Slumlord Richard Thomas To Pay $5.5 Million To Tenants

Richard Thomas withheld deposits from me and friends of mine years ago. He built an empire off rental properties around the bay, financed by stolen security deposits and nickel-and-dime scams of all kinds. He is a vexatious litigant, a criminal mastermind, and a major A@$hole!

Nice work by the tenants and the legal team!

(The following is a recap from public documents that detail how Richard E. Thomas went after those who protested and tried to stop his unlawful practices of ripping off Oakland and Bay Area renters.)


This is the html version of the file http://www.courtinfo.ca.gov/opinions/archive/A103597.PDF.
Google automatically generates html versions of documents as we crawl the web.

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Filed 2/4/05--Appendix Not Available in Electronic Form
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RICHARD E. THOMAS,
Plaintiff and Respondent,
v.
JOHN QUINTERO,
Defendant and Appellant.
A103597
(Alameda County
Super. Ct. No. RG03095869)
I.
I
NTRODUCTION
Appellant John Quintero (Quintero) appeals from the denial of his special motion
to strike, brought under California’s anti-SLAPP statute (Code Civ. Proc., § 425.16),
1
in
response to respondent Richard E. Thomas’s (Thomas) petition seeking injunctive relief
against civil harassment (§ 527.6). The conduct sought to be enjoined was demonstrating
and leafleting by Quintero and others against Thomas’s alleged practices as a landlord of
multiple rental units.
We reverse, holding that anti-SLAPP motions may be filed challenging petitions
for injunctive relief brought under section 527.6, because they constitute “causes of
action” under the anti-SLAPP law, and there is nothing in section 425.16 which would
exempt such petitions from the broad reach of this remedial statute. However, the anti-
SLAPP statute does not apply to a proceeding under section 527.6, subdivision (c), which
1
All further statutory references are to the California Code of Civil Procedure
unless otherwise indicated.
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is limited to determining whether an interim temporary restraining order (TRO) should be
issued as a prelude to a hearing on the petition for injunctive relief.
We also conclude that Quintero satisfied his threshold burden of proving that the
petition for a civil harassment injunction arose out of public conduct “in connection with
an issue of public interest,” and was, thus, protected activity (prong one) under the anti-
SLAPP statute (§ 425.16, subd. (e)(3)). Lastly, we determine that there was no likelihood
Thomas would prevail on the merits of his petition (prong two) (§ 425.16, subd. (b)(1)).
Accordingly, the anti-SLAPP motion should have been granted.
2
We remand to allow
the trial court to make an appropriate award of attorney fees under section 425.16,
subdivision (c).
II.
F
ACTUAL AND
P
ROCEDURAL
B
ACKGROUND
On May 9, 2003
3
, Thomas filed a petition for injunction prohibiting harassment
against Quintero pursuant to section 527.6. The petition was filed on Form CH-100, a
form adopted for mandatory use by the Judicial Council of California (Judicial Council)
in response to section 527.6, subdivision (m) requiring it to do so.
4
On the face of the
petition, Thomas checked a box indicating that the petition was being accompanied by an
application for a TRO.
The petition alleged that Quintero was among a group of people who appeared at
Thomas’s church, and who then harassed members of the congregation “with the stated
2
While the case was pending on appeal, Thomas filed a motion to dismiss the
appeal on the grounds that the appeal was moot, meritless and frivolous. We issued an
order on March 16, 2004, stating that the motion would be considered with the issues on
the appeal. For the reasons stated in this opinion, the motion to dismiss is denied.
3
Unless otherwise stated, all of the events described in this opinion took place in
2003.
4
“(m) The Judicial Council shall promulgate forms and instructions therefor, and
rules for service of process, scheduling of hearings, and any other matters required by this
section. The petition and response forms shall be simple and concise, and their use by
parties in actions brought pursuant to this section shall be mandatory.”
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purpose of causing extreme embarrassment and severe emotional distress to [Thomas].”
The petition went on to explain that good cause existed to include members of Thomas’s
family within the protection of the orders requested because Quintero and others had also
demonstrated at Thomas’s home, and threatened to harass his family, thereby placing
them “in fear of their security at home.” It was noted that Quintero had indicated an
intention to return to Thomas’s church and home, with the effect of disrupting church
activities and invading Thomas’s free exercise of religion and right to privacy. The
petition was accompanied by declarations signed by Thomas, Charles Cryer, and Sue
Louie, the latter two being members of Thomas’s church who witnessed the events
described in the petition.
At an ex parte hearing on May 9, Alameda County Superior Court Judge Julie M.
Conger issued an order to show cause (OSC) using Judicial Council Form CH-120, and
set a hearing for June 6 to determine if an injunction should issue as prayed for in the
petition. In the meantime, the court granted a TRO which ordered Quintero not to
“contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send
any message to, follow, stalk, destroy the personal property of, disturb the peace of, keep
under surveillance, or block movements in public places or thoroughfares of [Thomas
and his family].” Quintero was also ordered, on an interim basis, to stay at least 100
yards away from Thomas, his family members, and the pastor and members of Thomas’s
church. Lastly, again on an interim basis, Quintero was prohibited from “distributing
false and misleading handbills on private property without permit and in violation of
local ordinances, referring to [Thomas] or any other person protected under this order.”
The parties appeared before Judge Conger on June 6, at which time Quintero
requested a continuance of the hearing on the OSC.
5
The request was granted, and the
5
The record does not include a transcript of this hearing. Further, the record does
not explain the basis for the requested continuance, although the suggestion was made by
Quintero’s counsel that the continuance was to allow Quintero and another defendant
(who was later dismissed) time to hire counsel.
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hearing was continued to July 25. The court ordered that the TRO remain in effect until
then.
Ten days later, on June 16, Quintero filed a special motion to strike under the anti-
SLAPP statute (§ 425.16), setting the hearing for July 15 in the regular law and motion
department of the Alameda County Superior Court before Judge James A. Richman. The
motion was accompanied by Quintero’s declaration (with exhibits), and a supporting
brief. Thomas filed an opposing brief with his own declaration on July 3, and a reply
brief was filed by Quintero on July 10, along with certain evidentiary objections to
Thomas’s declaration. A hearing on the special motion to strike was held on July 15, and
Judge Richman denied Quintero’s motion.
Thereafter, Thomas’s OSC came on for hearing before Judge Conger on July 25,
at which time the judge heard testimony from the parties and found that the incidents
alleged in the petition did not “rise to the level necessitating a three year civil harassment
restraining order.” It is also noted in the court’s minute order that Quintero agreed not to
have further contact with Thomas’s pastor, and the matter was dismissed.
