Filed 4/28/22 Goens v. Monsef CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOSHUA GOENS,

Plaintiff,

v.

REZA MONSEF,

Defendant.

 D079618

 (Super. Ct. No. 37-2019-

00052868-CU-BC-CTL)

REZA MONSEF,

Plaintiff and Respondent,

v.

JOSHUA GOENS,

Defendant and Appellant.

 

 (Super. Ct. No. 37-2019-

00053318-CU-FR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Jeffrey B. Barton, Judge. Affirmed.

Kelly E. DuFord for Plaintiff, Defendant and Appellant.
2

Christian J. Albut for Defendant, Plaintiff and Respondent.

Reza Monsef entered into a lease with Joshua Goens for certain 

commercial property. Subsequently, Monsef and Goens disagreed regarding 

what was promised under the lease, including whether Monsef was to operate 

a car dealership on the entire property. Goens began the eviction process to 

remove Monsef from the property. In response, Monsef told Goens that he 

would bring a civil suit if Goens proceeded with an unlawful detainer action. 

Four days after Goens filed an unlawful detainer action, Monsef sued Goens,

alleging, among other things, that Goens made certain misrepresentations 

during the negotiation of the lease.

In response to Monsef’s complaint, Goens brought a special motion to 

strike the complaint under the anti-SLAPP (Strategic Lawsuit Against Public 

Participation) statute, Code of Civil Procedure section 425.16.1 The court 

denied the motion, finding the complaint was not based on Goens’s right to 

petition the court or bring an unlawful detainer action. 

Goens appeals the court’s order denying his anti-SLAPP motion, 

arguing the court erred in determining that the complaint was not subject to 

the anti-SLAPP statute. 

We agree with the superior court that Goens did not show the 

complaint arose out of protected activity. We therefore affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Complaint

Monsef, doing business as La Mesa Pre-owned/RN Motors, Inc., is an 

automotive dealer who purchases and sells motor vehicles. In early August 

2019, Monsef saw an advertisement on Craigslist regarding certain real 

1 Statutory references are to the Code of Civil Procedure unless 

otherwise specified.
3

property located on Mission Gorge Road in San Diego (the Premises). The 

advertisement stated the entire Premises was for lease. Monsef’s 

representative then emailed Goens to request additional information.

After receiving no response to the email, Monsef went to Goens’s office 

to discuss leasing the Premises. At that time, Goens and Monsef did not 

walk through the Premises. Goens informed Monsef that the rent for the 

Premises would be $5,000 per month.

Goens then requested and Monsef provided financial information. 

Goens “approved [Monsef] within minutes” and told him to return the next 

day to sign the lease.

The next day, Monsef signed a lease agreement (Lease) for the 

Premises. Per the Lease, Monsef was only entitled to use the “ ‘Front 

Portion’ ” of the Premises. Monsef did not have an opportunity to adequately 

review the Lease before executing it. Monsef “was forced to sign the Lease 

under duress.” He asked for a day to review the Lease, but Goens told him 

that other parties were interested in the Premises and the Premises would 

not be available for rent the next day. However, Goens assured Monsef that 

“ ‘everything was in order’ ” and “ ‘there was no need to worry.’ ”

Before signing the Lease, Monsef was led to believe, based on the 

Craigslist advertisement, that he would be entitled to use the entire 

Premises. He also believed that Goens owned the Premises. Monsef was not 

aware that Goens was a tenant under a master lease of the Premises.

Before and after he signed the Lease, Goens promised Monsef that 

everything would be ready for Monsef to move into the Premises on 

August 15, 2019. Specifically, Goens told Monsef the Premises would be 
4

repainted and the signage from the prior tenant would be removed or 

unplugged. Nevertheless, the Premises was not ready when Monsef’s client 

moved vehicles onto the Premises on August 15, 2019.

Monsef placed his signage over the signage of the prior tenant. 

However, at night, the prior tenant’s signage would “show[ ] through 

[Monsef’s] signage” because Goens had not turned off the lighting of the 

previous tenant’s sign.

Also, Monsef had to share the Premises with another tenant. During 

the day, “an unlicensed body shop” operated and painted vehicles on the 

Premises. The body shop’s activities caused “a major interruption to 

[Monsef’s] business operations.” Monsef informed Goens of the situation, but 

Goens did nothing about it.

Goens and Monsef agreed there would be a chain link fence and two 

locks on the Premises. However, the pole that would support the fence “was 

run over and destroyed.” On his security cameras, Monsef observed 

strangers driving through the car lot at night. Monsef brought this situation 

to Goens’s attention, but Goens did not remedy it.

In a letter dated September 3, 2019, Goens informed Monsef that 

Monsef would receive a $300 credit for October rent because the Premises 

was not ready. The next day, Monsef sent a letter to Goens requesting a copy 

of the master lease. Shortly thereafter, Goens refused to provide any rental 

credits to Monsef, including the previously promised $300.

Goens threatened to file an unlawful detainer against Monsef.

