Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. CGC-09-488551
SIMONS, Acting P.J.
Plaintiff Laura Esmeralda Contreras (Contreras) appeals and defendants Gordon and Carol Butterworth (the Butterworths) cross-appeal an order granting in part and denying in part the Butterworths’ special motion to strike Contreras’s complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). The Butterworths contend the trial court erred in concluding Contreras demonstrated a probability of prevailing on her malicious prosecution and tenant harassment causes of action. Contreras contends the trial court erred in concluding she did not demonstrate a probability of prevailing on her wrongful eviction cause of action. We reverse the trial court’s order granting the motion to strike the wrongful eviction cause of action and otherwise affirm.
Contreras also named as defendants: Steven Stuart, a former attorney and the Butterworths’ son; Jonah Roll and Katia Fuentes, former tenants of the Butterworths; and Sami Mason, an attorney who represented the Butterworths. None of the other defendants are parties in this appeal. We grant the Butterworths’ August 9, 2010 request for judicial notice of Contreras’s complaint. The request for judicial notice is otherwise denied.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1 (Equilon).)
In this appeal from the trial court’s order on a motion to strike, this court is obligated to “accept as true the evidence favorable to the plaintiff.” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1397 (Sycamore Ridge).) Our factual summary reflects this standard of review. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1056, fn. 1.)
Starting in September 2006, Contreras occupied a small in-law apartment (Apartment) in a house on Sweeny Street in San Francisco. Each month from September 2006 to June 2008, she paid rent on time and in full to Jonah Roll and Katia Fuentes, who rented the Sweeny Street house from the Butterworths. After Roll and Fuentes moved out in May 2008, Contreras paid rent on time and in full to the Butterworths, from June 2008 through August 2009.
The Butterworths were aware of and implicitly consented to Contreras’s occupancy. In November 2007, Roll informed them of her occupancy, and the Butterworths expressed no objection. Roll also introduced the Butterworths to Contreras that same day, introducing her as “the person now renting the Apartment.”
In May 2008, Roll and Fuentes moved out of the Sweeny Street house. On or about June 10, the Butterworths served a “Three-Day Notice to Pay Rent or Quit” on Contreras. In response, Contreras, who had already paid her rent for the period covered by the notice, wrote to the Butterworths enclosing a check for the subsequent period. Thereafter, although the Butterworths received the rent checks tendered each month by Contreras, they did not deposit those checks until March 2009.
In June 2008, gas and electric service to the Sweeny Street house was disconnected. When Contreras reestablished service in her own name, the Butterworths refused either to provide a separate meter for the Apartment or to agree to an equitable arrangement for dividing the gas and electric bill between the Apartment and the remainder of the house. As a result, Contreras was forced to pay for all the gas and electricity consumed in the house.
On June 14, 2008, the Butterworths attempted to enter the Apartment without notice to or permission from Contreras. When she refused them entry, they shouted at her abusively and called her an “illegal squatter.” On July 15, Stuart, who the Butterworths described as their lawyer, attempted to enter the Apartment, again without notice. When Contreras demanded that her right to privacy be respected, Carol Butterworth responded, “If you are not willing to cooperate with the efforts of Mr. Stuart, then you are welcome to leave.”
On July 8, 2008, the Butterworths filed an unlawful detainer action against Contreras (the July Action). In their verified complaint, the Butterworths alleged that Contreras was an “illegal squatter[].” Contreras moved for summary judgment. The trial court granted the motion in October 2008, concluding a Code of Civil Procedure section 1161 unlawful detainer action could not be brought against an “illegal squatter.” Judgment was entered in Contreras’s favor in January 2009.
In November 2008, the Butterworths filed a second unlawful detainer action against Contreras (the November Action). The Butterworths named Roll and Fuentes as additional defendants, even though they no longer resided in the Sweeny Street house, and again failed to allege the existence of any relationship between themselves and Contreras that would satisfy the requirements of Code of Civil Procedure section 1161. The Butterworths dismissed the action in January 2009.