6
This appeal
challenges only the denial of Quintero’s special motion to strike by Judge Richman.
III.
L
EGAL
D
ISCUSSION
A. The Anti-SLAPP Statute and the Standard of Review on Appeal
Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant
part: “(a) The Legislature finds and declares that there has been a disturbing increase in
lawsuits brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances. The Legislature finds and
declares that it is in the public interest to encourage continued participation in matters of
public significance, and that this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed broadly. [¶] (b)(1) A cause
6
The record does not contain a transcript of this hearing, and Judge Conger’s
minute order appears only as an exhibit to Thomas’s brief on appeal.
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of action against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States or California Constitution
in connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall
consider the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based. [¶] (3) If the court determines that the plaintiff has
established a probability that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible in evidence at any
later stage of the case, and no burden of proof or degree of proof otherwise applicable
shall be affected by that determination. [¶] . . . [¶] (e) As used in this section, ‘act in
furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law; (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law; (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest; (4) or any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.”
Under the statute, the court makes a two-step determination: “First, the court
decides whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant
meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of
the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds
that such a showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1) . . . .)”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88; see also Equilon Enterprises v. Consumer
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Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises); City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78.) “Only a cause of action that satisfies both prongs 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, supra, 29 Cal.4th at p. 89.)
A ruling on a special motion to strike under section 425.16 is reviewed de novo.
(Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) This includes whether the anti-
SLAPP statute applies to the challenged claim. (Kashian v. Harriman (2002) 98
Cal.App.4th 892.) Furthermore, we apply our independent judgment to determine
whether Thomas’s causes of action arose from acts by Quintero in furtherance of
Quintero’s right of petition or free speech in connection with a public issue. (Mission
Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721,
disapproved on another ground in Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1123, fn. 10.) Assuming these two conditions are satisfied, we must
then independently determine, from our review of the record as a whole, whether Thomas
has established a reasonable probability that he would prevail on his claims. (Church of
Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, overruled on other grounds
in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.)
B. Section 527.6 Civil Harassment Petitions
Are Subject to Special Motions to Strike
At the hearing on Quintero’s special motion to strike, the trial court expressed
paramount concern for the “fundamental issue” of whether the anti-SLAPP statute
applies to section 527.6 proceedings. The judge expressed his belief that it did not,
because: (1) a petition under section 527.6 was not a “cause of action” as defined in the
anti-SLAPP statute, and (2) applying the anti-SLAPP statute to civil harassment
proceedings would be antithetical to the “quick-acting procedure” envisioned by the
Legislature’s enactment of section 527.6. Also, the court was concerned that the
provisions allowing for discovery in connection with a special motion to strike was
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“counter-intuitive or counter [to] the whole purpose of 527.6.” We address these issues
in turn.
As noted above, the anti-SLAPP statute allows for a special motion to strike to be
filed against any “cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue . . . .” (§ 425.16, subd. (b)(1).)
What constitutes a “cause of action” is not further defined by statute. However,
elsewhere in the anti-SLAPP statute the phrase is used interchangeably with the nouns
“claim” (§ 425.16, subd. (b)(3)), “complaint” (§ 425.16, subd. (f)), “action” (§ 425.16,
subd. (c)), and the phrase “the facts upon which the liability or defense is based”
(§ 425.16, subd. (b)(2)). The statute also defines “complaint” to include “cross-
complaint” and, importantly here, “petition” (§ 425.16(h)).
Until today, no court has decided the precise question of whether a petition filed
for injunctive relief under California’s civil harassment statute is subject to a special
motion to strike under the anti-SLAPP statute. However, facially the anti-SLAPP statute
applies to “petitions” and no exception is made for one filed under the civil harassment
statute (§ 527.6). Indeed, the anti-SLAPP statute expressly exempts some forms of legal
proceedings from the scope of the statute (§ 425.16, subd. (d)), leading us to that old saw
of statutory construction, “expressio unius est exclusio alterius.” “Under the maxim of
statutory construction, expressio unius est exclusio alterius, if exemptions are specified in
a statute, we may not imply additional exemptions unless there is a clear legislative intent
to the contrary. [Citation.]” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215,
1230, original italics; see also People v. Oates (2004) 32 Cal.4th 1048.)
7
Furthermore, while not directly deciding this question, in other contexts several
courts have treated section 527.6 petitions as causes of action, actions, or lawsuits. For
7
We note as well the fact that just last year the Legislature modified the anti-
SLAPP scheme by excluding from it additional enumerated causes of action. (See
§ 425.17.) Proceedings under section 526.7 are not excluded by this new section either.
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example, in Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, one issue on
appeal was whether there existed substantial evidence justifying a civil harassment
petition under section 527.6, where there was no transcript of the proceedings below.
The court characterized the petition for civil harassment as a “cause of action”: “[T]he
injunction was properly issued in favor of Ms. Doering because the record reflects that
the petition was amended on the day of the hearing to allege a cause of action for
personal harassment against her.” (Id. at p. 614, italics added.)
Likewise in Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d
719, the court characterized a section 527.6 petition as a lawsuit. The principal issue in
that case was to what extent the court could limit the parties’ presentation of oral
testimony at the hearing on a section 527.6 petition. (Id. at p. 729.) The court
determined that the exclusion of all oral evidence violated the parties’ rights to due
process.
8
In so deciding, the court referred to the procedure to adjudicate a petition under
section 527.6 as “in effect a highly expedited lawsuit on the issue of harassment.” (Id. at
p. 732, italics added.) As partial support for its view, the court cited to a Judicial Council
publication that provided “instructions for litigants in harassment actions,” which
cautions that if a defendant wishes to defend against “the lawsuit,” the defendant and his
or her witnesses must attend the hearing on the petition. (Id. at p. 732, fn. 5.)
These characterizations also clearly and unambiguously bring 527.6 petitions
within the embrace of the anti-SLAPP statute with the same force and effect as those
SLAPP cases involving claims for injunctive relief but which were brought under more
general procedural statutes. (Equilon Enterprises, supra, 29 Cal.4th 53; Governor Gray
Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449; Schroeder v.
Irvine City Council (2002) 97 Cal.App.4th 174; ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993.)
8
In deciding the exclusion of witness testimony violated the defendant’s right of
due process, the court distinguished the hearing on the merits of a petition from the TRO
relief afforded by the statute, a point we address below.
