Filed 4/29/14 Silva v. Spring CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

FRED SILVA,

 Plaintiff and Appellant,

v.

JOHN W. SPRING et al.,

 Defendants and Respondents.

 G048485

 (Super. Ct. No. 30-2012-00603067)

 O P I N I O N

Appeal from a judgment and orders of the Superior Court of Orange 

County, David T. McEachen, Judge. Affirmed.

Law Offices of Ernest Mooney and W. Ernest Mooney for Plaintiff and 

Appellant.

Macrae & Edrington, Jean Moriarty; Law Office of Priscilla Slocum and 

Priscilla Slocum for Defendants and Respondents.

* * *
2

The superior court granted the defendants’ anti-SLAPP motions to strike all 

five causes of action in plaintiff Fred Silva’s complaint. Silva appealed and claims four 

of his five causes of action did not involve protected activity. He also claims the court 

erred in striking his fifth cause of action for retaliatory eviction because he established a 

likelihood of prevailing on that cause of action, just as he had established a likelihood of 

prevailing on the first four causes of action. In addition, Silva argues the award of 

attorney fees and costs must be reversed if we reverse the superior court’s ruling on the 

motions to strike. We reject his contentions and affirm.

I

FACTS

Defendants John Spring, his wife Mary, and his brother Carl1 (collectively 

defendants) as trustee for Carl’s family trust, own a two-unit piece of property in Sunset 

Beach. By their agreement, Carl has the exclusive right to possess unit A and John and 

Mary have the exclusive right to possess unit B. Unit B was vacant and John and Mary 

were looking to rent it out for $2,200 a month. In July 2008, Silva entered into a lease 

with John and Mary. Silva drafted the written lease. The lease provided it would run for 

one year commencing August 1, 2008, with an “option for additional years.” In addition 

to paying a reduced monthly rent of $2,000, Silva was to make certain listed repairs to the 

property “at no cost” to John and Mary. Silva installed new kitchen cabinets, granite 

countertops, a shower, sinks and faucets, flooring, ceiling fans, electrical wiring, window 

coverings, front and back doors, and a new security system.

Silva’s next door neighbor on the property lived in that portion run by Carl. 

Silva’s declaration stated he complained to Carl on “numerous occasions” and 

“sometimes” to John about the other tenant’s noise. 

 

1 Because the three defendants share the same surname, we refer to each by 

their given names for ease of reading. No disrespect is intended.
3

The lease was not extended and by operation of law turned into a month-tomonth tenancy at the expiration of its term in 2009. (Civ. Code, § 1945.) Years later, at 

the end of April 2012, Silva was served a 60-day notice to terminate the tenancy. John 

subsequently filed an unlawful detainer action against Silva in July 2012, alleging Silva 

owed $6,000 in rent. Silva initially opposed the action and filed an answer alleging three 

affirmative defenses. He alleged “Spring is equitably estopped from asserting that the 

subject tenancy was a month-to-month tenancy, as Spring promised Silva that, if Silva 

made extensive investments and repairs to the subject property, Silva could continue to 

reside in the premises, through the exercise of one-year lease options, as long as Silva 

desired, providing that Silva was not in breach of the lease. In reliance upon this 

promise, Silva spent in excess of $16,000 in making improvements and repairs to the

premises.” Silva further alleged the unlawful detainer was in retaliation to his pursuit of 

the quiet enjoyment of the property, in that he had complained of the “noisy and 

disruptive behavior” of the tenant in the adjacent unit. According to a declaration filed 

by John in the present case, the last time Silva had complained about the noise was two 

years before Silva was served with the notice to vacate. The unlawful detainer matter 

eventually resulted in a stipulated judgment wherein John was to receive possession of 

the premises and Silva agreed to pay $7,500 for rent and damages, plus $227.50 in 

attorney fees. 

Silva subsequently filed a complaint against John, Mary, and Carl for 

breach of contract, fraud, quantum meruit, unjust enrichment, and retaliatory eviction. 

Silva alleged there had been an agreement that if he made certain improvements to the 

property and did not breach the agreement, he could stay in the property as long as he 

desired, he made the improvements, he was denied the quiet enjoyment of the property,

the unlawful detainer action was a retaliatory eviction, and the improvements he made to 

the property unjustly enriched the defendants. 
4

John and Mary filed anti-SLAPP motions (Code Civ. Proc., § 425.16; all 

undesignated statutory references are to this code) to strike the complaint. Carl joined in 

Mary’s motion. The court granted the motions, striking all five causes of action. The 

court awarded John and Mary $8,291.50 in attorney fees and $229.75 in costs.

