law offices of eric l. lifschitz
TRANSCRIPT
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Eric L. Lifschitz (State Bar No. 215252) Aaron H. Darsky (State Bar No. 212229) LAW OFFICES OF ERIC L. LIFSCHITZ 345 Franklin Street San Francisco, California 94102 Telephone: 415-553-6055 Facsimile: 415-358-56474 Attorneys for Plaintiff John Moriarty
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO,
UNLIMITED JURISDICTION
JOHN MORIARTY, Plaintiffs vs. LARAMAR MANAGEMENT CORPORATION, 2363 VAN NESS AVENUE LLC, and DOES 1 through 50, inclusive Defendants
Case No. CGC-12-520970 PLAINTIFF’S OPPOSITION TO LARAMAR MANAGEMENT CORPORATION’S SPECIAL MOTION TO STRIKE (ALLEGED SLAPP) Date: October 18, 2012 Time: 9:30 a.m. Dept: 302 Hon. Harold E. Kahn Complaint Filed: May 21, 2012 Trial Date: None Set
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TABLE OF CONTENTS
I. INTRODUCTION…………………………………………………………………………….........1 II. STATEMENT OF FACTS………………………………………………………………….......…1 III. LEGAL ARGUMENT……………………………………………………………………........…..2
A. Defendant’s Motion Should be Denied……………………………………....................…3
1. Defendant’s Affirmative Defenses Are Without Merit ...............................................3
a. Plaintiff only alleges conduct that is not subject to the litigation privilege
.....................................................................……………………....…3
b. Plaintiff’s Claims are not barred by Res Judicata or Collateral Estoppel ………………………………………4
2. Plaintiff’s Causes of Action do Not Arise from Protected Activities..………….6 a. Plaintiff’s Causes of Action Arise from Untenantable Conditions of the
Premises……………………………...................................................6 3. Defendant’s SLAPP Should be Denied Because There is a Probability
that Plaintiff will Prevail on his Causes of Action……...........................................………8 a. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for
Harassment—Violation of SF Administrative Code §37.10– 1st Cause of Action b. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for
Negligent Violation of Statutory Duty – 2nd Cause of Action ...................................9 c. Plaintiff can Show Probability of Success of Prevailing on his Claim of Breach of
the Implied Warranty of Habitability – 3rd Cause of Action.....................................10 d. Plaintiff can Show Probability of Success of Prevailing on His Claim of Breach of
Implied Warranty of Statutory Warranty of Habitability 4th Cause of Action .........10 e. Plaintiff can Show Probability of Success of Prevailing on His Negligence Claim-
5th Cause of Action ...................................................................................................11 f. Plaintiff can Show Probability of Success of Prevailing on Claim for Nuisance- 6th
Cause of Action ........................................................................................................12 g. Plaintiff can Show Probability of Success of Prevailing Claim for Breach of
Covenant of Quiet Enjoyment- 7th Cause of Action .................................................12 h. Plaintiff can Show Probability of Success of Prevailing on Claim for Intentional
Infliction of Emotional Distress- 8th Cause of Action...............................................13
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i. Plaintiff can Show Probability of Success of Prevailing on Claim for
Unlawful Business Practices- 9th Cause of Action ...................................................13 j. Plaintiff can Show Probability of Success of Prevailing on Claim for
Negligent Misrepresentation- 10th Cause of Action.................. ..............................13 k. Plaintiff can Show Probability of Success of Prevailing on Claim for
Violation of SF Rent Ordinance- 11th Cause of Action............................................14
4. Plaintiff Respectfully Requests Time to Conduct Additional Discovery...........14
B. Plaintiffs Should be Awarded Attorney Fees and Costs……………......………….…..15
IV. CONCLUSION………………………………………………………………………….....……15
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TABLE OF AUTHORITIES
CasesAmin v. Khazindar, (2003) 112 Cal.App.4th 582, 590 ................................................................................. 5 Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 .................................................................... 13 City of Cotati v. Cashman (2002) 29 Cal.4th 69 ....................................................................................... 2, 3 Dept. of Fair Employment & Housing v. 1105 Alta Loma Road Apts, LLC (2007) 154 Cal. App. 4th 1273
............................................................................................................................................................... 2, 3 Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 ................................................... 2 Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, ... 13 Fox v. Pollack (1986) 181 Cal.App.3d 954 ................................................................................................ 15 Freeze v. Salot (1954) 122 Cal.App.2d 561 .............................................................................................. 5, 6 Gottlieb v. Krest (2006) 141 Cal.App.4th 110 .............................................................................................. 6 Green v. Superior Court, supra, 10 Cal.3d 616. ......................................................................................... 11 Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th 1539, ............ 8 Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508 ........................................................ 13 Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228 ......... 14 Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515 ...................................... 9 Kyle v. Carmon (1999) 71 Cal.App.4th 901 ................................................................................................. 8 Naily v. Grace Community Church of the Valley (1988) 47 Cal.3d 278 ...................................................... 8 Navellier v. Sletten (2002) 29 Cal.4th 82 .......................................................................................... 2, 3, 7, 9 Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551 ................................................................ 5 Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841 .............................................................. 14 Quality Wash Group V, Ltd. v. Hallak (1996) 50 Cal.App.4th 1687 .......................................................... 15 Quelimane v. Stewart Title Guaranty Co., supra, 19 Cal.4th 26. ............................................................... 11 S. Bay Chevrolet v. Gen. Motors Acceptance Corp. (1999) 72 Cal. App. 4th 861 ..................................... 15 San Diego Gas & Electric Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893 .................................... 13 See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal. 4th 377 ............................................................... 14 Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 ........................................................................... 8 Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 .................................................................... 9 Stoiber v. Honeychuck (1980) 101 Calp.App.3d 903 ................................................................................. 13 Trerice v. Blue Cross of Calif. (1989) 209 Cal.App.3d 878 ....................................................................... 14 Vella v. Hudgins (1977) 20 Cal. 3d 251, 257 ............................................................................................ 5, 6 Wallace v. McCubbin (2001) 196 Cal.App.4th 1169, .................................................................................... 7 Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 ................................................................................ 16 Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 ...................................................................... 9
StatutesCiv. Code § 1941 ........................................................................................................................................ 11 Code of Civil Procedure section 1161a ........................................................................................................ 5 Code of Civil Procedure section 425.16 ..................................................................................................... 14 Section 37.10B of the San Francisco Administrative Code .................................................................... 9, 10
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I. INTRODUCTION
Defendant's motion is an untimely demurrer disguised as a meritless SLAPP motion. Defendant's
counsel Curtis Dowling expressly represented in open court that there is no preclusive effect from a default
judgment taken against Plaintiff, yet this motion, signed by Mr. Dowling, argues precisely that. It is
shameful. Even worse, Defendant bases its so-called motion to strike on events that are not referenced
anywhere in Plaintiff's complaint. In so doing, Defendant conflates what was pled (that Plaintiff was
constructively evicted from his home in September 2010 and waited over nine months on the promise that
the substandard conditions would be remediated) with its subsequent unlawful detainer default judgment in
July 2011 when Plaintiff had relocated to Los Angeles. Nowhere in Plaintiff's complaint does it reference
Defendant's unlawful detainer default judgment or use it to support any of its causes of action. The fallacy
perpetuated by Defendant and Mr. Dowling is an abuse of process and merits sanctions.
