Cairns v. Lions Community Service Corp. CA4/1 ( 2022 )

Filed 4/21/22 Cairns v. Lions Community Service Corp. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NIGEL CAIRNS, D078310
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2019-
00069067-CU-PO-CTL)
LIONS COMMUNITY SERVICE
CORPORATION,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Reversed and remanded with instructions.
Kimball Tirey & St. John and Brian C. P. Adkins for Defendant and
Appellant.
Nigel Cairns, in pro. per., for Plaintiff and Respondent.
INTRODUCTION
Nigel Cairns sued Lions Community Service Corporation (Lions
Community) for intentional infliction of emotional distress after it initiated
proceedings to evict him from his apartment. Cairns alleged Lions
Community sought to evict him in retaliation after he raised questions about
possible racial bias against Black tenants in its subsidized housing facility.
Lions Community filed a special motion to strike the operative complaint
under the anti-SLAPP (strategic lawsuits against public participation)
statute, arguing that Cairns’s claim against it was based on protected
petitioning activity. (Code Civ. Proc., § 425.16.)1 The trial court denied the
motion on the ground that Cairns’s allegation that the eviction was
discriminatory, and therefore unlawful, insulated his claim from the anti-
SLAPP statute.
We reverse. Our high court confirmed in Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 892 (Wilson) that claims based on
protected activities alleged to have been unlawful because they were done for
a discriminatory or retaliatory reason are not exempt from the anti-SLAPP
statute. Here, Cairns’s claim against Lions Community arose from protected
petitioning activities. The trial court erred when it concluded the claim fell
outside the scope of the anti-SLAPP statute because Cairns alleged the
activities were motivated by discrimination or retaliation. It was also readily
apparent that Cairns failed to establish the minimal merit required to
proceed with his claim. For these reasons, the anti-SLAPP motion should
have been granted. We therefore remand with instructions that the trial
court enter a new order granting the motion.
1 Unspecified statutory references are to the Code of Civil Procedure.
2
BACKGROUND
I.
Cairns’s Allegations Against Lions Community
Cairns is a retired physician who lost a large part of his retirement
savings in the 2008 recession. When his “resources became worryingly low,”
he applied to move into the Lions Community Manor (Manor), “a 140 unit
apartment complex” owned by Lions Community and subsidized by “HUD”
(i.e., the United States Department of Housing and Urban Development). He
was accepted and received a “nearly $1K monthly rent subsidy [which]
allowed [him] to breathe easily again.” He moved into the Manor in May
2017.
In September 2017, Cairns’s rent payment was refused. According to
the allegations of the Third Amended Complaint (TAC), this problem was
solved by “[a] complaint to [the Manor’s] management sent via the BBB,”
presumably the Better Business Bureau.
Because HUD subsidizes the rents paid by tenants of the Manor, “[the
Manor] is required to follow ‘Equal Opportunity Housing’ rules, or face severe
penalties.” Cairns, who is White, alleged that during his first few months at
the Manor, he “became aware that there was a very large number of Chinese
residents, but NO Black residents.” When Cairns “asked a member of staff[ ]
‘why [a]re there about 100 Chinese here, but NO Blacks?,’ ” the staff member
“became angry, but offered no explanation.” Cairns alleged that “[b]ecause
the proper[ty] management company . . . had always refused [his] phone
calls,” he “informed” the property management company of his question by
“putting up posters on several floors [of the apartment building.]” The
posters posed the same question Cairns had asked the staff member. Cairns
alleged the posters “were gone within an hour.”
3
Cairns alleged he wrote to HUD, and in reply, received information
from HUD indicating that 65 percent of the Manor’s residents were
“Chinese,” four percent were “Hispanic,” and less than two percent were
Black. Cairns alleged that “these figures do not reflect local demographics.”
He alleged further that “taxpayers’ funds [were being] used to subsidize the
rents of . . . Chinese who displaced others, equally qualified, but who had a
different ethnic background.”