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Nevertheless, Thomas argues that applying the anti-SLAPP statute to a
section 527.6 petition is inimical to the latter’s purpose. The trial court observed that
section 527.6 is designed to adjudicate claims of harassment involving allegations of
potentially serious risk of injury or harm in an expedited fashion, normally lasting no
more than 22 days from start to finish. The trial judge was particularly troubled by the
possibility that the anti-SLAPP special motion procedure might be used to “abate” the
TRO mechanism, inhibit resort to the civil harassment statute because of concern for
liability for attorney fees, and the potential complications resulting from even limited
discovery in the anti-SLAPP context. (Schroeder v. Irvine City Council, supra, 97
Cal.App.4th 174.) The trial judge concluded that the Legislature could not have intended
the scope of the special motion to strike to extend to civil harassment petitions under
section 527.6. Echoing the trial court’s comment, Thomas contends the unique “quick-
acting procedure” afforded by the civil harassment remedy would be irreparably
undermined if the special motion to strike procedure of the anti-SLAPP law were
superimposed on it.
We are fully cognizant that the civil harassment statute establishes a special
procedure specifically designed to provide for expedited injunctive relief to persons who
have suffered civil harassment. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 811.) For
purposes of the statutory remedy, “harassment” is defined as “unlawful violence, a
credible threat of violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the person, and that serves no
legitimate purpose.” (§ 527.6, subd. (b).)
9
Moreover, the conduct must by its nature be
9
“Unlawful violence” is defined as “any assault or battery, or stalking . . . , but shall
not include lawful acts of self-defense or defense of others.” (§ 527.6, subd. (b)(1).)
“Credible threat of violence” is a “knowing and willful statement or course of conduct
that would place a reasonable person in fear for his or her safety, or the safety of his or
her immediate family, and that serves no legitimate purpose.” (§ 527.6, subd. (b)(2).)
The statute also requires that the harassment involve a “course of conduct,” meaning “a
pattern of conduct composed of a series of acts over a period of time, however short,
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such as to cause a reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff to be enjoined. (§ 527.6,
subd. (b).) The statute enjoins for up to three years persons who make threats of a serious
nature which, even if not carried out, cause objectively justified substantial emotional
distress to another.
Because of the significant social and community value the civil harassment statute
provides, like the trial court, we are wary of the potential for conflict between the anti-
SLAPP statute and the civil harassment remedy. However, we cannot ignore the
relatively straightforward textual solution to the issue of section 527.6’s interpretation
raised on appeal. Fortunately, we also do not share the concerns expressed that allowing
a petition for civil harassment to be attacked by a special motion to strike will interfere
with the civil harassment statutory scheme, nor do we view it as being likely to inhibit the
invocation of that procedure.
First, we see no reason that the special motion to strike procedure will interrupt the
time line established for determining a civil harassment petition’s merits. If a TRO has
been granted, a hearing on the petition must be held within 15 days or, if good cause
appears, 22 days from the date the TRO is issued. (§ 527.6, subd. (d); Cal. Rules of
Court, rule 363(a).) If a TRO is issued without notice, the defendant is entitled to one
continuance for a reasonable period of at least 15 days or any shorter period the
defendant requests, to enable the defendant to meet the plaintiff’s application. (§ 527,
subd. (d)(4); Adler v. Vaicius (1993) 21 Cal App.4th 1770, 1775-1776.) The TRO
remains in effect until the date of the continued hearing. (§ 527, subd. (d)(4).)
Additionally, the court retains the power to modify or terminate the TRO. (§ 527.6,
subd. (c).)
But, despite the short time line specified in the statute for a hearing on the merits
of a petition (nominally 22 days from the date a TRO is granted ex parte), that time can
evidencing a continuity of purpose.” (§ 527.6, subd. (b)(3); see Leydon v. Alexander
(1989) 212 Cal.App.3d 1.)
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be extended by a request for a continuance unrelated to a defendant’s desire to challenge
the petition via a special motion to strike under the anti-SLAPP statute. If such a request
is made by the defendant, the time from the issuance to the TRO to a hearing on the
petition will be extended at least to 37 days. It can be longer. In this case, the hearing
was not held until July 25, a total of 75 days from the issuance of the TRO, while the
TRO remained in effect.
Regardless of whether the hearing on a civil harassment petition takes place 22 or
75 days after filing, even if a defendant’s response to the petition includes the filing of a
special motion to strike, we see no reason that the pendency of that motion should
interfere with the disposition of a section 527.6 petition. Neither the court below nor
Thomas has suggested how any interference could manifest itself. Indeed, in this case the
special motion came on for hearing before the hearing on Thomas’s petition, and there is
no indication that the section 527.6 proceeding was prejudiced by the filing of the special
motion to strike. Surely, any threat to the efficacy of the civil harassment proceeding,
should it arise, can be eliminated by the trial court’s use of well-known case management
tools.
10
10
We note that the California Supreme Court has pending before it the question of
whether an appeal of the denial of a special motion to strike under section 425.16
automatically stays the trial court proceedings, pursuant to section 916. (Varian Medical
Systems, Inc. v. Delfino (review granted March 3, 2004, S121400); see also Mattel, Inc. v.
Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1189-1190.)
Regardless of how that issue is decided by our high court, it would not affect a trial
court’s prohibitory civil harassment TRO or preliminary injunction issued under section
526.7. (Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709,
716-717.)
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Similarly, we have no concern that a request for discovery under the anti-SLAPP
law might interfere with a hearing on a civil harassment petition.
11
The anti-SLAPP
statute itself imposes a general stay on discovery in the “action,” subject to a motion upon
a showing of good cause. (§ 425.16, subd. (g).) Thus, the norm would have both the
hearings on the petition and the special motion to strike proceed without discovery.
To be sure, despite the general stay on discovery once a special motion to strike is
filed, “ ‘on noticed motion and for good cause shown, [the court] may order that specified
discovery be conducted notwithstanding this subdivision.’ ” (Lafayette Morehouse, Inc.
v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 867.) If necessary, “while the
statute says the motion to strike ‘shall be noticed for hearing not more than 30 days after
service’ [citation], nothing therein prevents the court from continuing the hearing [on the
special motion to strike] to a later date so that the discovery it authorized can be
completed where a reasonable exercise of judicial discretion dictates the necessity
therefor.” (Id. at p. 868, italics omitted; see also Robertson v. Rodriguez (1995) 36
Cal.App.4th 347.) But even if a request is made for discovery in connection with a
pending special motion to strike, there is no reason to delay the hearing on a civil
harassment petition. Moreover, the trial court could order that discovery in connection
with a pending special motion to strike take place only after the hearing on the civil
harassment petition. To do otherwise could arguably be an abuse of discretion if a trial
11
There is no provision under section 527.6 allowing for discovery, and in any case,
under the civil harassment scheme there is insufficient time in which to conduct
discovery. (See generally Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811; Diamond
View Limited v. Herz, supra, 180 Cal.App.3d 612, 619-620, fn. 8.) Section 527.6,
subdivision (d) requires the trial court to “receive any testimony that is relevant” at the
hearing. The court in Schraer commented in a footnote that this could be in the form of
oral or written testimony, including affidavits, declarations or deposition. (Schraer v.