This action arises out of the ownership, management, and related activities of an apartment in a
multi-unit building located at 2363 Van Ness Avenue, San Francisco, California (hereinafter “Subject
Premises”) by Defendant Laramar Urban SF ( “Defendant”). Defendant Laramar became property
manager at the Subject Premises while Plaintiff John Moriarty, a long term, rent controlled tenant, was
living in substandard conditions which became uninhabitable, unsafe and unsanitary in violation of the
rental agreement and applicable ordinances, codes and statutes. Defendant moved out so that Defendants
could repair the Premises as promised, but refused to do so for over six months. Despite having actual and
constructive knowledge of the defective conditions of the Subject Premises, Defendant exhibited wanton
and blatant disregard of these defective conditions and refused to make necessary and required repairs.
Defendant’s actions caused Plaintiff to live in squalor severe enough to impact Plaintiff’s health. As a
result of Defendant’s actions, Plaintiff suffered and continues to suffer significant damages and, through
this action, seek to be made whole.
II. STATEMENT OF FACTS
Plaintiff was a residential tenants of a rent-controlled unit at the Subject Premises from 1994 until
2011. Plaintiff’s Complaint (“Complaint”) ¶¶ 16-22.
Despite having actual and constructive notice of the defective and untenantable conditions at the
Subject Premises, Defendants ignored their duty to remedy the conditions and, indeed, refused to make
necessary repairs. In essence, the Defendants engaged in a calculated scheme to allow and perpetuate
uninhabitable conditions at Subject Premises for the purpose of ousting Plaintiff from his rent-controlled
unit. Complaint ¶¶ 19-24.
Defendants wanton and blatant disregard for the unsanitary and uninhabitable conditions of the
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Subject Premises resulted in filthy, unsanitary and squalid conditions, including (but not limited to): water
leakage; foul, musty odors, windows and doors not watertight or weather proof, lack of heat, health and
safety threats. Complaint ¶ 46.
Defendants refusal to restore and maintain a habitable premises caused Plaintiffs severe physical,
mental and emotional injury, caused Plaintiff to pay excessive rent, and caused other economic losses.
Complaint ¶¶ 41-43.
III. LEGAL ARGUMENT
As a preliminary matter, Defendant has brought this special motion to strike, but section II C of
Defendant’s Memorandum regarding claim preclusion and issue preclusion is a de facto demurrer. This
section seeks to raise defenses to Plaintiff’s causes of action, arguing that as a matter of law, Plaintiff
should be precluded from bringing these claims due to previous litigation. This is, in substance, a
demurrer. Cal Code Civ. Proc. § 430.10. If Defendant wanted to demur to Plaintiff’s causes of action, it
needed to bring a timely demurrer within 30 days of service of the Complaint. Code Civ. Proc. § 430.40.
Plaintiff served the complaint on August 24, 2012. Therefore, if Defendant wanted to demur, it needed to
file its motion on or before September 24, 2012. Here, Defendant filed the instant motion on September
25, 2012. Therefore, Defendant’s arguments regarding claim and issue preclusion, which are a de facto
demurrer, should be disregarded as untimely.
A. Defendant’s Motion Should be Denied
Under the anti-SLAPP statute, speech must belong to one of four categories in order to be
protected, of which only could be considered relevant: 1) a statement or writing made before a legislative,
executive, or judicial proceeding or other official proceeding authorized by law. Code Civ. Proc. §
425.16(e); Dept. of Fair Employment & Housing v. 1105 Alta Loma Road Apts, LLC (2007) 154 Cal. App.
4th 1273, 1282 (hereinafter “DFEH”).
Three California Supreme Court cases defined the scope and interpretation of section 425.16:
Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53; City of Cotati v. Cashman (2002)
29 Cal.4th 69 (hereinafter “City of Cotati”); and Navellier v. Sletten (2002) 29 Cal.4th 82 (hereinafter
“Navellier”). As defined by these cases, a two-step process arises. First, the defendant who brings the
anti-SLAPP motion must demonstrate that the challenged cause of action arises from protected activity.
