2 filed
a complaint against Cobb alleging that on about November 22,
1 All subsequent statutory references are to the Code of Civil
Procedure.
2 Jeffrey Scott Davis is not a party to the appeal.
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2019––that is, several weeks prior to the date specified in the
stipulated judgment––Cobb entered the unit and locked plaintiff
out for three days, giving rise to causes of action for forcible entry
and forcible detainer (seventh and eighth causes of action).
Separately, plaintiff and Davis alleged that the unit had not been
maintained in a habitable condition, giving rise to causes of
action for breach of contract, breach of the implied warranty of
habitability, breach of the covenant of quiet enjoyment, violations
of Civil Code section 1942.4, nuisance, and negligence (first
through sixth causes of action).
III. Special motion to strike
On April 1, 2021, Cobb filed a special motion to strike the
seventh and eighth causes of action for forcible entry and forcible
detainer pursuant to the anti-SLAPP statute. As to the statute’s
first prong, Cobb asserted that the forcible entry/forcible detainer
causes of action were subject to a special motion to strike because
they arose from protected activity––namely, Cobb’s pursuit of an
unlawful detainer action against plaintiff. As to the second
prong, Cobb asserted that plaintiff could not establish a
likelihood of prevailing because the forcible entry claim required
plaintiff to prove that Cobb forcibly entered the unit and removed
plaintiff by force, threats, or menacing conduct, and the forcible
detainer claim required plaintiff to prove that Cobb unlawfully
held and kept possession of the unit by force or threats of violence
and refused to surrender the property for more than five days.
Cobb asserted that because it secured possession of the unit
through lawful process––that is, through an unlawful detainer
action––it could not be liable for forcible entry or forcible
detainer.
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In support of Cobb’s special motion to strike, its custodian
of records, Daniel Hernandez, declared that according to the
documents in plaintiff’s renter’s file, Cobb had relied on its
counsel to handle plaintiff’s eviction. There was no information
in plaintiff’s file indicating that any Cobb personnel forcibly
entered plaintiff’s unit or prevented her from entering her unit in
November 2019.
Plaintiff opposed the special motion to strike. She asserted
that the seventh and eighth causes of action did not arise out of
protected activity because the alleged November 2019 lockout
was not pursuant to the unlawful detainer action. In any event,
even if the alleged lockout was protected activity subject to a
special motion to strike, plaintiff urged that her declaration
established a probability of success on the merits. In that
declaration, plaintiff stated that when she was absent from the
unit on November 22, 2019, Cobb used a keycard to enter her
unit without her consent and then rekeyed the lock so she could
not reenter. When plaintiff tried to regain possession, Cobb
would not allow her to enter the unit and instead called the
police. As a result, plaintiff was locked out of her unit for several
days.
In its reply, Cobb argued that plaintiff had not presented
admissible evidence that she could prevail on her forcible entry or
forcible detainer claims because she “did not identify the
individual, or individuals, that allegedly entered and detained
her from her unit for a few days starting on November 22, 2019,
let alone prov[ide] admissible evidence that such individual(s)
acted on behalf of Charles Cobb.”
The trial court denied the special motion to strike. The
court found that Cobb had met its burden to show that the
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principal thrust, or gravamen, of the seventh and eighth causes
of action was the prosecution of the unlawful detainer action, but
plaintiff had made a prima facie showing that she would prevail
on those causes of action because she presented evidence that
while she was entitled to possession of the unit, Cobb locked her
out without her consent and then called the police when she tried
to regain possession.
Cobb timely appealed from the order denying the special
motion to strike.
DISCUSSION
I. Applicable law
“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. (See § 425.16, subd. (a); Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619;
Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
192.)” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871,
883–884.) To that end, section 425.16, subdivision (b)(1)
provides: “A cause of action against a person 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 shall be
subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.”
An “ ‘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
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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.” (§ 425.16,
subd. (e).)
