Aron v. WIB Holdings, No. B271271 (D2d2 Mar. 28, 2108)
Plaintiff in this case won an unlawful detainer trial against his Landlord. While that was on appeal, he sued Landlord for damages under a Santa Monica rent control ordinance that offers a private damages remedy against any landlord who brings a UD action in bad faith. Landlord filed an anti-SLAPP motion. The case clearly arose from the UD action, so it arose from protected activity. And since the Santa Monica ordinance specified on it face that a favorable termination of the UD case was a condition to recovery, the trial court granted the motion, because Plaintiff couldn’t show that he was likely to succeed.
But then Plaintiff’s trial victory in the UD was affirmed on appeal. After the remittitur issued, Plaintiff moved for a new trial on the grounds that the motion should have been denied. The trial ground granted the new trial motion, ruling that the remitting constituted newly discovered evidence and thus that a new trial was appropriate under Code of Civil Procedure § 657(4).
Landlord appealed; Plaintiff cross-appealed on the original anti-SLAPP ruling.
The problem with the new trial ruling is that to merit a new trial under § 657(4), the newly discovered evidence must both: (1) have existed at the time of the trial; but (2) been undiscoverable through the exercise of reasonable diligence. Evidence that comes into existence afterthe trial—like the remittitur here—doesn’t meet the test.
Moreover, anti-SLAPP cases addressing the malicious prosecution tort—which is basically what the Santa Monica ordinance is—say that the prior action needs to be over before the favorable termination element is met. So if you sue for malicious prosecution too soon, you do not have a probability of prevailing on your unripe claim. The fact that your claim might become ripe somewhere down the road does not save your lawsuit from the anti-SLAPP statute, which looks at the chance for success when the complaint is filed.
Pretty much the same analysis dooms Plaintiff’s appeal on the grant of the anti-SLAPP motion: it was properly granted because the case was unripe at the time it was filed.
For apparent good fun, Plaintiff threw in a Flatley argument—that the claim couldn’t arise from protected activity because Landlord’s conduct was illegal as a matter of law. But we all know how that ends, right?
No doubt, the Santa Monica ordinance defines a criminal misdemeanor based on the same conduct at issue on plaintiff’s claim, without the ripeness requirement. And indeed, the jury in the UD case answered “yes” to a special verdict question that asked if the Landlord “maliciously” brought the action based on facts it “had no reasonable cause to believe were true.” But the Flatley standard is so impossibly high, that the Court finds that some tension between the malice finding and the jury’s findings in favor of Landlord on some other UD elements means that the claim was not, as Flatley requires, “illegal as a matter of law.”
New trial reversed; SLAPP affirmed.
Plaintiff in this case won an unlawful detainer trial against his Landlord. While that was on appeal, he sued Landlord for damages under a Santa Monica rent control ordinance that offers a private damages remedy against any landlord who brings a UD action in bad faith. Landlord filed an anti-SLAPP motion. The case clearly arose from the UD action, so it arose from protected activity. And since the Santa Monica ordinance specified on it face that a favorable termination of the UD case was a condition to recovery, the trial court granted the motion, because Plaintiff couldn’t show that he was likely to succeed.
But then Plaintiff’s trial victory in the UD was affirmed on appeal. After the remittitur issued, Plaintiff moved for a new trial on the grounds that the motion should have been denied. The trial ground granted the new trial motion, ruling that the remitting constituted newly discovered evidence and thus that a new trial was appropriate under Code of Civil Procedure § 657(4).
Landlord appealed; Plaintiff cross-appealed on the original anti-SLAPP ruling.
The problem with the new trial ruling is that to merit a new trial under § 657(4), the newly discovered evidence must both: (1) have existed at the time of the trial; but (2) been undiscoverable through the exercise of reasonable diligence. Evidence that comes into existence afterthe trial—like the remittitur here—doesn’t meet the test.
Moreover, anti-SLAPP cases addressing the malicious prosecution tort—which is basically what the Santa Monica ordinance is—say that the prior action needs to be over before the favorable termination element is met. So if you sue for malicious prosecution too soon, you do not have a probability of prevailing on your unripe claim. The fact that your claim might become ripe somewhere down the road does not save your lawsuit from the anti-SLAPP statute, which looks at the chance for success when the complaint is filed.
Pretty much the same analysis dooms Plaintiff’s appeal on the grant of the anti-SLAPP motion: it was properly granted because the case was unripe at the time it was filed.
For apparent good fun, Plaintiff threw in a Flatley argument—that the claim couldn’t arise from protected activity because Landlord’s conduct was illegal as a matter of law. But we all know how that ends, right?
No doubt, the Santa Monica ordinance defines a criminal misdemeanor based on the same conduct at issue on plaintiff’s claim, without the ripeness requirement. And indeed, the jury in the UD case answered “yes” to a special verdict question that asked if the Landlord “maliciously” brought the action based on facts it “had no reasonable cause to believe were true.” But the Flatley standard is so impossibly high, that the Court finds that some tension between the malice finding and the jury’s findings in favor of Landlord on some other UD elements means that the claim was not, as Flatley requires, “illegal as a matter of law.”
New trial reversed; SLAPP affirmed.