On October 8, 2019, Monsef filed suit against Goens, alleging the 

following causes of action: (1) intentional misrepresentation; (2) negligent 

misrepresentation; (3) rescission and restitution; (4) unjust 

enrichment/constructive trust; (5) declaratory relief; and (6) injunctive relief. 
5

The gravamen for Monsef’s claims focused on Goens’s misrepresentations to 

Monsef during the Lease negotiations, especially Monsef’s claim that Goens

represented that Monsef would be able to use the entire Premises.

The Anti-SLAPP Motion

In response to the Monsef’s complaint, Goens filed an anti-SLAPP 

motion. In that motion, Goens claimed that Monsef sued him “in retaliation 

of” an unlawful detainer action Goens filed against Monsef.2 To this end, 

Goens argued that Monsef breached the Lease, and thus, Goens sent Monsef

a letter to vacate the Premises on September 13, 2019. On September 20, 

2019, after Monsef did not cure the breaches under the Lease, Goens sent 

Monsef a notice to vacate the Premises in three days. In response, Monsef’s

attorney sent a Goens a letter dated October 2, 2019, threatening to bring a 

civil action if Goens filed an unlawful detainer action.

In insisting that the underlying complaint was subject to an antiSLAPP motion, Goens did not evaluate any of the individual causes of action 

in the complaint or explain how those claims were based on protected 

conduct. Instead, Goens argued that Monsef “filed a civil lawsuit against 

[Goens], in furtherance of his threat to do so upon [Goens’s] valid exercise of 

evicting [Montel]. In his own words and subsequent actions, [Monsef’s] 

attorney admits that this current lawsuit is one meant to chill [Goens’s] right 

to evict a tenant for failure to perform under the lease.”

Monsef opposed the anti-SLAPP motion, contending the causes of 

action in the underlying complaint did not arise out of any protected activity. 

Specifically, he maintained his claims arose out of misrepresentations Goens 

made during the negotiation and signing of the Lease.

2 Goens filed the unlawful detainer action on October 4, 2019, four days 

before Monsef filed the underlying complaint.
6

Goens filed a reply in support of his anti-SLAPP motion.

After considering the papers filed and the evidence submitted as well 

as entertaining oral argument, the superior court denied the anti-SLAPP 

motion. The court explained:

“[Goens] contends . . . Monsef filed this action to chill his 

First Amendment right to petition and broadly asserts that 

this action arises from [Goens’s] filing of an unlawful 

detainer action against [Monsef]. However, the mere fact 

that this action was filed a few days after [Goens’s] 

unlawful detainer action was filed does not bring it within 

the scope of the anti-SLAPP statute. (See Navellier v. 

Sletten (2002) 29 Cal.4th 82, 89 [(Navellier)].) [Monsef’s] 

fraud based claims in this action are not based on [Goens’s] 

right to petition the court or bring an unlawful detainer 

action. The Complaint only mentions in passing that 

[Goens] "has threaten[ed] to file an unlawful detainer 

against" [Monsef]. [Citation.] There are no other 

references to the unlawful detainer action in the 

Complaint. Instead, the Complaint's factual assertions 

stem from [Goens’] alleged representations to [Monsef] 

during the negotiation of the lease and leading up to its 

execution. [Citation.] [Goens] has not met his burden to 

demonstrate [Monsef’s] Complaint or any of the causes of 

action therein arise from protected activity. Accordingly, 

the court did not consider the second prong of the antiSLAPP analysis, whether [Monsef] has a probability of 

prevailing on his claims.”

Goens timely filed a notice of appeal.

DISCUSSION

A. Law Governing Anti-SLAPP Motions

“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. 

[Citations.] To that end, the statute authorizes a special motion to strike a 

claim ‘arising from any act of that person in furtherance of the person’s right 
7

of petition or free speech under the United States Constitution or the 

California Constitution in connection with a public issue.’ ” (Wilson v. Cable 

News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).)

“A court evaluates an anti-SLAPP motion in 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. [Citations.] If the defendant carries its burden, the plaintiff 

must then demonstrate its claims have at least “minimal merit.” ’ [Citation.] 

If the plaintiff fails to meet that burden, the court will strike the claim.” 

(Wilson, supra, 7 Cal.5th at p. 884.)

“The defendant’s first-step burden is to identify the activity each 

challenged claim rests on and demonstrate that that activity is protected by 

the anti-SLAPP statute. A ‘claim may be struck only if the speech or 

petitioning activity itself is the wrong complained of, and not just evidence of 

liability or a step leading to some different act for which liability is asserted.’ 

[Citation.] To determine whether a claim arises from protected activity, 

courts must ‘consider the elements of the challenged claim and what actions 

by the defendant supply those elements and consequently form the basis for 

liability.’ [Citation.] Courts then must evaluate whether the defendant has 

shown any of these actions fall within one or more of the four categories of 

‘ “act[s]” ’ protected by the anti-SLAPP statute.” (Wilson, supra, 7 Cal.5th at 

p. 884.)

