All Of Tenant’s Claims Stemmed From Protected Activity Pursuant To Litigation Privilege.
Tenant sued landlord – claiming the content and service of a 3-Day Notice to Cure constituted breaches of covenants of good faith and fair dealing, quiet enjoyment, were defamatory, and interfered with the contractual and economic relationship between tenant and tenant’s domestic assistant (for whom plaintiff had attempted to sublet space in Landlord’s home). Landlord successfully SLAPPed back, claiming plaintiff’s causes of action stemmed from protected petitioning activity, and was awarded $4,890 in attorney fees and costs – consisting of $4,800 in attorney fees, a $60 filing fee, and $30 for court reporter fees. Plaintiff appealed.
The 4/3 DCA affirmed in Escamilla v. Encarnacion, Case No. G059276 (4th Dist., Div. 3 May 21, 2021) (unpublished). In a 3-0 opinion authored by Justice Moore, the panel found that both the service and content of the Notice were activities protected, under Civil Code § 47, pursuant to the litigation privilege – which applies to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson, 50 Cal.3d 205, 212 (1990).) Because the only acts challenged in plaintiff’s complaint were the service of the notice and content of the notice, all of plaintiff’s causes of action arose from protected activity. As such, plaintiff was unable to demonstrate a probability of prevailing on the merits of his claims.
As to the fees, plaintiff argued that defendant’s attorney charged an unreasonable hourly rate and failed to fully document the fees. The panel disagreed – finding the award was supported by declaration detailing the fees, billing rates and hours. Additionally, plaintiff provided no proof that the hourly rate was unreasonable.
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