Filed 11/17/21 Haida Group v. Regency Centers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

HAIDA GROUP LLC,

Plaintiff and Respondent,

v.

REGENCY CENTERS, L.P.,

Defendant and Appellant.

 D078662

(Super. Ct. No. 37-2020-00027032-

CU-BC-CTL)

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

Richard S. Whitney, Judge. Reversed.

Hodel Wilks, Matthew A. Hodel and Frederick L. Wilks for Defendant 

and Appellant.

Sarkissian Law Group, Areg A. Sarkissian and Konstantinos Zinas for 

Plaintiff and Respondent.
2

We decide this appeal from the denial of an “anti-SLAPP” motion (Code 

Civ. Proc., § 425.16) by applying the well-settled rule that a plaintiff may not

avoid a special motion to strike through artful pleading.1 Plaintiff Haida 

Group LLC (Haida) admitted in its opposition brief to the anti-SLAPP motion 

filed by defendant Regency Centers, L.P. (Regency) that its claims against 

Regency rest on Regency’s failure to name and serve it as a party in the 

underlying unlawful detainer proceeding. The trial court nonetheless denied 

Regency’s motion, crediting vague allegations in the complaint to conclude 

that Haida’s claims rested on Regency’s failures to provide proper notice 

under a contract or statute. 

On appeal, we agree with Regency that Haida’s causes of action against 

it target protected petitioning activity and lack minimal merit. As Haida’s 

own briefs explain, the claims rest on Regency filing an unlawful detainer 

complaint that did not name Haida as a defendant, but nonetheless serving 

process on Haida as an unnamed occupant rather than as a party. This 

conduct by Regency plainly amounts to protected petitioning activity 

(§ 425.16, subd. (e)(1)‒(2)), and the litigation privilege prevents Haida from 

establishing the minimal merit required to proceed. Therefore, the antiSLAPP motion should have been granted, and the claims against Regency 

should have been stricken. 

FACTUAL AND PROCEDURAL BACKGROUND

1 Further undesignated statutory references are to the Code of Civil 

Procedure. The “anti-SLAPP” statute, section 425.16, provides a procedure 

for litigants seeking to strike at an early stage of proceedings strategic 

lawsuits against public participation, or SLAPP suits.
3

A. Background

Commercial landlord Regency owns a shopping center located on 

Pomerado Road in Poway. In 2016, it leased the property to Whole-Mart 

Grocery, LLC (Whole-Mart) to operate an international market offering 

groceries, dining options, a pharmacy, and bakery. The lease authorized 

Whole-Mart to sublease parts of the premises to create “up to four food 

stations for Asian food/sushi, Indian food, Italian food/pizza and 

Mediterranean/Persian food.” 

In February 2020, Regency commenced unlawful detainer proceedings

against Whole-Mart and its pharmacy sublessee, Poway Pharmacy LLC. 

Other potential occupants in the building were not named in the complaint 

but received notice of the unlawful detainer action pursuant to section 415.46

(discussed post). Haida, which ran a pizza and sandwich shop in WholeMart’s food court, was among those so notified. The court ultimately issued a 

judgment in Regency’s favor that bound Whole-Mart, Poway Pharmacy, and

all unnamed building occupants. This precipitated Haida’s lawsuit against 

Whole-Mart and Regency for failing to provide proper notice before shutting 

down the market. 

B. Haida’s Lawsuit

Food vendor Haida signed a two-year rental agreement with WholeMart in 2018.2 For a monthly fee of $4,000, Haida was permitted to use a 

designated area within the market to sell sandwiches and pizza. The rental 

2 Haida alleged in its complaint that it signed a sublease with WholeMarket. But a legible copy of the agreement, incorporated by reference in the 

complaint, reflects that Whole-Market agreed to provide a license to Haida to 

use the space for approved food vending purposes. To avoid confusion, we 

refer to the arrangement simply as a rental agreement.
4

period ran through December 2020 and included a three-year option to 

renew. 

Haida knew Whole-Mart was renting the premises from Regency and

believed Whole-Mart was meeting its rent obligations under the master lease. 

But in February 2020, Regency informed Haida that Whole-Mart was months 

behind on rent and subject to an unlawful detainer action. Haida 

nevertheless continued to pay rent to Whole-Mart until July 2020 when, 

following an unlawful detainer judgment against Whole-Mart, Regency closed 

the market, preventing Haida from continuing its operations. 

