October 28, 2011

Summary of October 26, 2011 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 26, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. This week we note that three justices dissented from the denial of review of an unpublished anti-SLAPP decision.

Review Granted

Today’s Fresh Start v. Los Angeles County Office of Education, S195852—Review Granted—October 26, 2011

A charter school petitioned for a writ of administrative mandate challenging a county board of education’s decision to revoke the school’s charter. The trial court granted the school’s motion for judgment. The Court of Appeal reversed. The school petitioned the Supreme Court for review. According to the Court’s website, this case presents the following issue: “Does due process require an evidentiary hearing before a neutral hearing officer or decision-maker prior to the revocation of a charter school’s charter by a county board of education?”

The Court of Appeal, Second District, Division One, held in a published decision, Today’s Fresh Start v. Los Angeles County Office of Education (2011) 197 Cal.App.4th 436, that (1) Education Code section 47607, the statute governing charter revocation by a county board, does not require formal presentation of evidence or an evidentiary hearing before a neutral decision maker; (2) due process did not require formal presentation of evidence; (3) due process did not require an evidentiary hearing before a neutral decision maker; and (4) prejudice was not presumed based on the charter school’s receipt of notice of the county board’s intent to revoke the school’s charter from the county office of education rather than the county board itself, since the notice substantially complied with the mandatory notice requirement and did not frustrate the purpose of the statute.

Review Denied (with dissenting justices)

Contreras v. Butterworth, S195505—Review Denied [Kennard, Baxter, and Corrigan, JJ., voting for review]—October 26, 2011

This was an action by a tenant against landlords for malicious prosecution, tenant harassment and wrongful eviction. The landlords filed a special motion to strike the complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16), which was granted only as to the wrongful eviction cause of action. The questions presented were: (1) whether the plaintiff demonstrated a probability of prevailing on her malicious prosecution cause of action; (2) whether the plaintiff demonstrated a probability of prevailing on her tenant harassment cause of action; and (3) whether the plaintiff demonstrated a probability of prevailing on her wrongful eviction claim based on conduct outside the scope of the litigation privilege.

The Court of Appeal, First District, Division Five, held in an unpublished decision, Contreras v. Butterworth (June 30, 2011, A127379) 2011 WL 2581836, that (1) the trial court did not err in denying the anti-SLAPP motion to strike the malicious prosecution cause of action; (2) the trial court did not err in concluding that plaintiff demonstrated a probability of prevailing on her tenant harassment cause of action; and (3) the trial court erred in granting the motion to strike the wrongful eviction cause of action, because the plaintiff demonstrated a probability of prevailing on the merits based on the landlords’ alleged conduct outside the scope of the litigation privilege.

Wallace v. McCubbin, S195503—Review Denied [Kennard, J., voting for review]—October 26, 2011

This was an action by tenants against landlords and neighbors for wrongful eviction in violation of a city rent stabilization and arbitration ordinance, retaliatory eviction, and other causes of action. The neighbors filed an anti-SLAPP motion (Code Civ. Proc., § 425.16) challenging the wrongful eviction and retaliatory eviction claims. The motion was denied. The questions presented were (1) whether the acts on which the causes of action are based constitute activity protected by the anti-SLAPP statute; (2) whether those acts were merely incidental to the causes of action; and (3) whether plaintiffs demonstrated a probability of prevailing on the merits based only on protected activity.

The Court of Appeal, First District, Division Five, held in a published decision, Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, that (1) the wrongful eviction cause of action arose out of protected activity where the acts by which the landlords attempted to recover possession of the apartment included the landlords’ service of a three-day notice to quit and his filing of an unlawful detainer action, and tenants alleged that neighbors “were responsible in some manner” for the acts of the landlords; (2) the retaliatory eviction cause of action arose out of protected activity; (3) the plaintiff may satisfy its obligation to establish a “probability that the plaintiff will prevail on the claim,” under the second prong of the anti-SLAPP analysis by simply showing a probability of prevailing on any part of the cause of action; (4) the litigation privilege barred the imposition of liability based on an unlawful detainer action or three-day notice to quit; (5) the litigation privilege barred liability based on a complaint to a city animal control agency; and (6) the neighbors’ alleged harassment of the tenants did not support liability for retaliatory eviction where the alleged harassment did not constitute increasing rent, decreasing services, causing the tenants to involuntarily quit, evicting them, or threatening to do so.

Depublished

None.

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