This is “Prong 1.” If the court finds that the claim does arise from protected activity, then the plaintiff must
demonstrate that he or she is likely to prevail in the claim (“Prong 2”):
Section 425.16 Civ. Proc. posits a two-step process for determining whether an action is a SLAPP. First, the challenged cause of action is one arising from protected activity. (§425.16 Civ. Proc., subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the
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categories spelled out in section 425.16 Civ. Proc., subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§425.16 Civ. Proc., subd. (b) (1); see generally, Equilon, supra, 29 Cal.4th at p. 67.) []...[] In deciding whether the initial ‘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.’(§425.16 Civ. Proc., subd. (b).) Navellier, supra, 29 Cal.4th at pp. 88-89 Furthermore, “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, supra, 29 Cal. 4th at p. 89 (emphasis in original)..
Courts should look carefully at the activity that defines the cause of action. The protected activity
must be the gravamen of the claim. Where the allegations of protected activity are only incidental to a
cause of action based upon non-protected activity, the mention of protected activity does not give grounds
for an anti–SLAPP motion. DFEH, supra, 154 Cal.App.4th at pp. 1283-85. Indeed, “the mere fact that
an action was filed after protected activity took place does not mean it arose from that activity.” City
of Cotati, supra, 29 Cal.4th at pp. 76-77. This is the crux of Defendant’s argument and Plaintiff’s point is
simple- just because protected activity not referenced in the Complaint may have occurred, it is not
grounds for striking Plaintiff’s complaint. As a result, the mere allegation of a protected act does
immunize the defendant. Even more, Plaintiff make no allegation to any protected activity in his complaint
– rather it is improper evidence submitted by defendant to pursue this meritless motion. As demonstrated
below, the Defendant does not meet its burden in this motion for all of the causes of action.
1. Defendant’s Affirmative Defenses Are Without Merit
Plaintiff’s claims are not barred by the litigation privilege nor res judicata and collateral estoppel, as
they are inapplicable to this matter and are without merit.
a. Plaintiff only alleges conduct that is not subject to the litigation privilege Defendant’s reliance on the litigation privilege as an affirmative defense to Plaintiff’s Complaint is
misplaced. From Plaintiff’s allegations, it is clear the gravamen of the Complaint is Defendant’s failure to
remedy uninhabitable conditions. Indeed, the Complaint makes no reference whatsoever to the Unlawful
Detainer action. Yet Defendant reads into the Complaint references to the unlawful detainer and asserts,
without support, that it constitutes the basis of Plaintiff’s Complaint. Defendant’s reliance on this
unsupported assertion in an attempt to establish Prong 1 of the Navellier test is incorrect. Likewise, its
reliance is unfounded for the application of the litigation privilege.
Under Civil Code section 47, judicial proceedings are privileged conduct. However, in order for
the litigation privilege to apply in this matter, Plaintiff must have allegations regarding the unlawful
detainer in its Complaint. Here, as detailed herein, the Complaint does not reference the unlawful detainer.
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Plaintiff’s allegations in the Complaint are based completely on uninhabitable conditions in the Subject
Premises and Defendant’s failure to remedy these conditions. Without references to previous litigation,
Defendant cannot rely on the litigation privilege as an affirmative defense. Defendant has failed to make
the requisite showing to use this affirmative defense, namely subsequent allegations based upon the
previous litigation, and therefore Defendant’s litigation privilege defense should be set aside.
b. Plaintiff’s Claims are not barred by Res Judicata or Collateral Estoppel Defendant’s erroneous argument that Plaintiff’s claims are barred by the doctrines of claim and
issue preclusion is a further effort to mislead this Court. On May 2, 2012, at oral arguments for Plaintiff’s
motion to set aside the default judgment in Unlawful Detainer action CUD-11-637181, Curtis Dowling,
attorney for Laramar, represented to the Court that there was no preclusive effect of the default judgment in
the unlawful detainer action on Plaintiff’s claims for uninhabitable conditions. Specifically, he responded
to the Court as follows:
THE COURT: How do you comment on the other statements made by other counsel which related to even if the Court were to say you can't get possession because this is a U.D. and possession is not the issue, at least want the judgment modified in this instance here to set forth what happened? I guess something to that extent so that, you heard, you can't use it against them in whatever they are going to do. MR. DOWLING: I don't know there is any collateral affect. Certainly no issue preclusion because nothing was litigated, where we have a default judgment here. There is nothing litigated. There was no evidence put before the Court so no fact issues got decided. In terms of claim preclusion, only seems to operate against my client. No cross-complaints are permitted in U.D., so not as if he could assert any affirmative complaints that he was going to use.
(Lifschitz Decl., ¶2, Ex.1, Reporter's Transcript of Proceedings, Wednesday, May 2, 2012, Honorable Ronald Quidachay, Judge Presiding Department Number 501, at 12:15-13:6.)
Yet, despite his previous (and accurate) representations to persuade the Court in that hearing, and
despite substantial law regarding the preclusive effects of judgments in unlawful detainer actions, Mr.
Dowling attempts to preclude Plaintiff’s causes on the bases of claim and issue preclusion. Defendant now
erroneously asserts that the mere allegation of compliance with the rent ordinance in its unlawful detainer
action, without actual litigation on the merits, is sufficient to later bar claims on the basis of a default
judgment on the unlawful detainer. This reasoning, as detailed below, is faulty, made in bad faith, and
should be disregarded.
Claim preclusion, or res judicata, bars a party to a prior action from bringing a subsequent action on
the same cause of action against the same party or one in privity with the prior adversary. Amin v.