On December 9, 2008, Contreras had just left the shower when she heard someone approaching her Apartment through the garage in which the Apartment is located. Without knocking, Stuart tore aside a curtain covering a window on her front door and addressed her angrily.
On April 22, 2009, Stuart slid a “Notice of Entry” under the door of the Apartment; in the notice, he identified himself as “Agent for Landlord.” Because the notice failed to specify the reason for the entry, and because Contreras was unable to be present at the time given in the notice, she posted on the Apartment door a note asking that she be told the reason for the entry and that it be rescheduled for a more convenient time. She received no response. On April 24 and April 29, someone entered her apartment in her absence and without her permission; Contreras believed it was Stuart who entered her apartment on those two occasions.
Contreras filed the present action against the Butterworths on May 19, 2009, alleging claims for malicious prosecution, wrongful eviction, and tenant harassment. In September 2009, the Butterworths moved to strike all three causes of action against them pursuant to Code of Civil Procedure section 425.16. In October 2009, the trial court granted the motion as to the cause of action for wrongful eviction and denied the motion as to the causes of action for malicious prosecution and tenant harassment. Contreras appealed and the Butterworths cross-appealed.
Discussion
Under Code of Civil Procedure section 425.16, subdivision (b)(1), a defendant may move to strike a cause of action “arising from any act... 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....” If the plaintiff cannot demonstrate a probability of prevailing, the trial court must strike the challenged cause of action and award the defendant attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186.)
“The statutory language establishes a two-part test. First, it must be determined whether the plaintiff’s cause of action arose from acts by the defendant in furtherance of the defendant’s right of petition or free speech in connection with a public issue. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e).’ [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a reasonable probability of success on his or her claims at trial.” (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396.) “Whether [Code of Civil Procedure] section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal. [Citations.]” (Ibid.)
There is no dispute that all of Contreras’s causes of action arise, at least in part, from protected conduct; accordingly, the first part of the test is satisfied with respect to all three causes of action. In order to establish a probability of prevailing for purposes of Code of Civil Procedure section 425.16, subdivision (b)(1), “ ‘the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citation.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).) “ ‘[T]he court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court’s responsibility is to accept as true the evidence favorable to the plaintiff....’ [Citation.]” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1397.) “The plaintiff’s burden ‘has been likened to that in opposing a motion for nonsuit or a motion for summary judgment.’ [Citation.] However, a defendant that advances an affirmative defense to the plaintiff’s claims bears the burden of proof on the defense. [Citation.]” (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969 (Seltzer).) Accordingly, to the extent the Butterworths contend their alleged conduct cannot provide a basis for liability under the litigation privilege of Civil Code section 47, subdivision (b), the Butterworths bear the burden of proving Contreras has no probability of prevailing against that defense. (Seltzer, at p. 969.)
I. Malicious Prosecution
The Butterworths contend the trial court erred in concluding that Contreras demonstrated a probability of prevailing on her malicious prosecution cause of action. In order to state a claim for malicious prosecution, a plaintiff must plead and prove “that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice. [Citation.]” (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
A. Termination in Contreras’s Favor
A termination is in favor of a malicious prosecution plaintiff if it reflects on the merits of the underlying action. (Lackner v. LaCroix (1979) 25 Cal.3d 747, 750 (Lackner).) The July Action was terminated by a judgment on the merits in favor of Contreras, awarding her possession of the Apartment. Contreras’s motion for summary judgment was granted because the allegations of the Butterworths’ complaint precluded their cause of action for unlawful detainer. The court reasoned: “In their verified Complaint, [the Butterworths] allege they are the owners of premises located [on] Sweeny Street in San Francisco and that... Contreras is an ‘illegal squatter’ in those premises. The relationship of owner and illegal squatter is not one of those specified in Code of Civil Procedure section 1161 on which an action for unlawful detainer may be maintained. This determination is based on [the Butterworths’] verified Complaint, the allegations of which [the Butterworths] are estopped to deny and have not denied.”
