Filed 2/15/22 Neufinck v. Fernandez CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JENS NEUFINCK,

Plaintiff and Appellant,

v.

MARIA FERNANDEZ et al.

Defendants and 

Respondents.

 B307277

 (Los Angeles County

 Super. Ct. No. 19STCV28646)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David Sotelo, Judge. Reversed and 

remanded with directions.

Law Office of Neal S. Zaslavsky, Neal S. Zaslavsky and 

Karen I. Shanbrom for Plaintiff and Appellant.

The ByrneLaw Office and John P. Byrne for Defendants

and Respondents Maria Fernandez, Marcela C. Fernandez, 

Melina Byrne and William Fernandez.

______________________
2

Jens Neufinck sued his landlord, Maria Fernandez, and her 

three adult children (collectively Fernandez defendants) for 

breach of contract, violation of the Los Angeles Rent Stabilization 

Ordinance (RSO) (Los Angeles Mun. Code, § 151.00 et seq.), 

abuse of process and several related causes of action after 

Fernandez attempted to evict Neufinck for making unauthorized 

modifications to her property to provide a roaming area for his 

pet tortoises (including an emotional support tortoise). The trial 

court granted the Fernandez defendants’ special motions to strike 

the first amended complaint pursuant to Code of Civil Procedure 

section 425.16,

1 ruling each of the seven causes of action arose 

from protected activity, which included the filing of an unlawful 

detainer action; Neufinck’s claims were barred in large part by 

the absolute litigation privilege (Civ. Code, § 47, subd. (b)); and 

he had otherwise failed to make a prima facie factual showing 

sufficient to sustain a favorable judgment. Neufinck has 

appealed from the judgment subsequently entered in favor of the 

Fernandez defendants.

We reverse the judgment and the order granting the special 

motions to strike to the extent each of the causes of action other 

than the sixth cause of action for abuse of process is based on 

allegations Fernandez improperly attempted to modify her lease 

with Neufinck and unlawfully collected rent, conduct that is not 

protected speech or petitioning activity within the meaning of 

section 425.16.

1 Statutory references are to this code unless otherwise 

stated.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. The Legion Lane Property and Neufinck’s Lease 

Agreement

Fernandez owns a rental duplex property located on Legion 

Lane in Los Angeles, which is subject to the RSO. The duplex’s 

front unit (3812 Legion Lane) and rear unit (3814 Legion Lane) 

share a single-lane driveway running adjacent to the property.

Fernandez, who is in her 80’s, speaks little English. Her 

three adult children, William Fernandez, Marcela Fernandez and 

Melina Byrne, sometimes help translate for Fernandez when she

needs to communicate with the Legion Lane tenants. None of 

Fernandez’s children possesses any legal interest in the Legion 

Lane property. 

In 2012 Fernandez, Neufinck and a cotenant entered into a 

two-year lease agreement for 3812 Legion Lane.

2 Neufinck 

requested permission to keep four tortoises at the property; and 

William Fernandez, interpreting for his mother, agreed. The 

lease expressly provided Neufinck could keep four tortoises 

outdoors on the premises. The lease also contains an integration 

clause and required any modifications be in writing and signed 

by landlord and tenant. 

2. The Dispute Regarding Neufinck’s Use of the Property’s 

Common Areas

When the long-term tenant living at 3814 Legion Lane 

moved out in mid-2018, Fernandez hired contractors to perform 

repairs to the rear unit’s garage. The contractors reported they 

were unable to access the rear garage. Fernandez visited the 

property and discovered that Neufinck had bolted physical 

2 The lease renewed on a month-to-month basis at the end of 

the initial term.
4

barriers into and across the driveway and had placed a lock on 

the driveway’s entry gate. Neufinck had also erected a barrier 

preventing 3814 Legion Lane’s tenants from accessing a shared

patio space. Fernandez believed Neufinck had closed off the 

property’s driveway and common areas to allow his tortoises to

roam freely on those parts of the property.

Fernandez asked Neufinck to remove the lock on the

driveway gate and the physical barriers in the driveway. When 

Neufinck did not comply, Fernandez returned with one of her 

daughters to ask Neufinck in person to remove the obstructions. 

Neufinck refused, screaming at Fernandez’s daughter and 

slamming the door in her face. Fernandez subsequently removed 

the gate lock; but Neufinck closed it again using zip ties, 

preventing workers from accessing ongoing construction at 3814 

Legion Lane. Neufinck also parked his car in front of the 

driveway gate.

Fernandez contends the property’s shared driveway 

provides access to the duplex’s rear unit, as well as to parking 

spaces for both units at the back of the property. Neufinck’s

barriers and gate lock deprived the rear unit of off-street parking,

prevented both units’ tenants from parking in the designated 

parking area and obstructed both fire escape passage and 

common area access. Fernandez asserted she had never 

permitted Neufinck to block the shared driveway’s entry or to use 

the driveway area for his tortoises.

Neufinck, in contrast, claimed William Fernandez had 

assured him during lease negotiations that the part of the 

property’s backyard reaching from the driveway gate to the side 

gate exclusively belonged to his unit (3812 Legion Lane) and the 

tortoises could use that area. William Fernandez denied he told 
5

Neufinck he could block the shared driveway or use the driveway 

area for his tortoises. 

3. The 2018 and 2019 Letters and Notices to Neufinck

On August 23, 2018 Fernandez, through counsel, sent

Neufinck a letter offering to renew the lease with a provision 

prohibiting pets. The same day Fernandez’s counsel served 

Neufinck with a 30-day notice to perform covenant or quit, 

notifying Neufinck that Fernandez would initiate legal 

proceedings if he did not remove unapproved alterations and 

obstructions from the property’s shared driveway.