Khazindar, (2003) 112 Cal.App.4th 582, 590. The doctrine of res judicata, “whether applied as a total bar
to further litigation or as collateral estoppel, ‘rests upon the sound policy of limiting litigation by
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preventing a party who has had one fair adversary hearing on an issue from again drawing it into
controversy and subjecting the other party to further expense in its reexamination.’ Vella v. Hudgins (1977)
20 Cal. 3d 251, 257 (italics added), citing In re Crow (1971) 4 Cal.3d 613, 622-623.
The Supreme Court stated in Vella that “a judgment in unlawful detainer usually has very limited
res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to
adjudicate other legal and equitable claims between the parties.” Vella, supra, 20 Cal. 3d at 255
(internal citations omitted, emphasis added). The law does not give preclusive effect to default judgments
on unlawful detainers where the issues were not litigated. (Pelletier v. Alameda Yacht Harbor (1986) 188
Cal.App.3d 1551.) The Pelletier Court stated: “Because an unlawful detainer action is a summary
procedure involving only claims directly upon the right of immediate possession, a judgment in unlawful
detainer has very limited res judicata effect. Legal and equitable claims-such as questions of title and
affirmative defenses – are not conclusively established unless they were fully and fairly litigated in an
adversary hearing.” Id. at 1551.
Clearly, Plaintiff in the instant matter did not have a fair adversary hearing on any of his claims in
this matter, or the issues raised therein. None of the issues regarding the bad actions of Defendant as a
landlord, which constitute the gravamen of Plaintiff’s Complaint, were addressed or litigated in any way in
the unlawful detainer action. The summary nature of an unlawful detainer proceeding gives its limited res
judicata effect, and therefore does not preclude Plaintiff’s claims.
Defendant’s arguments to the contrary should be set aside. Defendant’s reliance upon Freeze v.
Salot (1954) 122 Cal.App.2d 561 is misplaced, as this case is distinguishable. In Vella, the Court
acknowledged that Code of Civil Procedure section 1161a extends the summary nature of unlawful
detainer proceedings to include purchases of property. Vella, supra, 20 Cal.3d at 255. Section 1161a
provides for a narrow and sharply focused examination of title. Ibid. Therefore, to this limited extent, title
may be litigated in an unlawful detainer. Ibid. In Freeze, the plaintiff brought suit alleging irregularity
with the trustee sale, which was the foundation for a previous unlawful detainer action where a default
judgment was entered against her. Freeze, supra, 122 Cal.App.2d at 563. In line with its acknowledgment
of the title exception to unlawful detainers, the Vella Court cited Freeze as an example of where
“subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred
by the prior unlawful detainer judgment.” Vella, supra, 20 Cal. 3d at 256.
Here, the title exception to unlawful detainers is not at issue. Rather, the rule in Vella that the
summary nature of the unlawful detainer proceedings provides “very limited res judicata effect” should be
applied. Plaintiff pleads causes of action based on Defendant’s failure to remedy uninhabitable conditions,
which were not at issue in the unlawful detainer.
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Furthermore, the fact that a default judgment was taken in the unlawful detainer provides additional
support to negate the res judicata effect of the judgment. A default judgment conclusively establishes
material allegations in the first complaint but only as to the facts necessary to uphold the judgment, as
“such judgment is not conclusive as to any defense or issue which was not raised and is not necessary to
uphold the judgment.” Gottlieb v. Krest (2006) 141 Cal.App.4th 110, 149 (quoting Four Star Electric, Inc.
v. F&H Construction (1992) 7 Cal.App.4th 1375, 1380). Here, the causes of action in Plaintiff’s
Complaint, which are based on the uninhabitable conditions of the Subject Premises and Defendant’s
failure to remediate, were not raised in the unlawful detainer, as Mr. Moriarty never had a fair adversary
hearing, as is true for all default judgments. Next, the facts alleged in Plaintiff’s Complaint are not
necessary to uphold the judgment. Indeed, they allege conduct of the Defendant preceding and unrelated to
the unlawful detainer.
The summary nature of the unlawful detainer proceedings, combined with the default judgment
taken, both operate to negate any argument regarding claim or issue preclusion for Plaintiff’s current
causes of action in the Complaint.
1. Plaintiff’s Causes of Action do Not Arise from Protected Activities Plaintiff’s complaint is grounded in voluminous allegations of substandard conditions that resulted
in Plaintiff’s ouster from his rent controlled apartment without reference (or relation) to a subsequent
unlawful detainer.
a. Plaintiff’s Causes of Action Arise from Untenantable Conditions of the Premises
Plaintiff’s Complaint alleges, and the facts clearly articulate that the gravamen of Plaintiff’s causes
of action is Defendant’s failure to remediate the uninhabitable conditions it caused to exist at the Subject
Premises for a prolonged period. Paragraph 22 of the Complaint succinctly states Plaintiff’s case:
On or before 1994, Plaintiff took possession of the Subject Premises, and continued to occupy the
same until on or about September 2010, when Plaintiff was forced to vacate the Subject Premises for
Defendants to conduct remediation of the substandard conditions at the subject premises, which developed
due to Defendants negligence, as alleged herein. The substandard conditions included, but were not limited
to, extensive dampness and water intrusion, which resulted in the development of surface and airborne
contaminants due to said negligent and wrongful conduct as alleged herein. Complaint ¶ 22.
Throughout his tenancy, Plaintiff complained to Defendant and its predecessors about water
intrusion in the Subject Premises. Complaint ¶ 24. However, Defendants never remedied the water
intrusion during his tenancy. Complaint ¶¶ 23-24. In September 2010, Plaintiff experienced adverse health
effects from the airborne contaminants in the Subject Premises. Complaint ¶ 25. He notified Defendants
that he must temporarily vacate due to his health issues. Complaint ¶ 25. Despite repeated complaints by
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Plaintiff to Defendant and/or its agents, and communications back and forth between Plaintiff and
Defendant and/or its agents, Defendant failed to take any substantive steps to resolve the habitability issues
in the Subject Premises. Complaint ¶¶ 26-29, 31. Defendant represented to Plaintiff that it would repair
the uninhabitable conditions, but it never did. Complaint ¶¶ 26-29, 31, 44. Defendant never returned
possession of the Subject Premises to Plaintiff after being put on notice of the habitability defects and its
duty to repair them. Complaint ¶ 45. Therefore, Plaintiff now brings suit against for his damages.
