Judge: James L. Crandall, Case: 22-1251468, Date: 2022-10-20 Tentative Ruling

1.    Anti-SLAPP motion

Defendants’ request for judicial notice of the Agreement for Covenant to Run With the Land and Easement recorded on May 2, 1969 and the First Amendment to the covenant recorded on July 20, 1970 is granted.

Defendants’ objections (filed under ROA 37) to the Tanaka declaration are overruled.

Defendants’ objections to the Cruse declaration are overruled.

Defendants’ objection to the Arevalo declaration is overruled.

Plaintiff’s objections (filed under ROA 61) to the Vida Mahrouyan declaration are overruled.

Plaintiff’s objections to the Neeloufar Mahrouyan declaration are overruled.

Legal Standard

Code of Civil Procedure section 425.16(b) states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. . . .”

Code of Civil Procedure section 425.16(e), states, “As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

“In determining whether to grant or deny a section 425.16 motion to strike, the court engages in a two-step process. [Citation.] First, the court must decide whether the defendant has met his or her threshold burden of showing that his or her acts arose from protected activity. [Citation.] . . . [¶] If the defendant meets his or her burden of showing that the activity is protected, then the court determines whether the plaintiff has carried his or her burden of showing that there is a probability that he or she will prevail on the claim. [Citations.]” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 811 (Jewett).)

Summary of Complaint

Plaintiff’s complaint alleges causes of action for (1) cutting or injuring trees on Plaintiff’s property, (2) trespass, (3) conversion and trespass to chattels, (4) injunction, and (5) unfair business practices.

The facts alleged at paragraphs 7-14 of the complaint include the following: (1) Plaintiff operates a golf course, (2) Defendants reside next to the golf course, (3) there is a covenant restricting Plaintiff’s ability to diminish the view from Defendants’ property, (4) the parties disagree as to whether a certain oak tree and pine tree planted by Plaintiff violate the covenant, (5) in June 2021, Defendants began complaining to Plaintiff about this issue and sent a demand letter, and (6) in November 2021, the trees were trimmed without Plaintiff’s consent, allegedly by Defendants.

At paragraph 15, the complaint alleges, “Plaintiff has incurred damages of approximately $41,000.00 as a result of the actual detriment caused to the Oak Tree and Pine Tree as a result of the unauthorized trimming and pruning.”

Merits

Defendants contend the lawsuit is based on protected activity under Code of Civil Procedure section 425.16(e)(2) and Civil Code section 47(b). They argue their prelitigation demand letters to Plaintiff are the basis for Plaintiff’s complaint and that Plaintiff “expressly uses the Second Mahrouyan Demand Letter in an effort to manufacture probable cause against Defendants” regarding the tree damage. (Motion, p. 7.)

Plaintiff responds that the lawsuit is not based on Defendants’ prelitigation communications, but on the damage to its trees. Plaintiff states the letters are merely evidence demonstrating Defendants’ motive to harm the specific tress which were the subject of the parties’ dispute. Plaintiff also submits evidence that Defendants’ property is the only residential property whose view of the golf course was impacted by the unauthorized tree trimming. (Cruse Decl., ¶ 15.)

Baral v. Schnitt (2016) 1 Cal.5th 376, 394 (Baral), states,

“The Court of Appeal below was concerned about allowing defendants to target fragmentary allegations, no matter how insignificant. The concern was misplaced. Assertions that are “merely incidental” or “collateral” are not subject to section 425.16. [Citations] Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”

Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063, holds:

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations] Critically, “the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations] “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” [Citations] Instead, the focus is on determining what “the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation] “The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....” [Citation] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.”

Navellier v. Sletten (2002) 29 Cal.4th 82, 89, holds:

“[T] mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such. [Citation] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citation]

In deciding whether the initial “arising from” requirement is met, a court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b).)”

Here, based on the pleadings and the evidence submitted by the parties, Plaintiff has shown that the elements of the causes of action asserted in its complaint are supplied by Defendants’ alleged harm to Plaintiff’s trees, not by Defendants’ demand letters and other prelitigation communications. (See Opposition, pp. 16-17.)

While the prelitigation demand letters constitute protected speech, Plaintiff is not seeking to hold Defendants liable for the communications. Rather, the communications are alleged to demonstrate Defendants’ motive for damaging the specific trees which were the subject of the parties’ dispute. Such allegations, which provide context but don’t provide the basis for Defendants’ alleged liability, are insufficient to support a motion to strike under Baral, supra, 1 Cal.5th at 394.

Because Defendants have failed to meet their burden of demonstrating that Plaintiff’s complaint arises from protected activity, the court does not proceed to step two of the anti-SLAPP analysis. (See Jewett, supra, 113 Cal.App.4th at 811.)

The motion is therefore denied.

Moving Party to give notice.

2.    Case Management Conference

Future hearing dates

No future hearing dates