Filed 7/21/14 Turner v. 640 Main Street Partners CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

VANESSA RENEE TURNER,
Plaintiff and Appellant,

v.

6 40 MAIN STREET PARTNERS, LLC,
Defendant and Respondent. B249240
(Los Angeles County Super. Ct. No. BC497051)

APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Affirmed.

Vanessa Renee Tu rner, in pro per., for Plaintiff and Appellant.

Zakari Law and Raymond Zakari for Defendant and Respondent.

_________________________________2

We affirm an order granting a special motion to strike a first amended complaint pursuant to the Anti

- Strateg ic Lawsuit Against Public Participation statute , commonly
known as the Anti

- SLAPP statute

. 1
FACTS Background Plaintiff and appellant Vanessa Renee Turner lived in a residential hotel owned by defendant and respondent 640 Main Street Partners, LCC (“Partn ers”) for a period of
time. At some point during Turner’s tenancy, Partners filed a n unlawful detainer action against Turner for non payment of rent . That underlying action was entitled Cecil Hotel v.
Turner (Super. Ct. LA County, 2012 , N o. 12U02012)

. In April 2012, the Los Angeles County Superior Court entered a stipulated judgment in Cecil Hotel v. Turner

. The stipulated judgment was signed by a hotel representative and by Turner
, and approved by a superior court commissioner . The judgment included pr ovisions awarding possession of premises located at 640 S. Main Street to the plaintiff , and stating that the plaintiff waived all back due rent, holdover damages, attorney fees, and costs of litigation. The judgment provided that Turner would give up any claim to her security deposit, “if any,” and provided for an immediate writ of possession , but “no final lockout prior to June 19, 2012.” Turner’s Complaint In December 2012, Turner , in pro. per., filed a Judicial Council standard form complaint again st Partners. The complaint form included attached pages for causes of
action for “general negligence” and “intentional tort.” The text of Turner’s causes of action referred to her having submitted to a credit screening, and to an unlawful detainer

procee ding, and a “judgement” [ sic ], and to matte r s involving claims about unpaid rent and her having paid her rent. The complaint made references to Partners “interce[p]ting” and refusing to return tenants’ mail. Turner sought emotional distress damages and

p unitive damages.

1 See Code of Civ il Proc edure section 425.16. All further section references are to the Code of Ci vil Procedure.3

In February 2013, Turner, in pro. per., filed a first amended complaint, again using a Judicial Council standard form complaint. Turner’s first amended complaint again had causes of action labeled “general negligence” and “intentional t ort.” As did her original complaint, t he text of Turner’s causes of action in her first amended complaint referred to her having submitted to a credit screening, and to unlawful detainer proceedings, and to

matte r s involving claims about unpaid rent and h er having paid her rent. Turner’s first amended complaint added language referring to a rent payment that was “rejected,” and to her being “forced” to call police to stop Partners from “harassing” her. Turner’s first amended complaint included the words “slander/libel” and “defamation” at different points within the pleading , but not expressly contain labeled cause of action for such

torts

. Turner ’s first amended complaint sought emotional distress and punitive damages.
The Anti

- SLAPP Motion
In March 20 13, Partners filed a special motion to strike Turner’s first amended complaint pursuant to the Anti

- SLAPP statute. Partner s ’ motion argued that Turner’s operative first amended complaint showed on its fac e that it arose from Partner s ’ filing of
an unlawfu l detainer action , and that such activity was protected petitioning activity

. Partners argued that Turner could not demonstrate a probability of prevailing in her
action because, among other factors, she had not stated a cognizable cause of action against Partners. A hearing on the Anti

- SLAPP motion was set for April 19, 2013. On April 8, 2013, Turner filed a n opposition to Partners’ Anti

- SLAPP motion. Turner’s opposition included roughly 100 pages of attached documents, including a copy
of the stipula ted judgment in the unlawful detainer action noted above. On April 17, 2013, Partners filed an objection to Turner’s opposition. Partners objected that Turner had not served her opposition on Partners until April 12, 2013, and
that Part n ers had not actu ally received the opposition until April 16, 2013.4

For the hearing on April 19, 2013, the trial court prepared a tentative ruling in which it indicated that it planned to grant Partners’ Anti

- SLAPP motion. After listening to argument from the parties , the court adopted its tentative ruling as its final order. Turner filed a timely notice of appeal.
DISCUSSION
I. The Anti

- SLAPP Statute
T he Anti

- SLAPP statute authorizes a two

- step procedure for striking a cause of action at the earlier stages of li tigation when it is established that the claim was filed to “chill” the constitutional rights of free speech or to petition the government. (§ 425.16, subds. (a), (b).) In the first step, a court determines whether the moving defendant has
shown that a c ause of action arises from so

- called protected activity, that is, “from any act of that person in furtherance of the person ’ s right of petition or free speech under the United States Constitution or California Constitution in connection with a public
issue

. . . .” (See § 425.16, subds. (b)(1), (e); and see, e.g., Martinez v. Metabolife Internat., Inc . (2003) 113 Cal.App.4th 181, 188 [ it is the gravamen of the plaintif f’ s cause of action that determines whether the Anti

