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Supreme Court Case No. S217055
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
JOHN MORIARTY
Plaintiff and Respondent,
v.
LARAMAR MANAGEMENT CORPORATION
Defendants and Appellants.
___________________________________________________________
After an Opinion by the Court of Appeal For the First Appellate District, Division Two
First Civil Number A137608 ___________________________________________________________
RESPONDENT’S ANSWER TO PETITION FOR REVIEW
___________________________________________________________
Eric L. Lifschitz (State Bar No. 215252) Aaron H. Darsky (State Bar No. 212229)
LAW OFFICES OF ERIC L. LIFSCHITZ 345 Franklin Street
San Francisco, CA 94102 Telephone: (415) 553-6055 Facsimile: (415) 358-5647
[email protected] [email protected]
Attorneys for Respondent
JOHN MORIARTY
ii
Table of Contents
I. INTRODUCTION AND SUMMARY OF WHY PETITION SHOULD BE
DENIED.................................................................................................................1
II. STATEMENT OF FACTS....................................................................... 6
A. Procedural History......................................................................... 6
B. Statement Of The Case.................................................................. 7
IV. LEGAL DISCUSSION ............................................................................ 9
A. There are no facts pled to support the notion that there is a
“mixed cause of action.”....................................................................................... 9
B. Defendant’s reliance on Wallace is misplaced as the Wallace
complaint expressly pled service of a 3-day notice, the filing of
an unlawful detainer suit, and events that occurred during the
unlawful detainer trial.................................................................. 11
IV. CONCLUSION ..................................................................................... 12
iii
TABLE OF AUTHORITIES
Cases
City of Cotati v. Cashman (2002) 29 Cal.4th 69 ____________________ 11
Grewal v. Jammu (2011) 191 Cal.App.4th 977 ______________________ 4
Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 _____________ 6, 9, 11
Statutes
Code of Civil Procedure section 425.16 ___________________________ 12
1
Supreme Court Case No. S217055
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
JOHN MORIARTY
Plaintiff and Respondent,
v.
LARAMAR MANAGEMENT CORPORATION
Defendants and Appellants.
___________________________________________________________
After an Opinion by the Court of Appeal For the First Appellate District, Division Two
First Civil Number A137608 ___________________________________________________________
I. INTRODUCTION AND SUMMARY WHY PETITION
SHOULD BE DENIED
To the Honorable Tani Cantil-Sakauye, Chief Justice, and to the
Honorable Associate Justices of the Supreme Court of the State of
California:
Plaintiff and Respondent John Moriarty respectfully files this
response to Defendant and Appellant’s petition for review (the “Petition”)
from the published decision Moriarty v. Laramar Management Corp. (Jan.
29, 2014, No. A137608) 224 Cal.App.4th 125 [2014 Cal.App. LEXIS 183];
(the “Opinion”) which affirmed the superior court’s denial of Laramar’s
special motion to strike under Code of Civil Procedure section 425.16.
Review of this matter is not warranted. Defendant claims that the
Court should review the case law concerning “mixed causes of action”
2
when such analysis is absent from the Opinion. The superior court and
Court of Appeal correctly ruled that Plaintiff’s complaint (“Complaint,”
AA 6-27) does not arise from protected activity and denied Defendant’s
anti-SLAPP motion to strike. With no allegations of protected activity,
there could be no “mixed” causes of action or mixed cause of action
analysis. Plaintiff was driven from his home due to uninhabitable
conditions that Defendant/Appellant Laramar Management Corporation
(“Laramar” or “Defendant”) and its co-defendants (“Defendants”) refused
to remediate despite its promise and legal obligation to do so. Plaintiff sued
Laramar solely on the basis of the uninhabitability of his home.
Neither the superior court nor the Court of Appeal concluded that the
denial of Defendant’s anti-SLAPP motion was a close decision. The
Complaint is solely based upon factual allegations of habitability violations
that caused Plaintiff to give up possession and eventually file suit. This is
known as a “constructive eviction” and is the only type of “eviction”
referred to in the Complaint. The superior court and Court of Appeal both
recognized that there is no reference to protected activity in the Complaint,
despite Defendant’s myopic insistence, parroted again in its Petition, that
Plaintiff must have somehow been invoking protected activity. The Court
of Appeal was so clearly vexed that Defendant unreasonably delayed the
resolution of Plaintiff’s case by asserting a meritless appeal that it stated:
“Another appeal that, assuming it has no merit, will result in an inordinate
delay of the plaintiff’s case and cause him to incur more unnecessary
attorney fees. (See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1002-
1003.) And no merit it has.” Moriarty v. Laramar (2014) 224 Cal.App.4th
125, 125 [2014 Cal.App. LEXIS 183, *1].