The second step of the anti-SLAPP analysis has been described as a 

summary-judgment-like procedure. (Sweetwater Union High School Dist. v. 

Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater Union).) The 

court determines whether “ ‘the plaintiff has stated a legally sufficient claim 

and made a prima facie factual showing sufficient to sustain a favorable 
8

judgment.’ ” (Ibid.) The plaintiff “ ‘may not rely solely on its complaint, even 

if verified; instead, its proof must be made upon competent admissible 

evidence.’ ” (Ibid.) The defendant may submit evidence in support of its 

motion. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) 

However, “ ‘[t]he court does not weigh evidence or resolve conflicting factual 

claims.’ ” (Sweetwater Union, at p. 940.) Rather, the court “ ‘accepts the 

plaintiff's evidence as true, and evaluates the defendant’s showing only to 

determine if it defeats the plaintiff's claim as a matter of law. [Citation.] 

“[C]laims with the requisite minimal merit may proceed.” ’ ” (Ibid.)

We review an order granting an anti-SLAPP motion de novo. 

(Sweetwater Union, supra, 6 Cal.5th at p. 940.) We therefore engage in the 

same two-step process that the trial court undertakes in assessing an antiSLAPP motion. (See Mendoza v. ADP Screening & Selection Services, Inc.

(2010) 182 Cal.App.4th 1644, 1651-1652.) “Only a [claim] 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.)

B. Prong One: Protected Activity under the Anti-SLAPP Statute

Goens contends that the superior court erred in concluding Monsef’s 

causes of action do not arise from protected activity, as defined by the antiSLAPP statute. We disagree.

A defendant satisfies the first prong of the anti-SLAPP analysis by 

demonstrating that the allegedly injurious conduct falls within one of four 

categories of protected activity described in section 425.16, subdivision (e), 

and that the claim asserted by the plaintiff arises from that conduct. (Rand 

Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) Alternatively 

stated, “the moving party must establish both (1) that its act constituted 
9

protected activity and (2) the opposing party’s cause of action arose from that 

protected activity.” (Colyear v. Rolling Hills Community Assn. of Rancho 

Palos Verdes (2017) 9 Cal.App.5th 119, 130.)

Section 425.16, subdivision (e) states: “As used in this section, ‘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 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.”

“A claim does not arise from constitutionally protected activity simply 

because it is triggered by such activity or is filed after it occurs. [Citation.] 

Rather, the focus is on the substance of the lawsuit. ‘[T]he critical point is 

whether the plaintiff’s cause of action itself was based on an act in 

furtherance of the defendant’s right of petition or free speech.’ ” (World 

Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 

Cal.App.4th 1561, 1568 (World Financial Group).)

Goens’s primary argument here is that Monsef filed his compliant in 

response to Goens’s filing of the unlawful detainer action. “There is no 

question that the prosecution of an unlawful detainer action is indisputably 

protected activity within the meaning of section of section 426.16.” (Clark v. 
10

Mazgani (2009) 170 Cal.App.4th 1281, 1286.) However, Monsef’s complaint 

is not premised on Goens’s protected activities of initiating and prosecuting 

an unlawful detainer action. Instead, Monsef is suing Goens based on alleged 

misrepresentations that Goens made during the negotiations of the Lease. 

And Goens does not explain how these alleged misrepresentations are 

protected activity under the anti-SLAPP statute. Instead, he merely asserts 

that Monsef threatened to file his complaint if Goens filed an unlawful 

detainer action and then followed through on that threat once the unlawful 

detainer action was initiated. Yet, neither that timeline nor the act of filing 

suit automatically trigger anti-SLAPP protections. “ ‘[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.’ ” 

(Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160, quoting 

Navellier, supra, 29 Cal.4th at p. 89.) The pivotal question “ ‘is whether the 

cause of action is based on the defendant's protected free speech or 

petitioning activity.’ ” (Ibid.) 

Here, Goens provides no analysis whatsoever of any of Monsef’s causes 

of actions. He does not explain how claims based on alleged

misrepresentations he made during the negotiations and execution of the 

Lease constitute protected activity. This failure is fatal to his appeal here.

“The burden of affirmatively demonstrating error is on the appellant.” 

(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 

966, 971.) Here, Goens has utterly failed to explain how the allegations in 

the underlying complaint were based on an act in furtherance of his right of 

petition or free speech. (See Navellier, supra, 29 Cal.4th at p. 89; World 

Financial Group, supra, 172 Cal.App.4th at p. 1568.) Thus, he has not 

carried his burden of showing the superior court erred in finding Monsef’s 
11

complaint did not arise out of protected activity. Because we conclude Goens 

has not satisfied the first prong under the applicable anti-SLAPP analysis, 

we do not reach the anti-SLAPP statute’s secondary question whether Monsef 

established there is a probability that he will prevail on his claims. (See City 

of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81.)

DISPOSITION

The order is affirmed. Monsef is entitled to his costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.