Baca v. Saddleback at Blackhawk Assn.

Filed 1/29/07 Baca v. Saddleback at Blackhawk Assn. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Pursuant to Californias anti-SLAPP statute, Code of Civil Procedure section 425.16,[1] defendants filed a special motion to strike all eight causes of action in plaintiff Dennis Bacas complaint. Defendants argued that all of Bacas claims arise from their protected conduct participating in prior litigation against Baca. The trial court granted the motion to strike two causes of action and denied the motion to strike the remaining six claims. We affirm in part, reverse in part, and remand for further proceedings.

Background

Defendant Saddleback at Blackhawk Association is a homeowners association in Danville (HOA); the individual defendants are members of the HOAs board of directors. Plaintiff Baca is a homeowner and member of the HOA.

Prior Litigation

In 1987, the HOA approved Bacas construction of a security gate across a private drive that provides access to three parcels in the Saddleback subdivision. In 1991, one of Bacas neighbors filed an action against him and the HOA concerning the security gate. The HOA cross-complained against Baca. In 1993, Baca and his neighbor settled the underlying claim. Subsequently, Baca and the HOA settled the cross-complaint and judgment was entered in 1996. A second action by another of Bacas neighbors resulted in a 1998 judgment.

In 2003, the HOA sought an order finding Baca in contempt of the 1996 judgment, specifying fifteen incidents involving the security gate obstructing access to the parcels. The trial court discharged the orders to show cause.

The Present Action

In 2004, Baca filed the present action against the HOA and its individual directors. The complaint alleges eight causes of action: (1) malicious prosecution; (2) abuse of process; (3) breach of fiduciary duties; (4) breach of covenant of good faith and fair dealing; (5) private nuisance; (6) violation of the California Fair Employment and Housing Act; (7) inverse condemnation; (8) and civil harassment. The allegations relate to the earlier litigation, as well as other conflicts between Baca and the HOA, including interference with Bacas residential construction projects, false reports regarding Baca to the police and the building department, the issuance of citations to Baca for frivolous violations of HOA rules, and the HOAs failure to remove a tree from a drive leading to Bacas residence.

Defendants filed a motion to strike all eight causes of action under section 425.16. The trial court granted defendants motion to strike Bacas first and second causes of action concluding that the claims arise from defendants protected conduct and that Baca failed to show a probability of prevailing. The court denied defendants motion to strike the remaining six causes of action, concluding that defendants had not met their threshold burden of showing that those claims arise from protected conduct. Defendants contend that the trial court erred in denying the motion as to the third through eighth causes of action. We affirm the trial court order as to causes of action four and seven, and reverse as to causes of action three, five, six, and eight.

Discussion

The anti-SLAPP statute was enacted to provide a procedural mechanism for early dismissal of nonmeritorious claims arising from any act of the defendant in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue . . . . ( 425.16, subd. (b)(1); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)[2] The Legislature authorized the filing of a special motion to strike such claims within 60 days after service of the complaint. ( 425.16, subds. (b)(1), (f).)

I.                    Waiver

Preliminarily, we reject Bacas contention that defendants waived any objection to the trial court ruling. He relies on comments made by defendants counsel at the hearing on the motion to strike when defendants sought clarification of the tentative ruling striking only the first two causes of action. Counsel offered his understanding of the courts reasoning: I am interested, and I think I understand, and let me see if Ive got it correct, why the Court denied the motion with respect to the remaining causes of action [] . . . it seems to me what the dividing line that the Court is making is that the other six causes of action are CC&R issues, if you will. In other words, they are things that came out of court. And if that is the Courts ruling, I think it makes a lot of sense to me. The court confirmed its reasoning.

Defendants ambiguous statement is an inadequate basis to find waiver. Before making the comment at issue, counsel stated that he thought that the matter was very well briefed and he reiterated his argument that all causes of action arise from protected conduct because the allegations of protected activity are incorporated throughout the complaint and are specifically referenced in several paragraphs in the final six causes of action. In context, the comment that the ruling makes a lot of sense to me can either be read to express agreement with the ruling or it can be read to express merely that counsel understood the trial courts reasoning.

Bacas attempt to characterize counsels statement as invited error is unpersuasive. Under the doctrine of invited error a party cannot successfully take advantage of error committed by the court at his request. (Jentick v. Pacific Gas & Electric Co. (1941) 18 Cal.2d 117, 121.) The cited cases involve situations where a partys suggestion of or acquiescence to a ruling or procedure led to an alleged error in the conduct of trial. (See, e.g., ibid. [erroneous jury instruction]; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686 [inconsistent verdict form]; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743 [issue not submitted to jury].) In contrast, the statement at issue here arose in the context of defendants pre-trial motion to strike. Defendants did not abandon that argument due to their counsels ambiguous and superfluous comment seeking clarification of the tentative order.

II.                 Threshold Showing of Protected Conduct

In deciding a motion to strike under section 425.16, the trial court first determines whether the moving party has made a threshold showing that the challenged cause of action arises from protected conduct. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2).) If the trial court concludes that a claim arises out of protected conduct, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon, at p. 67.) We review the trial court ruling de novo. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.)