On August 3, 2020, Haida sued Whole-Mart and Regency for 

constructive eviction and negligence, alleging defendants had provided

insufficient notice before closing the premises. According to Haida, Regency 

had contractual and common law duties to notify its tenants of a planned 

closure and by breaching these duties, deprived Haida of quiet possession. 

By closing the market before Haida’s rental term ended, Haida alleged 

months of lost income, a lost renewal opportunity, and forfeited equipment.3 

C. Regency’s Anti-SLAPP Motion

Regency filed a special motion to strike, claiming the two causes of 

action against it arose entirely from protected petitioning activity in 

prosecuting the unlawful detainer lawsuit. Laura Borenstein-Hofman, 

Regency’s property manager, submitted a declaration describing the master 

lease. She explained that while Regency was aware of a formal sublease 

between Whole-Mart and Poway Pharmacy, it was unaware of any other 

sublease or license agreements by Whole-Mart. Regency knew Whole-Mart 

operated a food court but “had no knowledge whether the food stands were 

3 Haida’s breach of contract cause of action, asserted solely against 

Whole-Mart, is not relevant to this appeal. 
5

operated by Whole-Mart itself (by its own employees as part of its grocery 

store operations) or by separate business entities or sole proprietors.” 

There was no agreement between Regency and Haida, and until Haida sued

it, Regency was unaware of any relationship between Whole-Mart and Haida. 

The only communication at any point in time between Regency and Haida 

occurred in the context of the unlawful detainer action. 

Regency’s attorney Frederick Wilks submitted another supporting 

declaration describing the underlying unlawful detainer case. With WholeMart falling $863,124 behind in rent, Regency brought an unlawful detainer 

action against Whole-Mart, Poway Pharmacy, and Doe defendants in 

February 2020. (Regency Centers L.P. v. Whole-Mart Grocery, LLC, et al. 

(Super. Ct. San Diego County, 2020, No. 37-2020-00008528-CU-UD-CTL).) 

Regency did not name any food vendors as defendants because it “had no 

knowledge whether any of them were separate businesses, or merely 

operated by Whole-Mart’s employees as part of its grocery store operations.” 

To account for the possibility that some of the food vendors were separate 

business entities, Regency sent a process server to the premises to serve a 

“prejudgment claim of right to possession” under section 415.46.4 The 

printed judicial council form (CP10.5) notified potential occupants that if 

their names did not appear in the attached summons and complaint, they 

4 Section 415.46 provides a procedure to notify unnamed potential 

occupants of eviction proceedings. Once served under section 415.46 with a 

notice of prejudgment claim of right to possession and a copy of the unlawful 

detainer complaint and summons, the burden shifts to the unnamed occupant 

to file a prejudgment claim of right and ask the court to join it as a defendant 

in the pending unlawful detainer action. Failure to do so could result in 

eviction without further hearing. Upon service under section 415.46, “no 

occupant of the premises, whether or not that occupant is named in the 

judgment for possession, may object to the enforcement of that judgment as 

prescribed in Section 1174.3.” (§ 415.46, subd. (e)(1).)
6

had 10 days to file a claim of right to possession to be added by the court as a 

defendant to the unlawful detainer action. The form indicated that a failure 

to respond could result in eviction of all occupants without further hearing. 

Copies of the complaint and summons directed at Whole-Mart and Poway 

Pharmacy were attached to the notice. “Caya K[.] - Manager at Haida Pizza” 

accepted service. Notice was also publicly posted at the premises. Haida did 

not respond or file a claim of right pursuant to the procedures outlined in 

section 415.46. 

Wilks explained that Whole-Mart admitted to owing Regency $871,243 

in rent. The parties stipulated to a judgment, and Regency informed the trial 

court that other potential unnamed occupants had been notified of their right 

to make a prejudgment claim of right to possession. Accordingly, on July 22, 

2020, the trial court entered a judgment of unlawful detainer in Regency’s 

favor that applied “to all occupants of the premises including tenants, 

subtenants if any, and named claimants if any . . . .” The court issued a writ 

of possession on August 11, but no sheriff was called as Whole-Mart 

voluntarily turned over possession on August 15. 

In its opening brief on the anti-SLAPP motion, Regency claimed that 

Haida’s action rested entirely on Regency’s litigation-related conduct, namely 

its “pursuit of an unlawful detainer action against defendant Whole-Mart.” 

In its view, it had been sued “for pursuing the right to regain possession of 

the Premises in an unlawful detainer action,” as it had “followed the 

statutory procedure for notifying unnamed occupants” under section 415.46. 

