The Unlawful Detainer/SLAPP cases over the last six years or so continue to baffle courts and litigants alike due primarily to the sharp distinctions in the gravamen analysis that have become the hallmark of SLAPP motions in UD cases. Unlike the typical SLAPP case, which often involves malicious prosecution, abuse of process, defamation and related type claims, Copenbarger v. Morris Cerullo Worldwide Evangelism (4th Dist. Div. 3 2013) 2013 WL 1809626 involved claims for declaratory relief, breach of contract, and intentional interference with contract against sublessors of commercial office space in Newport Harbor.
The lesson of Copenbarger goes back to our High Court's landmark arising from prong analysis in City Cotati v. Cashman (2002) 29 Cal.4th 69. Simply because you see litigation or free speech activity floating around in the cause of action does not mean that the liability arises from it. Subd. (b)(1) of section 425.16 states in pertinent part that SLAPP motions apply to: "A cause of action against a person "arising from" any act in furtherance...." These two words - arising from - have been the most vexing for courts to apply. This deceptively simple phrase has led to the gravamen/principal thrust line of cases and the mixed cause of action doctrine in California's anti-SLAPP jurisprudence. In Cerullo, the court noted that although an unlawful detainer action itself is protected under section 425.16, terminating a lease is not. A complaint arising out of or based on the dispute or conduct underlying the UD action is not subject to a special motion to strike. "The mere fact that an action was filed after protected activity took place does not mean that the action arose from that activity for purposes of the anti-SLAPP statute. "When, as in this case, the challenged lawsuit follows service of a Three-Day Notice to Quit `the pivotal distinction' is whether an actual or contemplated unlawful detainer action by a landlord... merely `preceded' or `triggered' the tenant's lawsuit or whether it was instead the `basis' or `cause' of that suit." In Cerullo, the Court found that defendants fell prey to the "logical fallacy "post hoc ergo propter hoc - i.e. because the three-day notices preceded plaintiff's complaint the notices must have caused plaintiff's complaint."
Plaintiff, Paul Copenbarger, acting individually and derivatively on behalf of Newport Harbor Offices & Marina (NHOM) appealed from the order denying his special motion to strike in its entirety as to all three causes of action. NHOM (and Copenbarger) is the sublessee, defendant/respondent Morris Cerullo Worlwide Evangelism is the sublessor under a ground lease of commercial property in Newport Beach.
After Cerullo served NHOM with a three-day notice to cure or quit, Copenbarger filed a complaint asserting causes of action against Cerullo, Roger Artz, and D'Allessio and VMG et al. for declaratory relief, breach of lease, and intentional interference with contract. Defendants Cerullo et al. brought a special motion to strike, which the trial court granted in its entirety finding that each cause of action arose from the three-day notice and subsequent UD action against NHOM. The Court of Appeal resoundingly reversed. "The dispositive issue on appeal is whether the causes of action asserted in Copenbarger's complaint arose out of Cerullo's petitioning activity - i.e. service of the three-day notice to quit and the subsequent UD action. We conclude that while the three day notice might have triggered the complaint, the evidence in the record demonstrates the complaint was based on an underlying dispute over NHOM's repair and maintenance obligations under the sublease and other unprotected activities." Hence, the entire dispute arose from the repair obligations under the sublease which predated the three-day notice and UD action. Thus, the complaint could not have arisen from or based liability on the three-day notice or the subsequent UD action.
James J. Moneer, Esq. represented plaintiff, Paul D. Copenbarger, in the trial court in this matter. At oral argument, it was readily apparent that the trial judge was confused about the arising from prong - maintaining that because the lawsuit was "triggered by" or "came after" posting the three-day notice and filing the UD action, that each cause of action must therefore arise from these acts.