Defendants argue that because the allegations underlying the malicious prosecution and abuse of process claims are incorporated into each of the causes of action, all claims arise from protected conduct.[3] The incorporated allegations are that defendants sought an order that Baca was in contempt based on 15 incidents involving the security gate obstructing access to the parcels. Baca does not dispute that defendants participation in the contempt proceedings is protected conduct. Rather, he argues that incorporation by reference does not bring all of the claims within the scope of the section 425.16. We agree. Complaints generally incorporate prior allegations into subsequent causes of action. [Citation.] Because of this general practice, to strike an entire complaint based simply on the incorporation of prior allegations would unnecessarily expand the anti-SLAPP statute beyond acts taken in furtherance of the right of petition or free speech. (Kajima Engineering and Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-932.)

Furthermore, defendants cannot take advantage of the anti-SLAPP statute simply because a cause of action contains some reference to speech or petitioning activity. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) The relevant inquiry is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. . . . [T]he anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (Id. at p. 187, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, and Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [italics omitted].) [W]hen the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute. (Martinez, at p. 188; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.)

On appeal, Baca argues that claims four and seven (breach of covenant of good faith and inverse condemnation) do not arise out of protected conduct. As to the remaining causes of action, Baca focuses his appellate argument solely on the second prong of the analysis, the probability of prevailing on the merits.

For each cause of action, we consider whether the allegations of protected conduct are incidental to the allegations of nonprotected conduct. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 672.)[4]

Breach of Fiduciary Duties (Third Cause of Action)

The trial court denied the motion to strike the third cause of action which alleges that the defendant HOA breached fiduciary duties owed Baca as a member of the homeowners association. Construing section 425.16 broadly, as the Legislature has mandated, we construe the claim as arising from defendants conduct in furtherance of the right to petition the court, a protected activity.

Specifically, paragraphs 43 through 45 of the complaint specify duties of loyalty and care imposed by the HOAs Declaration of Covenants, Conditions, and Restrictions (CC&Rs). Paragraph 47 alleges that defendants breached their fiduciary duties to PLAINTIFF . . . by improperly using and misappropriating the Reserve Account to fund their wrongful purposes to prosecute litigation against PLAINTIFF. (emphasis added.) Paragraph 48 alleges that defendants pursued the litigation because of their personal hatred of or ill will toward PLAINTIFF and is part of a concerted scheme to annoy, antagonize, and bully PLAINTIFF . . . (emphasis added.)

Hence, we conclude the third cause of action alleges that Baca was damaged by the defendants specific action in pursuing litigation, which is protected conduct. Baca was then required to show a probability of prevailing on the merits of the claim.

Breach of Covenant of Good Faith and Fair Dealing (Fourth Cause of Action)

The trial court denied the motion to strike the fourth cause of action which alleges that defendants breached the covenant of good faith and fair dealing in implementing construction approval provisions in the HOAs CC&Rs. Specifically, Baca alleges that defendants wrongfully refused to approve his plans for construction of a pavilion on his property. The allegations particular to the claim do not reference the contempt proceedings, and defendants do not explain how the claim is based on the prior litigation. The incorporated allegations relating to protected conduct can only be viewed as incidental to the claim. The trial court correctly concluded that defendants failed to show that the fourth cause of action arises from protected conduct.

Private Nuisance (Fifth Cause of Action)

The trial court denied the motion to strike the fifth cause of action which alleges that defendants obstructed his free use of his property, creating a private nuisance. The first conduct alleged involves the earlier litigation. Paragraph 66 alleges that defendants interfered with Bacas ability to maintain the security gate by [a]cting without probable cause in prosecuting the contempt proceedings against PLAINTIFF that sought to disturb the 1998 JUDGMENT and to deprive PLAINTIFFs property rights to maintain a security gate . . . Baca argues that defendants interfered, in part, by prosecuting the contempt proceedings against Mr. Baca.

The allegation of protected conduct, together with the allegations incorporated from the first two causes of action, are not incidental to the claim. The trial court erred in denying the motion to strike the fifth cause of action. Baca was then required to show a probability of prevailing on the merits of the claim.

California Fair Employment and Housing Act (Sixth Cause of Action)

The trial court denied the motion to strike the sixth cause of action which alleges inter alia that defendants discriminated against him because of his Hispanic ethnicity in a concerted effort to force [him] to sell his residence and leave the Saddleback community. The allegations particular to the claim do not reference the contempt proceedings. The allegations are that defendants interfered with construction of an addition to Bacas home, made false reports to the building department and the sheriffs departments, and violated the CC&Rs.

However, paragraph 27 of the malicious prosecution claim, incorporated into the sixth cause of action, alleges that defendants institution of the contempt proceedings was an effort to force Baca to sell and was motivated by racial discrimination towards PLAINTIFF because he is Hispanic. The complaint discloses that Bacas fair housing claim is based in part on the contempt proceedings.