From Plaintiff’s allegations, it is clear the gravamen of the Complaint is Defendant’s failure to
remedy uninhabitable conditions. The unlawful detainer is inapposite. Indeed, the Complaint makes no
reference whatsoever to the Unlawful Detainer action. Before Defendant filed its unlawful detainer, all the
actions of Defendant that Plaintiff complains of had already been carried out. None of the actions of
Defendant, as detailed in Plaintiff’s Complaint, are statements or writings in official proceedings or any
other protected activity under section 425.16.
Furthermore, the cases cited by Defendant are distinguishable because in each the asserted
protected activity was specifically alleged: Wallace v. McCubbin (2001) 196 Cal.App.4th 1169, 117,
complaint alleges that “Wu filed a complaint for unlawful detainer; Navellier v. Sletten (2002) 29 Cal. 4th
82, 90, the complaint “expressly refers” to “Sletten's negotiation and signing of the release and his pleading
of counterclaims in the federal action, (this verbiage Mr. Dowling omitted in his citation to the Supreme
Court’s FN6); Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th
1539, 1545, complaint alleged “(o) willfully conspiring with Newlin to have both of them testify falsely in
depositions in the Partnership Case in what Smith described as a ‘legal compromise;’ and [¶] (p) willfully
misrepresenting facts surrounding the claims in the Partnership Case in a letter to the SF Bay Guardian.”
Therefore, none of the acts or omissions of Defendant are activities protected by the anti-
SLAPP statute. Defendant is simply trying to bootstrap protected activity into a complaint that
never once alleges any protected communications or conduct in order to immunize its own
wrongdoings (severe, persistent and ignored habitability violations and failure to remediate) that are
the basis for Plaintiff’s suit.
Contrary to Defendant’s assertions, Plaintiff’s Complaint is solidly based upon the factual
allegations of the habitability violations that compelled him to bring suit. Each of those allegations
has absolutely nothing to do with and, indeed, predates Defendant’s purported protected activity
surrounding the Unlawful Detainer. The conditions of the Subject Premises, as evidenced by the
photographs taken by Plaintiff, obviate that Plaintiff’s causes of action do not arise from the
Unlawful Detainer action; they arise from the deplorable conditions of the Subject Premises. See
Declaration of John Moriarty, Ex. D, Photographs.
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2. Defendant’s SLAPP Should be Denied Because There is a Probability that Plaintiff will Prevail on his Causes of Action
Even assuming, arguendo, Defendant can show that Plaintiff’s causes of action arose from
protected activity, Plaintiff’s causes of action against Defendant should not be stricken because Plaintiff
can show a probability of success for each of his causes of action.
The standard for determining whether a party has demonstrated a probability of prevailing is similar
to that applied to a non-suit or a directed verdict. Kyle v. Carmon (1999) 71 Cal.App.4th 901, 910;
Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073. On appeals from judgments for non-suit,
appellate courts view the evidence in the light most favorable to appellant. That is, the trial court’s
judgment will be affirmed only if:
interpreting the evidence most favorably to plaintiff’s case and most strongly against defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff, a judgment for defendant is required as a matter of law.
Naily v. Grace Community Church of the Valley (1988) 47 Cal.3d 278, 291.
Plaintiff need only present a prima facie showing of facts sufficient to support a favorable
judgment. Navellier, supra, 29 Cal.4th at pp. 89, 93. Indeed, with respect to the need to demonstrate a
“probability of prevailing,” “the statute poses no obstacle to suits that possess minimal merit.” Id. at pp.
93-94; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821. Furthermore, the Court
does not weigh the credibility or comparative strength of the evidence. The court considers defendant’s
evidence only to determine if it defeats plaintiff’s showing as a matter of law. Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 291; Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140
Cal.App.4th 515, 552.
Here, substantial evidence supports Plaintiff’s claims in this case. Although no discovery has
occurred to date, the sworn statement of John Moriarty, coupled with the documentary evidence attached,
establish that Plaintiff’s causes of action possess far more than the “minimal merit” needed to demonstrate
a probability of prevailing on such claims.
Plaintiff began living in the Subject Premises sometime in 1994. Moriarty Decl. ¶ 2. Due to years
of unabated water intrusion into his unit, airborne and surface contaminants began to develop, which
created an unsanitary and unhealthy environment that was beyond Plaintiff’s ability to remedy. In and
around September 2010, Plaintiff requested for the unsanitary conditions to be abated, and temporarily
moved out of the unit because the resulting contaminants were exacerbating his pre-existing lung disease.
Moriarty Decl. ¶ 5. Because of the unsanitary conditions, Plaintiff suffered, and continues to suffer from
ailments related to the conditions of his unit. Moriarty Decl. ¶ 21. Plaintiff notified Laramar of his intent
to temporarily vacate and to withhold rent while repairs were performed. Moriarty Decl. ¶ 5.
Plaintiff periodically checked on the status of repairs and remediation at the Subject Premises.
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Moriarty Decl. ¶ 7. In October 2010, Michael Lehman of Laramar agreed to send a maintenance person to
the Subject Premises to inspect. Moriarty Decl. ¶ 8. In November 2010, Marcela Huerta inspected the
Subject Premises and observed the contamination. Moriarty Decl. ¶ 9. At that time, Plaintiff believed that
Laramar was going to fix the conditions in his unit. Moriarty Decl. ¶ 9. Indeed, Laramar posted a notice to
exhibit the dwelling to contractors on November 11, 2010. Moriarty Decl. ¶ 10, Ex. A.