Relying on cases such as Birkner v. Lam (2007) 156 Cal.App.4th 275 

(Birkner), Regency asserted that prosecuting an unlawful detainer action was

protected petitioning activity, thus satisfying the first prong of the antiSLAPP statute. 
7

Addressing the second prong of the anti-SLAPP analysis, Regency 

contended that Haida could not show a probability of prevailing on its claims 

of constructive eviction and negligence. It maintained that both claims were 

absolutely barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) The 

constructive eviction claim additionally failed for lack of a contractual 

relationship between Regency and Haida, and because Haida had no right to 

possession once the unlawful detainer judgment was entered. Regency 

likewise argued that Haida’s negligence claim failed for lack of duty, breach, 

causation, or damages. 

D. Haida’s Opposition

Haida substantially clarified the nature of its claims in its opposition 

brief. It indicated that the gravamen of its claims against Regency was not 

the unlawful detainer action itself, but rather Regency’s failure to effect 

proper service on Haida, a known subtenant, in pursuing that action. Haida 

asserted that although it was served pursuant to section 415.46, “all 

occupants known to the landlord should be named as defendants in the 

complaint,” and it would violate public policy to permit landlords to use 

section 415.46 “as a tactic to shift the burden to known occupants.” Haida 

explained how Regency should have known about its rental agreement—the 

master lease with Whole-Mart authorized subleases with food-court vendors, 

and Regency served Haida’s manager pursuant to section 415.46. In other 

words, Haida made clear that it challenged Regency’s failure to name it as a 

defendant in the unlawful detainer complaint and effectuate service on Haida 

as a party pursuant to section 11645 rather than as a mere unnamed 

occupant pursuant to section 415.46. And despite receiving notice pursuant 

5 Section 1164 states that essential defendants to an unlawful detainer 

action are tenants and subtenants “in the actual occupation of the premises 

when the complaint is filed.”
8

to section 415.46, Haida claimed it “had no reason to believe that Regency 

would shut down Haida’s business operations given that Haida was still 

paying its rent and was not a party in the notice received by Haida in 

February.” 

Distinguishing cases cited by Regency, Haida maintained that although 

Regency’s pursuit of the unlawful detainer action may have triggered its 

claims, it did not form the basis of those claims. In its view, it “[was] not 

challenging the unlawful detainer action,” but rather “Regency’s purposeful 

omission of service to Haida” in breach of its duties owed to “a valid paying 

tenant with a clear relationship existing between the parties.” 

Haida spent less time defending the challenged claims on the merits. It

argued that Regency did not “properly assert what it seeks to bar” by the 

litigation privilege and maintained that it “[stood] by its claims and 

reassert[ed]that proper notice was never served.” In describing the 

negligence claim, Haida asserted that Regency was obligated under section 

1164 to name it as a party but chose instead in “bad faith” to serve notice 

under section 415.46. While Regency did name Doe defendants in its 

unlawful detainer complaint, it failed to amend the pleading once the true 

names were known as required under section 474. Similarly, in describing its 

constructive eviction claim, Haida said it surrendered possession only 

because of Regency’s breach toward known subtenants like Haida consisting 

of “pursuing an action to lockout Haida without affording Haida any rights or 

say in the matter.” 

Haida offered one supporting declaration to its opposition brief. Owner

Arabo Sarkesyan attached a copy of the lease between Regency and WholeMart and excerpted portions authorizing Whole-Mart to sublease to selected 

food vendors. Sarkesyan explained that Haida paid $4,000 each month 
9

through March 2020 to operate its restaurant. It negotiated reduced 

payments of $2,000 per month thereafter due to closures associated with 

COVID-19. Although Sarkesyan acknowledged that Regency notified Haida 

about the unlawful detainer suit in February, he relied on that the fact that 

Haida “was not [identified as] a party in the notice” and concluded he “had no 

reason to believe that Regency would shut down Haida’s business operations 

given that Haida was still paying its rent.” Whatever the state of WholeMart’s relationship with Regency, Sarkesyan thought Haida could continue 

its operations so long as it continued to pay monthly rent. 

E. Reply Brief, Hearing, and Order

Regency filed a reply brief highlighting that Haida’s claims rested on 

Regency’s alleged failure to prosecute the unlawful detainer action in a 

manner Haida believed was proper. In Regency’s view, not only was the 

challenged conduct protected petitioning activity, but the claims based on it

were barred by the absolute litigation privilege. 

The parties appeared telephonically for a hearing before Judge 

Whitney on January 19, 2021, where the court issued a tentative ruling 

denying the motion. Apparently relying on allegations in the complaint, the 

tentative determined that Haida’s claims challenged a breach of contractual 

duties to notify Haida that the premises would be closing, rather than any 

steps taken in prosecuting the unlawful detainer action itself. 

