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Court of Appeal:
Action Against Landlord for Protesting Use of Bedroom by Unauthorized Guest Was SLAPP
By a MetNews Staff Writer
A suit by a tenant against his landlord based on having been served with a “notice to cure” a deficiency in his performance under their lease—in the form of allowing a female college student to use a spare bedroom without obtaining permission—was properly found to be a SLAPP, Div. Three of the Fourth District Court of Appeal has held.
Plaintiff Daniel Escamilla, a bail bondsman, maintained that in allowing Denise Achim, to occupy the room, he wasn’t subletting the premises, as alleged by landlord Enrique Encarnacion, because he charged no rent. He insisted in his complaint, filed in the Orange Superior Court:
“The situation we have here is a bully landlord who, in disregard of Plaintiff s rights, wrongfully exercised his power to threaten to terminate Plaintiffs tenancy and, by doing so, drove away an occasional overnight guest of Plaintiff’s who worked part-time for Plaintiff’s office and was providing housework and dog care services to Plaintiff.”
Escamilla, a 2000 graduate of Chapman University School of Law, represented himself in alleging a breach of the covenants of good faith and fair dealing and of quiet enjoyment, slander per se, trade libel, and intentional interference with contractual relations and with prospective economic relations.
Judge Nancy E. Zeltzer granted Encarnacion’s special motion to strike, under Code of Civil Procedure §425.16, and awarded $4,890 to Encarnacion in attorney fees and costs. The appeals court affirmed Friday, in an opinion that was not certified for publication.
Moore’s Opinion
Addressing the first prong of the anti-SLAPP motion—an inquiry as to whether the alleged conduct is protected—Justice Eileen C. Moore said:
“Escamilla contends the trial court erred in granting the anti-SLAPP motion because the content of the three-day notice was not protected speech. We disagree because the statements in the notice were communications made in preparation for legal proceedings.”
She elaborated:
“[T]the only challenged acts in the complaint are the service of the notice and the statements made in the notice, which are protected activities. The complaint specifically alleged that the service and content of the notice breached the covenants of good faith and fair dealing and quiet enjoyment, defamed Escamilla, and disrupted his economic and contractual relations with Achim. Even if Escamilla’s claims also are based on nonprotected activity, the protected activities are not merely incidental and instead form the basis for liability on the claims.”
Statute’s Second Prong
As to the second prong—under which the plaintiff must show, if the first prong is met, a probability of prevailing on the merits—Moore wrote:
“We…conclude Escamilla has not shown his claims have minimal merit because the service and content of the three-day notice are absolutely privileged under the litigation privilege of Civil Code section 47.”
Zeltzer based the award of attorney fees on the rate of $400 an hour. That, Escamilla asserted, is an unreasonably high rate for “an insurance defense attorney who was first admitted on December 1, 2015.”
Moore responded that “Escamilla provided the State Bar information for a different attorney, Steven R. Kruid, rather than Encarnacion’s attorney, Daniel Kruid.”
Daniel M. Kruid, 36, was admitted on Dec. 2, 2013, and is a senior trial attorney with the San Bernardino office of Stratman, Schwartz & Williams-Abrego. Steven R. Kruid, 33, based in Santa Ana, is a trial attorney with that same firm.
The case is Escamilla v. Encarnacion, G059276.
Daniel Kruid was the attorney on appeal for Encarnacion; Escamilla was in pro per.
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