To Be a SLAPP Suit an Action Must Be Based On Protected Activity

The Intent Use of Protected Speech or Activity As Evidence Does Not Mean that a Cause of Action is a SLAPP Cause of Action

Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (Sept. 5, 2007, B194891, Second District)
18 p. opinion

An action is a SLAPP action only if it is based on the defendant's protected free speech or petitioning activity. The act of "speaking" or the act of petitioning must itself be the alleged wrong. If written correspondence and the filing of an action for unlawful detainer are going to be used as evidence to support a cause of action for alleged disability discrimination, then the lawsuit is not a SLAPP action. The plaintiff is not complaining about the correspondence or the legal filing but rather about the alleged motivation behind them. The gravamem of the complaint is disability discrimination, it is not the defendant's use of its speech or petitioning rights.

In this case the defendant decided to take a building off the rental market. One of the tenants responded to the required legal notice by notifying the defendant that she was disabled and therefore entitled to the longer relocation period that the statute provides for people with disabilities. The defendant asked the tenant to provide a letter from her physician indicating the nature of the tenant's disability.

After receiving a physician's letter stating that the tenant was totally disabled, the defendant asked for additional information. The defendant wanted a physician's letter that provided enough information to permit the defendant to determine that the tenant's disability was a qualifying disability under Government Code section 12926. The tenant declined to provide further information, citing her privacy rights. Following a lengthy correspondence the defendant brought an action for unlawful detainer against the tenant and evicted her. The DFEH then brought this action on behalf of the tenant alleging disability discrimination. The Court of Appeal affirmed the trial court's denial of the defendant's anti-SLAPP motion on the grounds that the action for disability discrimination was not based on the defendant's letters and unlawful detainer action.
Justice Johnson wrote the opinion. Presiding Justice Perluss and Justice Zelon concurred.