PAUL SUNAK v. USHA SUNAK, ET AL

“A 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 Constitution or the 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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of this statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts use a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the moving defendant must show that the challenged lawsuit arises from protected activity. (Ibid.) To establish protected activity, the defendant must demonstrate that “the act or acts underlying the plaintiff’s claim falls within one of the four categories [of protected activity] identified in section 425.16, subdivision (e).” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 538; accord Howard Jarvis Taxpayers Assn. v.

Powell (2024) 105 Cal.App.5th 955, 968.) In determining whether a complaint or a subset of it “arises from” protected activity, “[t]he critical consideration is whether the cause of action is based on the defendant’s free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis added]; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “Courts deciding an anti- SLAPP motion . . . must consider the claim’s elements, the actions alleged to establish those elements, and whether those actions are protected.” (Bonni v.

St. Joseph Health System (2021) 11 Cal.5th 995, 1015; accord Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) If the defendant makes this “threshold showing[,]” the court proceeds to the second step, where the plaintiff must demonstrate a probability of prevailing on the merits of the claims at issue. (Equilon Enterprises, supra, 29 Cal.4th 53, 67; Code Civ. Proc., § 425.16, subd. (b)(1).) “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, supra, 29 Cal.4th 82, 89 [emphasis in original].)

DISCUSSION

Procedural Matters

The same day he filed his opposition to Defendants’ anti-SLAPP motion, Plaintiff filed a First Amended Complaint. When a plaintiff amends his complaint while an anti-SLAPP motion

is pending against it, the court is still required to rule on the anti-SLAPP motion even though it is directed at a superseded pleading. (See Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 679.) This is because the defendant’s potential entitlement to attorney’s fees if its motion would have been successful (see Code Civ. Proc., § 425.16, subd. (c)(1)) survives the amendment. (See Sylmar, supra, 122 Cal.App.4th 1049, 1056; see also Dickinson, supra, 17 Cal.App.5th 655, 679.)

Regarding the parties’ evidentiary objections:

The Court’s ruling on this motion is based on its conclusion that Defendants did not carry their burden to establish that the claims they request to be stricken arise out of protected activity. (Equilon Enterprises, supra, 29 Cal.4th 53, 67.) It did not have occasion to reach Plaintiff’s showing of a probability of success on the merits of his claims. The Court does not rule on Defendants’ evidentiary objections to Plaintiff’s declaration because the declaration was not material to its disposition of the motion. Based on Plaintiff’s opposition brief, Plaintiff intended to file evidentiary objections to defense counsel’s declaration. Those evidentiary objections do not appear in the Court’s record. It appears that Plaintiff may have accidentally filed a second copy of his request for judicial notice instead of his evidentiary objections.

Regarding the parties’ requests for judicial notice:

All are granted. (Evid. Code, § 452, subd. (d) [court records].)

Protected Activity

Defendants argue that all of the claims they wish to strike arise out of protected activity because of their relationship to a successful eviction action in which Defendant Gurbax Sunak ejected Plaintiff from a property in Vallejo. They explain that on January 10, 2023, Gurbax filed an unlawful detainer complaint against Plaintiff in the Solano County Superior Court to recover possession of real property at 6216 Pebble Beach Drive in Vallejo. (Bittencourt Dec., ¶ 5 & Ex. 1.) That case was tried and resulted in a March 1, 2023 judgment awarding possession of 6216 Pebble Beach Drive to Gurbax and terminating the lease. (Id. at ¶ 6 & Ex. 2.)

According to Defendants, a writ of possession issued based on that judgment, and Defendants recovered possession of the Vallejo residence pursuant to that writ. (Id. at ¶ 6.) Defendants claim Plaintiff’s allegations regarding his ejectment from an unidentified property in Vallejo are merely describing his being removed from 6216 Pebble Beach Drive in adherence to the judgment in the unlawful detainer action.

