Escamilla v. Encarnacion CA4/3 ( 2021 )

Filed 5/21/21 Escamilla v. Encarnacion CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DANIEL ESCAMILLA,
Plaintiff and Appellant, G059276
v. (Super. Ct. No. 30-2019-01115500)
ENRIQUE ENCARNACION, OPINION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Nancy E.
Zeltzer, Judge. Affirmed.
Daniel Escamilla, in pro. per.
Stratman, Schwartz & Williams-Abrego and Daniel Kruid, for Defendant
and Respondent.
* * *
Appellant Daniel Escamilla rented two rooms from respondent Enrique
Encarnacion. In September 2019, Escamilla informed Encarnacion he had hired a young
woman as a domestic assistant and she would be living in one of the rooms. Encarnacion
responded subletting was not permissible and a new resident would require amending the
lease agreement. Escamilla argued there was no sublet because the domestic assistant
was not paying rent. In October 2019, Encarnacion posted a three-day notice to cure at
the rental residence. The notice stated Escamilla was violating the lease agreement by
permitting an unauthorized guest to use the premises without Encarnacion’s written
consent.
In December 2019, Escamilla filed a complaint against Encarnacion,
alleging the service and content of the three-day notice constituted breaches of covenants
of good faith and fair dealing, quiet enjoyment, were defamatory, and interfered with the
contractual and economic relationship between Escamilla and the domestic assistant. In
response, Encarnacion filed a special motion to dismiss under Code of Civil Procedure
section 425.16 (the anti-SLAPP statute). The trial court granted the anti-SLAPP motion.
It determined Escamilla’s causes of action arose from protected speech, and that
Escamilla failed to show his claims had minimal merit. It awarded Encarnacion $4,890
in attorney fees and costs as the prevailing party.
Escamilla contends the trial court erred in granting the anti-SLAPP motion
because the content of the three-day notice was not protected speech. We disagree
because the statements in the notice were communications made in preparation for legal
proceedings. We also conclude Escamilla has not shown his claims have minimal merit
because the service and content of the three-day notice are absolutely privileged under
the litigation privilege of Civil Code section 47. The trial court properly granted the anti-
SLAPP motion. We also reject Escamilla’s challenges to the fee award because it was
supported by the declaration of Encarnacion’s attorney. Accordingly, we affirm the order
granting the anti-SLAPP motion and awarding attorney fees and costs.
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I
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2019, Escamilla filed a complaint alleging causes of action
for: (1) breach of the covenant of good faith and fair dealing, (2) breach of the covenant
of quiet enjoyment, (3) slander per se, (4) trade libel, (5) intentional interference with
contractual relations, and (6) intentional interference with prospective economic
relations. The complaint alleged Encarnacion is Escamilla’s landlord, and Escamilla
occupies two of the four rooms in the rental residence. Under the terms of the lease
agreement between Escamilla and Encarnacion, Escamilla’s former live-in domestic
assistant was a named guest who lived in one of the bedrooms. In September 2019,
Encarnacion hired Denise Achim, a local college student, as his new domestic assistant in
exchange for Achim’s use of the second room. After Escamilla informed Encarnacion of
the new living arrangement, Encarnacion responded: “Please keep in mind our leasing
agreement does not allow for subletting. For other people to move in, we’d need to
amend the contract after proper background checks and screening have taken place and
approval is given.” Escamilla replied that Achim was not subletting “since she is not
paying rent,” and provided Encarnacion with a copy of Achim’s California driver’s
license. On October 13, 2019, “without warning,” Encarnacion posted a three-day notice
to cure on the rental residence. The notice stated Achim was an “unauthorized guest” and
asserted Escamilla had no authority to allow Achim to use the spare bedroom. As a result
of the notice, Escamilla alleges Achim moved out and abandoned her job with Escamilla.
