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prevented from immediately filing suit because plaintiffs created a conflict of interest
between them and Pineda by naming them as codefendants. But a trier of fact could
reasonably reject this explanation, as several weeks elapsed between the expiration of the
October notice period (October 5) and the filing of the instant action on October 25,
during which an unlawful detainer action could have been filed but was not. This
contrasts with the events of July, when defendants filed the unlawful detainer complaint
the day after the July notice period expired.
Furthermore, a threat to file a lawsuit is insufficient to activate the privilege if it is
merely a negotiating tactic and not a serious proposal made in good faith contemplation
of going to court. (Edwards, supra, 53 Cal.App.4th at p. 35.) When a cause of action
arises from conduct that is a “ ‘necessary prerequisite’ ” to litigation, but that will lead to
litigation only if negotiations fail, then future litigation is merely theoretical rather than
anticipated and the conduct is therefore not protected prelitigation activity. (Bel Air
Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 941.) Here, the evidence permits
the inference that defendants served the October notice merely as a negotiating tactic.
The notice was followed not by litigation, but by several communications in which
Meyers attempted to resolve the matter short of litigation. Even when plaintiffs’ attorney
Reckas responded to the October notice by offering to accept service of the complaint
and summons, Meyers did not take Reckas up on his offer but solicited additional
evidence of payments to adjust the balance of outstanding rent and “perhaps settle this
amicably.” Given the already-disclosed evidence suggesting serious recordkeeping errors
and failure to credit all of plaintiffs’ payments, the attorney defendants’ apparent
hesitation to sue in October 2017 permits the inference that litigation was not genuinely
contemplated at the time.
On this record, plaintiffs sufficiently raised a triable issue of fact as to whether
litigation was contemplated in good faith and under serious consideration to withstand the
defense of the litigation privilege.