In response to the proposed new lease, Neufinck obtained a 

letter from an investigator with the Los Angeles Housing and 

Community Investment Department stating a landlord may not 

unilaterally change the terms of the tenancy and then evict the 

tenant for violation of the added covenant unless the tenant has 

agreed in writing to the new term. He also obtained a letter from 

a licensed clinical social worker recommending that Neufinck be 

allowed to keep a tortoise as an emotional support animal. In 

response to the 30-day notice, Neufinck hired a construction 

company to fill holes he had drilled in the driveway. He 

contended this work fully complied with the notice.

On March 15, 2019 Fernandez’s counsel sent Neufinck a

notice of change that would remove the prevailing party attorney 

fee provision in the written lease and instead require each party 

to bear its own attorney fees and costs in any action to enforce 

the lease.

On May 24, 2019 Fernandez’s counsel posted a three-day 

notice to perform or quit on Neufinck’s door, demanding that 

Neufinck stop parking his vehicle across the property’s shared 

driveway and stop any other practices “making passage upon the 
6

common driveway . . . inaccessible to other tenants.” Fernandez 

and Neufinck disagree whether Neufinck complied with this 

notice. 

On October 2, 2019 Fernandez’s counsel sent Neufinck 

another notice of changes to the lease limiting a prevailing 

parties’ fee and costs recovery to $500 and adding a mandatory 

arbitration provision. Neufinck responded in writing again 

asserting he could not be evicted for noncompliance with 

unilateral lease term changes.

4. The Unlawful Detainer Action

On June 7, 2019 Fernandez filed an unlawful detainer

complaint against Neufinck in Los Angeles Superior Court.

Fernandez alleged Neufinck had failed to comply with the

May 24, 2019 three-day notice to stop obstructing the Legion 

Lane property’s driveway. 

In late June and early July 2019 Fernandez requested

entry of Neufinck’s default, attaching a registered process 

server’s proof of personal service of the complaint on Neufinck. 

The trial court entered a default and default judgment for 

Fernandez’s possession of 3812 Legion Lane and issued a writ of 

execution for possession on July 8, 2019.

On July 23, 2019 a deputy sheriff served Neufinck with a 

copy of the writ and a five-day notice to vacate 3812 Legion Lane. 

On July 29, 2019 Neufinck applied ex parte to set aside the 

default and quash service of process, asserting he had not been 

served with the unlawful detainer complaint. Fernandez filed an 

opposition. Following an August 14, 2019 hearing the court

vacated the default judgment.
7

Fernandez thereafter requested the unlawful detainer 

complaint be dismissed without prejudice. A dismissal was 

entered on September 4, 2019.

5. Neufinck’s Complaint

On August 13, 2019 Neufinck filed a verified complaint and 

on October 31, 2019 a verified first amended complaint against 

Fernandez and her three children,

3 alleging causes of action for 

breach of contract, breach of the implied covenant of good faith 

and fair dealing, breach of the covenant of quiet enjoyment,

violations of the RSO, intentional infliction of emotional distress, 

abuse of process and violation of California’s unfair competition 

law (UCL) (Bus. & Prof. Code, § 17200 et seq.).

4 Neufinck sought 

damages and injunctive and declaratory relief.

The first amended complaint alleged the Fernandez 

defendants had participated in a common scheme to force 

Neufinck to involuntarily vacate his home, including by abusing 

judicial processes, unlawfully attempting to reduce housing 

services to which he was entitled by the terms of his lease 

without a statutorily mandated rent reduction and demanding he 

pay rent in an amount that materially exceeded the lawful rent 

based on their partial performance and nonperformance of 

3 Neufinck also named as a defendant the process server who 

had signed the proof of personal service of the unlawful detainer 

complaint. The process server is not a party to Neufinck’s appeal. 

4 The first amended complaint included as an exhibit the 

2012 lease, which had not been attached to the original 

complaint, requested at least $3 million in noneconomic damages, 

added allegations about continued harassment by the Fernandez 

defendants subsequent to Neufinck’s filing of his complaint and 

made a number of other largely nonsubstantive revisions.
8

contractual and legal obligations to him.5 The pleading

specifically identified as elements of the Fernandez defendants’ 

unlawful scheme the August 23, 2018 30-day notice; the 

August 23, 2018 offer to renew the lease with terms that would 

prohibit him from keeping his tortoises; the subsequent notice of 

a proposed change in lease terms regarding attorney fees in an 

action to enforce the lease; the three-day notice to quit posted on 

May 24, 2019; the unlawful detainer proceedings, which 

culminated in the delivery of a notice to vacate by the Sheriff’s 

Department; and the failure to pay interest on his security 

deposit as required by the RSO. Each of the causes of action 

incorporated these allegations of misconduct. 

6. The Fernandez Defendants’ Special Motions To Strike

a. Ex parte application for leave to file special motions 

to strike

On December 10, 2019 the Fernandez defendants applied 

ex parte for leave to file special motions to strike the 

first amended complaint pursuant to section 425.16. They

argued the proposed motions were timely; Neufinck had waived 

any timeliness argument through his suggestion that they wait 

until he filed his first amended complaint to respond;

6 and, 

5 Neufinck alleged the Fernandez defendants’ efforts to force 

him to move were motivated by their desire to bring in a new 

tenant, who could be charged more rent than could legally be 

collected from Neufinck under the RSO. 

6 Counsel for the Fernandez defendants explained in the 

ex parte application that, after the initial complaint was served, 

the parties had stipulated to October 31, 2019 as the date to 

respond to the complaint. Meanwhile, as a result of a meet-andconfer regarding an intended demurrer, Neufinck stated he 
9

alternatively, the court should exercise its discretion under 

section 425.16, subdivision (f), to permit the late-filed motions.

Neufinck opposed the request, contending relief was not available 

on an ex parte basis and urging the court to deny any special

motion to strike as untimely.

The trial court granted the application, authorizing the 

Fernandez defendants to file special motions to strike the first 

amended complaint within 20 days (a date that was also 60 days 

from the date of filing of the first amended complaint). On 

December 30, 2019 each of the Fernandez defendants filed a 

substantially similar special motion to strike.

b. The moving papers

The moving papers argued each of the causes of action in 

Neufinck’s first amended complaint arose from Fernandez’s 

prosecution of the unlawful detainer action and other protected 

petitioning activity in anticipation of the filing of that proceeding. 

