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Court Clarifies that an Eviction is not a Protected Activity

Court & Appearances, Landlord & Tenant Law, and Real Estate Law by Peter N. Brewer, Esq.

Monira Ulkarim, a tenant in a shopping mall, had a year-long lease with her landlord, Westfield.  In the middle of the tenancy, the landlord served Ulkarim with a notice of termination of the lease.  Ulkarim alleged that the termination was improper and was only done because Westfield had obtained another tenant who was the same market as Ulkarim.  A week after receiving the notice to terminate, Ulkarim filed suit against Westfield and the new tenant for the improper termination of the lease.  A week later, Westfield filed suit to evict Ulkarim.  Two months later, in the unlawful detainer action, a court awarded possession of the property to Westfield.

In response to the suit, Westfield filed a special motion to strike, also known as an Anti-SLAPP (Strategic Lawsuit Against Public Participation) motion.  The SLAPP laws are designed to protect freedom of speech to prevent lawsuits when individuals take certain actions.  In general, one of the protected categories is the filing of a lawsuit.  Prior to this case, courts had held that both the filing of the lawsuit and the giving of notice of termination before filing for an eviction were activities protected by the SLAPP statutes.  Given the precedent, the trial court granted Westfield’s motion stating that the SLAPP statutes were likely a complete defense against Ulkarim’s suit.

THE DECISION:

The California Court of Appeals, Second District, overturned the trial court’s decision and denied the special motion to strike.  In. Ulkarim v. Westfield LLC, the appellate court held that while the act of servicing a notice to terminate and filing a lawsuit are protected activities, it distinguished a suit based on the protected action versus a suit based on the motives behind a protected action.  Here, the Court found that Ulkarim’s suit wasn’t about the service of the notice, but the bad faith reasons behind deciding to terminate the tenancy.

WHY THIS DECISION IS IMPORTANT:

This Court expressly stated that it was choosing not to follow two prior cases where courts had held that a special motion to strike was proper where there had been a notice to terminate issued.  This Court questioned the ruling in both previous cases because both of the cases alleged violations arising from conduct beyond just the service of the notice and the filing of the unlawful detainer suit.  Instead, this Court chose to follow a different line of cases that agreed that while a protected action may have been taken, the underlying decision could still be subject to a suit.

COMMENT:

This case highlights a split in decisions between various appellate courts that will need to be addressed by the California Supreme Court.  The appellate courts have come to decisions that directly contradict each other and only the California Supreme Court can resolve this dispute.  It will be interesting to see what the Supreme Court will decide.

As always, give us a call at (650) 327-2900 if you think you have a real estate matter and need legal representation or visit us on the web at www.BrewerFirm.com.

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