About a week after Cairns “asked [his] first question,” he received a 90-
day eviction notice. “It did not mention the absence of Blacks, but the
objective evidence was demonstrably false. The remainder was subjective
comments like ‘he reduced the livability of the complex.” Cairns alleged: “It
is important to realize that eviction from a HUD complex leads to immediate
HOMELESSNESS for about 3 years because my rent subsidy would cease.
At age 72 I would be on the streets with little money. I would be very
vulnerable to assault or theft. Would I survive?”
Cairns alleged that during the 90-day notice period, “an astonishing
series of harassments occurred.” He was accused by another resident of
stalking; he was accused by a staff member of assault; technicians trespassed
and planted microphones in his apartment; he asked for his tenant file and
received a folder with only blank sheets of paper; and the manager refused
his rent payment in April and did not allow him to complete certain
paperwork. By April 2018, Cairns believed he was “facing . . . certain
eviction,” so he “gave up[,] gave away EVERYTHING, and set off on foot for
Mexico,” returning to San Diego several months later.
4
Cairns alleged that his discovery of Lions Community’s2 “illegal
actions” prompted Lions Community to “evict [him] and make [him] homeless
to prevent dissemination of the facts.”
II.
Procedural Background
On December 31, 2019, Cairns filed a Judicial Council form complaint
against Lions Community.3 He asserted a single cause of action for
intentional infliction of emotional distress and sought to recover a total of $1
million in compensatory and punitive damages. He then filed several
amended complaints, each asserting the same cause of action and seeking the
same damages, culminating in the operative TAC.
A. Lions Community’s Anti-SLAPP Motion
Lions Community filed an anti-SLAPP motion to strike the TAC. It
argued the TAC’s sole cause of action for intentional infliction of emotional
distress was based on its service of pre-litigation notices and filing of an
unlawful detainer action, which constituted protected petitioning activity
2 The TAC stated: “After I had discovered plaintiff’s illegal actions, he
sought to evict me and make me homeless to prevent dissemination of the
facts.” (Italics added.) This allegation appears in support of Cairns’s
exemplary damages claim against Lions Community. It is apparent from the
context that Cairns used the word “plaintiff’s” by mistake, and that he meant
to refer to Lions Community.
3 In the same lawsuit, Cairns also sued the Legal Aid Society of San
Diego (Legal Aid) for intentional infliction of emotional distress based on its
alleged failure to provide him with legal services in connection with the
eviction. The trial court sustained Legal Aid’s demurrer and dismissed it
from the case. Cairns’s appeal of this ruling is proceeding separately under
case number D078441.
5
under section 425.16, subdivisions (e)(1) or (e)(2).4 It argued Cairns’s claim
lacked merit because it was barred by the litigation privilege codified at Civil
Code section 47, subdivision (b). It further argued that Cairns had failed to
sufficiently allege intentional infliction of emotional distress; its actions were
“regular actions . . . within a property management context” which were “well
within the bounds of decency and . . . not outrageous in character”; and
Cairns would not be able to substantiate his claim.
In support of its motion, Lions Community submitted a declaration
from Gary Urie, an attorney for Lions Community. Urie explained that at
the behest of Lions Community, his firm served a pre-litigation notice (the
10-day notice) on Cairns on July 7, 2017, warning him to cease certain
behavior. The 10-day notice stated that Cairns had been “aggressive” with
the Manor’s residents, staff and resident manager, and had been “angry” and
“demand[ing]” with its service coordinator. It stated that Cairns’s conduct on
these occasions had violated his “Resident Guide,” which provided that
“[d]isruptive behavior that prevents the peaceful enjoyment of [the] Manor by
your neighbors is a lease violation,” as well as his model lease agreement,
which provided that “ ‘material noncompliance’ ” included “one or more
substantial violations of this Agreement” as well as “repeated minor
violations . . . which disrupt the livability of the project.” The notice gave
4 Section 425.16, subdivision (e), provides in relevant part that 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,” and “(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.”