The Butterworths argue the trial court’s order did not constitute a termination on the merits; instead, it was “a decision based purely on the procedure invoked to attempt to evict... Contreras.” However, they present no authority that, where a court dismisses a lawsuit because the plaintiff cannot meet an element of the cause of action asserted in the complaint, it fails to constitute a termination on the merits because the plaintiff conceivably could have asserted a different, potentially valid cause of action. In the only case they cite on this issue, Lackner, the underlying action was dismissed due to application of the statute of limitations. As the court explained, “[t]ermination of an action by a statute of limitations defense must be deemed a technical or procedural” termination, rather than one that reflects on whether the alleged cause of action was “substantively meritorious.” (Lackner, supra, 25 Cal.3d at pp. 751-752.) Here, the trial court’s grant of summary judgment reflected on the substantive merits of the Butterworths’ unlawful detainer cause of action.
The November Action was terminated in January 2009 by the Butterworths’ request for dismissal without prejudice. “[A] voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action for malicious prosecution. [Citation.] ‘In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action; the same is true of a dismissal for failure to prosecute. [Citations.]’ [Citation.]” (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808.) This is because a voluntary dismissal reflects on the merits of the action due to “ ‘the natural assumption that one does not simply abandon a meritorious action once instituted.’ ” (Lackner, supra, 25 Cal.3d at p. 751.) Therefore, “[a] voluntary dismissal is presumed to be a favorable termination on the merits, unless otherwise proved to a jury. [Citation.]” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1400.) On appeal, the Butterworths fail even to attempt to rebut the presumption that their dismissal should be considered a favorable termination on the merits.
Contreras has made a prima facie showing that the July Action and the November Action were terminated in her favor on the merits.
B. Lack of Probable Cause
There is probable cause for an action if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886 (Sheldon Appel).) “This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’ [Citation.] Attorneys and litigants... ‘ “have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win....” ’ [Citation.] Only those actions that ‘ “any reasonable attorney would agree [are] totally and completely without merit” ’ may form the basis for a malicious prosecution suit. [Citation.]” (Wilson v. Parker, Covert & Chidester (2003) 28 Cal.4th 811, 817 (Wilson); see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13 [“ ‘Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.’ [Citation.]”].)
In the present case, the Butterworths essentially concede that the July Action was utterly without merit; that is, they do not dispute that any reasonable lawyer would agree an unlawful detainer action against an alleged illegal squatter lacks merit. (See Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354, 363 [“The statutory situations in which the remedy of unlawful detainer is available are exclusive and the statutory procedure must be strictly followed. [Citations.]”].) Instead, the Butterworths attempt to avoid the consequences of their verified allegation that Contreras was an illegal squatter (rather than a subtenant or assignee) by pointing to a notice to quit attached to their complaint, which asserted that Contreras was an unauthorized sublessee. However, as the trial court pointed out, the Butterworths were bound by the allegations in their verified complaint. (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168-169.) The Butterworths fail to cite any authority that an attachment to a complaint can modify the unambiguous allegations of the complaint. Essentially, they argue they had probable cause for the action because they could have made different allegations that might have supported a probable cause finding. The possibility that the Butterworths mistakenly included an erroneous allegation or cause of action may be relevant to a determination of whether the Butterworths acted with malice, but the Butterworths present no authority that the possibility that the plaintiff made such mistakes mandates a finding of probable cause.
We need not consider Contreras’s contentions that the July Action also lacked probable cause because the Butterworths lacked reasonable cause to believe their illegal squatter allegation was true and because they failed to provide the notice required under section 37.9(c) of the San Francisco Administrative Code.