3
Not content with this scolding and without legal merit and solely for
the purpose of delay,1 Defendant has doubled down and filed a Petition that
misrepresents the legal issues and analysis in the Opinion. Here, Defendant
grows bolder still. The threshold issue of the Opinion - that there is no
protected activity alleged- is ignored and conflated in Defendant’s Petition
in order to propound the absurdity that the Opinion is actually about
resolving how to approach a “mixed cause of action.” The Opinion clearly
states otherwise:
• “Laramar fails the most fundamental requirement—
demonstrating that Moriarty’s lawsuit is based on the
unlawful detainer action. It is not.” Moriarty v. Laramar
(2014) 224 Cal.App.4th 125, 133 [2014 Cal. App. LEXIS 183,
*12].
• “In short, with disregard of the pertinent principles or
cases—and on a strained, myopic reading of Moriarty’s
complaint—Laramar focuses on a few words in a few
paragraphs (of 139) and from there argues, however
conclusorily, that the complaint is within the SLAPP statute.”
Moriarty v. Laramar (2014) 224 Cal.App.4th 125, 135 [2014
Cal. App. LEXIS 183, *15].
• “In sum, Laramar fails to demonstrate that Moriarty’s cause
of action for violation of section 37.9 of the San Francisco
Administrative Code Chapter 37 (or any other cause of
action) is based in whole or in part on an unlawful detainer
default suit that is nowhere referenced in the complaint.
Indeed, Laramar does not show that the unlawful detainer suit
1 Motion for sanctions is to be filed concurrently. In oral argument, the Justices warned Defendant’s counsel Mr. Johnson that the appeal was “borderline frivolous.” This Petition is even more so.
4
was even “incidental” to Moriarty’s claims here.” [Emphasis
supplied] Moriarty v. Laramar (2014) 224 Cal.App.4th 125,
139 [2014 Cal.App. LEXIS 183, *26].
Most stunningly, Defendant expressly agreed with the superior
court and the Court of Appeal that Plaintiffs had not pled a “mixed cause of
action.” While Defendant now petitions on the grounds that the Opinion
concerns a split in authorities over how to approach “mixed causes of
action,” Defense Counsel Michael K. Johnson, the signator of the Petition,
stated the exact opposite about the Opinion in a letter to Justices Haerle,
Richman and Brick on February 19, 2014 on behalf of Laramar (Exhibit 1,
Johnson Letter, attached hereto). In Mr. Johnson’s letter, written only a
few weeks prior to filing the Petition, Mr. Johnson stated:
“...this Opinion does not survey or discuss the development of any
legal rule or line of decisions. Nor does the decision discuss or try to
resolve any split of authority between districts or between divisions
within districts.” (Exhibit 1, page 3.)
Mr. Johnson’s statement must necessarily apply to the purported
split of authorities over “mixed causes of actions” that he now deems
important enough for the Supreme Court to add Moriarty to its busy docket.
Defendant shamelessly wants to have it both ways, at the expense of any
credibility and integrity it might have possessed. Defendant’s Petition is
nothing more than an exercise in meritless delay that was disapproved in
Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1002-1003. Plaintiff is
separately seeking sanctions for this conduct in a separate motion filed
herewith.
Defendant is also shameless in its mischaracterization of the legal
issues discussed in the Opinion. Defendant’s Petition asserts that the
Opinion is primarily an analysis of a purported split in authorities and
5
argues that review is necessary to insure uniformity of decision in
complaints with “mixed causes of action.” If the standard for “mixed”
causes of action in anti-SLAPP motions is at the heart of the Opinion, as
Defendant contends, surely the phrase “mixed cause of action” or the word
“mixed” would appear in the Opinion, at least once!?2
Unsurprisingly, this is not the first time Defendant has
opportunistically adopted a duplicitous posture in this matter. In the
Opinion, Defendant’s counsel was taken to task for arguing in its appellate
brief that an unlawful detainer default judgment collaterally estopped
Plaintiff from asserting that he was constructively evicted after telling the
superior court that the same default judgment had no preclusive effect
whatsoever. Moriarty v. Laramar (2014) 224 Cal.App.4th 125, 140-141
[2014 Cal.App. LEXIS 183, *28-*31]. Defendant’s conduct was so
egregious that the Opinion included the transcript of Defense Counsel’s
colloquy with the trial court stating that a default judgment could never
have a preclusive effect.