Arguing against the tentative, Regency’s counsel stated the only 

evidence of a contractual relationship was declaration testimony by Regency 

that there was none. In any event, Haida’s own opposition made clear that 

the basis of Haida’s claims was that Regency “should have served [Haida] 

with the summons and complaint as a defendant and . . . should have named 
10

them in the complaint.” Those litigation choices by Regency were inherently 

a part of its protected petitioning activity. 

Haida’s counsel offered a different view, explaining that that the claims 

against Regency stemmed from breach of contract. Notwithstanding 

Regency’s assertion that there was no contract between the parties, Regency’s 

lease with Whole-Foods authorized subleases with food vendors. Thus, there 

was “a constructive contract of some sort through either actual or 

constructive knowledge” that Whole-Market would enter subleases with 

vendors like Haida. 

Regency’s counsel replied that although the complaint alleged “a 

contractual obligation,” the only contract attached to the pleading was 

between Whole-Mart and Haida. Haida produced no evidence to counter 

Regency’s proffer that there was neither a contract between Regency and 

Haida, nor any provision in the Regency/Whole-Mart lease by which Regency 

assumed any contractual obligations to Haida. This was no surprise—the 

basis of Haida’s claims against Regency was not a contractual breach, but 

rather (as admitted in its opposition brief) alleged procedural errors in 

drafting and serving the summons and complaint. 

Shortly after the hearing, the court denied Regency’s motion. Adopting 

the tentative, the court concluded that Regency failed to show that Haida’s 

claims were based on (and not just triggered by) protected petitioning 

activity. In the court’s view, the case was similar to Copenbarger v. Morris 

Cerullo World Evangelism (2013) 215 Cal.App.4th 1237 (Copenbarger), where

a lawsuit triggered by an unlawful detainer action instead arose from the 

parties’ respective lease obligations. The court believed Haida’s claims 

turned on an alleged contractual obligation for Regency to notify Haida that 

the premises would be closing. Regency disputed that it owed a contractual 
11

or other duty to provide the notice to which Haida believed it had a right. 

Haida’s claims thus rested on purported contractual duties and duties 

imposed on landlords, not on Regency’s litigation activity. Whether such 

duties existed went to the merits of Haida’s claims, which was irrelevant to 

prong one of the anti-SLAPP inquiry. 

Because the court found Regency failed to meet its threshold burden, it 

did not reach the prong two of the anti-SLAPP inquiry to decide whether 

there was a reasonable probability Haida would prevail on its constructive 

eviction and negligence claims against Regency. However, it noted in passing 

that the litigation privilege codified in Civil Code section 47, subdivision (b) 

would likely bar those claims on the merits. There appeared a clear logical 

relationship between Regency’s purported failure to properly serve Haida and 

its litigation of the unlawful detainer action. (See Silberg v. Anderson (1990) 

50 Cal.3d 205, 212 (Silberg).)

DISCUSSION

Regency argues the court erred in denying its anti-SLAPP motion. 

Based largely on admissions in Haida’s own briefs, we agree. “It is settled 

that ‘a plaintiff cannot avoid operation of the anti-SLAPP statute by 

attempting, through artifices of pleading, to characterize an action as a 

“garden variety” tort or contract claim when in fact the claim is predicated on 

protected speech or conduct.’ ” (Contreras v. Dowling (2016) 5 Cal.App.5th 

394, 413 (Contreras).) Regency met its moving burden to show Haida’s claims 

against it arise out of its protected petitioning activity in the underlying 

unlawful detainer action, and Haida failed to show that the litigation 

privilege would not bar those claims. Accordingly,the anti-SLAPP motion 

should have been granted.
12

A. Threshold Procedural Challenge

We must at the outset address Haida’s procedural challenge to 

Regency’s anti-SLAPP motion. Regency filed its motion in October 2020, but 

the hearing did not take place until January 2021. Haida reasserts its 

argument on appeal that Regency’s motion should be denied because it was 

not heard within the statutorily required 30 days. The trial court properly 

rejected this claim. Section 425.16, subdivision (f) provides that an antiSLAPP motion “shall be scheduled by the clerk of the court for a hearing not 

more than 30 days after the service of the motion unless the docket 

conditions of the court require a later hearing.” As the court reasoned, “ ‘the 

burden is on the court clerk, not the moving party’s counsel, to explain why it 

is necessary to schedule a later hearing date.’ ” Greka Integrated, Inc. v. 