The Butterworths argue for the first time in their cross-appeal reply brief that Contreras is estopped from denying she was a tenant subject to an unlawful detainer action. We need not and do not consider this argument presented for the first time in a reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
In the November Action, the Butterworths added Roll and Fuentes as defendants, who allegedly were in possession of the Sweeny Street house, and the Butterworths alleged Roll and Fuentes “allowed Contreras to occupy without Landlord’s permission.” Contreras contends the Butterworths lacked probable cause for the November Action because they lacked reasonable cause to believe those allegations were true. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) In particular, Contreras presented evidence that Roll and Fuentes had vacated the Sweeny Street house before the filing of the November Action and that the Butterworths consented to Contreras’s occupancy of the Apartment. If credited by a jury, that evidence would show the November Action lacked probable cause. (See Sheldon Appel, supra, 47 Cal.3d at p. 877 [“if the facts upon which the defendant acted in bringing the prior action ‘are controverted, they must be passed upon by the jury before the court can determine the issue of probable cause’ ”].)
We need not consider Contreras’s contention that the November Action also lacked probable cause because it was barred by doctrine of res judicata.
Contreras has made a prima facie showing that the July Action and the November Action lacked probable cause.
C. Malice
“The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action, and past cases establish that the defendant’s motivation is a question of fact to be determined by the jury. [Citations.]” (Sheldon Appel, supra, 47 Cal.3d at p. 874.) “For purposes of a malicious prosecution claim, ma[l]ice ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’ [Citation.] ‘Suits with the hallmark of an improper purpose’ include, but are not necessarily limited to, ‘those in which: “ ‘... (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.’ ” ’ [Citation.]” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407.)
In the present case, a jury could find that the Butterworths acted with malice in instituting the unlawful detainer actions if it were to credit Contreras’s evidence that they pursued the actions despite having consented to her occupancy of the Apartment. The jury could also find evidence of malice in the fact that the Butterworths pursued the actions after serving Contreras with a Three-Day Notice to Quit or Pay Rent, and after receiving the rent subsequently proffered by Contreras. Although the Butterworths could argue they were ineffectually but in good faith trying to eject Contreras through the actions, a jury also could find the Butterworths instituted the actions knowing they lacked merit in an effort to harass Contreras into vacating the Apartment. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407 [“Evidence tending to show that the defendants did not subjectively believe that the action was tenable is relevant to whether an action was instituted or maintained with malice.”].)
Accordingly, even though malicious prosecution actions are “disfavored” (Wilson, supra, 28 Cal.4th at pp. 816-817), Contreras has demonstrated a probability of prevailing on her claim. The trial court did not err in denying the motion to strike the claim.
II. Tenant Harassment
The Butterworths contend the trial court erred in concluding that Contreras demonstrated a probability of prevailing on her tenant harassment cause of action. Contreras’s cause of action for tenant harassment against the Butterworths is based on alleged violations of section 37.10B of chapter 37 of the San Francisco Administrative Code. In pertinent part, that section provides: “(a) No landlord, and no agent, contractor, subcontractor or employee of the landlord, shall, do any of the following, [in] bad faith...: [¶]... [¶] (4) Abuse the landlord’s right of access into a rental housing unit as that right is provided by law; [¶]... [¶] (10) Interfere with a tenant’s right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; [¶] (11) Refuse to accept or acknowledge receipt of a tenant’s lawful rent payment; [¶] (12) Refuse to cash a rent check for over 30 days; [¶] (13) Interfere with a tenant’s right to privacy.” (§ 37.10B.)
All further undesignated section references are to the San Francisco Administrative Code.
For purposes of chapter 37 of the San Francisco Administrative Code, “tenant” is defined as “[a] person entitled by written or oral agreement, sub-tenancy approved by the landlord, or by sufferance, to occupy a residential dwelling unit to the exclusion of others.” (§ 37.2(t).)
Contreras’s tenant harassment cause of action is “mixed, ” because it is based on allegations of both protected and unprotected conduct. (Wallace v. McCubbin (2011) ___ Cal.App.4th ___ [2011 Cal.App. Lexis 821, p. *92] (Wallace); Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 104 (Mann).) If Contreras “ ‘can show a probability of prevailing on any part of [her] claim, the cause of action is not meritless’ and will not be stricken; ‘once [she] shows a probability of prevailing on any part of [her] claim, [she] has established that [her] cause of action has some merit and the entire cause of action stands.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis), quoting Mann, at p. 106; but see Wallace, at pp. *68-*80 [raising concerns with Mann’s approach to determination of probability of prevailing on mixed causes of action].) The Butterworths contend that certain allegations of protected conduct in the complaint cannot provide a basis for liability under the litigation privilege. On the other hand, other allegations underlying the tenant harassment cause of action involve conduct unprotected by the anti-SLAPP statute. We conclude that Contreras has shown a probability of prevailing on her cause of action based on those allegations of unprotected conduct.