In the first cause of action for breach of the covenant of good faith and fair
dealing, Escamilla alleged Encarnacion’s conduct interfered with his right to use the
rental property. In the cause of action for breach of the covenant of quiet enjoyment,
Escamilla alleged Encarnacion’s “action in serving an improper and unfounded ‘3-Day
Notice to Cure’” constituted a breach of the covenant. In the causes of action for slander
per se and trade libel, Escamilla alleged the written statements made by Encarnacion, as
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set forth in the three-day notice to cure,” were defamatory. Finally, Escamilla alleged
Encarnacion’s conduct interfered with his contractual and economic relationship with
Achim.
The complaint attached copies of the three-day notice to cure, the various
lease agreements, and e-mail communications between Escamilla and Encarnacion. The
three-day notice was addressed to Escamilla and other named tenants, and stated the
tenants had violated section 5 of the lease agreement by allowing Achim, “an
unauthorized guest on the premises for over 4 weeks.” In section 5, the lease agreement
provided that: (1) the premises were to be used and occupied by tenants and named
guests exclusively as a single family dwelling; (2) the premises were not to be use for any
business, profession, or trade of any kind; and (3) the tenants “shall not allow any other
person, including Tenant’s immediate family, relatives, and friends, who are guests of
Tenant to use or occupy the Premises for a period of time longer than two weeks without
first obtaining Landlord’s written consent to such use.” Achim was never listed as a
named tenant or guest in the lease.
On May 26, 2020, Encarnacion filed a special motion to strike pursuant to
the anti-SLAPP statute. In the anti-SLAPP motion, Encarnacion argued the causes of
action in Escamilla’s complaint arose from protected petitioning activity (the service and
content of the three-day notice to cure), and that Escamilla could not meet his burden to
show he would prevail on his claims because Encarnacion’s acts were absolutely
privileged under the civil litigation privilege of Civil Code section 47.
Encarnacion argued he would prevail on the anti-SLAPP motion, and
requested $4,890 in attorney fees and costs, consisting of $60 for the filing fee, $30 for
court reporter fee, and $4,800 in attorney fees for 12 hours of work, billed at $400 per
hour. His attorney Daniel M. Kruid submitted a declaration stating he is a senior trial
attorney and providing the relevant fees, billing rate and hours.
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Escamilla opposed the anti-SLAPP motion. He argued his claims did not
arise from protected activity. Rather, they arose from a dispute over the terms of the
lease agreement. Escamilla also argued he would be able to prevail on the claims based
on his testimony and the testimony of his office assistant Michelle Lobato, as set forth in
the their declarations. He further argued the litigation privilege did not apply because
Encarnacion’s “threats” to Achim and “the false nature of the communication made under
the guise of an anticipated legal proceeding” are not privileged.
In his declaration, Escamilla stated that in “early 2019, one of the
roommates who was not a principal on the lease, moved out and I took over paying for
the vacant room.” In the summer of 2009, Escamilla screened and interviewed over 50
applicants “to find a person to exchange maid services and pet-walking services for use
of the vacant room.” He eventually hired Achim, who agreed to “handle laundry, light
housework and dog care in exchange for use of the room primarily as storage for her
personal belongings and staying overnight several days per week.” Prior to allowing
Achim to use the vacant room, “solely as a courtesy,” Escamilla informed Encarnacion
that Achim would be a “new roommate.” Encarnacion responded that the lease did not
allow subletting, and later, “without warning and for no apparent cause,” Encarnacion
delivered to Achim a three-day notice to cure, alleging that her staying in the vacant room
was a direct violation of the Lease Agreement. After receiving the notice, Achim’s
attitude toward Escamilla “changed considerably. She stopped making eye contact with
me and I would not see her at the house.” Achim later quit working for Escamilla.
In her declaration, Lobato stated she supervised Achim. In October 2019,
Achim told Lobato she had received a three-day notice to cure under her bedroom door.