II

DISCUSSION

“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ 

[Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 816, fn. 1.) In 

order to combat what the Legislature described as “a disturbing increase in lawsuits 

brought primarily to chill the valid exercise of the constitutional rights of freedom of 

speech and petition for redress of grievances,” it enacted section 425.16. (§ 425.16, subd. 

(a).) That section provides for early dismissal of a SLAPP via a special motion to strike 

causes of action “arising from” the exercise of the right of free speech or the right to 

petition. (§ 425.16, subd. (b)(1).) These are commonly known as “anti-SLAPP”

motions. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732-733.)

The determination of whether an action is a SLAPP involves a two-step 

process. First, the defendant bears the initial burden of demonstrating the challenged 

cause of action arose from protected activity set forth in subdivision (e) of section 425.16. 

“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) 
5

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).)

“[T]he the statutory phrase ‘cause of action . . . arising from’ means simply 

that the defendant’s act underlying the plaintiff’s cause of action must itself have been an 

act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP 

context, the 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. [Citations.]” (City 

of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) A defendant’s filing of a lawsuit

qualifies as an act in furtherance of the defendant’s right to petition. There is no need to 

establish the litigated matter concerned a matter of public interest. (Feldman v. 1100 

Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478.)

If a defendant makes this initial showing, the burden then shifts to the 

plaintiff to demonstrate a probability of prevailing on his or her claim. (Navellier v. 

Sletten (2002) 29 Cal.4th 82, 88.) The plaintiff’s burden corresponds to the burden borne 

by a party opposing a motion for summary judgment. (Delois v. Barrett Block Partners

(2009) 177 Cal.App.4th 940, 947; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 

298, 317.) “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 v. Sletten, supra, 29 

Cal.4th at p. 89; § 425.16, subd. (b)(1).)

We review de novo an order granting or denying a motion to strike under 

section 425.16, and consider the pleadings and affidavits submitted in support of and in 

opposition to the motion, accepting as true evidence favorable to the plaintiff and 

evaluate the defendant’s evidence to determine whether it defeats the plaintiff’s evidence 

as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
6

Silva’s Causes of Action Arose out of the Unlawful Detainer Action

Defendants claim the present causes of action arose out of the earlier 

unlawful detainer action. “‘The prosecution of an unlawful detainer action indisputably 

is protected activity within the meaning of section 425.16.’ [Citations.]” (Feldman v. 

1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1479.) Consequently, the first 

step in our analysis is to determine whether each of Silva’s causes of action arose out of 

the unlawful detainer action. (See City of Cotati v. Cashman, 29 Cal.4th at p. 78.) In the 

anti-SLAPP context, a cause of action arises from protected activity if the action is 

“based on” such activity. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) The mere fact 

that an unlawful detainer may have “‘preceded’ or ‘triggered’” the instant lawsuit is not 

enough; the issue is whether the unlawful detainer action was the “‘basis’ or ‘cause’ of 

that suit.” (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1289.)

The breach of contract cause of action alleged a partly written, partly oral 

contract was breached when the unlawful detainer action was filed. The written 

provision provided for a one-year lease. Silva alleged the oral portion of the lease 

consisted of a representation by Carl that Silva could remain on the property as long as he 

desired, provided he met his other contractual obligations under the lease—presumably 

payment of rent and making the listed improvements at no cost to John and Mary. Under 

the circumstances alleged in the complaint, the breach of contract action arose out of the 

unlawful detainer action. (Feldman v. 1100 Park Lane Associates, supra, 160 

Cal.App.4th at pp. 1483-1484 [breach of contract claim based on unlawful detainer 

subject to section 425.16].)

Silva’s fraud cause of action alleges the defendants had no intention of

fulfilling Carl’s promise to let him remain in possession of the property as long as he 

desired. Again, that alleged representation was conditioned on Silva making the listed 

repairs and improvements at no expense to John and Mary, and implicitly based on Silva
7

paying the rent. An action for fraud has five elements: “‘[1] a misrepresentation . . . ; [2]

knowledge of its falsity. . . ; [3] intent to defraud, i.e., to induce reliance; [4] justifiable 

reliance; and [5] resulting damage.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 

638.) The damage purportedly suffered by Silva was being dispossessed of the property. 