All of those actions, they asserted, although alleged by Neufinck 

to constitute unlawful harassment, were absolutely privileged 

under the litigation privilege in Civil Code section 47, 

subdivision (b). The Fernandez children’s motions additionally 

argued they were not parties to, and owed no duties under, the 

lease, and none of them served as landlord or property manager 

for the Legion Lane property. 

would be filing a first amended complaint (“as a matter of right”) 

to correct any perceived deficiencies and indicated the defendants 

should wait to file their responses to the amended pleading.
10

c. Neufinck’s oppositions

In his oppositions Neufinck contended the gravamen of his 

first amended complaint was the Fernandez defendants’ “ongoing 

and repeated efforts to harass him into vacating his rentcontrolled home” and argued the Fernandez defendants had 

failed to show those actions constituted protected petitioning

activity. Neufinck also disputed the applicability of the litigation 

privilege to the Fernandez defendants’ conduct and insisted he 

had established his claims had sufficient merit to survive the 

special motions to strike. 

With his oppositions to the motions Neufinck submitted his 

own declaration, as well as declarations from previous Legion 

Lane property tenants. Neufinck declared William Fernandez 

had assured him prior to his signing the lease that the part of the 

backyard reaching from the front gate to the side gate belonged 

exclusively to 3812 Legion Lane and that Neufinck’s tortoises 

could roam freely in that area. Neufinck also declared a licensed 

clinical social worker had certified one of his tortoises as an 

emotional support animal, the City of Los Angeles had previously 

determined Fernandez’s attempts to unilaterally change the 

terms of the lease violated the RSO, and the Fernandez

defendants’ conduct had intentionally caused him great 

emotional distress. The trial court sustained the Fernandez 

defendants’ objections to these portions of Neufinck’s declaration.

Former 3814 Legion Lane tenant Rosa Ching declared she 

had been told when moving in “that the entire driveway and side 

yard belonged to” 3812 Legion Lane. Previous 3812 Legion Lane 

tenant Eugene Adamov declared the landlord had given him and 

his roommate “the use of the front driveway to park our vehicles,” 
11

as well as “exclusive use of the side yard.” The trial court also 

sustained the Fernandez defendants’ objections to this evidence. 

7. The Order Granting the Special Motions To Strike

On June 26, 2020 the trial court held a consolidated 

hearing on the Fernandez defendants’ special motions to strike.

After taking the matter under submission, on July 16, 2020 the 

trial court granted the motions. The trial court found each of the 

causes of action in Neufinck’s first amended complaint arose from 

protected petitioning activity—the prosecution of an unlawful 

detainer action and the service and filing of legal documents

required to initiate that action. Separately analyzing each of the 

seven causes of action, the court ruled Neufinck had not 

established a probability of prevailing on any of his claims, 

explaining the litigation privilege applied to publications made 

in, and relating to, good faith judicial proceedings.

The court entered judgment in favor of the Fernandez 

defendants on August 10, 2020. Neufinck filed a timely notice of

appeal.

DISCUSSION

1. Governing Law and Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “A cause of action against 

a person arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike, unless 

the court determines that the plaintiff has established that there 

is a probability that the plaintiff will prevail on the claim.” 

(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson 
12

(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of 

action only if the cause of action (1) arises from an act in 

furtherance of the right of petition or free speech ‘in connection 

with a public issue,’ and (2) the plaintiff has not established ‘a 

probability’ of prevailing on the claim”].)

Pursuant to section 425.16, subdivision (e), an “‘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.”

In ruling on a special motion to strike under section 425.16, 

the trial court engages in a two-step process. “First, the 

defendant must establish that the challenged claim arises from 

activity protected by section 425.16. [Citation.] If the defendant 

makes the required showing, the burden shifts to the plaintiff to 

demonstrate the merit of the claim by establishing a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); 

accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 

1009 (Bonni); Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) To make its 
13

determination the court must consider the parties’ pleadings and 

affidavits or declarations describing the facts on which liability or 

defenses are predicated. (§ 425.16, subd. (b)(2).) 

As to the first step of the analysis, “[a] claim arises from 

protected activity when that activity underlies or forms the basis 

for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063.) Thus, 

“[t]he 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.’” (Wilson v. 

Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); 

see Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden 

is to identify what acts each challenged claim rests on and to 

show how those acts are protected under a statutorily defined 

category of protected activity”]; Park, at p. 1060.) 

A motion pursuant to section 425.16 need not challenge an

entire cause of action as pleaded in the complaint. (Bonni, supra, 

11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather, 

“courts should analyze each claim for relief—each act or set of 

acts supplying a basis for relief, of which there may be several in 

a single pleaded cause of action—to determine whether the acts 

are protected and, if so, whether the claim they give rise to has 

the requisite degree of merit to survive the motion.” (Bonni, at 

p. 1010; accord, Baral, at p. 395.)

“As to the second step inquiry, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’” (Sweetwater Union High School 
14

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;

7 accord, 

Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) 

“‘We have described this second step as a “summary-judgmentlike procedure.” [Citation.] The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. It 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.’” (Monster 

Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714

[the court should grant the section 425.16 motion “‘if, as a matter 

of law, the defendant’s evidence supporting the motion defeats 

the plaintiff’s attempt to establish evidentiary support for the 

claim’”].) 

7 Although the Supreme Court in Sweetwater Union High 

School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931 

referred generally to “competent admissible evidence,” the Court 

held evidence that is potentially admissible at trial, but not 

presented in admissible form, could be considered in determining 

whether the plaintiff had demonstrated a probability of success 

on the merits: “[A]t the second stage of an anti-SLAPP hearing, 

the court may consider affidavits, declarations, and their 

equivalents if it is reasonably possible the proffered evidence set 

out in those statements will be admissible at trial. Conversely, if 

the evidence relied upon cannot be admitted at trial, because it is 

categorically barred or undisputed factual circumstances show 

inadmissibility, the court may not consider it in the face of an 

objection. If an evidentiary objection is made, the plaintiff may 

attempt to cure the asserted defect or demonstrate the defect is 

curable.” (Id. at p. 949.)
15

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.)