Lowrey (2005) 133 Cal.App.4th 1572, 1577−1578 is inapposite: it was based 

on an older version of the statute that provided no leeway for delay based on 

docket conditions. Moreover, Regency submitted uncontested evidence that

when it asked to set the hearing in 30 days, the clerk replied that the court 

“simply cannot.” 

B. Anti-SLAPP Framework

“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.” 

(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (Wilson); 

§ 425.16, subd. (a).) To achieve this goal, the statute lets a defendant file a 

special motion to strike claims “arising from any act of that person in 

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

States . . . or California Constitution in connection with a public issue,

. . . unless the court determines that the plaintiff has established that there is 
13

a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. 

(b)(1).) Through this summary-judgment-like procedure, the anti-SLAPP 

statute aims to weed out meritless or retaliatory litigation at an early stage. 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 312.)

Courts use a two-step process to resolve anti-SLAPP motions. In the 

first stage, the moving defendant must show the claims against it arise from 

the defendant’s protected activity. (Wilson, supra, 7 Cal.5th at p. 884; Baral 

v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) The anti-SLAPP statute defines 

four protected categories of activity. (§ 425.16, subd. (e).) If the defendant 

shows that the claims fall within one of them, the burden then shifts to the 

plaintiff to demonstrate that its claims have minimal merit. (Wilson, at 

p. 884.) At the second step, “[t]he court, without resolving evidentiary 

conflicts, must determine whether the plaintiff’s showing, if accepted by the 

trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, at 

p. 396.) If not, the court will strike the cause of action. (Ibid.; Wilson, at 

p. 884.) A defendant prevailing on an anti-SLAPP motion is generally 

entitled to recover attorney’s fees and costs. (§ 425.16, subd. (c)(1).) We 

review the grant or denial of an anti-SLAPP motion de novo. (Park v. Board 

of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

C. Prong One: Protected Activity

The trial court concluded that Haida’s claims against Regency were 

based on unprotected activity not covered by the anti-SLAPP statute. 

Independently reviewing this question (Wilson, supra, 7 Cal.5th at p. 884), 

we reach the opposite conclusion.

As the party moving to strike, Regency bears the burden on prong one 

to “make two related showings.” (Wilson, supra, 7 Cal.5th at p. 887.) First it 

must show that the conduct by which Haida claims injury falls within one of 
14

the four categories of protected activity described in section 425.16, 

subdivision (e)—i.e., here, written statements made before a judicial 

proceeding and in connection with an issue under consideration by a judicial 

body. (§ 425.16, subd. (e)(1)−(2).) Second, Regency must demonstrate that 

Haida’s claims arise out of that protected conduct. (See ibid.; Rand 

Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) “A claim arises 

from protected activity when that activity underlies or forms the basis for the 

claim.” (Park, supra, 2 Cal.5th at p. 1062.) 

Haida’s complaint asserts that Regency breached its contractual 

obligations and duties as a landlord by giving Haida inadequate notice that 

the Whole-Mart premises would be closing before the rental term ended. In 

pleading “constructive eviction,” Haida alleges that Whole-Mart and Regency 

“breached their contractual obligations to warn Plaintiff that the premises 

would be closing.” It likewise predicates its negligence claim on Regency 

breaching “a duty to notify any and all of their tenants of a planned closure of 

the premises.” What Haida means by these notice failures is unclear; the 

complaint does not identify the conduct or action by Regency giving rise to its 

claims. 

Filling this void are Haida’s own contentions. As Haida stated in its

opposition brief below and in its nearly verbatim respondent’s brief on 

appeal, its claims against Regency rest on Regency’s decision to serve Haida 

under section 415.46 as an unnamed occupant rather than to name and serve 

it as a defendant in the unlawful detainer action. Haida claims this was 

improper because Regency knew or should have known it was Whole-Mart’s 

sublessee. Haida does not challenge Regency’s right to pursue an unlawful 

detainer action against Whole-Mart, but rather takes issue with its

“purposeful omission of proper service to Haida.” In Haida’s view the service 
15

it received pursuant to section 415.46 was deficient because “undoubtedly, all 

occupants known to the landlord should be named as defendants in the 

complaint.” 

Haida makes similar statements in detailing each cause of action 

against Regency. Haida asserts Regency was negligent because it breached 

its “duty to notify Haida and make Haida a party to the unlawful detainer 

action”: Haida was a necessary party under section 1164 as a known 

subtenant of Whole-Foods. According to Haida, “Regency had a duty of care 

to serve Haida in accordance with the proper statues” but breached that duty 

when it “negligently applied the inapplicable statute,” section 415.46.