The stipulated judgment in the unlawful detainer matter included an award 

of damages to John in the amount of $7,500 for rent and damages owed by Silva. 

Although the alleged fraud occurred in 2008 when the lease was signed, without the 

existence of the unlawful detainer action and the judgment entered therein, Silva would 

have no cause of action for fraud, not only because he would have no evidence upon 

which he could hang his allegation of fraudulent intent, but also because he would not 

have suffered any damages. Consequently, we find his cause of action for fraud arose out 

of the unlawful detainer action.

The same is true of Silva’s causes of action for quantum meruit and unjust 

enrichment. The gist of each is that defendants benefited from the improvements made 

by Silva without his being justly compensated. As the compensation he claims was 

due—his continued possession of the property—was frustrated and eliminated solely by 

the unlawful detained action, we find these actions also arose out of the unlawful detainer 

action.

Silva conceded at oral argument, and we agree, the retaliatory eviction 

cause arose out of the unlawful detainer action. Having found all of Silva’s action arose 

out of the unlawful detainer action and thus, section 425.16 applies in this matter, we turn 

to the second inquiry: whether Silva demonstrated a probability of prevailing on his 

claims. (Jarrow Formulas, Inc. v. La Marche, supra, 31 Cal.4th at p. 733.)
8

Silva did not Demonstrate a Probability of Prevailing

As stated above, once a defendant establishes a cause of action arose from 

protected activity, the section 425.16 special motion to strike must be granted unless the

plaintiff demonstrates a probability of prevailing on his or her claim if the matter were to 

proceed to trial. (§ 425.16, subd. (b)(1).) To carry this burden, a plaintiff must present

“‘competent and admissible evidence.’” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 

26.) Allegations in the complaint are insufficient (ComputerXpress, Inc. v. Jackson

(2001) 93 Cal.App.4th 993, 1010) and “declarations that lack foundation or personal 

knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or 

conclusory are to be disregarded. [Citation.]” (Gilbert v. Sykes, supra, 147 Cal.App.4th 

at p. 26.)

Silva failed to introduce evidence demonstrating a likelihood of prevailing 

on the merits of any of his claims. First, although Silva averred that Carl said he could 

remain in the property as long as he desired, assuming he made the listed repairs and 

improvements, the lease prepared by Silva stated the term of the lease was for one year

with an “option for additional years,” which Silva did not exercise. The term of the lease 

expired in August 2009, and there was no evidence demonstrating the parties agreed to 

any additional one-year terms. Silva’s payment and John’s acceptance of rent after the 

lease term expired did not operate to extend the term of the lease. Rather, it merely 

converted Silva’s tenancy to a month-to month tenancy. (Civ. Code, § 1945.) Therefore, 

even were we to assume Carl’s purported representation became part of the lease, Silva 

did not demonstrate he exercised the option to extend the term of the lease.

Second, the unlawful detainer complaint alleged Silva owed John $6,000 in 

past due rent. Silva stipulated in the unlawful detainer judgment that he owed John 

$7,500 in back rent and damages. This evidence demonstrated Silva was not in 

compliance with the conditions attached to Carl’s purported promise to permit Silva to 
9

remain as long as he desired. Consequently, Silva failed to establish he was likely to 

prevail on his breach of contract action.

Neither did Silva show he was likely to prevail on his fraud cause of action. 

Even under Silva’s version of Carl’s purported representation, Silva was obligated to 

remain current in his payment of rent. Having failed to do so, Silva is not free to insist 

that he be permitted to remain in possession of the property. Moreover, John permitted 

Silva to remain in the property for years after the term of the lease prepared by Silva 

expired without having been renewed. Additionally, Silva introduced no evidence that 

when Carl purportedly made the statement to him about staying as long as he liked, Carl 

was not being truthful. The fact that John finally decided to retake possession of the 

property years after the lease ended does not fill in that evidentiary gap.