The analysis of an anti-SLAPP motion involves 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.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1061.) A claim arises from protected activity “when that activity
underlies or forms the basis for the claim.” (Id. at p. 1062.) In
other words, “ ‘[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).’ ” (Id. at p. 1063,
italics omitted.) If the defendant carries its burden to
demonstrate that plaintiff’s claims arise from protected activity,
the plaintiff must then demonstrate its claims have at least
“ ‘minimal merit.’ ” (Wilson v. Cable News Network, Inc., supra,
7 Cal.5th at p. 884.)
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An order granting or denying a special motion to strike is
appealable. (§ 425.16, subd. (i); § 904.1, subd. (a)(13).) Our
review is de novo. (Park v. Board of Trustees of California State
University, supra, 2 Cal.5th at p. 1067.)
II. The causes of action for forcible entry and forcible
detainer do not arise out of protected activity
Cobb contends that plaintiff’s causes of action for forcible
entry and forcible detainer are subject to the anti-SLAPP statute
because they arose out of acts taken in furtherance of Cobb’s
right of petition––namely, its prosecution of an unlawful detainer
action. For the reasons that follow, Cobb’s contention lacks
merit.
As an initial matter, we address Cobb’s assertion that we
cannot consider the merits of the first prong of the anti-SLAPP
analysis because plaintiff did not cross-appeal from the order
denying the anti-SLAPP motion. Not so. Although as a general
rule, respondents who fail to file a cross-appeal cannot claim
error in connection with the opposing party’s appeal, a limited
exception to this rule is provided by section 906, which provides:
“Upon an appeal . . . , the reviewing court may review the verdict
or decision and any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the
judgment or order appealed from or which substantially affects
the rights of a party . . . . The respondent, or party in whose
favor the judgment was given, may, without appealing from such
judgment, request the reviewing court to and it may review any
of the foregoing matters for the purpose of determining whether
or not the appellant was prejudiced by the error or errors upon
which he relies for reversal or modification of the judgment from
which the appeal is taken.” (Italics added.) “ ‘ “The purpose of
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the statutory exception is to allow a respondent to assert a legal
theory which may result in affirmance of the judgment.’
[Citation.]” [Citation.]’ (Prakashpalan v. Engstrom, Lipscomb &
Lack (2014) 223 Cal.App.4th 1105, 1121.)” (Khorsand v. Liberty
Mutual Fire Ins. Co. (2018) 20 Cal.App.5th 1028, 1034; see also
Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [section 906
permits a respondent, without appealing, to assert a legal theory
“ ‘which may result in affirmance of the judgment.’ ”]; California
State Employees’ Assn. v. State Personnel Bd. (1986)
178 Cal.App.3d 372, 382, fn. 7 [“ ‘Although it is the appellant’s
task to show error, there is a corresponding obligation on the part
of the respondent to aid the appellate court in sustaining the
judgment;’ ” thus, respondent may, without appealing, “assert a
legal theory which may result in affirmance of the judgment.”].)
In the present case, plaintiff does not seek to reverse the
order denying the special motion to strike. Instead, she asks this
court to affirm the order, urging that any error with regard to the
second prong did not prejudice Cobb because its prong one claim
failed as a matter of law. Plaintiff’s contention thus comes within
section 906’s plain language and, as such, did not require her to
appeal from the order.
The cases on which Cobb relies are distinguishable. Two of
those cases considered whether appellants could assert claims on
behalf of other parties who had not appealed, an issue that is not
before us. (See City of Riverside v. Horspool (2014)
223 Cal.App.4th 670, 678 [homeowner had standing to appeal on
his own behalf as an aggrieved party, but lacked standing to
appeal from any portion of the judgment affecting the mortgage
holder, the bankruptcy trustee, or homeowner’s wife]; Estate of
McDill (1975) 14 Cal.3d 831, 840–841 [although appellant’s sister
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had not filed an appeal, the interests of appellant and her sister
were “ ‘so interwoven’ ” that reversal as to appellant also required
reversal as to her sister].) The remaining cases held that
respondent’s claims of error were not cognizable on appeal
because respondents sought to reverse, not to affirm, the
judgments. (See Estate of Powell, supra, 83 Cal.App.4th at
p. 1439 [having failed to appeal from the judgment, party could
not seek reversal of the judgment and entry of a new judgment
more favorable to him]; Celia S. v. Hugo H. (2016) 3 Cal.App.5th
655, 665 [respondent who did not file his own appeal to challenge
the trial court’s order could not attack the sufficiency of the
evidence to support it].)