2. The Trial Court Acted Within Its Discretion in 

Permitting the Filing of the Special Motions To Strike

Section 425.16, subdivision (f), provides a special motion to 

strike may be filed within 60 days of the service of the complaint 

or, “in the court’s discretion, at any later time upon terms it 

deems proper.” (See Newport Harbor Ventures, LLC v. Morris 

Cerullo World Evangelism (2018) 4 Cal.5th 637, 639 (Newport 

Harbor) [“subject to the trial court’s discretion under 

section 425.16, subdivision (f), to permit late filing, a defendant 

must move to strike a cause of action within 60 days of service of 

the earliest complaint that contains that cause of action”].) The 

time limit on filing enables the trial court to resolve an “‘antiSLAPP claim at the outset of the litigation before the parties 

have undertaken the expenses of litigation that begin to accrue 

after the pleading stage of the lawsuit.’” (Platypus Wear, Inc. v. 

Goldberg (2008) 166 Cal.App.4th 772, 783 (Platypus Wear); 

see Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 

1174, 1188 (Hewlett-Packard).)

Although Neufinck contends the trial court abused its 

discretion by permitting the Fernandez defendants to file their 

special motions to strike in late December 2019 targeting causes 

of action Neufinck had originally pleaded in August 2019, he fails 

to show, as he must, how allowing the modestly late motions was 

in any way inconsistent with the purpose of section 425.16. (See 

San Diegans for Open Government v. Har Construction, Inc. 

(2015) 240 Cal.App.4th 611, 624 [court enjoys considerable 
16

discretion in determining whether to allow the late filing of a 

special motion to strike].)

“In determining whether to permit a late motion, the most 

important consideration is whether the filing advances the antiSLAPP statute’s purpose of examining the merits of covered 

lawsuits in the early stages of the proceedings. [Citations.] 

Other relevant factors include the length of the delay, the reasons 

for the late filing, and any undue prejudice to the plaintiff.” 

(San Diegans for Open Government v. Har Construction, Inc., 

supra, 240 Cal.App.4th at p. 624; accord, Hewlett-Packard, supra, 

239 Cal.App.4th at p. 1188.) When the Fernandez defendants 

sought leave to file their motions, the case was just four months 

old and not yet at issue; no hearings had occurred; and no 

discovery had been propounded. And Neufinck points to no 

prejudice he suffered as a result of the trial court’s order.

Platypus Wear, supra, 166 Cal.App.4th 772, upon which 

Neufinck relies, confirms the appropriateness of the trial court’s 

exercise of discretion in this case. The defendant in Platypus

Wear was granted leave to file a special motion to strike almost 

two years after having answered the operative complaint and 

after completion of substantial discovery. By the time of the 

hearing on the motion, the discovery cutoff date had passed and 

trial was scheduled to begin in one week. (Id. at pp. 775-784.) 

Our colleagues in Division One of the Fourth District held the 

trial court had abused its discretion in permitting the late filing, 

which undermined one of the basic purposes of the statute—

“prompt resolution of disputes before significant pretrial 

discovery expenses are incurred.” (Id. at pp. 776, 784; see also 

Hewlett-Packard, supra, 239 Cal.App.4th at pp. 1188-1189 [“A

late anti-SLAPP motion cannot fulfill the statutory purpose if it 
17

is not brought until after the parties have incurred substantial 

expense. . . . As [] costs accumulate in the course of conventional 

discovery and motion practice, the capacity of an anti-SLAPP 

motion to satisfy the statutory purpose diminishes. And as the 

utility of the motion diminishes, so does the justification for the 

statute’s deviations from more conventional modes of disposition. 

It is therefore to be expected that every case will come to a point 

beyond which an anti-SLAPP motion simply cannot perform its 

intended function”].) Here, in contrast, the special motion was 

filed and heard before any discovery or other significant pretrial 

expenses had been incurred. Far from undermining the purpose 

of section 425.16, permitting the Fernandez defendants to 

challenge Neufinck’s first amended complaint in December 2019 

before additional litigation activity had occurred advanced the 

fundamental goal of the statute.

Neufinck’s additional argument that under Newport 

Harbor, supra, 4 Cal.5th 637 it was error to permit the 

Fernandez defendants to move to strike causes of action in an 

amended complaint that were originally pleaded in the initial 

complaint is equally flawed. As Neufinck states, the Supreme 

Court in Newport Harbor held a defendant normally must move 

to strike a cause of action “within 60 days of service of the 

earliest complaint that contains that cause of action.” (Id. at 

p. 640.) But the Court expressly provided that general rule was 

“subject to the trial court’s discretion under section 425.16, 

subdivision (f), to permit late filing.” (Ibid.) The Newport Harbor

Court was considering the potential for abuse if a defendant were 

able to use the special motion to strike as a means to obtain 

dismissal of claims in the middle of litigation. (Id. at p. 645.) To 

minimize that problem, the Court held, “section 425.16, 
18

subdivision (f), should be interpreted to permit an anti-SLAPP 

motion against an amended complaint if it could not have been 

brought earlier, but to prohibit belated motions that could have 

been brought earlier (subject to the trial court’s discretion to 

permit a late motion).” (Ibid.) It was well within the trial court’s 

discretion under section 425.16, subdivision (f), to permit the 

Fernandez defendants to move to strike the causes of action in 

the first amended complaint, filed less than three months after 

the original complaint and prior to any motion practice or 

discovery.