“The elements for a claim of unjust enrichment are ‘receipt of a benefit and 

unjust retention of the benefit at the expense of another.’ [Citation.] ‘The theory of 

unjust enrichment requires one who acquires a benefit which may not justly be retained, 

to return either the thing or its equivalent to the aggrieved party so as not to be unjustly 

enriched.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 

Cal.App.4th 1105, 1132.) According to Silva’s declaration, he made a number of 

improvements and repairs to the property. However, according to the lease and John’s 

declaration, which are not inconsistent with Silva’s declaration, John gave Silva a 

discount on the rent because Silva promised to make the repairs and improvements. The 

one-year term of the lease ended in 2009, and although John and Silva did not extend the 

term of the lease, John permitted Silva to remain in possession of the property for an 

additional 35 months, presumably with the discounted rent. Accordingly, we cannot say 

Silva demonstrated he was likely to prevail on his unjust enrichment claim.

“Quantum meruit is a Latin phrase meaning ‘as much as he deserves,’ and 

is based on the idea that someone should get paid for beneficial goods or services which 
10

he or she bestows on another.” (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 445, fns. 

omitted.) Quantum meruit is a quasi-contractual remedy (Hedging Concepts, Inc. v. First 

Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419) based on “the law’s distaste

for unjust enrichment” (Maglica v. Maglica, supra, 66 Cal.App.4th at p. 449). However, 

as stated above, Silva did not demonstrate a likelihood he could show defendants were 

unjustly enriched. Additionally, there is no reason to apply the equitable remedy of 

quantum meruit “when the parties have an actual agreement covering compensation. 

[Citations.]” (Hedging Concepts, Inc. v. First Alliance Mortage Co., supra, 41 

Cal.App.4th at p. 1419.) There was such an agreement here. It was the lease and, as 

drafted by Silva himself, it not only stated he would have possession of the property for a 

one-year period (with an option for additional years) if he made the listed repairs, 

improvements, and paid $2,000 a month, it also provided the improvements were to be 

made “at no cost to” John and Mary. Silva was not likely to prevail on his quantum 

meruit claim if it proceeded to trial.

Silva also failed to prove he was likely to prevail on his retaliatory eviction 

claim. John’s declaration stated he and Mary “had not received any noise complaints 

from Mr. Silva for the two years prior to the time” they served Silva with the notice to 

vacate, and that their decision to retake their property almost four years after initially 

leasing it to Silva was not motivated by any prior complaints by Silva. Silva claimed he 

made written complaints about a noisy tenant in the adjacent unit from January 2009 

through August 2012. He attached to his declaration copies of letters and e-mails he 

wrote during that period, including e-mails he wrote to Carl. That documentation 

confirms John’s statement and shows the complaints about the neighbor ended 

approximately two years before the eviction effort began and resumed months after

eviction proceedings began. A two-year lapse between a tenant’s complaint and the 

landlord’s initiation of eviction proceedings does not lend itself to an inference the 
11

eviction was retaliatory in nature. (See Civ. Code, § 1942.5, subd. (a) [180-day 

timeframe].) There is no reason to believe Silva was likely to prevail on his retaliatory 

eviction cause of action.

Because we find Silva failed to present evidence showing he would likely 

prevail on his claims were the matter to proceed to trial, we need not address defendants’

argument concerning whether Silva is precluded from making the requisite showing due 

to principles of res judicata. We note, however, that despite the fact an unlawful detainer 

action is a summary proceeding and cross-complaints as to issues that do not go to the 

issue of possession are not permitted (S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 

719, 723; see also Barela v. Superior Court (1976) 30 Cal.3d 244, 254 [retaliatory 

eviction defense would not be significantly impair summary nature of unlawful detainer 

actions]), Silva raised as affirmative defenses in the unlawful detainer action his right to 

remain in possession of the property because (1) he made the listed repairs and 

improvements and (2) the eviction was retaliatory. After raising these issues, Silva

abandoned them by stipulating to a judgment returning the property to John and awarding 

John damages for the nonpayment of rent. (See California State Auto. Assn. Inter-Ins. 

Bureau v. Superior Court (1990) 50 Cal.3d 658, 664, fn. 2, 667 [“stipulated judgment 

bars subsequent litigation of all issues which were or could have been raised in the 

original suit”].)

Attorney Fees

The trial court awarded John and Mary attorney fees in prevailing on their 

motion to strike pursuant to section 425.16. Silva challenged the award, arguing only 

that the attorney fee award would have to be reversed if we reverse the underlying order 

striking his complaint. As we affirm the trial court’s ruling on the motion to strike, we 

have no occasion to reverse the award of attorney fees.
12

III

DISPOSITION

The orders and judgment of the superior court are affirmed. John and Mary

shall recover their costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.