Defendants rely on Code of Civil Procedure, section 425.16, subdivisions (e)(1) and (e)(2). These provisions deem activity protected by the anti-SLAPP statute to include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (Code Civ. Proc., § 425.16, subd. (e)(1)) and “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” (Code Civ. Proc., § 425.16, subd. (e)(2)). Defendants point out that filing a lawsuit constitutes protected activity (Navellier, supra, 29 Cal.4th 82, 90) and argue that claims targeting

the manner of their repossession of 6216 Pebble Beach Drive arise out of protected activity because of the relationship between this conduct and the unlawful detainer action.

The Court will begin with the Fourth Cause of Action for wrongful eviction. The Court reads this claim to allege that Defendants wrongfully evicted Plaintiff both from 5 Harbor Drive in Novato and from an unidentified Vallejo property Defendants claim is 6216 Pebble Beach Drive. (See Complaint, ¶¶ 75-83.) (Defendants move to strike only the allegations pertaining to the Vallejo property.) The elements of wrongful eviction are the plaintiff’s possession of the premises and the defendant’s forcible entry, which may be shown by demonstrating that the defendant ejected the plaintiff without resorting to judicial process. (Spinks v.

Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1039; see Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655 [“If a tenant is forcibly removed from premises without judicial process, such tenant can sue for wrongful eviction and obtain actual damages, including consequential damages, and (upon a proper showing) punitive damages.”].)

The Fourth Cause of Action alleges that Defendants ousted Plaintiff from both properties without filing any unlawful detainer action and without obtaining a court order, instead resorting to self-help eviction methods. (Id. at ¶¶ 85-86.) Defendants maintain that these allegations are false, at least as to 6216 Pebble Beach Drive. However, at the first step of the anti-SLAPP analysis, a court does not concern itself with whether what the plaintiff is alleging is true. The Court’s task is to identify the activity the pleading alleges as the basis for the claim and determine whether that activity is protected.

The claim Defendants request stricken here is based on their allegedly ousting Plaintiff from a property without bringing an unlawful detainer action and without obtaining a court order. Such a claim necessarily cannot arise out of any defendant’s filing or prosecuting an unlawful detainer action or retaking possession of a property pursuant to a court order. (See Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883 [“[T]he act or acts underlying a claim for purposes of an anti-SLAPP motion is determined from the plaintiffs’ allegations.”] [emphasis in original].)

The Seventh Cause of Action, for conversion, likewise does not arise out of protected activity under Section 425.16(e)(1) or (e)(2). “‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.’” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [quoting Welco Electronics, Inc. v.

Mora (2014) 223 Cal.App.4th 202, 208] [internal quotation marks omitted].) Defendants do not identify how Gurbax’s filing or maintaining an unlawful eviction proceeding supplies any of these elements for Plaintiff’s Seventh Cause of Action. Their theory is that “the wrong Plaintiff complains of . . . is the recovery of possession of the Vallejo Residence and the consequent handling of the personal property he left behind. That recovery of possession was affected through the Vallejo UD Action and the writ of possession issued on the judgment.” (Memorandum, p. 4; see also p. 5 [characterizing “[t]he recovery of possession” at the center of the claims at issue here as the “result of” the unlawful detainer proceeding].)

Stated differently, the unlawful detainer action resulted in Gurbax’s obtaining a writ of possession, and that in turn led to the conduct at the center of the claims at issue here. But that filing or prosecuting a lawsuit triggers an event that is later offered as the basis for a cause of

action is not enough to conclude that the cause of action arises out of the filing or prosecution of the lawsuit. (See Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 747, fn. 6 [“The mere fact that a claim may have been triggered by protected activity (such as service of unlawful detainer papers) does not necessarily mean it arose from that activity.”] [emphasis in original]; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275; Navellier, supra, 29 Cal.4th 82, 89.)

Because Defendants are relying on the filing and prosecution of the unlawful detainer action as the protected activity on which their anti- SLAPP motion rests, they needed to show that this conduct itself supplies an element of the causes of action at issue. (See Ulkarim, supra, 227 Cal.App.4th 1266, 1275-1276; Bonni, supra, 11 Cal.5th 995, 1015; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.) They have not done that. In fact, a description of the elements of either conversion or wrongful eviction is conspicuously absent from their brief. (See Littlefield v.