Similarly, Haida represents that its constructive eviction claim is based 

“Regency’s breach of obligations toward known subtenants, such as Haida,” 

by “pursuing an action to lockout Haida without affording Haida any rights 

or say in the matter.” 

Simply put, Haida’s briefing elucidates what its complaint does not. 

The claims against Regency arise entirely out of Regency’s litigation decision 

not to name Haida as a defendant in the unlawful detainer complaint and 

instead effect service of process on Haida pursuant to the procedure laid out 

in section 415.46 for unnamed occupants. Haida, in essence, alleges that 

Regency did not prosecute the unlawful detainer action properly. Although 

the trial court focused on how Haida pleaded its claims in its complaint, “the 

court is not limited to examining the allegations of the complaint alone but 

rather considers the pleadings and the factual material submitted in 

connection with the special motion to strike.” (Contreras, supra, 5 

Cal.App.5th at pp. 408, 413; Navellier v. Sletten (2002) 29 Cal.4th 82, 92

(Navellier) [“The anti-SLAPP statute’s definitional focus is not the form of the 

plaintiff’s cause of action but, rather, the defendant’s activity that gives rise 
16

to his or her asserted liability—and whether that activity constitutes 

protected speech or petitioning.”]; Stewart v. Rolling Stone LLC (2010) 181 

Cal.App.4th 664, 679 [courts “do not evaluate the first prong of the antiSLAPP test solely through the lens of a plaintiff’s cause of action,” but rather 

investigate the “acts on which the counts alleged in the complaint are 

based”].) In undertaking our prong one analysis, we necessarily consider 

statements in Haida’s own briefs clarifying the nature of its claims. (See 

Contreras, at p. 412 [considering plaintiff’s briefs and earlier pleadings to 

determine that her claim was based on attorney’s protected activity].) 

Properly construed, Haida’s claims against Regency rest entirely on

litigation decisions made by Regency’s counsel in prosecuting Regency’s

unlawful detainer action against Whole-Mart. Although Haida finds fault 

with what Regency’s counsel failed to do in that proceeding, these failures are

actionable in Haida’s view solely because of what the attorney did do—that 

is, file a lawsuit without naming Haida as a party and serve Haida as a 

nonparty pursuant to section 415.46. This is the entire basis of Haida’s 

claims against Regency—those claims “would have no basis in the absence of” 

Regency’s prior litigation activity. (Contreras, supra, 5 Cal.App.5th at 

p. 412.) As such, these claims target protected activity within the scope of 

the anti-SLAPP statute. (Id. at pp. 412−413; § 425.16, subd. (e)(1)−(2); see 

Birkner, supra, 156 Cal.App.4th at pp. 281−282 [filing and prosecuting an 

unlawful detainer action “indisputably is protected activity”]; Feldman v. 

1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1480 (Feldman) [service 

of notice to quit, filling of unlawful detainer action, and threats by landlord’s 

agent were protected]; see also Cabral v. Martins (2009) 177 Cal.App.4th 471, 

480 (Cabral) [“all communicative acts performed by attorneys as part of their 

representation of a client in a judicial proceeding or other petitioning context 
17

are per se protected as petitioning activity by the anti-SLAPP statute”].) 

Haida’s assertion that Regency violated laws such as section 1164 does not 

change our conclusion. (See Cabral, at pp. 480−482 [litigation activity that 

allegedly violated child support evasion statutes was nonetheless protected in 

prong one]; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612−616 [court 

filing that violated court rules was protected activity in prong one].) 

The trial court relied on Copenbarger, supra, 215 Cal.App.4th 1237 to 

reach a different result. But Copenbarger merely applies the well-settled rule

that where prior unlawful detainer proceedings merely precipitate rather 

than underlie plaintiff’s suit, the action does not arise out of protected 

activity. (Id. at p. 1247.)6 “ ‘[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.’ ” (Park, supra, 2 Cal.5th at 

p. 1063.) Instead, the record must reflect—as it does here—that the action or 

cause of action is based on conduct by the defendant that falls into one of the 

categories of protected activity in section 425.16, subdivision (e). (See Park, 

at p. 1073.)

6 Similar cases are legion, rejecting anti-SLAPP protection where prior 

unlawful detainer litigation was merely incidental to a plaintiff’s claims. 