Defendant’s Petition is devoted to analyzing a purported split in
authorities without a shred of facts relating the purported split to the instant
matter. As such, Defendant’s Petition waxes on about a legal issue that is
just not present in the Opinion. It is therefore inappropriate to discuss the
merits of such a split, whether the divisions are actually split or the various
opinions harmonized without Supreme Court guidance, or analyze the cases
Defendant uses to illustrate the purported split, because such analysis is not
considered in the Opinion. Even if the Supreme Court wanted to clarify a
purported split between the divisions regarding how to handle an anti-
SLAPP Prong 1 analysis for “mixed causes of action,” this case would be
an inappropriate vehicle to take up that issue because the Opinion’s
2 Neither the phrase “mixed cause of action” nor the word “mixed” appear anywhere in the Opinion.
6
analysis focuses on the absence of any allegation of protected conduct in
the Complaint. As Defendant’s main authority for this proposition
demonstrates, there has to be allegations of protected conduct in the first
place to trigger any “mixed cause of action” analysis. Wallace v. McCubbin
(2011) 196 Cal.App.4th 1169, 1212. Here, there is none and Defendant’s
Petition should be denied.
II. STATEMENT OF FACTS
A. Procedural History
On August 24, 2012, Defendants were served with Plaintiff John
Moriarty’s complaint filed on May 21, 2012. (Register of Actions [AA 3].)
On September 25, 2012, Defendant Laramar Management Corporation filed
a special motion to strike and set for hearing on October 18, 2012, and
proffered declarations of Joe Coleman, Michael Lehman and Anne Rollandi
that were filed in opposition to the Motion to Set Aside Default and Default
Judgment3 in the companion case CUD-11-637181. (Id. [AA 3; and see AA
51:16-24, AA72-80].) Plaintiff timely filed his opposition on October 4,
2012, and requested leave to conduct discovery. (Id. [AA3].) The Court
denied Defendant’s motion to strike after hearing on November 29, 2012,
and overruled “both parties objections.” (Court Order [AA 255].) Plaintiff
filed objections to Defendant’s declarations, and requests this court to take
judicial notice4 of these objections5.
Superior Court Judge Quidachay stated at the hearing on the motion:
“The Court concludes that the Moving Parties failed to carry its burden to
3 The Court denied the motion on the ground that Moriarty failed to establish diligence in bringing the motion. 4 See Plaintiff’s Motion for Judicial Notice filed with his Appellate Brief. 5 Titled “Defendant’s Objections to Plaintiff’s “Evidence” Proffered in Opposition to Defendant’s Motion to Set Aside Default and Default Judgment.
7
show that the Plaintiff’s Complaint arises out of protected activity. We
went through this Complaint in detail, trying to see how this might be
protected activity. And the drafter—our conclusion was that – and when I
say our research attorney – counsel and myself, and then I went through it
in detail and concurred. The drafters of the Complaint did an excellent job
in making sure that this basically is an action that arises – that arises out of
alleged breach of warranty of habitability. And I couldn’t find anything else
in the complaint.” (Hearing Transcript [AA 247:4-13].)
Plaintiff submitted correspondence with Defendants, a sworn
statement, and verified photos of the defective conditions that forced him to
vacate, which is substantial evidence that there is a possibility he will
prevail on his claims. (Moriarty Decl., [AA 121-147].) On November 1,
2012, Defendant added new counsel, Christopher Nevis. (Register of
Actions [AA 2].) Defendant responded to Plaintiff’s discovery on January
11, 2013, as Laramar Urban Apartments Partners, erroneously sued as
Laramar Management Corporation. Plaintiff believes that the January 11th
discovery produced by Laramar strongly supports the probability of
Plaintiff prevailing on his claims.