Berkeley Property Owners’ Assn., supra, 207 Cal.App.3d at p. 733, fn. 6.) This
statement is mystifying inasmuch as no case holds that discovery is allowed under section
527.6, and the general testimonial statute allowing for testimony in the form of affidavits,
deposition, or oral testimony was earlier found by the Schraer court to be inapplicable to
section 527.6 proceedings. (Id. at p. 731.)
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court allowed discovery to go forward at a time, or in a manner, which interfered in any
way with the prompt hearing on a petition under section 527.6.
We consider the argument that special motions to strike will inhibit the pursuit of
civil harassment injunctions to be dubious. A person driven by the need to seek the
exigent protection of the legal system in the face of serious threats of harm or violence
will not be deterred by the potentiality of collateral litigation. In any case, that
potentiality exists already. The statute itself allows a respondent to respond by filing a
cross-complaint (§ 527.6, subd. (d); Kobey v. Morton (1991) 228 Cal.App.3d 1055,
1059.) Also, suits between the parties for such common law torts as invasion of privacy
and intentional infliction of emotional distress are not foreclosed by the civil harassment
procedure. (Grant v. Clampitt (1997) 56 Cal.App.4th 586.) The related question of
whether a suit for malicious prosecution can be based on the denial of a petition under
section 527.6, remains unanswered. Certainly too, a respondent can pursue an appeal if
the petition is granted. (Kobey v. Morton, supra, 228 Cal.App.3d 1055; Schild v. Rubin
(1991) 232 Cal.App.3d 755.) With all of these collateral proceedings which can result
from a civil harassment dispute, the possibility that a plaintiff might also have to oppose a
special motion to strike seems to us to add little disincentive to invocation of the civil
harassment remedy. If the future proves us ultimately to be wrong on this point, the
Legislature can amend the anti-SLAPP statute, as it has done before, eliminating petitions
under section 527.6 from the reach of that law. Until then, we are required to determine
the meaning of a statute as written, and not to supply a meaning which ignores the text.
By the same token, we disagree that worthy harassment claims will be curtailed
because of the prospect that the plaintiff may be required to pay the defendant’s costs and
attorney fees if a special motion to strike is granted. First, anecdotally, although section
527.6 allows for legal representation, it is well known that, in reality, few people
appearing at hearings on civil harassment petitions are represented by counsel. (§ 527.6,
subd. (e).) That the civil harassment proceedings are most often litigated in pro per can
also be inferred from the Judicial Council’s apparent need to provide detailed instructions
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to litigants about the civil harassment procedure, all written in plain language for the
layperson.
To the extent counsel are involved, the risk of incurring liability for attorney fees
and costs already exists under the civil harassment statute, if the respondent prevails on
the petition (§ 527.6, subd. (i); Byers v. Cathcart, supra, 57 Cal.App.4th 805.) Moreover,
a respondent who brings a frivolous special motion to strike, or one intended solely to
cause unnecessary delay, can be assessed the cost of petitioner’s attorney fees. (§ 425.16,
subd. (c); Moore v. Shaw (2004) 116 Cal.App.4th 182, 198-199.) Thus, the threat of
exposure to SLAPP-related attorney fees seems likely to be of little additional concern to
those who feel the need for the judicial system’s legal protection in their personal affairs.
Moreover, contrary to Thomas’s contention, we do not believe that protecting First
Amendment rights by applying the anti-SLAPP statute to a petition for injunctive relief
under section 527.6 is inimical to the purposes of that section. Section 527.6 expressly
provides that “[c]onstitutionally protected activity is not included within the meaning of
‘course of conduct.’ ” (§ 527.6, subd. (b)(3); see Grant v. Clampitt, supra, 56
Cal.App.4th at p. 591.)
For all of these reasons, we hold that petitions brought pursuant to section 527.6
are subject to attack by a special motion to strike under section 425.16.
However, we conclude that no motion to strike can be filed in response to the TRO
procedure provided for in the civil harassment statute. We emphasize that the purpose of
a petition under section 527.6 is to obtain an injunction against wrongful conduct
described in the statute. One does not file a petition simply to obtain the temporary, and
interim, relief afforded by a TRO. In fact, if a TRO is granted, and the petition is
thereafter dismissed without a hearing, the petitioner is not deemed to have prevailed for
purposes of recovering costs and attorney fees. (Adler v. Vaicius, supra, 21 Cal.App.4th
at p. 1775.) Thus, a request for a TRO is simply an “application.” It does not qualify as a
“cause of action” under the anti-SLAPP statute as it is not a “claim” (§ 425.16,
subd. (b)(3)), “complaint” (§ 425.16, subd. (f)), “action” (§ 425.16, subd. (c)), “cross-
complaint” or “petition” (§ 425.16, subd. (h)).
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15
Nor is the procedure for obtaining a TRO akin to an adjudication of a disputed
claim. So informal is the TRO proceeding that it does not even have to afford due
process protections to the person against whom the TRO is directed. For example, no
notice must be given to the person sought to be restrained before the TRO is issued. The
TRO requires only that the applicant show “reasonable proof of harassment,” and then
only by affidavit.
12
On an ex parte showing of good cause, the court also has the
discretion to issue a TRO that includes other named family or household members who
reside with the applicant. (§ 527.6, subd. (c).)
13
(Schraer v. Berkeley Property Owners’
Assn., supra, 207 Cal.App.3d at p. 732; Adler v. Vaicius, supra, 21 Cal.App.4th at
p. 1775.)
Therefore, we conclude that it would be unreasonable to interpret the anti-SLAPP
statute’s special motion to strike remedy as applying to an application for a TRO under
section 527.6. We turn, then, to the issue of whether the “cause of action” in the petition
“aris[es] from any act of [Quintero] in furtherance of the [Quintero’s] right of petition or
free speech under the United States or California Constitution in connection with a public
issue.”