(See Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1281−1282; BenShahar v. Pickart (2014) 231 Cal.App.4th 1043, 1053; Clark v. Mazgani 

(2009) 170 Cal.App.4th 1281, 1286; Oviedo v. Windsor Twelve Properties, LLC

(2012) 212 Cal.App.4th 97, 110–111; Department of Fair Employment &

Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 

1273, 1287.) 
18

D. Prong Two: Probability of Prevailing

Because Regency met its moving burden to show that the claims 

against it arise from protected activity, Haida was required to demonstrate a 

probability of prevailing on those claims to survive a motion to strike. 

(§ 425.16, subd. (b).) The trial court did not reach this question, ending its 

inquiry at prong one, so we address it in the first instance. (See Wilson, 

supra, 7 Cal.5th at p. 899.) To meet its prong two burden, Haida must 

establish that each cause of action it brings against Regency is legally 

sufficient and prima facie factually supported. (Navellier, supra, 29 Cal.4th 

at pp. 88−89.) “Only a cause of action that satisfies both prongs of the antiSLAPP 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, at p. 89.)

Regency maintains that Haida’s claims lack even minimal merit 

because the litigation privilege acts as a complete bar to each of them. “The 

litigation privilege is ‘relevant to the second step in the anti-SLAPP analysis 

in that it may present a substantive defense a plaintiff must overcome to 

demonstrate a probability of prevailing.’ ” (Feldman, supra, 160 Cal.App.4th 

at p. 1485.) To overcome this bar, Haida must show that this privilege is 

inapplicable as a matter of law or make a prima facie showing of facts that, if 

accepted, would negate that defense. (Birkner, supra, 156 Cal.App.4th at 

p. 285.)

“The litigation privilege, codified at Civil Code section 47, subdivision 

(b), provides that a ‘publication or broadcast’ made as part of a ‘judicial 

proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City of Santa 

Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) “The usual 

formulation is that the privilege applies to any communication (1) made in 
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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.” (Silberg, supra, 50 

Cal.3d at p. 212.) “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, at p. 1241.) Where it applies, the privilege 

is absolute, providing a defense to all torts except malicious prosecution and 

applying “to all publications, irrespective of their maliciousness.” (Silberg, at 

pp. 212, 215−216.) 

The main purpose behind the litigation privilege is to afford litigants 

and witnesses the “utmost freedom of access to the courts without fear of 

being harassed subsequently by derivative tort actions.” (Silberg, supra, 50 

Cal.3d at p. 213.) To achieve this purpose, “ ‘ “courts have applied the 

litigation privilege broadly.” ’ ” (Feldman, supra, 160 Cal.App.4th at p. 1485.) 

Its breadth “ ‘cannot be understated. It immunizes defendants from virtually 

any tort liability (including claims for fraud) with the sole exception of causes 

of action for malicious prosecution. [Citation.]’ [Citation] ‘Any doubt about 

whether the privilege applies is resolved in favor of applying it.’ ” (Finton 

Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 212; 

see also McNair v. City and County of San Francisco (2016) 5 Cal.App.5th 

1154, 1162 (McNair) [same].)

The inquiry here is straightforward. Haida challenges its omission as a 

party in Regency’s unlawful detainer complaint and argues it did not receive 

proper notice when Regency instead served it as an unnamed occupant 

pursuant to section 415.46. As framed, all four requirements for the 

litigation privilege as laid out in Silberg, supra, 50 Cal.3d at page 212 are 

met: (1) Haida’s claims against Regency rest on communications (the 
20

complaint, summons, and proof of service); (2) these communications were 

made in the course of unlawful detainer litigation against Whole-Mart;

(3) Regency was a party to the litigation, and its pleadings and service were 

designed to achieve the objects of that litigation (evicting Whole-Mart for 

nonpayment of rent); and (4) filing those documents and deciding who to 

name and serve as a party clearly bore some logical relation to the 

prosecution of an unlawful detainer action. The litigation privilege therefore 

applies. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058 [“The 

‘[p]leadings and process in a case are generally viewed as privileged 

communications.’ ”].) 