6
Cairns 10 days to cease and desist behavior that was aggressive to staff or
that interfered with other residents’ quiet enjoyment, and warned him that if
he did not comply, Lions Community would initiate legal proceedings to
recover possession of his unit.
Urie further averred that on January 22, 2018, his firm served a “90-
Day Notice of Termination of Tenancy” (the 90-day notice) on Cairns. The 90-
day notice stated that in addition to the 10-day notice previously served on
Cairns, Lions Community management had served a letter on Cairns on
October 30, 2017, telling him that his “aggressive behavior” was causing staff
members and other residents to fear for their safety. According to the 90-day
notice, despite these warnings, Cairns had failed to control his behavior,
which had “caused a nuisance on the premises.” The 90-day notice provided
examples of additional instances in which Cairns’s conduct materially
violated his lease. These included that on January 13, 2018, staff discovered
Cairns yelling at another resident whom Cairns had “been warned to stop
fighting with.” Later, when two staff members went to Cairns’s unit to check
on him, they discovered that he “had a sign on [his] front door with racial
epithets.” The 90-day notice additionally stated that on January 14, 2018,
Cairns told an off-duty staff member to call the police because someone was
threatening him. When the staff member informed Cairns he needed to call
the police himself if he felt threatened, Cairns became “angry and aggressive”
and yelled at the staff member. The same day, Cairns “posted a racist poster
in nine different locations in the building . . . [o]ne of which was on the
service coordinator’s office door who happens to be Asian.”
The 90-day notice stated that if Cairns did not relinquish possession of
his apartment within 90 days or by April 23, 2018, whichever was later,
Lions Community would initiate legal proceedings against him.
7
Urie averred that on April 25, 2018, after Lions Community advised
that Cairns had not vacated his unit, his firm filed an unlawful detainer
action against Cairns. A copy of the unlawful detainer complaint, verified by
an agent of Lions Community, was attached to Urie’s declaration. Urie
stated the unlawful detainer complaint was dismissed in early May after
Lions Community advised his firm that Cairns had vacated his apartment.
B. Cairns’s Opposition to the Anti-SLAPP Motion
Cairns’s opposition to the anti-SLAPP motion, filed September 28,
2020, consisted of a two-page brief with three attached exhibits.
Cairns opened his argument by stating: The TAC “includ[ed] an
eviction notice which I allege is retaliatory, [and] the near exclusion of Blacks
and Hispanics which I allege to be illegal[.]”
He then presented arguments that appeared to be directed at giving his
side of the incidents detailed in the notices Lions Community submitted with
its motion. Cairns stated that 10 years earlier, he had been diagnosed with
“essential tremor,” a symptom of which is that “when [he gets] AGITATED,
but not angry [he] shake[s] bodily[,] [which] has caused several people to
avoid [him].” Cairns attached a copy of a letter from his physician, dated
January 17, 2020, confirming that Cairns “suffers from essential tremor
afflicting both upper extremities.” Cairns essentially argued that although
others might perceive him as angry or aggressive during encounters that
agitated him, this was a misperception attributable to his essential tremor.
Cairns argued further that in September 2017, after the manager of the
Manor refused his rent payment, he “wrote a long detailed complaint” to “the
BBB” about the manager’s behavior. He attached a copy of this BBB
complaint to his opposition brief. It was a three-page, single-spaced
document that detailed Cairns’s difficulties with another resident of the
8
Manor whom Cairns found to be noisy, as well as a “cunning, chronic liar.”
Cairns had complained about this resident to employees of the Manor and
was dissatisfied with their responses. Cairns believed the manager was
telling the resident to do things that Cairns would find intolerable. Cairns
stated he believed he had been served with a 10-day notice because the
resident and the manager held “grudge[s] against [him].” At the end of the
document, Cairns stated, “today my rent was refused, so I assume that the
process is starting up again.”