The litigation privilege, Civil Code section 47, subdivision (b), states in relevant part: “A privileged publication or broadcast is one made: [¶]... [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure....” (See also Seltzer, supra, 182 Cal.App.4th at pp. 969-970.) The Butterworths fail to specify which allegations they contend are within the scope of the privilege, but they presumably would argue that at least their unlawful detainer actions were privileged acts.
As described previously, Contreras presented evidence that the Butterworths interfered with her utility service, refused to cash her checks, and were responsible for two unauthorized entries into her Apartment. On appeal, the Butterworths merely point to evidentiary disputes relating to whether they are legally responsible for the utility problems and unauthorized entries, as well as to their motives in undertaking different actions. Those are issues for determination by the jury. At this stage, it is sufficient that Contreras has presented evidence from which a reasonable jury could infer that the Butterworths are responsible for the alleged actions and they undertook those actions for improper purposes. (See Navellier, supra, 29 Cal.4th at pp. 88-89.) For example, the Butterworths argue that their refusal to deposit Contreras’s checks was for the lawful purpose of preventing her establishment of a tenancy, but Contreras has presented evidence that she was already a lawful tenant, both because the Butterworths served her with a Three-Day Notice to Pay Rent or Quit and because the Butterworths consented to her subtenancy. If a jury were to credit Contreras’s evidence, it could infer that the Butterworths acted in bad faith in refusing to cash the checks.
Contreras has shown a probability of prevailing on her tenant harassment cause of action.
III. Wrongful Eviction
Contreras contends the trial court erred in concluding that her wrongful eviction claim was barred by the litigation privilege. In relevant part, section 37.9(f) provides: “Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.10 as enacted herein, the tenant or Board may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages, (including damages for mental or emotional distress), and whatever other relief the court deems appropriate....” Section 37.9 enumerates the permissible grounds for eviction.
Contreras contends she can rely on the filing of the July Action and the November Action to support of her cause of action for wrongful eviction because, although the filing of those actions would normally be within the scope of the litigation privilege, here she made a prima facie showing that those actions constituted malicious prosecution. We disagree. In its decision declining to extend the litigation privilege to actions for malicious prosecution, the California Supreme Court reasoned, “[t]he policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 382; accord, Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242 (Action Apartment).) Although a malicious prosecution cause of action is exempt from the litigation privilege, Contreras cites to no authority supporting her contention that a different cause of action may be based on privileged conduct because the conduct allegedly also constituted malicious prosecution.
In Action Apartment, the court concluded that a Santa Monica municipal ordinance was preempted by the litigation privilege because it authorized a suit based on a prior “ ‘action to recover possession of a rental housing unit based upon facts which the landlord had no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord.’ ” (Action Apartment, supra, 41 Cal.4th at pp. 1249-1250, fn. omitted.) There the court rejected an argument similar to that made by Contreras in the present case; it explained that the relevant inquiry is whether the provision authorizing the challenged action “contains the same elements as a malicious prosecution action.” (Id., at p. 1252, fn. 6.) The court emphasized this is a “question of law requiring a categorical determination”; the presence of other circumstances, such as termination of the prior action in the plaintiff’s favor, would not “transform” an action under the ordinance “into one that is ‘analogous’ to malicious prosecution [citation], such that we could recognize a categorical exception to the litigation privilege as a matter of law, because the ordinance does not require all of the elements of a malicious prosecution action.” (Ibid.; see also id., at p. 1249.) Because section 37.9(f) does not itself require the elements of a malicious prosecution claim, a cause of action under the provision cannot be based on conduct subject to the litigation privilege.