B. Statement Of The Case
In 1994, Plaintiff moved into a rent-controlled one-bedroom unit at
2363 Van Ness Avenue, Apartment 104, San Francisco, California (the
“Premises”), where he live until September 2010, when he temporarily
vacated his unit for Defendants to conduct remediation of the substandard
conditions, including in part, excessive dampness and water intrusion that
resulted in the development of surface and airborne contaminants, which
exacerbated his pre-existing lung condition and caused other ailments.
(Declaration of John Moriarty (“Moriarty Decl.”) ¶¶ 2, 5, 21 [AA 122,
125]; Complaint ¶¶ 16-25, 39-40, 44, 46, 53 [AA 8-9, 14].)
8
Plaintiff reported all of these conditions to Defendants on numerous
occasions, and even submitted photographs depicting damage from water
intrusion and the resulting surface contamination (airborne contamination
cannot be photographed), and his efforts to mitigate, including in part,
treating affected walls and ceilings with anti microbial solutions and then
painting with anti-microbial paint. (Moriarty Decl. ¶¶ 5, 11,14, 17 [AA 122,
124, 130, 145-151, 157]; Complaint ¶¶ 38-39, 42, 44, 48-49 [AA 11:11-24,
12:6-11, 12:14-17, 14:3-10].) Plaintiff believed Defendants were
conducting repairs and remediation in his unit based on their agreement, as
evidenced by their inspections, coordinating with a professional
remediation expert, and following posted notices to enter. (Moriarty Decl.
¶¶ 9, 10, 15 [AA 123:3-123:11, 124:14-16, 128, 153]; Complaint ¶¶ 26-28
[AA 9:28-10:7].) Defendants never told Plaintiff that they were not, and
would not repair his unit as promised and legally required. (Moriarty Decl.
¶ 18 [AA 124:26-125:1].)
Despite having actual and constructive notice of the defective and
untenantable conditions at the Premises, Defendants ignored their duty to
remedy the conditions and, indeed, refused to make necessary repairs,
which constitutes harassment under the Rent Ordinance. (Moriarty Decl. ¶¶
5-19 [AA 122:6-125:12]; Complaint ¶¶ 22-37, 49 [AA 9:16-11:16, 14:5-
10].) In sum, the Defendants engaged in a calculated scheme to allow and
perpetuate uninhabitable conditions for about a year at the Premises for the
purpose of ousting Plaintiff from his rent-controlled unit. (Ibid.) In or after
June of 2011, Plaintiff learned that Defendants had chosen to permanently
retain possession of the subject premises and thereafter refused to return
9
possession to Plaintiff in violation of Plaintiff’s rights. (Complaint ¶ 45
[AA 12:18-21]; Moriarty Decl. ¶196 [AA 125:2-12].)
Defendants’ refusal to restore and maintain habitable premises
caused Plaintiff severe physical, mental and emotional injury, caused
Plaintiff to pay excessive rent, and caused other economic losses.
(Complaint ¶¶ 41-43, 53-55, 58-60 [AA 12:3-13, 14:19-15:115:22-16:1];
Moriarty Decl. ¶¶19, 21 [AA 125:2-12, 125:16-22].)
III. LEGAL DISCUSSION
A. There are no facts pled to support the notion that there is
a “mixed cause of action.”
Defendant manufactures a controversy that does not exist in the
Opinion by arguing that the Court of Appeal should have applied various
tests for a “mixed causes of action.” According to Wallace v. McCubbin
(2011) 196 Cal.App.4th 1169, 1199, a “mixed” cause of action is one that
arises “in part from protected activity,” and mixes allegations of protected
and unprotected activity. The problem with Defendant’s argument that
Plaintiff has asserted a mixed cause of action is that the allegations of the
Complaint in no manner “expressly invoke the Unlawful Detainer Action
and ensuing eviction as the factual basis for Plaintiff’s claims against
Laramar,” as wishfully asserted by Defendant. (Appellants Opening Brief
“AOB” p. 17.) The trial court and the Court of Appeal heartily agreed.
Nowhere does the Complaint allege the filing of the unlawful detainer, 6 Plaintiff attested that his last communication to Defendants’ agent about repairs and moving back into his unit was June 6, 2011. He “ensured he filed the instant lawsuit to (sic) before June 6, 2012 to ensure I retained all my legal rights and remedies under the San Francisco Rent Residential Ordinance and saw that my lawsuit was filed within 12 months of my belief that I would deprived the right and opportunity to return to possession of my rent controlled apartment.” (Moriarty Decl., ¶¶18-20 [AA124:26-125:16].)