Cairns stated in his opposition brief that the “rent refusal” problem was
later resolved in his favor. He attached a copy of a September 12, 2017 letter
from the property management company that informed him it would accept
his rent payment. The last sentence of the argument in Cairns’s opposition
brief stated, “But the other problems I mentioned were never attended to,
and the manager continued to harass me throughout my tenancy (see
complaint), even after I had asked ‘100 Chinese but NO Blacks, why?’ ”
C. The Trial Court’s Ruling
In a minute order issued on October 9, 2020, the trial court denied the
anti-SLAPP motion. It ruled Lions Community had failed to establish that
the TAC’s claim against it fell within the purview of the anti-SLAPP statute.
The court stated that ordinarily suits against landlords based on the filing of
an unlawful detainer action, or the service of a pre-filing notice, are subject to
the anti-SLAPP law. It found, however, that “there is a ‘carve-out’ exception
where the gravamen of the complaint is discrimination[.]”
The trial court explained this “ ‘carve-out’ ” exception to the anti-
SLAPP statute as follows: “In Department of Fair Employment and Housing
v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 [(Alta
Loma)], the [Department of Fair Employment and Housing (DFEH)] brought
9
a disability discrimination against a landlord who had removed a disabled
tenant through an unlawful detainer action after the tenant had refused to
disclose the nature of [her] disability. . . . The trial court denied the
landlord’s anti-SLAPP motion, and the Court of Appeal affirmed that denial,
holding that the gravamen of the DFEH’s complaint was the landlord’s
alleged discrimination, rather than activity protected by [the] anti-SLAPP
statute. The court noted that if a discriminatory eviction was covered by the
anti-SLAPP statute, a landlord ‘could discriminate during the removal
process with impunity knowing any subsequent suit for disability
discrimination would be subject to a motion to strike and dismissal.’ ” (Italics
added.)
The trial court found that “Cairns alleges that his wrongful eviction
was the result of racial discrimination against him for opposing racially
discriminatory rental practices.” (Italics added.) The court denied the
motion, concluding—based on its interpretation of Alta Loma—that such a
claim “falls within the above discussed exception” that “insulate[s]” such
claims from “attack by the anti-SLAPP statute.”
DISCUSSION
I.
Legal Principles Applicable to Review of Anti-SLAPP Motions
“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, supra, 7 Cal.5th at pp. 883–884.) “To that end, the statute
authorizes a special motion to strike a claim ‘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
10
a public issue.’ ” (Id. at p. 884, quoting § 425.16, subd. (b)(1).) Section 425.16
thus establishes a procedure for weeding out, at an early stage, meritless
litigation “brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley).)
An anti-SLAPP motion is evaluated in two steps. “Initially, the moving
defendant bears the burden of establishing that the challenged allegations or
claims ‘aris[e] from’ protected activity in which the defendant has engaged.”
(Park v. Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1061 (Park).) Four categories of protected activities are delineated by
the statute. (§ 425.16, subds. (e)(1)–(e)(4).) The moving defendant meets its
initial burden by showing that the conduct underlying the challenged claims
falls within one of these categories. (Wilson, supra, 7 Cal.5th at p. 884.)
“[T]hat a cause of action arguably may have been ‘triggered’ by protected
activity” is not sufficient to meet this burden. (Navellier v. Sletten (2002) 29
Cal.4th 82, 89 (Navellier).) Rather, “the critical consideration is whether the
cause of action is based on the defendant’s protected free speech or
petitioning activity.” (Ibid.)