C. Protected Activity
A cause of action is subject to a motion to strike under the anti-SLAPP statute
even if it is based only in part on allegations regarding protected activity. (Fox
Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) However, “it is
the principal thrust or gravamen of the plaintiff’s cause of action that determines whether
the anti-SLAPP statute applies [citation], and when the allegations referring to arguably
12
By contrast, no injunction can be ordered unless the court finds harassment as
defined by the statute (§ 527.6, subd. (b)) has occurred by “clear and convincing
evidence.” (§ 527.6, subd. (d).)
13
No filing fee may be charged for a petition that alleges that the respondent has
inflicted or threatened violence against the petitioner, stalked the petitioner, or acted or
spoken in any other manner that has placed the petitioner in reasonable fear of violence,
and that seeks a restraining order or injunction restraining stalking, future violence, or
threats of violence. (§ 527.6, subd. (o).)
Page 16
16
protected activity are only incidental to a cause of action based essentially on
nonprotected activity, collateral allusions to protected activity should not subject the
cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003)
113 Cal.App.4th 181, 188.)
As we quoted earlier in this opinion, section 425.16 applies if the cause of action
“arises from” any one of four types of activities, all of which are “protected” by the
section: “(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law; (3) any written or oral statement or writing made in a
place open to the public or a public forum in connection with an issue of public interest;
(4) or any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subds. (e)(1)-(4).)
Quintero contends that Thomas’s civil harassment petition complains of activity
that he engaged in, which fell under three of these four categories—(e)(2), (e)(3) and
(e)(4). As we explain, we conclude that the petition directly arises out of activities under
subdivision (e)(3). Therefore, our discussion focuses on that subdivision, and we do not
decide whether subdivisions (e)(2) and (e)(4) are also implicated.
1. Quintero’s Factual Evidence in Support of Special Motion to Strike
In Thomas’s petition, the Judicial Council Form CH-100 asks for a “description of
conduct” under which Thomas typed the following:
“On or about Sunday April 27, 2003 [Quintero] was part of a group that appeared
at [Thomas’s] church, First Presbyterian Church [address].
“[Quintero] was part of a group of persons who harassed church members,
blocked entrances, and trespassed on church property, with the stated purpose of causing
extreme embarrassment and severe emotional distress to [Thomas].”
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17
In his special motion to strike, Quintero began by recounting his overall
relationship with Thomas. Quintero and his son became tenants in a building owned by
Thomas in 1998. Thereafter, the parties became embroiled in a number of landlord-
tenant disputes, which culminated in an eviction proceeding. A jury found against
Quintero following a trial in April 2003, and Quintero had a 60-day stay of his eviction
by paying rent through June 18, 2003.
Several months before the trial, Quintero, who was being assisted by the Eviction
Defense Center, was put in touch with a group called Campaign for Renters Rights
(CRR). Through CRR, Quintero met many other former tenants of Thomas, and learned
that Thomas was a “notorious landlord” whose pattern for unjust evictions throughout
Oakland was “the first big public case of the campaign in Oakland for a Just Cause for
Eviction Ordinance.”
Quintero also learned that Quintero was a member of the First Presbyterian
Church in Castro Valley, and was a deacon of that congregation. Therefore, in late
April 2003, Quintero sent a letter to the pastor of that church entreating him to intercede
with Thomas on Quintero’s behalf and stop the eviction. The pastor called Quintero in
response to the letter, at which time Quintero described his relationship with Thomas, and
pointed out “that many other people had been hurt by [Thomas].” The pastor declined to
become involved.
On Sunday, April 27, CRR sponsored a demonstration on the public sidewalk and
parking lot at the church. Quintero was among the demonstrators, who also distributed a
leaflet entitled “Why We Are Flyering Your Church.” The leaflet, a copy of which
appears as Appendix A to this opinion, stated that CRR has a four-year record of helping
tenants, and that it had helped to organize 21 former tenant families who were allegedly
owed more than $35,000 in unpaid security deposits by Thomas. In the course of its
work, CRR claims to have contacted more than 100 former tenants of Thomas. Among
other assertions, the leaflet goes on to allege that Thomas had filed evictions against 142
families over a five-year period, that he was successfully sued by the City of San Rafael
for $19,000 when he failed to initiate repairs of rental units he owned there, and that he
Page 18
18
was the “first big public case” of Just Cause Oakland, apparently resulting from his
eviction and failure to repair rental units in that city.
Another leaflet, Appendix B to this opinion, was allegedly distributed at the
church on or about June 1, 2003. It reiterates many of the allegations contained in the
earlier leaflet, but this time, specifically makes reference to Thomas’s then-pending civil
harassment petition against Quintero. In addition to seeking support for Quintero (the
date, time, and department of the OSC is blocked in the middle of the leaflet), the group
implores members of the congregation to intercede, asks church elders to meet with CRR
representatives, and to “look into the practices of a church official.”
2. Thomas’s Factual Evidence in Opposition to Special Motion to Strike
The only evidence submitted by Thomas in opposition to Quintero’s special
motion to strike was his own six-paragraph declaration. In his reply brief below,
Quintero lodged a number of evidentiary objections to Thomas’s declaration.
Understandably, the trial court made no rulings on these objections, because, as discussed
ante, the court’s ruling on Quintero’s special motion to strike did not proceed so far as to
consider whether Quintero’s conduct was “in connection with a public issue.”
We are mindful that, at least when the motion is one for summary adjudication,
our Supreme Court has observed that, for purposes of appeal, the reviewing court may
consider the objected to evidence in the absence of a ruling on objections by the trial
court. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1, disapproved
on another point in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19;
Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) This general
rule has been distinguished in several recent cases. (See Vineyard Springs Estates, LLC
v. Superior Court (2004) 120 Cal.App.4th 633, 643; Sambrano v. City of San Diego
(2001) 94 Cal.App.4th 225, 235-238; City of Long Beach v. Farmers & Merchants Bank
(2000) 81 Cal.App.4th 780, 784-785.)
The above authorities, decided in the context of motions for summary judgment,
are inapposite. In those cases, the issue of whether evidentiary objections were waived in
the absence of rulings by the trial court occurred in the context of summary adjudications
Page 19
19
where the lower courts were necessarily required to rule in order to determine if a
material issue of fact existed. To the contrary, this case arose in the context of a special
motion to strike, and the court disposed of the motion on a legal ground not requiring a
consideration of the evidence presented.