However, repairs were not performed to the unit. Instead, Curtis Dowling, counsel for Laramar,
contacted Plaintiff in a voicemail on December 29, 2010, which is transcribed in the Moriarty Declaration
at paragraph 12. Mr. Dowling requested information regarding Plaintiff’s agreement to not pay rent while
repairs were being performed. Moriarty Decl. ¶ 12. In January 2010, Plaintiff sent photographs depicting
the condition of the unit to Mr. Dowling. Moriarty Decl. ¶ 14, Photographs, Ex. D. Despite another
inspection of the unit in or around March 4, 2011 by Laramar, repairs were not performed. Moriarty Decl.
¶¶ 15-18. At no time was Plaintiff told that repairs would not be performed. Moriarty Decl. ¶ 18.
Based upon the evidence presented above via the declaration of Plaintiff, and the exhibits attached
thereto, it is clear that Plaintiff has sufficiently established the requisite probability of success for the
causes of action in his Complaint. Each specific cause of action is addressed below.
a. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Harassment—Violation of SF Administrative Code §37.10– 1st Cause of Action
Section 37.10B of the San Francisco Administrative Code (hereinafter the “Rent Ordinance”),
explicitly prohibits landlords and their agents, contractors, subcontractors and employees from engaging in
a wide variety of harassing conduct in bad faith. (a) No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith: (1) Interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; (2) Fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws; (3) Fail to exercise due diligence in completing repairs and maintenance once undertaken or fail to follow appropriate industry repair, containment or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts; (5) Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; (9) Interfere with a tenant's right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; (12) Interfere with a tenant's right to privacy; (14) Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.
See Section 37.10B(a) of Rent Ordinance.
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Section 37.10B(c)(5) of the Rent Ordinance requires that each and every violation of a provision of the
Tenant Harassment Section carry with it the greater of a $1,000 statutory penalty or trebled actual damages,
whichever is greater. As discussed in section III, 2, supra, Plaintiff has provided an abundance of facts under penalty of
perjury that demonstrate Defendant’s continually, negligently, and in bad faith failed to exercise ordinary
care in the ownership and management of the Premises by not complying with applicable housing and
health and safety codes, willfully violating Section 37.10B(a)(1) and (2) of the Rent Ordinance. Plaintiff
was forced to temporarily vacate his home September 2010, and Defendant continued violating Section
37.10B of the Rent Ordinance by failing to remediate as promised. The evidence establishes Plaintiff meet
his burden showing a probability of success on this cause of action, and the motion should be denied.
b. Plaintiff can Show Probability of Success of Prevailing on Cause of Action for Negligent Violation of Statutory Duty – 2nd Cause of Action
To establish negligence per se on the basis of a statutory violation, Plaintiff must prove that: 1)
Defendant violated a statute, ordinance or regulation; 2) the violation proximately caused the injury; 3) the
injury was of a type intended to be prevented by the statute; and 4) the injured party was of the class meant
to be protected by the statute, ordinance or regulation. Quelimane v. Stewart Title Guaranty Co., supra, 19
Cal.4th 26.
As discussed in section III, 2, supra, Plaintiff has provided an abundance of facts under penalty of
perjury that demonstrate Defendant’s negligent violations of its; duty under the Civil Code to render and
maintain a habitable premises. The evidence submitted by Plaintiff is more than adequate to meet his
burden of demonstrating a probability of success on his cause of action for negligent violation of statutory
duty. Therefore, Defendant’s SLAPP for negligent violation of statutory duty should be denied.
c. Plaintiff can Show a Probability of Success of Prevailing on his Claim of Breach of the Implied Warranty of Habitability – 3rd Cause of Action
A residential landlord violates the implied warranty of habitability when he or she fails to provide
and maintain a residential premises suitable for human habitation. Green v. Superior Court, supra, 10
Cal.3d 616. Plaintiff has provided an abundance of facts under penalty of perjury in section III, 2, supra,
supra, that demonstrate Defendant’s numerous and egregious violations of the implied warranty of
habitability. As set forth below, Plaintiff’s claim is not barred by the default judgment obtained in the
unlawful detainer action. Since evidence submitted by Plaintiff more than suffices to meet his burden of
showing minimal merit for their cause of action for breach of the implied warranty of habitability, this
Court should deny Defendant’s SLAPP against this cause of action.
d. Plaintiff can Show Probability of Success of Prevailing on the Cause of Action for Breach of Statutory Warranty of Habitability – 4th Cause of Action
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Civil Code section 1941.1 provides eight affirmative standards characteristics required to render a
dwelling habitable. These characteristics include, among other things: effective weatherproofing and
weather protection of the roof, exterior walls, windows and doors; plumbing and gas facilities that conform
to state and local law at the time of installation, maintained in good working order. See Civ. Code § 1941.1.
If the unit substantially lacks any of these characteristics, it is deemed untenantable and, therefore, in
violation of the landlord’s duty to render and maintain a residential building fit for human habitation. Civ.
Code § 1941.
As discussed in section III, 2, supra,, Plaintiff has provided an abundance of facts under penalty of
perjury that demonstrate Defendant’s various and blatant violations of the statutory warranty of
habitability. Plaintiff’s evidence is more than adequate to meet his burden of demonstrating a probability
of success on his cause of action for breach of statutory warranty of habitability. Therefore, Defendant’s
SLAPP against the cause of action for breach of statutory warranty of habitability should be denied.
e. Plaintiff can Show Probability of Success of Prevailing on Negligence Claim-- 5th Cause of Action
Each of Plaintiff’s causes of action, including the cause of action for negligence, arise from
Defendant’s breach of various duties owed to Plaintiff by virtue of the landlord-tenant relationship between
the parties. In order to prevail on a claim for negligence, a plaintiff must show: (1) the defendant's legal
duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3)
injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.