If the moving defendant succeeds in meeting this initial burden, the
burden shifts to the plaintiff, who must then demonstrate that his claims
“have at least ‘minimal merit.’ ” (Park, supra, 2 Cal.5th at p. 1061.) This
step of the process has been described as a “ ‘summary-judgment-like
procedure.’ ” (Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931, 940 (Sweetwater).) “ ‘[The court’s] 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
11
determine if it defeats the plaintiff’s claim as a matter of law.’ ” (Ibid.) The
plaintiff “ ‘may not rely solely on its complaint, even if verified; instead, [his]
proof must be made upon competent admissible evidence.’ ” (Ibid.) If the
plaintiff fails to meet his second-step burden, the court will strike the cause
of action. (Wilson, supra, 7 Cal.5th at p. 884.)
We review the grant or denial of an anti-SLAPP motion de novo. (Park,
supra, 2 Cal.5th at p. 1067.)
II.
The Trial Court Erred in Denying Lions Community’s Anti-SLAPP Motion
A. Lions Community Met Its Initial Burden of Establishing That Cairns’s
Cause of Action for Intentional Infliction of Emotional Distress Arose
from Its Protected Petitioning Activity
Lions Community contends the trial court erred in denying its anti-
SLAPP motion. It argues that it met its initial burden of showing Cairns’s
claim was based on its protected petitioning activities, and that Alta Loma,
on which the trial court relied to dispose of its motion at step one, was
distinguishable. In his response brief, Cairns “agree[s] that the case cited by
the court was irrelevant” because he is “not claiming discrimination.”
Rather, he is claiming the 90-day eviction notice was retaliatory, and that it
was served in response to his raising questions about Lions Community’s
alleged discrimination against Black tenants.
On our independent review, we conclude the trial court erred when it
ruled that Cairns’s suit against Lions Community did not arise from
protected activity. The trial court reasoned that Cairns alleged his “eviction
was the result of racial discrimination against him for opposing racially
discriminatory rental practices,” and that Alta Loma carved out an exception
insulating allegedly discriminatory evictions from attack under the anti-
SLAPP statute.
12
The trial court misunderstood the relevant legal principles. As noted
above, the defendant’s burden at step one of the anti-SLAPP procedure is to
establish that the plaintiff’s claims arise from a protected speech or
petitioning activity. (Wilson, supra, 7 Cal.5th at p. 884.) It is true that
illegal activity is not a valid exercise of rights guaranteed by the First
Amendment, and is therefore not protected by the anti-SLAPP statute. (See,
e.g., Flatley, supra, 39 Cal.4th at p. 317.) However, whether a defendant’s
activity was illegal can be decided at the first step of the anti-SLAPP analysis
only in the “narrow circumstance” where the defendant either “concedes the
illegality of its conduct” or “the illegality is conclusively shown by the
evidence.” (Id. at p. 316, discussing Paul for Council v. Hanyecz (2001) 85
Cal.App.4th 1356, 1367; see Zucchet v. Galardi (2014) 229 Cal.App.4th 1466,
1478 [“Our Supreme Court has emphasized that the exception for illegal
activity is very narrow and applies only in undisputed cases of illegality.”].)
And in Wilson, the California Supreme Court confirmed that claims
based on protected activities alleged to have been unlawful because they were
done for a discriminatory or retaliatory reason are not exempt from the anti-
SLAPP statute. “To conclude otherwise would effectively immunize claims of
discrimination or retaliation from anti-SLAPP scrutiny, even though the
statutory text establishes no such immunity.” (Wilson, supra, 7 Cal.5th at
p. 889.) At the first step of the analysis, “it is the defendant’s acts that
matter,” and “[i]f the acts alleged in support of the plaintiff’s claim are of the
sort protected by the anti-SLAPP statute, then anti-SLAPP protections
apply.” (Id. at p. 887, italics added.) Therefore, at step one of the anti-
SLAPP analysis, the focus is on the defendant’s actions that serve as the
basis of the plaintiff’s claims; no deference is given to allegations that the
13
actions were unlawful because they were done for a discriminatory or
retaliatory reason. (Id. at pp. 887–888.)