We also note that the general waiver rule has been applied in at least one case
involving a special motion to strike under section 425.16. (Slauson Partnership v. Ochoa
(2003) 112 Cal.App.4th 1005, 1014, fn. 4.) However in Slauson Partnership, the trial
court denied the motion finding that there was a reasonable probability that the plaintiff
in that case would prevail on the merits of his claim. This ruling necessarily related to
the factual showing of the respective parties, including that evidence to which objections
were made. For that reason, like the summary adjudication cases discussed above, this
case, too, is inapposite.
Given that our standard of review is de novo, and that the parties have been
afforded an opportunity in this court to address Quintero’s objections to Thomas’s
declaration,
14
it would be unnecessary and unfair in the particular procedural context of
this case to deem Quintero’s objections waived. Additionally, we will not delay justice
by remanding the case to the trial court for rulings and further findings, only to find
ourselves again reviewing the question of whether Quintero’s conduct fell within the
protection of the anti-SLAPP statute in a subsequent appeal. Therefore, we rule on the
objections which appear in the record as follows:
Objections denominated B.1. through B.5. are sustained. Objection A. is
overruled. Objections to the June 5, 2003 declaration of Thomas, and to the declarations
of Charles Cryer and Sue Louie dated June 4 and 3, respectively, submitted in connection
with Thomas’s petition for civil harassment injunction are moot inasmuch as Thomas did
14
Although the objections were not addressed by either side in their respective
appellate briefs in this court, we did ask the parties, by letter, to address them during oral
argument, and an opportunity to do so was afforded counsel.
Page 20
20
not offer these declarations in opposition to the special motion to strike under section
425.16.
Thus, in addition to the evidentiary record presented by Quintero in support of the
special motion to strike, there was additional admissible evidence offered by Thomas
indicating that Thomas was the owner of several apartment buildings in Alameda County.
He was also an elder and trustee of the 700-member First Presbyterian Church of
Hayward, located in Castro Valley. The pastor of the church received unsolicited and
unwanted communications from Quintero requesting that the pastor intervene in
Quintero’s then-pending eviction from one of Thomas’s properties. Quintero was not a
member of the church. The pastor supported Thomas in his dispute with appellant, and
was unwilling to intervene as requested by Quintero.
3. Quintero’s Conduct Was Public Conduct in Connection
With an Issue of Public Interest
We agree that the weapons of choice in SLAPP suits appear to be claims for
“defamation, various business torts such as interference with prospective economic
advantage, nuisance and intentional infliction of emotional distress. [Citation.]” (Wilcox
v. Peters (1994) 27 Cal.App.4th 809, 816, overruled on other grounds in Equilon
Enterprises, supra, 29 Cal.4th at p. 68, fn. 5; Gallimore v. State Farm Fire & Casualty
Ins. Co. (2002) 102 Cal.App.4th 1388, 1400.) However, resort to the courts’ injunctive
powers to stifle speaking out on public issues in many instances has served as the reserve
arsenal for SLAPP plaintiffs. (Equilon Enterprises, supra, 29 Cal.4th 53; Bernardo v.
Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322.)
It is not difficult to stand back from the admissible evidence in this case and
conjure such a “paradigm” SLAPP suit arising out of a claim for injunctive relief under
section 527.6. After a large number of similar legal disputes with a local landlord,
disgruntled former tenants engage in public demonstrations against the landlord at the
landlord’s church in the hope that they might result in the landlord desisting from the use
of allegedly controversial property management practices against tenants. In response,
Page 21
21
the landlord obtains a TRO, and seeks an injunction against at least one of the protesting
former tenants, the unabashed purpose of which is to stop the embarrassing protests.
Certainly, the circumstances of this case share salient features with innumerable
SLAPP suits of the past: “[W]hile SLAPP suits ‘masquerade as ordinary lawsuits’ the
conceptual features which reveal them as SLAPP’s are that they are generally meritless
suits brought by large private interests to deter common citizens from exercising their
political or legal rights or to punish them for doing so. (Pring, SLAPPs: Strategic
Lawsuits Against Public Participation (1989) 7 Pace Envtl. L.Rev. 3, 5-6, 9.)” (Wilcox v.
Superior Court, supra, at pp. 816-817, fn. omitted, overruled on other grounds in Equilon
Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.)
Application of subdivision (e)(3) (“statement . . . made in a place open to the
public or a public forum in connection with an issue of public interest”) turns on whether
the acts of appellant in picketing and leafleting at respondent’s church were protected
activities. There is no question that the events took place in a “place open to the public,”
and respondent does not otherwise suggest.
Where the margins are drawn as to what constitutes an “issue of public interest”
under subdivision (e)(3) has been one of many subjects of anti-SLAPP jurisprudence
which has garnered substantial judicial attention in the last several years. One of these
cases is Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, in which the defendant, an avid
“token collector,” had sent letters to fellow collectors, and published negative comments
and advertisements in a token collectors’ newsletter (the “Talkin’ Tokens”) about a
fellow collector’s practices, including allegations of criminal conduct. The collector who
was the target of the obloquy sued for defamation and related torts, and one of the issues
examined by the court was to what extent these challenged communications concerned an
“issue of public interest.”
In wrestling to find the statutory definition’s parameters, the court explained:
“The statute does not provide a definition for ‘an issue of public interest,’ and it is
doubtful an all-encompassing definition could be provided. However, the statute requires
that there be some attributes of the issue which make it one of public, rather than merely
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22
private, interest. A few guiding principles may be derived from decisional authorities.
First, ‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter
of public interest should be something of concern to a substantial number of people.
(Dun & Bradstreet v. Greenmoss Builders [1985] 472 U.S. [749,] 762 . . . .) Thus, a
matter of concern to the speaker and a relatively small, specific audience is not a matter
of public interest. (Ibid.; Hutchinson v. Proxmire (1979) 443 U.S. 111, 135 . . . .) Third,
there should be some degree of closeness between the challenged statements and the
asserted public interest (Connick v. Myers (1983) 461 U.S. 138, 148-149 . . .); the
assertion of a broad and amorphous public interest is not sufficient (Hutchinson v.
Proxmire, supra, 443 U.S. at p. 135 . . . .) Fourth, the focus of the speaker’s conduct
should be the public interest rather than a mere effort ‘to gather ammunition for another
round of [private] controversy. . . .” (Connick v. Myers, supra, 461 U.S. at p. 148 . . . .)
Finally, those charged with defamation cannot, by their own conduct, create their own
defense by making the claimant a public figure. (Hutchinson v. Proxmire, supra, 443
U.S. at p. 135 . . . .” (Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132-1133.)