Quelimane v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26. Plaintiffs can show each of these elements.
i. Plaintiff’s Evidence Regarding Duties Owed by Defendant
Plaintiff can show that Defendant owed a duty to them to provide and maintain the Subject
Premises in a condition fit for human habitation. Plaintiffs resided at the Subject Premises since for many
years. It is undisputed that Defendant managed the Subject Premises during the end of Plaintiff’s tenancy.
By virtue of his tenancy at the Subject Premises, Defendant owed Plaintiff a duty to render and maintain
the Subject Premises in a habitable condition. See Green v. Superior Court (Sumski) (1974) 10 Cal.3d 616,
627; Civ. Code § 1941, et seq.
ii. Plaintiff’s Evidence Demonstrating Defendant’s Breaches of Its Duties
Plaintiffs have substantial evidence showing that Defendant breached his duty to provide and
maintain the Subject Premises in a habitable condition, as show in section III, 2, supra.
iii. Plaintiffs Can Show Injury Caused by Defendant’ Breaches of Duties
Plaintiff’s injuries include, but are not limited to, significant physical, mental and emotional injury
as a result of the untenantable conditions of the Subject Premises. While living in the squalid conditions of
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the Subject Premises, Plaintiff began to suffer significant physical health problems. These problems
included respiratory ailments, shortness of breath, wheezing, coughing, allergies, eye irritation, interrupted
sleep, general discomfort and fatigue. Moriarty Decl. ¶ 21. He also began to suffer from embarrassment,
humiliation, discomfort, exacerbation and annoyance, and extreme emotional distress. Moriarty Decl. ¶ 21.
Proximate cause is a question of fact and, as such, not properly disposed of on a motion to strike.
Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 520. Plaintiff’s evidence of his
injuries coupled with his allegations regarding the proximate cause of those injuries are sufficient to sustain
their claim for negligence at this early stage.
f. Plaintiff can Show Probability of Success of Prevailing on the Claim of Nuisance – 6th Cause of Action
In order to sustain a cause of action for nuisance, Plaintiff must prove: 1) Plaintiffs had an “interest”
(ownership, control, leasehold) in the land; 2) Defendants substantially interfered with Plaintiff’s use and
enjoyment of the land; i.e. that it caused Plaintiffs to suffer substantial actual damage; and 3) Defendant’s
interference with Plaintiff’s protected interest in the land was unreasonable. San Diego Gas & Electric Co.
v. Superior Court (Covalt) (1996) 13 Cal.4th 893, 938 (internal citations omitted); Fashion 21 v. Coalition
for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1154. California law has long
held that habitability violations may form the basis for a cause of action for nuisance. Stoiber v.
Honeychuck (1980) 101 Calp.App.3d 903.
As discussed in section III, 2, supra, Plaintiff has provided significant evidence showing he had an
interest in the Subject Premises, Defendant substantially and unreasonably interfered with Plaintiff’s use
and enjoyment of the Subject Premises (by violating the warranty of habitability), and that these violations
caused Plaintiff to suffer substantial and actual damage (in the form of his resultant health problems). For
these reasons, Plaintiff has more than met his burden of showing minimal merit for his cause of action for
nuisance and this Court should deny Defendant’s Special Motion to Strike Plaintiff’s cause of action for
nuisance.
g. Plaintiff can Show Probability of Success of Prevailing on his claim for Breach of the Covenant of Quiet Enjoyment – 7th Cause of Action
A cause of action for breach of the covenant of quiet enjoyment lies where a landlord’s act(s) or
omission(s) substantially interfere with a tenant’s right to use and enjoy the property. Andrews v. Mobile
Aire Estates (2005) 125 Cal.App.4th 578, 589; Civ. Code § 1927. Allegations of a landlord’s failure to
fulfill the obligation to provide a habitable premises are sufficient to plead a cause of action for breach of
the covenant of quiet enjoyment. Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.
As discussed, supra, Plaintiff has presented sufficient evidence demonstrating that Defendant
breached the covenant of quiet enjoyment by his many and wanton habitability violations. Through this
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evidence, Plaintiff has demonstrated a probability of success on his cause of action for breach of the
covenant of quiet enjoyment. Therefore, Defendant’s Special Motion to Strike should be denied.
h. Plaintiff can Show Probability of Success of Prevailing on his Claim for Intentional Infliction of Emotional Distress – 8th Cause of Action
To prove intentional infliction of emotional distress, Plaintiff must show: 1) outrageous conduct by
Defendants; 2) Defendant’s intention of causing or reckless disregard of the probability of causing
emotional distress; 3) Plaintiff’s suffering severe or extreme emotional distress; and 4) Defendant’s
outrageous conduct actually and proximately caused Plaintiff’s emotional distress. Huntingdon Life
Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228, 1259 (quoting Trerice v.
Blue Cross of Calif. (1989) 209 Cal.App.3d 878, 883). Plaintiffs can demonstrate each of these elements.
Defendant’s outrageous conduct is demonstrated by its failure to repair and remedy the severely
dilapidated and extremely decrepit conditions of the Subject Premises. Defendant’s failure to repair or
remedy these conditions, despite having notice of them, is far beyond the pale of acceptable property
management conduct and clearly demonstrates Defendant’s reckless disregard for the emotional distress
caused by Plaintiff living in untenantable conditions that made him sick. As a result of these conditions,
Plaintiff suffered extreme and/or severe emotional distress including embarrassment, humiliation,
discomfort, exacerbation and annoyance. Moriarty Decl. ¶ 21.