As the Supreme Court stated in Wilson: “[F]or anti-SLAPP purposes
discrimination and retaliation claims arise from the adverse actions allegedly
taken, notwithstanding the plaintiff’s allegation that the actions were taken
for an improper purpose. If conduct that supplies a necessary element of a
claim is protected, the defendant’s burden at the first step of the anti-SLAPP
analysis has been carried, regardless of any alleged motivations that supply
other elements of the claim.” (Wilson, supra, 7 Cal.5th at p. 892.) The
burden then shifts to the plaintiff, who satisfies his second step burden by
stating “ ‘ “a legally sufficient claim” ’ ” and making “ ‘ “a prima facie factual
showing sufficient to sustain a favorable judgment.” ’ ” (Id. at p. 891.)
Alta Loma, the case on which the trial court relied, was decided before
Wilson, but it was not contrary to Wilson. Alta Loma did not purport to hold
that allegedly discriminatory evictions are exempt from the anti-SLAPP
statute. Rather, Alta Loma involved application of the rule, “ ‘that a cause of
action arguably may have been “triggered” by protected activity does not
entail that it is one arising from such,” and that “the critical consideration is
whether the cause of action is based on the defendant’s protected free speech
or petitioning activity.’ ” (Alta Loma, supra, 154 Cal.App.4th at p. 1284,
quoting Navellier, supra, 29 Cal.4th at p. 89.) The Alta Loma court, applying
this rule, held that the claims challenged on an anti-SLAPP motion had been
triggered by protected activities, but did not arise from those protected
activities.
In Alta Loma, the DFEH filed a complaint for disability discrimination
against a landlord after a tenant was evicted. (Alta Loma, supra, 154
Cal.App.4th at p. 1280.) The landlord allegedly served a notice advising
14
tenants of its intent to remove an apartment building from the rental market
in accordance with local rent control regulations. (Id. at p. 1276.) When one
tenant claimed she was disabled and sought an extension of time to vacate
the unit as provided by law, the landlord was unwilling to accept a doctor’s
note describing her as “ ‘totally disabled’ ” and demanded a detailed
description of her disability. (Id. at pp. 1277–1279.) When the tenant
declined to provide such information on the ground it was private, the
landlord refused the requested extension and filed an unlawful detainer
complaint. (Id. at pp. 1279–1280.)
The complaint filed by the DFEH against the landlord alleged causes of
action for housing discrimination, denial of civil rights, and disability
discrimination. (Alta Loma, supra, 154 Cal.App.4th at p. 1280.) The trial
court denied the landlord’s anti-SLAPP motion, and the Court of Appeal
affirmed. It assumed that the landlord’s acts of filing and serving notices and
filing and prosecuting its unlawful detainer action constituted protected
petitioning or free speech activity. (Id. at p. 1283.) However, it determined
that although these activities were alleged in the complaint, they were not
the basis of the complaint. (Id. at p. 1284.) Instead, the disability
discrimination arose from the landlord’s refusal to accept the tenant’s claim
of disability and accommodate her disability by granting an extension, which
were not acts in furtherance of the landlord’s free speech or petitioning
rights. (Id. at pp. 1284–1285.) Accordingly, the Alta Loma court concluded
the complaint did not arise from protected activities. (Id. at pp. 1287–1288.)
Here, the trial court erroneously interpreted Alta Loma as standing for
the proposition that “a discriminatory eviction” is not “covered by the anti-
SLAPP statute.” As just discussed, that was not the holding of Alta Loma.
Instead, Alta Loma held the activities underlying DFEH’s claims fell outside
15
the anti-SLAPP statute because they were not speech or petitioning
activities, not because they were discriminatory. Apparently relying on its
misunderstanding of Alta Loma, the trial court then concluded that because
“Cairns alleges that his wrongful eviction was the result of racial
discrimination against him for opposing racially discriminatory rental
practices,” his lawsuit against Lions Community was “insulated from attack
by the anti-SLAPP statute.” The court did precisely what the Wilson court
held was impermissible: it deferred to Cairns’s allegations of a
discriminatory motive, and based on those allegations, resolved the anti-
SLAPP motion against Lions Community at the first step.