Finally, although Neufinck questions the trial court’s 

authority to grant an ex parte application for leave to file a 

special motion to strike more than 60 days after service of the 

complaint, given the trial court’s broad discretion under 

section 425.16, subdivision (f), as well as the Legislature’s intent 

to conserve resources by permitting an early examination of the 

merits of a covered lawsuit, we are aware of no reason—and 

Neufinck suggests none—that such leave cannot be sought 

through an ex parte application.8 As for Neufinck’s contention 

the Fernandez defendants failed to comply with California Rules 

of Court, rule 3.1202(c), which requires an applicant for ex parte 

relief to provide a declaration demonstrating the statutory basis 

for granting relief ex parte—a procedural argument he made in 

the trial court in his written opposition to the application—

Neufinck has failed to argue, let alone show, that omission was 

8 Given the circumstances described in footnote 6, we have 

serious doubt whether the Fernandez defendants required leave 

of court to file their special motions to strike, but we need not 

address that issue. 
19

prejudicial and would justify reversal of the trial court’s order 

granting leave to file the special motions to strike. (See § 475 

[“[n]o judgment, decision, or decree shall be reversed or affected 

by reason of any error, ruling, instruction, or defect, unless it 

shall appear from the record that such error, ruling, instruction, 

or defect was prejudicial, . . . that a different result would have 

been probable if such error, ruling, instruction, or defect had not 

occurred or existed”]; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 

780, 800 [judgment may be reversed only when, after considering 

the entire record, “‘it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the 

absence of the error’”].) 

3. The Trial Court Properly Struck the Cause of Action for 

Abuse of Process

a. Step one: arising from protected activity

“The common law tort of abuse of process arises when one

uses the court’s process for a purpose other than that for which

the process was designed. [Citations.] It has been ‘interpreted

broadly to encompass the entire range of “procedures”incident to

litigation.’” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057

(Rusheen).) “To establish a cause of action for abuse of process, a 

plaintiff must plead two essential elements: that the defendant 

(1) entertained an ulterior motive in using the process and 

(2) committed a willful act in a wrongful manner.” (Coleman v.

Gulf Ins. Group (1986) 41 Cal.3d 782, 792.) As to the 

second element, there is no abuse of process if the process is used 

for its proper purpose even though the person uses it for wrongful 

and malicious motives. (Cantu v. Resolution Trust Corp. (1992) 

4 Cal.App.4th 857, 886.)
20

Neufinck’s sixth cause of action for abuse of process is 

based on allegations the Fernandez defendants knowingly filed

and thereafter relied on a falsified proof of service to request the 

entry of Neufinck’s default in the unlawful detainer action, to 

request entry of a default judgment and to request issuance of a 

writ of possession against Neufinck. All those actions were 

necessarily undertaken in furtherance of the exercise of the

constitutional right of petition, and the cause of action thus arose

from protected activity for purposes of the first step of the

section 425.16 analysis. (Booker v. Rountree (2007) 155 

Cal.App.4th 1366, 1370 [“[a]buse of process claims are subject to 

a special motion to strike”]; see ValueRock TN Properties, LLC v.

PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046

[section 425.16 protection for petitioning activities “includes the 

filing of lawsuits, and statements and pleadings made in or in 

preparation for civil litigation”]; see generally Rusheen, supra,

37 Cal.4th at p. 1065 [trial court properly granted anti-SLAPP 

motion on an abuse of process claim arising from execution of a 

default judgment procured through the filing of allegedly false 

declarations of service].)9

9 Emphasizing that William Fernandez, Marcela Fernandez 

and Melina Byrne contend they had nothing to do with 

Neufinck’s lease and did not act as his landlord or property 

manager (at most interpreting on occasion for their mother), 

Neufinck contends, if they did nothing, they could not have 

engaged in protected petitioning activity. Neufinck’s argument, 

too clever by half, ignores his pleading’s verified allegations that 

each of the defendants individually engaged in the activity at 

issue in the sixth cause of action and acted in concert with each 

other in doing so. “[A] defendant who denies engaging in the
21

b. Step two: probability of success on the merits 

Civil Code section 47, subdivision (b), establishes an

absolute privilege for communications made in a judicial

proceeding. “‘The usual formulation is that the privilege applies 

to any communication (1) made in judicial or quasi-judicial 

proceedings; (2) by litigants or other participants authorized by 

law; (3) to achieve the objects of the litigation; and (4) that [has] 

some connection or logical relation to the action.’ [Citation.] The 

privilege ‘is not limited to statements made during a trial or 

other proceedings, but may extend to steps taken prior thereto, or 

afterwards.’” (Action Apartment Assn., Inc. v. City of Santa 

Monica (2007) 41 Cal.4th 1232, 1241; accord, Jacob B. v. County 

of Shasta (2007) 40 Cal.4th 948, 956.)

One purpose of the litigation privilege is “to afford litigants 

and witnesses free access to the courts without fear of being 

harassed subsequently by derivative tort actions, to encourage 

open channels of communication and zealous advocacy, to 

promote complete and truthful testimony, to give finality to 

judgments, and to avoid unending litigation.’ [Citation.] Another 

purpose is to ‘promote[] effective judicial proceedings’ by 

alleged conduct ‘may rely on the plaintiff’s allegations alone’ in

assessing whether the conduct at issue is protected activity. 

[Citation.] That is because it is ‘[the] plaintiff’s complaint [that]

ultimately defines the contours of the claims.’ [Citation.] Not

allowing the defendant to rely on the allegations alone . . . ‘would

have the perverse effect of making anti-SLAPP relief unavailable

when a plaintiff alleges a baseless claim, which is precisely the

kind of claim that [the anti-SLAPP law] was intended to

address.’” (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 

40 Cal.App.5th 882, 888.)
22

encouraging full communication with the courts.” (Jacob B. v. 

County of Shasta, supra, 40 Cal.4th at p. 955.) “To further these 

purposes, the privilege has been broadly applied. It is absolute 

and applies regardless of malice. [Citations.] Indeed, the 

privilege extends even to civil actions based on perjury. 

[Citations.] ‘“The resulting lack of any really effective civil 

remedy against perjurers is simply part of the price that is paid 

for witnesses who are free from intimidation by the possibility of 

civil liability for what they say.”’” (Id. at pp. 955-956.)