In erecting an absolute defense against virtually all derivative tort 

liability, the litigation privilege plainly bars Haida’s negligence claim against 

Regency. (See Silberg, supra, 50 Cal.3d at p. 215.) It further bars Haida’s 

constructive eviction claim as framed. Haida asserts that Regency breached 

duties imposed on landlords by operation of law in failing to name and serve 

it as a party in the unlawful detainer action. These duties consist of the 

obligation to add necessary parties to the action under section 1164 and 

ensure quiet possession under Civil Code section 1927. While Haida believes

Regency should have known about potential food court sublessees, it does not 

allege any express contractual obligation in the master lease was violated by 

Regency’s litigation conduct. Under these circumstances, the litigation 

privilege properly applies to the constructive eviction claim as well. (See 

McNair, supra, 5 Cal.App.5th at pp. 1170−1171 [privilege applied to both tort 

and contract claims against a doctor for disclosing patient health information 

to the DMV: “none of the documents even potentially identified by [the 

patient] as part of the ‘[p]artly written, partly oral, and partly implied’ 

contract in this matter can be said to ‘clearly prohibit’ [the doctor’s] conduct 
21

in this case,” and his claims instead turned on whether the doctor’s disclosure 

was justified under state or federal law].)7

Feldman, supra, 160 Cal.App.4th 1467 is instructive, applying the 

litigation privilege to bar tort and contract claims resting on the same 

underlying conduct. A landlord filed an unlawful detainer lawsuit against its 

tenant’s sublessees, the Feldmans, for moving into a San Francisco high-rise 

without following proper sublet procedures. (Id. at p. 1475.) The Feldmans 

asserted several cross-claims based on the landlord serving a three-day notice 

to quit, filing an unlawful detainer complaint, and making statements to 

them over the phone regarding threatened litigation. (Id. at pp. 1474−1475, 

1479, 1483.) The court concluded these claims were all barred by the 

litigation privilege because they rested on communications that were logically 

related to the unlawful detainer action and made to further the objectives of 

that litigation. (Id. at pp. 1486−1491, 1494.) However the claims were 

labeled, the Feldmans’ cross-complaint alleged at its core that they were 

lawfully in possession as approved subtenants but that the landlord crossdefendants “harassed them with threats of eviction, initiated an unlawful 

detainer action, and forced them to leave.” (Ibid.) The policy behind the 

litigation privilege of allowing access to the courts without fear of derivative 

suits therefore applied to all the Feldmans’ cross claims, including their 

contract-based claims. We reach the same conclusion here.

Haida argues that Regency violated section 1164 by failing to name and 

serve it as a party. From Haida’s perspective, it was improper for Regency to 

7 Our conclusion should not be read to suggest that the litigation 

privilege bars breach of contract claims challenging litigation conduct that is 

alleged to violate an express contractual term. (See Wentland v. Wass (2005) 

126 Cal.App.4th 1484, 1494 [litigation privilege did not bar cross-claim 

alleging that opposing party’s statements in summary judgment briefing 

breached the parties’ express confidentiality agreement].)
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serve it as an unnamed occupant under section 415.46 when Regency should 

have known about the sublease and served Haida as a party. Even if 

accepted, allegations that a defendant violated a statute do not defeat 

application of the litigation privilege. (See, e.g., Cabral, supra, 177 

Cal.App.4th at pp. 489−490 [litigation privilege barred claims against 

attorneys representing plaintiff’s ex-husband in his alleged efforts to violate 

child support evasion statutes]; Foothill Federal Credit Union v. Superior 

Court (2007) 155 Cal.App.4th 632, 637−638, 643 [litigation privilege barred 

claims against credit union that allegedly produced consumer records beyond 

the scope of a subpoena in violation of section 1985.3].) Applying the 

privilege here furthers its principal purpose of ensuring free access to the 

courts without fear of derivative actions. (Silberg, supra, 50 Cal.3d at 

pp. 213−214.) 

Our conclusion that the litigation privilege applies ends the prong two 

inquiry. Because the privilege absolutely bars both of Haida’s claims against 

Regency, Haida cannot meet its burden to establish any probability of 

prevailing on the merits.8 The anti-SLAPP motion should have been 

granted, and the causes of action against Regency stricken. As the prevailing 

party, Regency is entitled to an award of attorney’s fees, including fees 

incurred in connection with this appeal. (§ 425.16, subd. (c)(1); Contreras, 

supra, 5 Cal.App.5th at p. 421.)

8 Indeed, Haida makes no substantive argument to the contrary. It 

punts on the issue, faulting Regency for failing to “properly assert what it 

seeks to bar using the litigation privilege” and stating simply that it “stands 

by its claims and reasserts that proper notice was never served.” 
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DISPOSITION

The order denying Regency’s anti-SLAPP motion is reversed;the court 

is directed to enter a new order granting the motion and striking the causes 

of action brought against Regency. The court shall also award Regency 

attorney’s fees as the prevailing party, including fees incurred in connection 

with this appeal. 

Regency is entitled to costs on appeal.

DATO, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.