Turning to the merits of the first prong of the anti-SLAPP
statute, while it is undisputed that the prosecution of an
unlawful detainer action is protected activity within the meaning
of section 425.16 (Clark v. Mazgani (2009) 170 Cal.App.4th 1281,
1286; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281–282;
Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1182,
disapproved on other grounds in Baral v. Schnitt (2016) 1 Cal.5th
376, 396), “ ‘ “[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.] The pivotal question ‘ “is whether the cause of action
is based on the defendant’s protected free speech or petitioning
activity.” ’ ” (Clark, at p. 1287.)
Thus, for example, in Clark v. Mazgani, supra,
170 Cal.App.4th 1281, the Court of Appeal held that claims based
on a landlord’s actions were not subject to the anti-SLAPP
statute even though the actions followed a tenant’s eviction.
There, a landlord evicted a tenant from a unit subject to a rent
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control ordinance permitting eviction if the landlord intended to
remove the unit from the rental market in order to free it for
occupancy by a member of the landlord’s immediate family.
Months after the eviction, the tenant sued the landlord, alleging
that the landlord’s daughter never moved into the unit, but that
the landlord instead kept the apartment unoccupied and
performed renovations, with the goal of re-letting the unit to a
new tenant for a higher monthly rent. (Id. at p. 1285.) The
landlord filed an anti-SLAPP motion, urging that the tenant’s
complaint arose from the acts of filing and serving the eviction
notice. The trial court agreed and granted the motion, but the
Court of Appeal reversed. While it noted that the prosecution of
an unlawful detainer action indisputably was protected activity
within the meaning of section 425.16, it found that the tenant’s
complaint was not premised on the landlord’s protected activities
of initiating or prosecuting the unlawful detainer action, but on
the landlord’s removal of the apartment from the rental market
and fraudulent eviction of the tenant for the purpose of installing
a family member who never moved in. The court explained:
“Contrary to her contentions, [landlord] was not sued for
exercising constitutional rights. She was sued to compel
compliance with the provisions of the [rent stabilization
ordinance (RSO)]. [Tenant’s] suit was unquestionably ‘triggered
by’ [landlord’s] statements and the documents she filed in
connection with the unlawful detainer. But the suit is not based
on those statements or filings. It is based on [the tenant’s] claim
that [the landlord] fraudulently invoked the family occupancy
exemption of the RSO to effect [tenant’s] eviction, and failed to
fulfill her obligations under that ordinance to install her
daughter in the apartment . . . . [Landlord’s] eviction notices and
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the unlawful detainer action are merely cited as evidence and
background to illustrate [landlord’s] subsequent violation of the
RSO . . . . To paraphrase an observation in [another case], ‘ “[i]f
we were to accept [landlord’s] argument, then [she] could
preclude any judicial review of [her] violation of the rent control
law, no matter how egregious, by simply filing a SLAPP
motion . . . .” ’ as was done here. [Citation.] We, like the other
courts that have considered the issue, remain ‘ “confident that
the Legislature intended no such application of [the rent control
laws].” ’ ” (Id. at pp. 1289–1290.)
Similarly, in Department of Fair Employment & Housing v.