Considering the pervasive significance of the contempt proceedings to Bacas lawsuit, we cannot conclude that the allegation is incidental to the allegations of unprotected conduct. The trial court erred in denying the motion to strike the sixth cause of action. Baca was then required to show a probability of prevailing on the merits of the claim.

Inverse Condemnation (Seventh Cause of Action)

The trial court denied the motion to strike the seventh cause of action which alleges that defendants effected an uncompensated taking by interfering with Bacas plans to build a stone wall and a pavilion on his property. There are no allegations relating to the contempt proceedings, and defendants do not argue that the claim is based on the earlier litigation. The incorporated allegations relating to protected conduct can only be viewed as incidental to the claim. The trial court correctly concluded that defendants failed to show that the seventh cause of action arises from protected conduct.

Civil Harassment (Eighth Cause of Action)

The trial court denied the motion to strike the eighth cause of action which alleges that defendants have engaged in a course of conduct to annoy and harass him in an effort to force him to sell his property. The course of conduct includes prosecuting quasi-criminal contempt proceedings, filing false reports to government and police agencies, and causing the denial to approve construction plans. The complaint seeks an injunction prohibiting further harassment. These are constitutionally protected activities which are not incidental or collateral to the cause of action. The trial court erred in denying the motion to strike the eighth cause of action. Baca was then required to show a probability of prevailing on the merits of the claim.

Conclusion

Because the fourth and seventh causes of action (the breach of the covenant of good faith and inverse condemnation claims) do not arise from protected conduct, Baca was not required to show a probability of prevailing on those claims. Those claims survive the motion to strike.

III.               Probability of Prevailing Analysis

Because the third, fifth, sixth, and eighth causes of action (the breach of fiduciary duty, private nuisance, fair housing, and civil harassment claims) arise out of protected conduct Baca is required to show a probability of prevailing on the merits, the second prong of the analysis under section 425.16. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) Baca must demonstrate that the claims are both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

In the trial court, defendants argued that all eight causes of action arise from protected conduct. Baca opposed the motion by arguing a probability of prevailing on the malicious prosecution and abuse of process claims only. Baca argued in his opposition to the motion to strike, [b]ecause Defendants special motion to strike is relevant to only the malicious prosecution and abuse of process claims, BACAs showing of a probability of prevailing pursuant to CCP section 425.16 will be limited to those two causes of action.

On appeal, Baca argues for the first time that he can show a probability of prevailing on the remaining claims. Defendants argue that because plaintiff failed to make this argument below, it has been forfeited. However, as a general rule, a respondent may raise new arguments on appeal because we affirm the trial courts ruling if correct on any theory. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1339.) Because our review is de novo, we address this issue even though the trial court did not. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)

As to count eight, Baca concedes on appeal that constitutionally protected activities cannot form the basis for an injunction under section 527.6. ( 527.6, subd. (b)(3); Leydon v. Alexander (1989) 212 Cal.App.3d 1, 5.) Necessarily, he concedes that he cannot show a probability of prevailing based on the alleged protected conduct.

Further, the only evidence proffered by Baca is his verified complaint. In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence. (Roberts v. Los Angeles County Bar Assn., supra, 105 Cal.App.4th at pp. 613-614, italics added, citing Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) Because Baca relies on no other evidence, we must conclude that he has failed to show a probability of prevailing on the third, fifth, sixth, and eighth causes of action. These claims must be stricken from the complaint.

In sum, the result of defendants motion to strike is that only Bacas fourth and seventh causes of action (the breach of the covenant of good faith and inverse condemnation claims) remain.

Disposition

The trial court order is reversed with respect to the third, fifth, sixth, and eighth causes of action. The court is directed to enter a new order granting the section 425.16 motion and striking those claims. The order is affirmed in all other respects, and the matter is remanded for further proceedings. In the interests of justice each side shall bear its own costs.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] SLAPP is an acronym for strategic lawsuit against public participation.

All further statutory references are to the Code of Civil Procedure.

[2] Subdivision (e) of section 425.16 defines act in furtherance of a persons right of petition or free speech to include: (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; (4) or 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. ( 425.16, subd. (e).)

[3] Defendants also argue that the allegations that defendants made false reports about plaintiff to the police and building department are allegations of protected conduct. Because that argument was not made to the trial court, we do not consider it on appeal. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.)

[4] We reject defendants contention that under Kibler v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192, Bacas causes of action arise out of protected conduct in that they are based on the HOAs conduct relating to approval of Bacas construction plans.  In Kibler, the Court concluded that a hospitals peer review process was an official proceeding authorized by law within the scope of the anti-SLAPP statute because the Business and Professions Code sets out a comprehensive scheme that incorporates the peer review process into the overall process for the licensure of California physicians.  (Kibler, at p. 199.)  Although Civil Code section 1363 authorizes the operation of community associations and Civil Code section 1378 contains provisions relating to association approval of proposed changes to a members property, the statutes do not establish a comprehensive scheme calculated to serve the public interest, as was present in Kibler.  (Kibler, at pp. 199-201.)