10
nevertheless Defendant insists that an unlawful detainer default nowhere
pled creates a “mixed cause of action” and is the basis for dismissing all
Plaintiff’s cause of action. Defendant’s argument is torpedoed by the
requirement present in any case discussing “mixed causes of action,” that
protected conduct must be alleged.
Defendant instead relies on two faulty arguments that were rejected
in the Opinion: (1) that a handful of paragraphs in the complaint must
obliquely refer to an unlawful detainer which somehow taints all causes of
action as arising out of protected activity, and (2) that Plaintiff’s cause of
action for violation of section 37.9 of the San Francisco Administrative
Code Chapter 37 (the “Rent Ordinance”) must be based in whole or part on
an unlawful detainer default judgment that is nowhere referenced in the
Complaint. Defendant cannot overcome its burden by asking the Court to
infer facts that are not pled for the sole purpose of defeating Plaintiff’s
Complaint. Defendant’s Petition depends on fallacious reasoning that is
contrary to established legal authority and common sense. (See Defendant’s
Petition, p. 23, claiming that the “broad, vague terms” of Plaintiff’s
pleadings infer an eviction proceeding. The trial court and Court of Appeal
squarely rejected this argument as nonsensical.)
Defendant erroneously asserts that the subtitle of Plaintiff’s last
cause of action, “Wrongful Eviction” must arise from the filing of an
unlawful detainer action and subsequent default judgment for alleged non-
payment of rent.7 The law is clear that a claim must be based, whether in
whole or in part, on allegations of protected conduct, such as the filing of
an unlawful detainer action, to come within the purview of the anti-SLAPP
statute. The mere filing of a complaint following an alleged protected act 7 Plaintiff specifically pled that the “Wrongful Eviction” cause of action was premised on Defendant’s failure to provide statutory relocation benefits required when a landlord temporarily reclaims an apartment to effect repairs and the tenant relocates.
11
does not render the claim protected, even if triggered by that act. (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.) Further, it is established
that wrongful endeavors to recover possession may be based on a range of
conduct that does not necessarily include the filing of an unlawful detainer
action, such as failure to repair habitability defects alleged here. Thus,
there is no legal basis for Defendant’s assertion that the filing/prosecution
of an unlawful detainer forecloses any claim for wrongful eviction even
when not based on the unlawful detainer.
The Complaint could not allege more clearly a constructive eviction
based on uninhabitable conditions in the unit, which exacerbated Plaintiff’s
pre-existing lung condition and caused him to lose permanent possession
when Defendants failed to repair his unit pursuant to its legal obligations.
The Court should deny Defendant’s Petition and remit the matter to
the trial court without further delay.
B. Defendant’s reliance on Wallace is misplaced as the
Wallace complaint expressly pled service of a 3-day notice, the filing of
an unlawful detainer suit, and events that occurred during the
unlawful detainer trial.
Defendant devotes the majority of its Petition to analogizing
Moriarty to the facts of Wallace v. McCubbin (2011) 196 Cal.App.4th
1169, in order to persuade the Court that Moriarty is a “mixed cause of
action.” Defendant’s Petition ignores the relevant facts and presents an
inaccurate picture of the Wallace decision. Such analogies are particularly
inapposite because Wallace is remarkably factually different.
First, Defendant conveniently omits that another tenant in the
building (and not the landlord) brought the Wallace anti-SLAPP motion for
only two out of 13 causes of action, when the tenant was sued by his
neighbor Wallace for “Wrongful Eviction” and “Retaliatory Eviction.” It
12
was clearly alleged in Wallace’s Complaint that it was Wallace’s landlord,
the Wus, that gave notice and filed an unlawful detainer suit against
Wallace. These facts created a failure under the Second Prong of Civ. Proc.
§ 425.16, subd. (b)(1), namely that Plaintiffs were likely to prevail on such
causes of action. Wallace, at 1214.
Second, the Wallace complaint had clearly and expressly mixed
allegations of protected conduct into the two contested causes of action,
such as the filing of a three day notice, the filing of an unlawful detainer,
and a recitation of events that occurred at the unlawful detainer trial.