Applying these considerations to the facts of Weinberg, the court concluded there
was no issue of public interest involved, because the dispute was essentially a private
matter between two collectors, resulting in a campaign by one to discredit the other “in
the eyes of a relatively small group of fellow collectors.” (Weinberg v. Feisel, supra, 110
Cal.App.4th at p. 1135.)
15
In so concluding, the court relied in part on this court’s then-
recent decision in Rivero v. American Federation of State, County and Municipal
Employees, AFL-CIO (2003) 105 Cal.App.4th 913, which, like the court in Weinberg,
surveyed the extant authorities on the question of what constitutes an “issue of public
interest.” The Rivero court concluded that there was no public issue when defendant’s
15
The National Token Collectors Association boasts membership of 700, which
includes several more local associations, including the Western States Token Society,
which has about 50 members. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1127.)
Page 23
23
conduct consists of distribution of three flyers critical of a work supervisor’s treatment of
eight subordinate custodians at UC Berkeley’s International House. (Id. at p. 924.)
Suffice it to say that there are no cases dealing with the precise constellation of
facts we confront—former tenant protests against the maintenance and eviction practices
of a landlord of multiple dwelling units. However, there are cases arising out of protests
generated by intended uses of real property in a local community that are instructive.
In Averrill v. Superior Court (1996) 42 Cal.App.4th 1170 (Averrill), efforts by a
homeowner to protest and prevent a residence in her neighborhood from being converted
into a battered women’s shelter, including efforts to dissuade her employer from
supporting the charitable funding for the conversion, were met with an action by the
charitable group claiming defamation and intentional interference with prospective
economic advantage. (Id. at pp. 1172-1173.) The court reversed a trial court’s refusal to
grant the homeowner/defendant’s special motion to strike, in part,
16
concluding that the
defendant’s conduct “clearly came within the purview of the [anti-SLAPP] statute” as
comment on a “public issue”: “Here, the allegedly slanderous statements arose in the
context of a public issue, i.e., the placement of a shelter in petitioner’s neighborhood.
Petitioner was an outspoken critic of the project. She had petitioned the city council,
arguing against the project and had written to the local newspaper expressing her concern
regarding the project and its director.” (Id. at p. 1175.)
Relying on Averrill, the court in Foothills Townhome Assn. v. Christiansen (1998)
65 Cal.App.4th 688 held that a suit by a homeowners association to recover an unpaid
$1,300 assessment needed to replenish the association’s capital reserves, brought against
a recalcitrant homeowner “involved matters of sufficient public interest made in a
16
The principal issue examined by the court was to what extent private
conversations between the homeowner and her employer were protected activities. (Id. at
p. 1174.)
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24
sufficiently public forum to invoke the protection of section 425.16.” (Id. at pp. 695-
696.)
17
Another homeowner-related dispute was at the core of Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468 (Damon). There, the dispute concerned the
conduct of the general manager of a planned development residential community of
1,633 homes. Criticism of the manager, as well as calls for his ouster, was made by two
members of the association’s board of directors in the development’s newsletter. The
controversy escalated until it had divided the community into those who favored retaining
the manager, and those who were opposed to him, and led to several other directors
taking sides. It even sparked a recall campaign against the two directors by those
supportive of the manager’s retention. The dispute resulted in a defamation action by the
manager against those opposed to him who had the most sway in the community, and
against the newsletter publishers. (Id. at pp. 471-473.)
The court concluded that the dispute implicated an “issue of public interest.”
First, it noted that essentially private conduct can serve to be an issue of public interest
where it “impacts a broad segment of society. . . . ‘ “[M]atters of public interest . . .
include activities that involve private persons and entities, especially when a large,
powerful organization may impact the lives of many individuals.” ’ (Macias v. Hartwell
[1997] 55 Cal.App.4th [669,] 674.)” (Damon, supra, 85 Cal.App.4th at p. 479.) It then
analogized the governance of the planned residential development community involved
in that case with public governance, observing that “ ‘[f]or many Californians, the
homeowners association functions as a second municipal government . . . .’ (Chantiles v.
Lake Forest II Master Homeowners Assn. [1995] 37 Cal.App.4th [914,] 922.)” (Damon,
supra, 85 Cal.App.4th at p. 479.)
17
Nevertheless, the court affirmed the denial of plaintiff’s special motion to strike
after concluding that the association’s lawsuit was not brought to chill defendant’s right
of free speech, and there was a likelihood of it prevailing on its claim for arrearage. (Id.
at p. 696.)
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25
Given these authorities’ expansive interpretation of the phrase “issue of public
interest,” and in light of the statute’s mandate that we construe the law broadly so as to
“encourage continued participation in matters of public significance” (§ 425.16, subd.
(a)), we conclude that Quintero’s activities here were protected under section 425.16,
subdivision (e)(3). Quintero did not act alone, but in conjunction with planned
demonstrations against Thomas by a nonprofit group purportedly dedicated to upholding
tenant rights. Thus, while his private interests were certainly in issue, there were much
broader community interests at stake in the protests. For example, Thomas was accused
of wrongfully evicting and improperly retaining the security deposits of more than 100
tenants. He was also accused of a pattern of refusing to make needed repairs to his rental
properties, allegedly resulting in legal action being taken against him by several
municipalities.
18
These are not token concerns, but matters that impact the broader
community, certainly no less so than the battered women’s shelter at issue in Averrill, or
the fight over a $1,300 assessment in Foothills Townhome Assn. v. Christiansen, supra,
65 Cal.App.4th 688. The allegations against Thomas implicate both a concern for the
stability of the rental market in the affected community, as well as intimate the threat of
potential urban blight associated with the failure to make necessary repairs to buildings in
the neighborhood.
We are also impressed by the fact that the protest activities were not an end to
themselves, but were coupled with a genuine effort to engage the members of Thomas’s
congregation in discussing and finding a solution to the disputes—that is, the activity was
directed at encouraging participation by the protestors and the church in an “ongoing
controversy, dispute or discussion.” (Du Charme v. International Brotherhood of
Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du Charme).) In Du Charme this
division rejected a claim that postings on a labor union’s website disclosing that the
18
We note that none of the matters raised in the flyers distributed by CRR and
Quintero were disputed by Thomas in his opposition to Quintero’s special motion to
strike.
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26
union’s business manager had been terminated by the union for financial defalcations
were protected under section 425.16, subdivision (e)(3). (Ibid.) The court concluded that
the postings did not warrant the protection of the anti-SLAPP statute because they did not
seek to encourage public participation in any controversy, debate or discussion, and thus
did not involve “an issue of public interest.” (Ibid.)