Nevertheless, Contreras’s wrongful eviction claim is not barred by the litigation privilege to the extent it is based on conduct outside the scope of the privilege. (See Action Apartment, supra, 41 Cal.4th at p. 1252 [portion of Santa Monica’s ordinance relating to eviction notices is not “entirely preempted by the litigation privilege” “[b]ecause a factual inquiry is required in order to determine whether a particular eviction notice is privileged”].) In Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741 (Rental Housing), Division Three of this court applied the Action Apartment decision to Oakland’s eviction ordinance, which, like the San Francisco ordinance, authorizes civil actions where “ ‘a landlord... wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of’ ” the provision enumerating grounds for eviction. (Rental Housing, at p. 766.) The court concluded the ordinance was not preempted on its face, reasoning: “[T]hese provisions create liability for a range of conduct that does not necessarily include filing a lawsuit to recover possession (such as service of an eviction notice with no intent to proceed to litigation, or constructive eviction by failure to provide heat).... Such acts do not relate to litigation and are not within the conduct protected by the litigation privilege. To the extent that a tenant’s suit is brought due to prelitigation communications, the ordinance is not preempted on its face because a determination of whether the litigation privilege applies in those cases will require a factual inquiry. [Citation.]” (Id. at p. 767; accord, Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1257.)
Similarly, in this case Contreras alleges the Butterworths endeavored to recover possession of the Apartment through a course of conduct including refusal to deposit her checks, refusal to cooperate in her efforts to obtain appropriate utility service, and unauthorized entries into the Apartment. Contreras contends the Butterworths’ efforts to cause her to vacate were wrongful because there was no applicable ground for eviction under section 37.9. Whether the conduct alleged in the complaint occurred, whether the Butterworths are legally responsible, whether their actions were motivated by an intent to cause Contreras to vacate the Apartment, and whether the facts supported a permissible ground for eviction are questions for the jury to decide, but Contreras has made a prima facie showing of facts supporting her theory of liability.
The Butterworths point out that section 1.20 of the San Francisco Residential Rent Stabilization and Arbitration Board Rules and Regulations defines “Wrongful Eviction” as “the serving of a notice to quit a rental unit, the making of a demand for possession of a rental unit, or the prosecution of an Unlawful Detainer action in violation of the Ordinance.” They seem to suggest this means that only those actions can constitute a violation of section 37.9(f). However, although Contreras uses the phrase “wrongful eviction” to describe her cause of action, section 37.9(f) does not use that phrase and the provision does not limit the types of conduct that can constitute endeavoring to recover possession of a unit.
Contreras also contends that the conduct through which the Butterworths endeavored to cause her to vacate the Apartment was prohibited under section 37.10B, which is the provision that prohibits tenant harassment (see above, part II.). The Butterworths contend that Contreras cannot establish a violation of section 37.9(f) by showing unlawful conduct under section 37.10B, among other things because section 37.9(f) refers to wrongfully endeavoring to recover possession of a rental unit “in violation of Sections 37.9 and/or 37.10, ” not section 37.10B. We need not decide whether the reference to section “37.10, ” which does not exist, should be read as a reference to section 37.10B, because the prima facie evidence of a violation of section 37.9 is sufficient to support Contreras’s claim.
Because Contreras has demonstrated a probability of prevailing on her wrongful eviction claim based on conduct outside the scope of the litigation privilege, the trial court erred in granting the motion to strike that cause of action. (Oasis, supra, 51 Cal.4th at p. 820.)
DISPOSITION
The trial court’s order is reversed to the extent it dismisses Contreras’s wrongful eviction cause of action. The order is affirmed in all other respects. The matter is remanded for further proceedings consistent with this decision. Contreras is awarded her costs on appeal.
We concur. NEEDHAM, J., BRUINIERS, J.
In Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1301, Division One of this court concluded that one of the specified forms of tenant harassment—section 37.10B, subdivision (a)(7)—unconstitutionally infringes First Amendment speech rights. That provision is not at issue in the present case.