“Based on the content of the notice, she expressed fear and concern that she was
occupying the room illegally and that she would get in trouble for occupying the room.”
Lobato also stated she noticed Achim’s attitude toward Escamilla worsened immediately
after Achim received the notice.
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The trial court granted the anti-SLAPP motion. It found the claims arose
from the content of the 30-day notice, which is protected speech. The court also found
Escamilla failed to show his claims had minimal merit. Finally, the court awarded
Encarnacion attorney fees and costs in the amount of $4,890.
II
DISCUSSION
“A SLAPP suit – strategic lawsuit against public participation – seeks to
chill or punish a party’s exercise of constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The Legislature enacted Code of Civil
Procedure section 425.16 – known as the anti-SLAPP statute – to provide a procedural
remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional
rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).)
To determine whether a cause of action should be stricken under the anti-SLAPP statute,
Code of Civil Procedure section 425.16 establishes a two-part test. Under the first part,
the party bringing the motion has the initial burden of showing that the cause of action
arises from an act in furtherance of the right of free speech or petition – i.e., that it arises
from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Once the
moving party has met its burden, the burden shifts to the other party to demonstrate a
probability of prevailing on the cause of action. (Ibid.) Only a cause of action that
satisfies both parts of the anti-SLAPP statute – i.e., that arises from protected speech or
petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under
the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) An appellate court
independently reviews the trial court’s order granting an anti-SLAPP motion. (Rusheen,
supra, at p. 1055.)
Here, the complaint alleged Encarnacion posted or served a three-day
notice to cure. The breach of covenant of good faith and fair dealing claim asserted
Encarnacion’s acts constituted a breach. The breach of the covenant of quiet enjoyment
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claim specifically alleged the service of notice breached that covenant. The defamation
claims alleged the statements in the notice were defamatory. Finally, the tortious
interference claims allege the service and content of the notice caused Achim to quit
working for Encarnacion. As Escamilla acknowledges, Encarnacion’s service of the
three-day notice is protected activity. (See Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467, 1480 (Feldman) [service of a three-day notice to quit, filing of an
unlawful detainer action, and threats by the landlord’s agent in connection with the
dispute constituted protected activity under section 425.16, subd. (e)].) The statements
made in the notice also are protected acts because they are “communication[s]
preparatory to the bringing of the unlawful detainer action.” (Feldman, supra, at p. 1480;
see also Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1259 [letter by employer’s
attorney to the employer’s customers accusing the employee of breach of contract and
misappropriation of trade secrets, and suggesting customers should not do business with
the former employee to avoid potential involvement in any ensuing litigation is protected
speech].) Accordingly, Escamilla’s causes of action all arise from protected activity.
Escamilla contends the three-day notice contained defamatory statements
that were not protected speech. He argues the notice contains language addressing
Achim by name and threatening her with litigation. We have reviewed the notice and, as
stated above in our factual summary, conclude the notice is not addressed to Achim and
warns only the named tenants about unauthorized guests. Escamilla further argues the
characterization of Achim as an unauthorized guest is “false” and not necessary to initiate
unlawful detainer action. We disagreed. The notice identifies the alleged lease violation
to permit the tenants an opportunity to cure and is logically related to and in preparation
for an unlawful detainer action in the event the tenants do not cure the violation. Thus,
the challenged statements are protected activity.
Escamilla also contends the claims do not arise from protected activity, but
from a dispute over the terms of the lease agreements. A dispute over the terms of a lease
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agreement is not protected activity. (Copenbarger v. Morris Cerullo World Evangelism
(2013) 215 Cal.App.4th 1237, 1247-1248.) As stated above, the only challenged acts in
the complaint are the service of the notice and the statements made in the notice, which
are protected activities. The complaint specifically alleged that the service and content of
the notice breached the covenants of good faith and fair dealing and quiet enjoyment,
defamed Escamilla, and disrupted his economic and contractual relations with Achim.