1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th
1273, a landlord notified its tenants that it would remove its
apartment building from the rental market. A tenant asserted
she was disabled and invoked the 120-day period for finding
alternate housing permitted to disabled tenants. The landlord
subsequently had the tenant removed through an action for
unlawful detainer. The Department of Fair Employment and
Housing (DFEH) sued for disability discrimination, and the
landlord moved to strike portions of the complaint as a SLAPP.
The trial court denied the landlord’s motion, and the Court of
Appeal affirmed. While the appellate court assumed without
deciding that the landlord’s filing of notices of its intent to
remove residential units from the rental market, its investigation
and communications made necessary by the rent control removal
process, and its filing and prosecuting of the unlawful detainer
actions against the tenant constituted protected petitioning
activity, “the communications and the actual eviction itself were
not the acts attacked in DFEH’s complaint. Instead, the
allegations of wrongdoing in DFEH’s complaint arose from
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[landlord’s] alleged acts of failing to accommodate [tenant’s]
disability.” (Id. at p. 1284.)
The present case is analogous to Clark and Alta Loma. As
in those cases, plaintiff did not sue Cobb for exercising its right to
use the court system to evict her, but rather for allegedly locking
plaintiff out of the unit in violation of the judgment of eviction.
Thus, while the judgment of eviction provides context for the
alleged lock-out, the forcible removal and forcible detainer claims
are not based on the eviction. Indeed, those causes of action do
not allege that plaintiff was evicted from the unit, and the
evidence offered by Cobb in support of its special motion to strike
suggests that Cobb could not lawfully evict plaintiff prior to
December 11, 2019. The alleged November 2019 lockout pled in
the forcible removal and forcible detainer causes of action,
therefore, did not invoke the constitutional right of petition.
The cases Cobb cites are inapposite. In Birkner v. Lam,
supra, 156 Cal.App.4th at pp. 281–282, the plaintiff’s complaint
was based on the defendant’s alleged failure to rescind a notice to
terminate the plaintiff’s tenancy, which was a legal prerequisite
for bringing an unlawful detainer action. In Wallace v.
McCubbin, supra, 196 Cal.App.4th at pp. 1182–1186, the
challenged causes of action were based on the service of a three-
day notice to quit and filing of an unlawful detainer action. And
in Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120–121, the
plaintiffs’ claims against the attorney defendants were based on
the defendants’ representation of financial institutions in
unlawful detainer actions. In each of these cases, therefore, the
plaintiffs’ causes of action alleged actions taken in furtherance of
unlawful detainer actions. In the present case, in contrast, the
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seventh and eighth causes of action are based solely on conduct
allegedly taken outside the unlawful detainer actions.
We do not disagree, as Cobb suggests, that “communicative
conduct made in connection with an official proceeding, prior to
its commencement, fall within the gambit of protected activity,”
and that “a landlord’s notice to quit and subsequent prosecution
of an unlawful detainer action and eviction constitute protected
activities.” But those legal principles have no application here
where, as we have said, the alleged tortious acts were not in
furtherance of a lawful eviction.
Nor is the complaint subject to a special motion to strike
because “Cobb has no record of” the alleged November 2019
lockout. If plaintiff cannot establish by substantial evidence that
she was subject to a lockout by Cobb in November 2019, her
causes of action for forcible removal and forcible detainer may be
subject to summary adjudication or may result in a judgment for
Cobb at trial. For purposes of a special motion to strike, however,
the merits of plaintiff’s claims are relevant only if those claims
arise out of the constitutional rights of petition or free speech.
Because defendant has not established that the forcible removal
and forcible detainer claims implicate the rights of petition or
speech, their substantive merit is not properly before us.3
For all the foregoing reasons, the trial court properly
denied the special motion to strike.
3 Having concluded that the forcible removal and forcible
detainer causes of action are not subject to the anti-SLAPP
statute, we need not consider whether plaintiff established a
likelihood of prevailing.
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DISPOSITION
The order denying the special motion to strike is affirmed.
Respondent is awarded her appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
RICHARDSON (ANNE K.), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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