Littlefield (2024) 106 Cal.App.5th 815, 823 [affirming denial of anti-SLAPP motion where movants “ ‘fail[ed] to state the elements of the challenged claim and identify what actions by [the defendants] supply those elements and form the basis for liability’ ” [quoting the trial court’s decision]; see also Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 97-98 [suggesting that a defendant moving to strike a pleading under the anti-SLAPP statute is required to discuss the allegations of protected activity in the context of the elements of the plaintiff’s claims].)

Another problem with Defendants’ reliance on Section 425.16(e)(1) and (e)(2) is that on their faces, these provisions cover “written or oral statement[s] or writing[s]” (Code Civ. Proc., § 425.16, subds. (e)(1), (e)(2)) and do not embrace other conduct. Again, Defendants themselves characterize these claims as taking issue with “the recovery of possession of the Vallejo Residence and the handling of the personal property [Plaintiff] left there[.]” (Memorandum, p 2.) Even if this activity were considered part and parcel of a judicial proceeding, it could not claim the benefit of Section 425.16(e)(1) or (e)(2) given that it does not consist of a writing or a statement. (See Semaan v.

Mosier (2026) 118 Cal.App.5th 460, 470, fn. 5 [“Plaintiffs’ claims did not arise out of Mosier’s written or oral statements and therefore do not fall within section 425.16(e)(1) or (2).”].) Defendants’ reliance on Section 425.16(e)(1) and (e)(2) is also flawed for temporal reasons. Per Defendants, by the time the activity Plaintiff complains of occurred, the unlawful eviction proceeding was over, complete with a judgment and a writ. The conduct at issue in Plaintiff’s claims cannot have occurred “before a . . . judicial proceeding” (Code Civ.

Proc., § 425.16, subd. (e)(1)), because there no longer was such a proceeding, and cannot have been “in connection with an issue under consideration or review by a . . . judicial body” (Code Civ. Proc., § 425.16, subd. (e)(2)), because judicial consideration of the issues involved in the proceeding ended when the proceeding did.

The cases Defendants rely on are distinguishable. In Olivares v. Pineda (2019) 40 Cal.App.5th 343, the plaintiff sued for wrongful eviction, and as alleged, the central act underlying that claim was the service of a notice of eviction as a predicate to an unlawful detainer action. (40 Cal.App.5th 343, 349.) The plaintiff also sued for malicious prosecution, and there, the activity underlying the claim consisted of filing and prosecuting an unlawful detainer action. (Id. at p. 350.) The plaintiff’s claim for breach of the covenant of quiet enjoyment was based on the same conduct. (Ibid.)

The plaintiff did not bring claims centered on activity that merely related to or resulted from a successful unlawful detainer action. The claims were based on the acts of filing and maintaining the unlawful detainer action themselves. Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, also cited by Defendants, is no longer

reliable authority given the First District’s subsequent commentary on the case in Oakland Bulk, supra, 54 Cal.App.5th 738, 747, fn.

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Defendants also rely on Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232. They claim that Action Apartment “reached the same result” as Feldman, concluding “that the prosecution of an unlawful detainer action and the service of a notice to quit are both protected activities” under the anti-SLAPP statute. (Memorandum, p. 4.) Action Apartment did not do this, as it interpreted the litigation privilege of Civil Code, section 47 and did not address the anti-SLAPP statute.

Rusheen v. Cohen (2006) 37 Cal.4th 1048, also cited by Defendants, similarly focused on the scope of the litigation privilege. It issued no holding relating to the anti- SLAPP statute. Defendants are likely offering law on the scope of Civil Code, section 47’s litigation privilege because Section 47 and Section 425.16(e) contain similar language and have sometimes been interpreted consistently. (See Garretson v. Post (2007) 156 Cal.App.4th 1508, 1517.) However, “conduct protected by the anti-SLAPP statute does not equate with conduct covered by the litigation privilege . . . and, therefore, the applicability of the litigation privilege does not resolve whether a communication is protected activity under section 425.16(e)(1) or (2).” (Semaan, supra, 118 Cal.App.5th 460, 469 [internal citations omitted].)

Having concluded that Defendants have not carried their burden at the first step of the anti-SLAPP inquiry, the Court DENIES the motion.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for July, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov

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