Wallace, at 1177-79. Such factual allegations clearly created a “mixed
cause of action,” where the causes of action were based on both protected
and unprotected acts. Here, that is not the case. The trial court and the
Court of Appeal independently ruled that there were no allegations of
protected conduct whatsoever. Defendant cannot gloss over this difference
in its eagerness to characterize the Opinion as one concerning “mixed
causes of action.” To do so is beyond the bounds of any reasonable
jurisprudence. Defendant’s Petition should be rejected.
VI. CONCLUSION
The Opinion does not espouse the legal principles expounded in the
Petition. There is no “mixed cause of action” analyzed in the Opinion
because Plaintiff’s Complaint does not allege an unlawful detainer or the
service of a 3-day notice as a basis for his claims, nor do these acts form the
basis of his claims. The Opinion makes clear that Plaintiff’s Complaint is
based only on Defendants’ failure to remediate substandard conditions.
Therefore, this case is a wholly inappropriate vehicle to address any
clarification of the standards for mixed causes of action in anti-SLAPP
motions. The Petition only serves one purpose, namely to delay the
resolution of Plaintiff’s case on the merits. For all the reasons set forth
13
herein, the Petition should be denied and Plaintiff awarded fees and costs
for opposing this appeal and Petition. If awarded, Plaintiff will file a
separate declaration detailing his fees and costs.
Dated: March 27, 2014 LAW OFFICES OF ERIC L. LIFSCHITZ
By:
Aaron H. Darsky Attorney for Plaintiff-Respondent
CERTIFICATE OF WORD COUNT
Pursuant to California Rules of Court, Rule 8.504(d)(1), I hereby certify
that Respondent’s Answer to Petition for Review consists of 3,342 words as
counted by the Microsoft Word word processing program used to generate
this brief. The applicable word count limit is 8,400 words.
Dated: March 27, 2014 LAW OFFICES OF ERIC L. LIFSCHITZ
By:
Aaron H. Darsky Attorney for Respondent
CERTIFICATE OF SERVICEMoriarty v. Laramar Mmwgemelll Corporatioll, el al.
Supreme Court Number: S217055
STATE OF CALIFORNIA. COUNTY OF SA FRA CISCO
I am employed in the County of San Francisco. State ofCalifomia. I amover the age of 18 and not a party to the within action. My business address
is 345 Franklin Street. San Francisco. CA 94102.
On March 27. 2014. I served the follo\\ing document:
RESPO 'DENT'S ANSWER TO PETITION FOR REVIEW
On all interested panies in this action by placing a true copy thereofenclosed in sealed envelopes addressed as follows:
Curtis F. DO\\Iing Michael K. JohnsonDowling & Marquez. LLP William F. Horsey703 Market Street. Suite 1610 Lewis Brisbois Bisgaard and SmithSan Francisco. CA 94103 333 Bush Street. Suite 1100Counselfor Larlll1lar Management San Francisco. CA 94104Corporation aud 2363 Vall Ness Attorneys for LaramurAve, LLC Management Corpofiltioll mill
1363 VOII Ness Ave, LLC
JeITrey A. Miller Hon. Ronald E. QuidachayBritany 1-1. Bartold e/o Clerk of the CourtLewis Brisbois Bisgaard and Smith SAN FRANCISCO COUNTY70 I B Street. Suite 1900 SUPERIOR COURTSan Diego. CA 0210 I 400 McAllister Street
San Francisco. CA 94102Han. J. Anthony KlineHan. Paul R. HaerleHan. James A. Richmanc/o Clerk of the CourtCALIFORNIA COURT OF APPEALFIRST APPELLATE DISTRICT. DIVISIO TWO350 McAllister StreetSan Francisco. CA 94102-7303
xx MAIL (C.c.P. §§ 1013a, 2015.5): I caused such envelope tobe deposited in the mail. with postage thereon fully prepaid.addressed to the addressee(s) designated.
I swear under penalty of perjury of the laws of the State of Cali fomi athat the foregoing is true and correct.
Executed on March 27. 2014. in San Francisco. California.
