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question “ ‘is whether the cause of action is based on the defendant’s protected free
speech or petitioning activity.’ ” [Citations.]’ (Clark, supra, 170 Cal.App.4th at
pp. 1286-1287, italics omitted.)
“The Clark court then discussed the facts and rulings of both Marlin and DFEH
[Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC
(2007) 154 Cal.App.4th 1273] and held: ‘The same reasoning applies here. Clark’s
action against Mazgani is not based on Mazgani’s filing or service of the notices of intent
to evict, it is not based on anything Mazgani said in court or a public proceeding, and it is
not based on the fact that Mazgani prosecuted an unlawful detainer action against her.
The complaint is based on Mazgani’s allegedly unlawful eviction, in that she fraudulently
invoked the [rent ordinance] to evict Clark from her rent-controlled apartment as a ruse to
provide housing for her daughter, but never installed her daughter in the apartment as
required by that ordinance, and also that she failed to pay Clark’s relocation fee.’ (Clark,
supra, 170 Cal.App.4th at p. 1288.)
“Because the landlord in Clark relied on our decision . . . in Feldman
[v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467] and also on Birkner, supra,
156 Cal.App.4th 275, the Clark court distinguished those cases . . . .
“The Clark court then summed up the critical distinction between the facts before
it and those before us in Feldman and the court in Birkner: ‘The pivotal distinction
between the circumstances in Marlin . . . on one hand, and Birkner and Feldman on the
other, is whether an actual or contemplated unlawful detainer action by a landlord
(unquestionably a protected petitioning activity) merely “preceded” or “triggered” the
tenant’s lawsuit, or whether it was instead the “basis” or “cause” of that suit.’ (Clark,
supra, 170 Cal.App.4th at p. 1289.)” (Delois, supra, 177 Cal.App.4th at pp. 950–953,
fns. omitted.)
This last sentence is explained by the trio of decisions that came from our
Supreme Court in 2002. “[T]he mere fact an action was filed after protected activity took
place does not mean it arose from that activity.” (City of Cotati v. Cashman (2002)
29 Cal.4th 69, 76-77.) “ ‘ “[T]he act underlying the plaintiff’s cause” or “the act which