On our independent review, we reach the opposite conclusion.
Consistent with Wilson, we consider whether the acts alleged in support of
Cairns’s sole cause of action for intentional infliction of emotional distress
constituted protected speech activities under section 425.16, subdivision (e).
Answering this question is a matter of “consider[ing] the elements of the
challenged claim and what actions by the defendant supply those elements
and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at
p. 1063.) “If conduct that supplies a necessary element of a claim is
protected, the defendant’s burden at the first step of the anti-SLAPP analysis
has been carried, regardless of any alleged motivations that supply other
elements of the claim.” (Wilson, supra, 7 Cal.5th at p. 892.)
“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.” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th
161035, 1050–1051 (Hughes).) Although the TAC is not a model of clarity, no
dispute was presented in the trial court that Cairns’s cause of action for
intentional infliction of emotional distress arose from the actions Lions
Community took to evict Cairns, and more specifically from its service of the
90-day eviction notice. An examination of the TAC supports this view. Lions
Community’s service of the allegedly unwarranted, retaliatory notice is the
central focus of Cairns’s allegations that he was intentionally harmed. The
TAC identifies the fear of homelessness instilled by the notice as the
emotional distress suffered by Cairns. It alleges the notice was served on
Cairns to “make [him] homeless” and “prevent dissemination of the facts.”
Thus, service of the notice served as the conduct that supplied the elements
of Cairns’s claim.5
On appeal, Cairns identifies Lions Community’s act of serving the 90-
day notice as the allegedly tortious act on which the TAC is based. He
disagrees with the trial court’s finding that Lions Community’s service of the
notice was an act of discrimination against him; he explains that his theory is
that the notice was retaliatory, not discriminatory, and that it was served in
retaliation against him after he questioned Lions Community’s apparent
illegal discrimination against “ ‘Blacks.’ ” He contends this allegedly
5 Indeed, in the same minute order in which the trial court denied Lions
Community’s anti-SLAPP motion, the court also overruled Lions
Community’s demurrer. It reasoned that Cairns’s cause of action for
intentional infliction of emotional distress was based on the allegation he
“received an eviction notice one week after he questioned [a Lions
Community] staff member and put up posters as to why there were about 100
Chinese residents but no Black residents,” and that this was an act of racial
animus that constituted the outrageous conduct necessary to support a cause
of action for intentional infliction of emotional distress.
17
retaliatory motive removes the service of the notice from the anti-SLAPP
statute.
However, under Wilson, supra, 7 Cal.5th at page 892, at step one of the
anti-SLAPP analysis, it is the defendant’s conduct, not its allegedly
discriminatory or retaliatory motivation for engaging in that conduct, that
matters. Here, as Lions Community consistently maintained, Cairns’s cause
of action for intentional infliction of emotional distress is based on its
protected speech activities. (§ 425.16, subds. (e)(1), (e)(2); see Birkner v. Lam
(2007) 156 Cal.App.4th 275, 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 [service of notice to quit and
filing of an unlawful detainer action are protected activities].) Accordingly,
and contrary to the trial court’s ruling, Lions Community met its burden at
step one of the anti-SLAPP analysis.
B. Cairns Failed to Meet His Burden of Presenting Facts Sufficient to
Establish a Prima Facie Claim of Intentional Infliction of Emotional
Distress
Because Lions Community met its initial burden to show the claim
against it arises from protected activity, the burden shifted to Cairns to
demonstrate a probability of prevailing on his claim. (§ 425.16, subd. (b).)
Because the trial court denied the motion at step one, it did not reach this
issue, so we exercise our discretion to address it in the first instance. (See
Wilson, supra, 7 Cal.5th at p. 899 [remanding case to Court of Appeal to
address the prong two analysis in the first instance]; Collier v. Harris (2015)
240 Cal.App.4th 41, 58 [Court of Appeal has discretion to decide the second
prong of an anti-SLAPP motion in the first instance].)