=~~Thomas Farrell
EXHIBIT 1
LEWISBRISBOISBISGAARD&SMITH llPATIQRNEYS AT r.AW
333 8ush Street. Suite 1100San Francisco. California 94104-2872Telephone: 415.362.2580Fox: 415.434.0882www.lewisbrisbols.com
i\IICHAEL K. JOIINSONCERTIFIED SI'ECL\LlST IN ApPELLATE LAW
BY THE STATE BAR OFCAUFORNlA
BOARD OF LEGAl. SPECIALIZATION
DIRECT DIAL: [email protected]
February 19, 2014 FileNo.50012.3075
Honorable Paul R. Haerle, Presiding JusticeHonorable James A. Richman, Associate JusticeHonorable Steven A. Brick, Associate JusticeCalifomia COUlts of AppealFirst Appellate District, Division Two350 McAllister StreetSan Francisco, CA 94102
Re: RESPONSE TO REQUESTS FOR PUBLICA TlONJohn Moriarty v. Laramar A1anagement Corporation, Appeal No. AI37608Opinion Issued, January 29, 2014
Dear Justices Haerle, Richman and Brick:
This will respond to the Requests for Publication of the above-reference Opinion, submittedby counsel for Respondent John Moriarty (letter dated February 10, 2014) and by other localattorneys who represent tenants in San Francisco (letters dated February II, 2014). This Opiniondoes not meet any of the standards for publication set forth in Rule 8.II05(c) of the CaliforniaRules of Court. and therefore the pending Requests for Publication should be denied.
California's niles for publication provide
a uniform and reasonable procedure to assure that actual changes to eXIstmgprecedential decisions are applicable to all litigants. TIley establishcomprehensive standards for detennining publication of Court of Appealcases. particularly specifying that an Opinion announcing a new rule of law ormodifying an existing rule be published. They permit any member of the public torequest the Court of Appeal to publish an Opinion und, if the request is denied,require the Supreme COUrl to rule thereon. In shorl, the rules assure that all citizenshave access to legal precedent, while recognizing the litigation fact of life expressed
AJI.NAA· BE.olrlMCM • Bai!a'I' 0i>.RI..E~.OICI'GO. IWJ.A}' DEtMR °FOR1~.~ olAQ-M1A ,WA'T'UI!: • ~'..tGIoS ·I.CSAtGaES· ",V<DlSQNCOlln'f
t£NOfI.EN.lS· t'fiW'l'CAC' t£oNN¥.'~ co.MY' PHl.AOEl.JW\. ol'KJENX. se.c:RMelTo· w.l8EJIWDN:l. SANDEGO ° ~FlWClSCO' SEAlTl..E • JAt,f>A.IENfCl.tA. IlCiCltI
4839-1641·7304.1
Honorable Paul R. Haerle, Presiding JusticeHonorable James a. Riclunan, Associate JusticeHonorable Steven A. Brick, Associate JusticeFebruary 19, 2014Page 2
in [James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529] that most opinionsdo not change the law."
Schmier v. Supreme Courr (2000) 78 Cal.AppAth 703, 710-711 (··Schmier").
Here, Requestors seek publication of this Opinion under Rule 8.1105(c)(3), (c)(4), (c)(5) and(c)(7), which state that an opinion should be certified for publication ifit:
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provisionof a constitution, statute, ordinance. or court rule;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either thedevelopment of a common law rule or the legislative or judicial history of aprovision ofa constitution, statute, or other written law;
This Opinion meets none of these standards. The Opinion does not "modify, explain orcriticize, with reasons given, an existing rule of law," nor does it advance a "new interpretation,clarification, criticism, or construction" of any law. To the contrary. as reflected by the introductorycomments in the Opinion, the COlirt believes this is but "another" appeal from an unfavorable antiSLAPP ruling in the trial court. The Opinion itself largely consists of lengthy quotes from theplaintiff's Complaint (pp. 2-3), defendant's anti-SLAPP motion and the trial court's decision (PI'.4), lhe parties appellate briefs (PI'. 5, 8-9, 13), and from existing published opinions (pp. 6·7, 1012). Although Requestors invoke Rule 8.1105(e)(3) and (e)(4), they do uot explain how existinganti-SLAPP law is modified, explained, criticized, or how the Opinion advances a newinterpretation, clarification, criticism or construction of the law. Instead, Requestors merelycomplain that they believe the anti-SLAPP statute is being unfairly applied to their niche of law,while ignoring lhe Legislature's clear direction thaL the anti-SLAPP rules should be "construedbroadly." (Code of Civ. Proe. § 425. I6(a).)