Here, there was a direct call for public involvement in an ongoing controversy,
dispute or discussion with respect to Thomas’s past and continued property management
practices. Under Du Charme, to the extent the subject of Quintero’s protest was a
private, and not a public, matter, it nevertheless was one of widespread public interest
occasioned by the sincere attempt to seek public support for, and resolution of, this
dispute.
19
D. Likelihood of Prevailing on Claim
Ordinarily, “[t]he process the court uses in determining the merits of the motion is
similar to the process used in approaching summary judgment motions. The evidence
presented must be admissible [citation] and the trial court does not weigh the evidence.
[Citation.] Rather, a probability of prevailing is established if the plaintiff presents
evidence establishing a prima facie case which, if believed by the trier of fact, will result
in a judgment for the plaintiff. [Citation.]” (Mattel, Inc. v. Luce, Forward, Hamilton &
Scripps (2002) 99 Cal.App.4th 1179, 1188.)
Thomas’s ability to prevail on the merits of his civil harassment petition depends
upon proof, by clear and convincing evidence, that he was subjected to unlawful
harassment as defined by section 527.6, subdivision (b). (§ 527.6, subd. (d); Schraer v.
19
We are aware of the very recent decision by Division One of the Fourth District,
O’Meara v. Palomar-Pomerado Health System (2005 Cal.App.LEXIS 74), which held, in
part, that a physician’s suit against a hospital medical peer review committee did not arise
out of a “public issue” or involve an “issue of public interest.” However, that case is
factually distinguishable both because of the limited number of persons interested in the
“specific nature” of the issue examined by the peer review committee, and the absence of
any claim that the committee’s review involved a “public controversy or dispute.” (Id. at
2005 Cal.App.LEXIS 74, 21-23.)
Page 27
27
Berkeley Property Owners’ Assn., supra, 207 Cal.App.3d 719.) He clearly did not meet
this standard for several distinct reasons.
First, the evidentiary showing made by Thomas in support of his special motion to
strike was woefully inadequate to meet even the minimal standard of proof required by
the civil harassment statute. Essentially, he presented evidence not disputed by Quintero,
that he was a landlord of multiple rental units in Alameda County, that Quintero was one
of his former tenants whom Thomas had successfully evicted, and who was now engaged
in public demonstrations at Thomas’s church protesting that action, and who contacted
the church’s pastor seeking his intervention in the landlord-tenant dispute.
However, section 527.6 requires significantly more. The harassment against
which an injunction may issue under this statute must be “unlawful violence, a credible
threat of violence, or a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would cause a reasonable person to
suffer substantial emotional distress, and must actually cause substantial emotional
distress to the plaintiff.” (§ 526.7, subd. (b).) In the first instance, Thomas presented no
evidence that he was a victim, or threatened victim, of violence of any sort.
Nor did Thomas present any evidence that he was the victim of a “knowing and
willful course of conduct” that “seriously alarm[ed], annoy[ed], or harasse[d]” him and
which “serve[d] no legitimate purpose.” (§ 526.7, subd. (b).) Even if Thomas
demonstrated that he had been seriously alarmed, annoyed or harassed by Quintero’s
conduct, there was no showing that Quintero’s injurious actions were part of a “course of
conduct.” In this regard, the statute defines “course of conduct” as “a pattern of conduct
composed of a series of acts over a period of time, however short, evidencing a continuity
of purpose, including following or stalking an individual, making harassing telephone
calls to an individual, or sending harassing correspondence to an individual by any
means, including, but not limited to, the use of public or private mails, interoffice mail,
fax, or computer e-mail. Constitutionally protected activity is not included within the
meaning of ‘course of conduct.’ ” (§ 526.7, subd. (b), italics added.)
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28
Because we have already concluded that Quintero’s conduct constituted a form of
protected speech, Quintero manifestly cannot meet the section’s alternative test. Even if
the conduct was not constitutionally protected, Quintero was not engaged qualitatively in
a “pattern of conduct” as contemplated by the statute.
Furthermore, we are not required to ignore the fact that Judge Conger dismissed
Thomas’s petition after a hearing at which both parties testified, and upon a finding that
“the incidents do not rise to the level necessitating a three year civil harassment
restraining order.”
20
This determination is dispositive of the issue of whether there
existed a probability that Thomas would prevail on his claim. Indeed, no prognosticating
on this issue is necessary. There was no probability that Thomas would prevail on his
petition—he lost on its merits. Moreover, no appeal has been taken from that
determination rendering it final in all respects.
One of the appellate issues determined in Slauson Partnership v. Ochoa, supra,
112 Cal.App.4th 1005 was what effect, if any, would be accorded the fact that the
plaintiff obtained a preliminary injunction. Could it be used presumptively by the
plaintiff opposing a special motion to strike under section 425.16 to satisfy plaintiff’s
burden of demonstrating a likelihood of prevailing on the underlying claim? The court
concluded that success on the preliminary injunction claim can be used to meet the
second prong of a special motion to strike under section 425.16, subdivision (b)(1). (Id.
at p. 1022; accord, Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 354-357.)
But in Lam v. Ngo (2001) 91 Cal.App.4th 832, the presence of other causes of
action, and the possibility that the trial court may have granted injunctive relief for
reasons other than the merits, led the Lam court to conclude that the granting of
injunctive relief was not dispositive as to the “likelihood [of prevailing] . . .” prong of a
special motion to strike. (Id. at pp. 843-844.) In this regard, the court noted that in
ordinary cases involving claims for preliminary injunctive relief, the court must balance
equities in assessing whether to grant the injunction, whereas an assessment under a
20
See ante, footnotes 4 and 5.
Page 29
29
special motion to strike as to the likelihood a plaintiff will prevail confronts the court
with “a much more binary task.” (Id. at p. 843.) Therefore, the tests involve different
standards preventing an order granting a preliminary injunction from being used to
preclude a defendant bringing a special motion to strike from arguing the absence of a
likelihood of prevailing on the merits. (Ibid.)
We agree that the denial of a general claim for a preliminary injunction can be for
reasons other than a finding the petition lacks merit, and that in such cases, the denial of
that relief should not have preclusive effect. However, we do not share the Lam court’s
view that the granting of injunctive relief can be viewed as anything other than a judicial
finding that the petitioner has proved a likelihood of prevailing on the claim, a
prerequisite for injunctive relief. (See White v. Davis (2003) 30 Cal