Plaintiff’s evidence regarding his cause of action for intentional infliction of emotional distress
more than meets the “minimal merit” required by the second prong of the anti-SLAPP statute. Therefore
Defendant’s Special Motion to Strike should be denied.
i. Plaintiff can Show Probability of Success of Prevailing on his Claim for Unlawful Business Practices – 9th Cause of Action
Under section 17200, unlawful conduct is that which is committed pursuant to business activity and
is at the same time forbidden by law. See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal. 4th 377, 383;
S. Bay Chevrolet v. Gen. Motors Acceptance Corp. (1999) 72 Cal. App. 4th 861, 880-81 (“The ‘unlawful’
practices prohibited by . . . [B&P] section 17200 are any practices forbidden by law, be it civil or criminal,
federal, state, or municipal, statutory, regulatory, or court-made. It is not necessary that the predicate law
provide for private civil enforcement. As our Supreme Court put it, section 17200 ‘borrows’ violations of
other laws and treats them as unlawful practices independently actionable under section 17200 et seq.”
(internal citations omitted)).
Since Plaintiff’s evidence abundantly demonstrates Defendant’s failure to render and maintain a
habitable premises in violation of duties imposed by common law, statutes and local ordinances,
Defendant’s Special Motion to Strike the cause of action for unlawful business practices should be denied.
j. Plaintiff can Show Probability of Success of Prevailing on his Claim for Negligent Misrepresentation -- 10th Cause of Action
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"Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a
misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be
true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and
justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages."
(Fox v. Pollack (1986) 181 Cal.App.3d 954, 962, internal citation omitted.)
"Whether a defendant had reasonable ground for believing his or her false statement to be true is
ordinarily a question of fact." (Quality Wash Group V, Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1696
[58 Cal.Rptr.2d 592], internal citations omitted.)
As discussed in section III, 2, supra, Plaintiff has provided significant evidence showing Defendant
represented that they would repair his uninhabitable unit, but failed to do so. Plaintiff temporarily vacated
and waited for Defendant to repair his unit. He reasonably relied upon these representations that they
would repair his unit, which was to his detriment. The repairs were never done. Therefore, Plaintiff
alleges that the representations of Defendant were made with the intent to induce reliance and were made
without reasonable grounds for Defendant to believe they were true. For these reasons, Plaintiff has more
than met his burden of showing minimal merit for his cause of action for negligent misrepresentation and
this Court should deny Defendant’s Special Motion to Strike.
k. Plaintiff can Show Probability of Success of Prevailing on his Claim of Violation of SF Rent Ordinance, section 37.9 – 11th Cause of Action
Sections 37.9, et seq. of the Rent Ordinance prescribe the limited circumstances were a landlord can
seek to recover possession of a residential unit. As shown by the evidence in this case, Defendant
constructively sought to regain possession of the Subject Premises by abrogating their duties to maintain
the property as set forth in state law and the lease agreement. Further, as Plaintiff alleges in his Complaint,
Defendant and the other Defendants engaged in a calculated scheme to allow and perpetuate uninhabitable
conditions at Subject Premises for the purpose of chasing Plaintiff from the rent-controlled unit where the
monthly rent was below market value, so that Defendants could re-rent the unit to new tenants at market-
rate. This is exactly the type of landlord bad faith that is prohibited by section 37.9 of the Rent Ordinance.
The evidence submitted by Plaintiff is more than adequate to meet his burden of demonstrating a
probability of success on his cause of action for violation of the Rent Ordinance. Therefore, Defendant’s
Motion to Strike Plaintiff’s cause of action for violation of the Rent Ordinance should be denied.
Defendant has failed to meet Prong 2 of the test set forth under Navellier, City of Cotati and
Equilon Enterprises, LLC v. Consumer Cause, Inc. because Plaintiffs have presented evidence that
establishes a probability of success on each of his causes of action, Therefore, Defendant’s Special Motion
to Strike pursuant to Code of Civil Procedure section 425.16 should be denied in its entirety.
4. Plaintiff Respectfully Request Time to Conduct Additional Discovery
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In the unlikely event that this Court is inclined to grant Defendant’s motion with respect to any of
the causes of action, Plaintiff requests that the Court continue the hearing on this motion and permit
Plaintiff to conduct additional discovery to support his claims. “In order to satisfy due process, the burden
placed on the plaintiff to show a reasonable probability of success on the merits “must be compatible with
the early stage at which the motion is brought and heard . . . and the limited opportunity to conduct
discovery.” Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823.
Specifically, Plaintiff would seek all inspection reports and notes regarding inspections for the
Subject Premises, correspondence between Defendant related to the Subject Premises, reports of any
inspections conducted pursuant to a lender’s requirements, and correspondence among Defendant and
property owners.
B. Plaintiffs Should be Awarded Attorney Fees and Costs
Code of Civil Procedure section 425.16(c) provides for attorney fees and costs to be awarded in
situations like this one:
In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Emphasis added.) The legal arguments Defendants presents are without merit and completely frivolous. This court
should find that this anti-SLAPP special motion to strike is frivolous and solely intended to cause
unnecessary delay, and should award reasonable attorney’s fees and costs in the amount of $9,600 to
Plaintiff’s counsel for opposing this meritless motion. Declaration of Eric L. Lifschitz, ¶ 5.
IV. CONCLUSION
For the foregoing reasons, Defendant’s special motion to strike pursuant to Code of Civil Procedure
section 425.16 should be denied in its entirety and attorney fees and costs should be awarded to Plaintiff.
However, if this Court is inclined to grant Defendant’s motion, Plaintiff respectfully requests this Court to
continue the hearing and permit Plaintiff to conduct additional discovery.
Dated: October 4, 2012 By:_________________________ Aaron H. Darsky
Attorney for Plaintiff John Moriarty