To meet his second-step burden, Cairns was required to establish that
his cause of action against Lions Community was “ ‘ “both legally sufficient
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and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by [Cairns] is credited.” ’ ”
(Navellier, supra, 29 Cal.4th at p. 89.)
Cairns failed to meet this burden.6 As noted above, the party opposing
an anti-SLAPP motion “ ‘may not rely solely on its complaint, even if verified;
instead, [his] proof must be made upon competent admissible evidence.’ ”
(Sweetwater, supra, 6 Cal.5th at p. 940.) Here, Cairns’s showing in
opposition to the anti-SLAPP motion was limited to his two-page opposition
brief and the three exhibits attached to the opposition brief (the January
2020 letter from his doctor stating he suffers from essential tremor; his
September 2017 complaint to the BBB; and the letter from the property
management company stating it would accept his September 2017 rent).
This showing did not include competent admissible evidence. Cairns’s
assertions in his brief were not made under penalty of perjury. The attached
exhibits were not authenticated or otherwise presented with the foundation
necessary to establish their admissibility.
Even if we were to overlook these evidentiary deficiencies, the brief and
attached documents filed by Cairns in opposition to the anti-SLAPP motion
still failed to establish that his cause of action for intentional infliction of
emotional distress had factual support. Cairns attempted to offer an
6 We empathize with the difficulties a self-represented litigant like
Cairns may face in navigating the anti-SLAPP motion procedures. However,
“[t]he same burdens are imposed uniformly and equally on all appellants, and
self-represented parties are ‘ “held to the same restrictive procedural rules as
an attorney.” ’ ” (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344–345;
see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985 [“the rules of civil
procedure must apply equally to parties represented by counsel and those
who forgo attorney representation”].)
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explanation for some of his behavior in the incidents described in the eviction
notices. However, he did not attempt to explain all of his conduct that was
alleged to have materially violated his lease. And even crediting his version
of events, his showing fell short of establishing that Lions Community was
not sincere in its position that he had committed acts warranting eviction.
He thus failed to offer factual support for the inference that Lions
Community’s service of the 90-day notice was an act of retaliation for
allegedly peaceful questioning about an apparent racial imbalance in its
tenant population.
Thus, Cairns’s showing fell far short of establishing that Lions
Community acted wrongfully, and that it committed an act of “ ‘ “ ‘ “extreme
and outrageous conduct” ’ ” ’ ” as required to prove intentional infliction of
emotional distress. (See Hughes, supra, 46 Cal.4th at pp. 1050–1051.)
Cairns also failed to address other elements of this claim, such as that Lions
Community intended to harm him, and that he suffered “ ‘ “ ‘ “severe or
extreme” ’ ” ’ ” emotional harm. (See ibid.) In short, Cairns failed to meet his
burden of presenting “ ‘ “a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by [him] is credited.” ’ ”
(Navellier, supra, 29 Cal.4th at p. 89.)
Our conclusion that Cairns’s showing in opposition to the anti-SLAPP
motion was inadequate ends our prong two inquiry. Lions Community’s anti-
SLAPP motion should have been granted. As the prevailing party, Lions
Community is entitled to an award of attorney’s fees. (§ 425.16, subd. (c)(1);
see Wilson, supra, 7 Cal.5th at p. 884 [a defendant that prevails on an anti-
SLAPP motion is generally entitled to recover attorney’s fees and costs].)
Lions Community requested an award of attorney’s fees in the trial court,
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and it has reasserted its request on appeal. The statute makes such an
award mandatory, and we perceive no applicable exception to this rule.
DISPOSITION
The order denying Lions Community’s anti-SLAPP motion is reversed.
The trial court is directed to enter a new order granting the motion. The trial
court shall also award attorney’s fees to Lions Community in an amount to be
determined by the court. Lions Community is entitled to its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).)
DO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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