All the activity targeted by Neufinck as an abuse of process

was absolutely privileged under Civil Code section 47,

subdivision (b), thereby precluding Neufinck from demonstrating

a probability of prevailing on the merits of this claim. 

(See Rusheen, supra, 37 Cal.4th at p. 1058 [pleadings and process 

in an unlawful detainer case are absolutely privileged]; Brown v. 

Kennard (2001) 94 Cal.App.4th 40, 46-51 [demurrer properly 

sustained to abuse of process cause of action because judgment 

enforcement efforts taken through the judicial process of a writ of 

execution, including subsequent act of levying on the writ, were 

protected by the litigation privilege].) The trial court properly 

granted the special motions to strike this cause of action.

4. The Trial Court Erred in Striking the Cause of Action for 

Violating the RSO

It is “unlawful for any landlord to demand, accept or retain 

more than the maximum adjusted rent permitted pursuant to” 

the RSO (Los Angeles Mun. Code, § 151.04). A landlord in 

violation of this provision “shall be liable in a civil action to the 

person from whom such payment is demanded, accepted or 

retained” for damages of three times the amount of the excess 

rent. (Los Angeles Mun. Code, § 151.10, subd. A.) The RSO also 
23

requires residential landlords to pay annual interest on tenant 

security deposits held for at least one year and permits a tenant 

to bring an action against the landlord to recover unpaid interest 

“in a court of the appropriate jurisdiction including, but not 

limited to, small claims court.” (Los Angeles Mun. Code, 

§ 151.06.02, subds. B, G.) 

The fourth cause of action alleged the Fernandez 

defendants violated the RSO by proposing unilateral changes to 

the lease that were effectively rent increases10 and by failing to 

pay annual interest on Neufinck’s security deposit. Although 

through boilerplate pleading this cause of action incorporates

allegations relating to the unlawful detainer action and other 

protected petitioning activity, only Fernandez’s alleged 

unprotected activities provide the basis for this claim—proposed 

changes to the lease that Neufinck characterizes as attempts to 

take “housing services” away from him without corresponding 

reductions in rent and the alleged failure to pay interest on 

Neufinck’s security deposit. This conduct (whether action or 

inaction) was not undertaken in furtherance of the Fernandez 

10 The RSO defines a rent increase as “[a]n increase in rent or 

any reduction in housing services where there is not a 

corresponding reduction in the amount of rent received.” 

(Los Angeles Mun. Code, §§ 151.01, 151.02.) Neufinck contends 

Fernandez’s notices of changes to the lease’s provision permitting 

him to maintain his pet tortoises and its attorney fee clause 

constituted reductions in “housing services”—benefits and 

privileges connected with the occupancy of his rental unit—

without corresponding reductions in rent and were, therefore, 

unlawful rent increases. (Los Angeles Mun. Code, §§ 151.02; 

151.04.) 
24

defendants’ speech or petitioning rights.

11

 Because the 

Fernandez defendants failed to make the required first-step 

showing, the special motion to strike the fourth cause of action 

should have been denied. 

5. The Trial Court Erred in Striking the Remaining Causes 

of Action in Their Entirety Rather Than Striking Only

Those Allegations of Protected Activity Serving as the

Bases for Relief

As discussed, in his first amended complaint Neufinck 

alleged three general categories of wrongful conduct: 

Fernandez’s efforts to evict Neufinck including the unlawful 

detainer action and the necessary notices preceding it, 

purportedly to allow Fernandez to charge a new tenant rent at 

the current market rate; Fernandez’s unilateral efforts to modify 

the terms of Neufinck’s lease, characterized as a reduction in 

housing services, without a corresponding decrease in his rent; 

and Fernandez’s unlawful collection of excessive rent due to her

failure to credit him for interest earned by his security deposit. 

Neufinck incorporated all three categories of alleged wrongful 

conduct into each of his seven causes of action. 

The first category—communications in anticipation of an 

unlawful detainer action, the lawsuit itself and efforts to enforce 

the default judgment—constitutes protected petitioning activity 

under section 425.16, subdivision (e). Filing and prosecuting a 

lawsuit and service of required prelitigation notices are core 

11 Neither the trial court nor the Fernandez defendants in 

their respondents’ brief attempt to explain how the acts that 

allegedly violated the RSO constituted protected activity within 

the meaning of section 425.16, subdivision (e).
25

petitioning activities. (See Newport Harbor Offices & Marina,

LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th

28, 45 [“[a]n unlawful detainer action and service of notices 

legally required to file an unlawful detainer action are protected 

activity within the meaning of section 425.16”]; Feldman v. 1100 

Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479-1480 

[“[s]ervice of a three-day notice to quit was a legally required 

prerequisite to the filing of the unlawful detainer action”].) Other 

communications made in expectation of or during the prosecution 

of the unlawful detainer action, even if not required, are likewise 

protected activities. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 

322, fn. 11 [statements made in preparation for or in anticipation 

of bringing an action that is contemplated in good faith and 

under serious consideration fall within the ambit of 

section 425.16]; see also Rohde v. Wolf (2007) 154 Cal.App.4th 28, 

35 [“statements, writings and pleadings in connection with civil 

litigation are covered by the anti-SLAPP statute”].) 

The other two categories of wrongful acts alleged by 

Neufinck—Fernandez’s attempts to modify Neufinck’s lease and 

collection of rent in violation of the RSO—however, are not 

conduct in furtherance of the exercise of constitutionally 

protected speech or petitioning activity. (See Oviedo v. Windsor 

Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 110-111

[cause of action based on allegation of illegal rent increase does 

not arise from conduct in furtherance of defendant’s rights of 

petition or free speech]; Delois v. Barrett Block Partners (2009) 

177 Cal.App.4th 940, 949-951 [causes of action for breach of an 

agreement and related tortious activity do not arise from 

protected speech or petitioning activity]; Santa Monica Rent 

Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 
26

1317-1318 [suit by rent control board against landlord alleging 

illegal rent increase was not subject to special motion to strike].)