- SLAPP statute applies in the first s tep ].)
In the second step, a court reviews the evidence presented to determine whether a plaintiff has demonstrated a probability of winning his or her cause of action on the
merits. (See § 425.16, subd. (b)(1); and see, e.g. Oasis West Realty, LLC v. Go ldman (2011) 51 Cal.4th 811, 820.) On appeal, we review an order granting a motion pursuant to the Anti

- SLAPP

statute under the de novo standard of review, meaning we apply the same two

- step procedure as the trial court. (See, e.g., Mendoza v. ADP Scre ening & Selection Services,
Inc . (2010) 182 Cal.App.4th 1644, 1651

- 1652.)
II. Protected Activity Turner argues the trial court erred in finding that her lawsuit arises from protected petitioning activity by Partners. Here, Turner argues that Partners’ un derlying unlawful detainer action was “fraudu lent.” Turner argues the Anti

- S L A PP statute “does not apply” to such “illegal” petitioning activity. Turner’s argument does not persuade us to find5

error in connection with the first step of the Anti

- SLAPP pro cedure; her argument is better directed toward the second step of the procedure. Turner argues that Partners did not have a legal right to file an unlawful detainer action against her for non

- payment of rent because they accep ted a cashier’s check from
he r for the full amount of rent due several days before they filed their unlawful detainer action. Further, Turner argues that Partners’ actions of filing the unlawful detainer action and obtaining a judgment constituted the “intentional infliction of emoti onal distress as a matter of law.” Turner’s arguments here seem directed toward showing that Partners did wrongful acts in the course of the underlying unlawful detainer action. In other words, it again appears that Turner is arguing why she will win her lawsuit against Partners. The proper focus in the first step of the Anti

- SLAPP procedure is on the nature of
the defendant ’ s activity that gives rise to the plaintiff’s lawsuit, not the “unlawful motive the plaintiff is ascribing to that conduct.” (See Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 271.) It is “easy to confuse” the concepts involved in the two steps of
the Anti

- SLAPP procedure. ( Ibid .) “T his confusion will be less likely to occur

. . . if on the first step of the anti

- SLAPP inqu iry

. . . remains squarely on the defendant ’ s activity that gave rise to its asserted liability, and whether that activity constitutes protected speech or petitioning, rather than on any motive the plaintiff may be ascribing to the activity

. ” ( Ibid ., citi ng Navellier v. Sletten (2002) 29 Cal.4th 82, 92 ( Navellier ) .) In summary, the focus on the first step of the Anti

- SLAPP procedure “ is not the form of the plaintiff ’ s cause of action but, rather, the defendant ’ s activity that gives rise to his or her

asse rted liability

— and whether that activity constitutes protected speech or petitioning.” ( Navellier, supra , 29 Cal.4th at p. 92.)
It is too well

- settled to question here that litigation activities are protected activity
within the meaning of the Anti

- S LAPP statute. “ ‘ “ ‘[T]he constitutional right to petition

. . . includes the basic act of filing litigation

. . . .’ ” ’ [Citations.]” ( Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) Accordingly, we move to the second step
of the test.6

I II. Pr obability of Prevailing
We find the trial court correctly determined that Turner failed to demonstrate a probability of prevailing on her lawsuit against Partners.
At t he second step of the Anti

- SLAPP procedure
, the plaintiff must show that he
or she h as a “ reasonable probability of prevailing, not prevailing by a preponderance of
the evidence. For this reason, a court must apply a ‘summary

- judgment

- like’ test [citation], accepting as true the evidence favorable to the plaintiff and evaluating the
defe ndant ’ s evidence only to determine whether the defendant has defeated the plaintiff ’ s evidence as a matter of law. [Citation.] A court may not weigh credibility or compare the weight of the evidence. The court ’ s single task is to determine whether the p laintiff has made a prima facie showing of facts supporting his or her cause of action. [Citation.]” ( Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4 th 435, 444.) On appeal, Turner argues that she had paid her rent with a cashier’s che ck, and
that this necessarily means that Partners improperly commenced an unlawful detainer action against her. Accepting as true Turner’s assertion that Partners filed an unlawful
detainer action based on false allegations of unpaid rent, this does not s how a probability that Turner will prevail in her current lawsuit against Partners. Civil Code section 47, subdivision (b), establishes a privilege immunizing a party from liability for any statement made in a judicial proceeding, and is a bar to all tort causes of action based on such statements, except for a claim for malicious prosecution. (See, e.g., Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 525 .) Turner cannot prevail on a claim for malicious prosecution against Partners because the copy of the judgment in the underlying unlawful detainer action, which she submitted in her opposition papers to the Anti

- SLAPP motion , does not show that the underlying proceeding was resolved on
the merits in her favor.7 DISPOSITION The order g ranting the Anti

- SLAPP motion is affirmed. Each party to bear its own costs on appeal.

BIGELOW, P.J.

We concur:

RUBIN, J.

FLIER, J.