Even if Escamilla’s claims also are based on nonprotected activity, the protected
activities are not merely incidental and instead form the basis for liability on the claims.
(See Baral v. Schnitt (2016) 1 Cal.5th 376, 394 [protected activity is incidental if it
“merely provide[s] context, without supporting a claim for recovery”].) Thus,
Encarnacion has met his burden to show Escamilla’s claims are subject to the anti-
SLAPP statute. (See id. at p. 396 [“At the first step, the moving defendant bears the
burden of identifying all allegations of protected activity, and the claims for relief
supported by them. When relief is sought based on allegations of both protected and
unprotected activity, the unprotected activity is disregarded at this stage.”].)
Because Encarnacion met his burden of showing the claims arose from
protected activity, the burden shifted to Escamilla to demonstrate a probability of
prevailing on the merits. (Zamos v. Stroud, supra, 32 Cal.4th at p. 965.) Escamilla
cannot do so, as Encarnacion’s acts are absolutely privileged under the litigation
privilege, Civil Code section 47. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 323
[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”].)
The litigation 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 have some connection or logical
relation to the action. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
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“Although originally enacted with reference to defamation actions alone [citation], the
privilege has been extended to any communication, whether or not it is a publication, and
to all torts other than malicious prosecution.” (Edwards v. Centex Real Estate Corp.
(1997) 53 Cal.App.4th 15, 29 (Edwards).) The privilege is “absolute in nature, applying
‘to all publications, irrespective of their maliciousness.’” (Action Apartment Assn., Inc. v.
City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “Any doubt as to whether the
privilege applies is resolved in favor of applying it. [Citations.]” (Adams v. Superior
Court (1992) 2 Cal.App.4th 521, 529.)
Here, the service of the three-day notice is privileged. (See Feldman,
supra, 160 Cal.App.4th at p. 1488 [“litigation privilege applied to the service of the
notice to quit”].) The statements in the notice asserting Escamilla was violating the lease
agreement by permitting Achim to use the rental premises as an unauthorized guest also
are privileged. (See Edwards, supra, 53 Cal.App.4th at p. 30 [the litigation privilege
applies communications made in course of a judicial proceeding, even “false and
fraudulent statements”].) Thus, Escamilla cannot prevail on his claims against
Encarnacion based on those acts. (See, e.g., Pacific Gas & Electric Co. v. Bear Stearns
& Co. (1990) 50 Cal.3d 1118, 1132 [“litigation privilege extends beyond claims of
defamation . . . to the torts alleged here: interference with contract and prospective
economic advantage”]; Feldman, supra, 160 Cal.App.4th at pp. 1498 [litigation privilege
applies to bar causes of action for breach of contract and breach of the covenant of quiet
enjoyment].) The trial court properly granted Encarnacion’s anti-SLAPP motion.
Finally, Escamilla challenges the trial court’s award of attorney fees and
costs. He argues the $4,890 amount was not fully documented, and the billing rate of
$400 per hour is not reasonable for “an insurance defense attorney who was first admitted
on December 1, 2015.” We review an award of attorney fees for prevailing on an anti-
SLAPP motion for abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122,
1140.) We conclude the amount awarded was supported by attorney Daniel Kruid’s
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declaration detailing the fees, billing rate and hours. As for the hourly billing rate,
Escamilla has not provided any evidence showing the rate was unreasonable. We note
that in asserting Encarnacion’s attorney is an insurance defense attorney who was
admitted to the bar in 2015, Escamilla provided the State Bar information for a different
attorney, Steven R. Kruid, rather than Encarnacion’s attorney, Daniel Kruid. Thus,
Escamilla has not shown the trial court abused its discretion in awarding $4,890 in
attorney fees and costs.
III
DISPOSITION
The order granting Encarnacion’s anti-SLAPP motion and awarding
attorney fees and costs is affirmed. Encarnacion is entitled to his costs on appeal.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
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