Accordingly, we must analyze, as the trial court should 

have, each of the remaining causes of action and determine which 

act or set of acts—protected or unprotected—supply a basis for 

relief before turning to the second step of the section 425.16 

analysis and deciding whether Neufinck’s claims based on 

protected activity have the requisite degree of merit to survive 

the motions. (See Bonni, supra, 11 Cal.5th at p. 1010; Baral, 

supra, 1 Cal.5th at p. 395; see also Park, supra, 2 Cal.5th at 

p. 1063 [to determine whether a claim arises from protected 

activity, we “consider the elements of the challenged claim” and 

whether the defendant’s activities “supply those elements”].)

a. Breach of contract

“[T]he elements of a cause of action for breach of contract 

are (1) the existence of the contract, (2) plaintiff’s performance or 

excuse for nonperformance, (3) defendant’s breach, and (4) the 

resulting damages to the plaintiff.” (Oasis West Realty, LLC v. 

Goldman (2011) 51 Cal.4th 811, 821.) 

Neufinck alleged the Fernandez defendants breached his 

lease agreement by engaging in a fraudulent scheme to force him 

to leave and by demanding and collecting monies to which they 

were not lawfully entitled under the terms of the lease. Either 

set of acts arguably supports a cause of action for breach of 

contract. The first category of alleged wrongful conduct involving 

the attempt to evict Neufinck is protected petitioning activity

within the meaning of section 425.16, subdivision (e), and, as held 

in Rusheen, supra, 37 Cal.4th at page 1058 (and discussed in 

connection with Neufinck’s abuse of process cause of action), is 

absolutely privileged under Civil Code section 47, subdivision (b). 
27

The motions to strike the first cause of action were properly 

granted to that extent. 

But the second set of allegations does not implicate 

protected activities. Regardless of Neufinck’s likelihood of 

success,12 the motions should have been denied insofar as 

Neufinck alleged the attempts to collect excessive rent or to 

change the terms of his lease violated the lease agreement. 

b. Breach of the implied covenant of good faith

Every contract contains an implied covenant of good faith 

and fair dealing that “‘neither party will do anything which will 

injure the right of the other to receive the benefits of the 

agreement.’” (Kransco v. American Empire Surplus Lines Ins. Co.

(2000) 23 Cal.4th 390, 400.) This implied covenant is “read into 

contracts ‘in order to protect the express covenants or promises of 

the contract, not to protect some general public policy interest not 

directly tied to the contract’s purpose.’” (Carma Developers

(Cal.), Inc. v. Marathon Development California, Inc. (1992)

2 Cal.4th 342, 373; see Wolf v. Walt Disney Pictures & Television

(2008) 162 Cal.App.4th 1107, 1120 [“the implied covenant will 

only be recognized to further the contract’s purpose”].)

Neufinck asserted his second cause of action as a protective 

measure, realleging the same grounds as his breach of contract 

cause of action and seeking damages for breach of the implied 

covenant “to the extent that . . . any of the wrongs alleged in the 

First Cause of Action . . . do not constitute a technical breach of 

12 The interest arrears totaled less than $18 by 2019. 

Fernandez declared that in 2016 she had offered to pay Neufinck 

the interest due on his and his previous cotenant’s security 

deposit, and Neufinck had told her to “pay it later.” 
28

any of the plain terms of the contract at issue.” Accordingly, the 

same analysis applies to this cause of action. To the extent 

predicated on the Fernandez defendants’ prelitigation and 

litigation activities, the second cause of action arises from 

protected activity that is absolutely privileged under Civil Code 

section 47, subdivision (b). However, because it is also based on 

the Fernandez defendants’ alleged improper actions in seeking to 

collect excessive rent or unilaterally modify the terms of the 

lease, the motions to strike should have been granted only as to 

the protected allegations in the cause of action. 

c. Breach of the implied covenant of quiet enjoyment

Civil Code section 1927 provides, “An agreement to let upon 

hire binds the letter to secure to the hirer the quiet possession of 

the thing hired during the term of the hiring, against all persons 

lawfully claiming the same.” “In recent years, the covenant of

quiet enjoyment has been expanded, and in this state, for

example, it insulates the tenant against any act or omission on

the part of the landlord, or anyone claiming under him, which

interferes with a tenant’s right to use and enjoy the premises for

the purposes contemplated by the tenancy. [Citations.]’

[Citations.] [¶] It is not necessary to show that the landlord

acted with the subjective intent to compelthe tenant to leave the

property or deprive the tenant of quiet enjoyment. [Citation.] 

There is a ‘presumption that a landlord intends the natural and

probable consequences of his acts; and where the acts of the

landlord effectively deprive the tenant of the use and enjoyment

of the premises,the intent to evict is implied from the character

of the acts done.’” (Nativi v. Deutsche Bank National Trust Co.

(2014) 223 Cal.App.4th 261, 291-292.) 
29

An alleged breach of the covenant of quiet enjoyment that, 

as here, does not result in a wrongful constructive or actual 

eviction is a breach of contract. (Bevis v. Terrace View

Partners, LP (2019) 33 Cal.App.5th 230, 250-251; Ginsberg v. 

Gamson (2012) 205 Cal.App.4th 873, 898-902; cf. Andrews v. 

Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590 [“a tenant 

may elect to ‘stand upon the lease, remain in possession and sue 

for breach of contract damages’”].) Like the first two causes of 

action, Neufinck’s additional claim of breach of the lease 

agreement is predicated on both protected and privileged activity 

(the use of judicial processes to attempt to evict him) and 

unprotected activity (the attempted unilateral changes in lease 

terms, including the prohibition of his keeping his emotional 

support tortoise) not subject to a special motion to strike. The 

trial court erred in granting the Fernandez defendants’ motions 

to strike the entire cause of action.

d. Intentional infliction of emotion distress

A cause of action for intentional infliction of emotional 

distress exists when there is “‘“‘(1) extreme and outrageous 

conduct by the defendant with the intention of causing, or 

reckless disregard of the probability of causing, emotional

distress; (2) the plaintiff’s suffering severe or extreme emotional 

distress; and (3) actual and proximate causation of the emotional 

distress by the defendant’s outrageous conduct.”’”’ [Citations.] A 

defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to 

exceed all bounds of that usually tolerated in a civilized 

community.’”’ [Citation.] And the defendant’s conduct must be 

‘“‘intended to inflict injury or engaged in with the realization that 

injury will result.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 

1050-1051.) “Whether behavior is extreme and outrageous is a 
30

legal determination to be made by the court, in the first 

instance.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172; 

accord, Chang v. Lederman (2009) 172 Cal.App.4th 67, 87; Fowler

v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)

Neufinck’s fifth cause of action alleged the Fernandez 

defendants’ outrageous conduct involved “knowingly engaging in 

a systematic scheme to force Mr. Neufinck to vacate the premises 

by, among other things, unilaterally attempting to change the 

terms of the lease not once, but three times; demanding via the 

3 day notice that Mr. Neufinck cease parking his vehicle in the 

location to which he had been assigned and provided by the 

owner defendants; ignoring Mr. Neufinck’s compliance with said

3 day notice; flaunting the statutory regulations governing 

evictions; demanding money from Mr. Neufinck to which the 

owner defendants were not lawfully entitled; engaging in unfair 

and unlawful business practices; and by violating ordinances, 

regulations, and other laws [capital letters, boldface and 

underlying omitted].”

13 The alleged outrageous conduct—the socalled systematic scheme—thus involved both protected and 

unprotected actions.

Once again, to the extent Neufinck alleged the Fernandez 

defendants’ litigation-related activities constituted the 

intentional infliction of emotional distress, that portion of the 

claim arises from protected activity; and the actions are 

absolutely privileged. But the allegations concerning 

nonprotected activity, including the proposed change in lease 

13 In a separate paragraph Neufinck alleged the process 

server had acted in an outrageous manner by falsifying the proof 

of service in the unlawful detainer action. 
31

terms that would have prohibited Neufinck from keeping his 

emotional support tortoise, survive, as does this cause of action. 

The special motions to strike the fifth cause of action were 

properly granted only as to the protected aspects of Neufinck’s 

claim.

e. Violation of the UCL

The UCL prohibits, and provides civil remedies for, unfair 

competition, which it defines as “any unlawful, unfair or 

fraudulent business act or practice.” (Bus. & Prof. Code, 

§ 17200.) Written in the disjunctive, the UCL establishes “three 

varieties of unfair competition—acts or practices which are 

unlawful, unfair, or fraudulent.” (Cel-Tech Communications, Inc. 

v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 

(Cel-Tech); accord, Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)

The unlawful prong requires a violation of underlying law 

or a statutory violation. (See Korea Supply Co. v. Lockheed 

Martin Corp. (2003) 29 Cal.4th 1134, 1143 [the “unlawful” prong 

of the UCL “‘borrows’ violations from other laws by making them 

independently actionable as unfair competitive practices”].) The

fraudulent prong requires a plaintiff to show that “‘“‘members of 

the public are likely to be deceived’”’” by the defendant’s 

practices. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 312.) 

The “unfair” prong authorizes a cause of action if the plaintiff can 

demonstrate the objectionable act, while not unlawful, is “unfair” 

within the meaning of the UCL. (Cel-Tech, supra, 20 Cal.4th at 

p. 182.) Outside the commercial context of a plaintiff who claims 

to have suffered injury from a direct competitor, “a business 

practice is ‘unfair’ if (1) the consumer injury is substantial; (2) the 

injury is not outweighed by any countervailing benefits to 

consumers or competition; and (3) the injury could not reasonably 
32

have been avoided by consumers themselves.” (Klein v. Chevron

U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1376.)

In his UCL cause of action Neufinck alleged the Fernandez 

defendants engaged in unlawful and unfair business acts and 

practices by violating various laws and regulations, including the 

RSO and Civil Code sections 1927, which codifies the common 

law rule that a lease agreement contains a covenant of quiet 

enjoyment, and 1950.5, regulating the treatment of the security 

deposit made with a rental agreement for residential property. 

Neufinck additionally alleged that “the entirety” of the 

Fernandez defendants’ “actions, statements and representations, 

as alleged in this First Amended Complaint, constitute unfair 

trade practices that have the capacity to deceive consumers and 

do in fact deceive consumers.” 

As these allegations demonstrate, Neufinck’s UCL cause of 

action is in large part derivative of his third cause of action for 

breach of the implied covenant of quiet enjoyment, the 

fourth cause of action for violation of the RSO and the fifth cause 

of action for intentional infliction of emotional distress. As 

discussed, portions of the claims for breach of the covenant of 

quiet enjoyment and intentional infliction of emotional distress

arise from the Fernandez defendants’ protected and privileged 

activity (the prelitigation and litigation activity involving the 

unlawful detainer action); other aspects of those claims, as well 

as the cause of action for violation of the RSO, involve 

unprotected activity. Accordingly, the motions to strike should 

have been granted only to those portions of the seventh cause of 

action based on the Fernandez defendants’ conduct related to the 

prosecution of the unlawful detainer action. 
33

DISPOSITION

The judgment in favor of the Fernandez defendants and the 

order granting their special motions to strike are reversed. The 

cause is remanded with directions to the trial court to enter a 

new order granting the Fernandez defendants’ special motions to 

strike the sixth cause of action for abuse of process, denying the 

motions directed to the fourth cause of action for violations of the 

RSO, and granting the motions in part as to the first cause of 

action for breach of contract, the second cause of action for breach 

of the implied covenant of good faith and fair dealing, the third 

cause of action for breach of the covenant of quiet enjoyment, the 

fifth cause of action for intentional infliction of emotional distress 

and the seventh cause of action for violation of the UCL to the 

extent those causes of action are based on protected litigation 

activity as indicated in this opinion. The parties are to bear their 

own costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.