Unreported / Non-Citable
Background
Plaintiff Scott Robert Moore brought suit alleging housing discrimination and retaliation by the defendant, the owner of the property where he previously resided. The operative First Amended Complaint asserted four claims, including federal Fair Housing Act claims and state-law claims under California's Fair Employment and Housing Act and for retaliatory eviction under California Civil Code section 1942.5. The defendant moved to strike the complaint under California's anti-SLAPP statute, and a United States Magistrate Judge issued an Interim Report and Recommendation recommending denial of that motion.
The magistrate judge's Report conducted the anti-SLAPP analysis as to all four claims. The defendant filed objections to the Report, and the district court reviewed the objected-to portions de novo. The court found the defendant's objection well-taken as to the fourth claim for retaliatory eviction, but found the objections to the remaining three claims unpersuasive.
The Court’s Holding
As to the fourth claim for retaliatory eviction, the court agreed with the defendant that the claim was barred by claim preclusion based on a prior unlawful detainer judgment. Applying California's primary right theory, the court reasoned that both the retaliatory eviction claim and the unlawful detainer action concerned the same primary right: the right to possession of the apartment. The court also noted that the plaintiff could have raised, and in fact did raise, retaliatory eviction as an affirmative defense in the unlawful detainer proceeding, and that he had a fair opportunity to litigate it. The court rejected the plaintiff's argument that he lacked a fair opportunity because the proceeding allegedly occurred during a psychiatric crisis, observing that his absence from a remote hearing lasted only a few minutes. Because the claim was precluded, the plaintiff could not show a probability of prevailing at step two of the anti-SLAPP analysis, and the motion to strike was granted as to that claim.
As to the third claim under FEHA, the court upheld the Report's conclusion that the defendant failed at step one of the anti-SLAPP analysis. The challenged act was the defendant's alleged failure to respond to the plaintiff's email requesting a disability accommodation, which the court characterized as a failure to speak that is not protected activity under the anti-SLAPP statute, even if connected to the unlawful detainer litigation. The court declined to consider a standing argument raised for the first time in objections, and it rejected the request to test the federal claims under Rule 12(b)(6) because the defendant had moved only to strike under the anti-SLAPP statute and had not separately moved to dismiss. The court ordered the Report accepted and adopted in part, granted the motion to strike only as to the fourth claim, and directed the defendant to file an answer within 21 days.
Key Takeaways
- A retaliatory eviction claim under California Civil Code section 1942.5 can be barred by claim preclusion when a prior unlawful detainer judgment adjudicated the same primary right to possession of the property.
- A tenant's failure to participate in an unlawful detainer hearing is not the same as lacking a fair opportunity to litigate, and even a brief absence may not defeat preclusion.
- An alleged failure to respond to an accommodation request is a failure to speak that does not constitute protected activity under California's anti-SLAPP statute, causing the movant to fail at step one.
- Arguments raised for the first time in objections to a magistrate judge's report may be declined by the district court without consideration.
- California's anti-SLAPP statute cannot be used to strike federal claims, and a motion to strike does not provide a basis for Rule 12(b)(6) dismissal absent a separate motion.
Why It Matters
This order illustrates the interplay between California's anti-SLAPP statute and claim preclusion in the landlord-tenant context, confirming that an unlawful detainer judgment can bar a later retaliatory eviction claim under the primary right theory. It also reinforces that a defendant's mere inaction or failure to respond to a request is not protected petitioning or speech activity subject to anti-SLAPP screening.
The decision also underscores procedural limits on anti-SLAPP motions in federal court: they cannot reach federal claims, and parties cannot use objections to a report and recommendation to raise new dismissal arguments or to obtain Rule 12(b)(6) review they never formally sought.