Likewise, this is not a matter of "conlinuing public interest." To the contrary. lheRequestors have made no showing of any "public interest" at all. The inlerest, as shown inRequestors' letters, is not by the general public, but by a small group of local attorneys. To theextent Requestors' concem is alleged "delay" or the "uninlended negative impact"· that the anliSLAPP rules may have in some practice areas, those issues are fuJly explained in Grewal v. Jammu(2011) 191 Cal.AppAth 977, 981, 994-1004. If Requestors are trying to send a message to
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Honorable Paul R. Haerle, Presiding JusticeHonorable James a. Richman, Associate JusticeHonorable Steven A. Brick, Associate JusticeFebruary 19,2014Page 3
attorneys across the table, "[i]t hardly needs mentioning that opinions, rulings and orders of theCourt of Appeal are public records, open to all. ... The fact that opinions are not published in theOfficial Reports means nothing more than that they cannot be cited as precedent ... :' Schmier, 78Cal.AppAth at 712.
Lararnar rejects Requestors' assertion that anti-SLAPP motions are used as a "delaying"tactic or for any other improper purpose. Laramar and other landlords arc repealedly sued forlegitimately pursuing their legal rights under the San Francisco Rent Ordinance and under State law.Many of these suits involve multiple claims and "mixed" causes of action. See e.g. Wullac.:e v.
McCubbin (2011) 196 Cal.AppAth 1169, 1187. The problem is compounded where, as in this case,the operative pleading contains voluminous, unclear allegations and multiple, duplicative causes ofaction. particularly in light of the Legislature's mandate of broad construction.
Requestors have also failed to show how this Opinion makes a "significant contribution tolegalliteraturc" by reviewing the legislative or judicial history of any statute or other law. Althoughthe Opinion mentions a couple of cases as "illustrations" (p. 15), there are a plethora of publishedanti-SLAPP decisions,1 including many from this District constl1ling anti-SLAPP law in thelandlord-tenant context, and this Opinion does not surveyor discuss the development of any legalrule or line of decisions. Nor does the decision discuss or try to resolve any split of authoritybetween districts or between divisions within districts. It does not provide clarification or guidanceto practitioners. Requestors Ms. Foran and Ms. Mosbrucker, in their February 11, 2014 letter,complain that "[s]ince this Court's decision in Birkner v. Lam (2007) 156 Cal.App.4th 275, we havebeen forced to oppose" many allegedly unmeritorious anli-SLAPP motions. Yel if Requestors areconcerned about the effect of Birkner, this Opinion does discuss that case. This Opinion merelyapplies existing legal rules frolll publishcd decisions to an admittedly common set of facts.
In shon, Requestors seek to have this Opinion published to funher their own interests. andnot because the Opinion changes or augments existing precedent that may be useful or applicable toall litigants. There is no "confusion" among practitioners, and Requestors seek publication withoutregard to any potential unintended consequences that publication might have to the general antiSLAPP law. As in Schmier, publication of this Opinion would "add nothing to the body of staredecisis. and if published would merely clutter overcrowded library shelves and databases withinformation utterly useless to anyone other than the actual litigants therein and complicate the
See, e.g.. Delois \". Barrert Block Partners (2009) 177 Cal.App.4th 940, 946 ("'Because of thelarge number of appellate decisions construing and applying section 425.16, we have many options fromwhich lO choose to summarize the key fealures of that law ... :').
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Honorable Paul R. Haerle, Presiding JusticeHonorable James a. Richman, Associate JusticeHonorable Steven A. Brick, Associate JusticeFebruary 19,2014Page 4
search for meaningful precedent. Appellant fails to explain how or why such opinions contribute tothe corpusjuris." Schmier, 78 Cal.App.4th al 712.
Accordingly, Appellant Laramar Management Group respectfully asks that the Court denyIhe pending Requests for Publication of this Opinion.
Respectfully subm· d,
Micha . Johnson ofLEWIS BRISBOIS BISGAARD & SMITH LLP
MKJ:sh
cc: Eric Lifschitz, Esq., via u.s. MailLeah Hess, via U.S. MailMary Jane Foran I Cathy Mosbrucker, via U.S. Mail
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