Reed v. Pearlstone CA1/2 ( 2023 )

Filed 1/31/23 Reed v. Pearlstone CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JOHN BRIAN REED et al.,
Plaintiffs and Appellants, A161285
v.
JON BARRY PEARLSTONE et al., (Marin County Super. Ct.
Defendants and Respondents. No. CIV2000495)
This case arises from a dispute among neighbors in Sausalito—
the Reeds and the Pearlstones, along with the Pearlstones’ tenant
Sarah Lent—regarding construction on the Reeds’ adjacent property.
In December 2019, Lent filed a small claims action against Phyllis
Reed, as well as the Reeds’ construction company Dennis Webb
Construction (Webb Construction), its owner Dennis Webb, and
supervising contractor Bruce Ingram, seeking $8,811 they had
purportedly agreed to pay her for construction noise. The Reeds, Webb
Construction, and Dennis Webb (collectively, plaintiffs) then filed this
civil action against both the Pearlstones and Lent (collectively,
defendants). The operative complaint asserted a single cause of action
1
against Lent for intentional interference with the contract between the
Reeds and Webb Construction.
Lent filed a special motion to strike under the anti-SLAPP
statute.1 The trial court granted Lent’s motion upon finding the
gravamen of the allegations against her arose from activity protected
by the SLAPP statute, and plaintiffs had failed to show a substantial
likelihood of prevailing on their claim. On appeal, plaintiffs argue that
this order should be reversed because (1) the trial court abused its
discretion in considering Lent’s anti-SLAPP motion filed two months
late; and (2) the trial court erred in its findings on the motion. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
John and Phyllis Reed own a house in Sausalito. Jon and Susan
Pearlstone own the adjacent house uphill from the Reeds. Lent is a
tenant who lives at the Pearlstones’ house. In late 2018, the Reeds
contracted with Webb Construction to perform work that included
water damage repairs. According to the Reeds, the water intrusion and
resulting damage were caused by modifications that the Pearlstones
had made to their own property, as well as negligent maintenance of
that property. According to defendants, construction on the Reeds’
property exceeded the scope of the permits and was not limited to water
damage repairs, but was instead a full remodeling of their house.
A. Lent’s Small Claims Action
In December 2019, Lent filed a small claims action against
Phyllis Reed, Webb Construction, Webb, and Ingram. Lent sought
1 Code of Civil Procedure section 425.16. Unless otherwise
indicated, all statutory references are to the Code of Civil Procedure.
2
$8,811, claiming that these defendants had “agreed to pay this money
in exchange for starting their building project at 8 AM vs 10 AM and
haven’t paid.” It attached an invoice from Jon Pearlstone (Pearlstone)
to the Reeds, Webb Construction, and Ingram for $4,140 purportedly
owed to Lent for “noise days” during September 2019. It also noted two
prior invoices for $2,160 and $2,511, respectively.
B. Complaint in this Action
In February 2020, plaintiffs filed a complaint alleging five causes
of action against defendants for (1) trespass; (2) negligence;
(3) nuisance; (4) strict liability; and (5) intentional interference with
contract. They filed an amended complaint in June 2020 that
maintained multiple causes of action against the defendants, but
asserted only a single claim by plaintiffs against Lent for intentional
interference with the contract between the Reeds and Webb
Construction.
The amended complaint alleged that defendants “repeatedly,
continually, and unreasonably demanded construction updates and
schedules, as well as demanded that construction begin no earlier than
10 a.m.,” despite being informed that the City of Sausalito (City)
permits construction to start earlier. Webb Construction “voluntarily
agreed to start at 10 a.m. on days they expected the construction noise
to be a little louder due to the use of some machinery required for the
rebuilding of the foundation.” Defendants continued to “disrupt,
harass, intimidate, interrogate, shout at, and otherwise interfere with
Dennis Webb Construction employees and sub-contractors’ ability to
perform their duties and continue with construction.” At the “behest”
of Lent, Pearlstone regularly videotaped construction workers, made
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baseless and unfounded police reports, and made baseless and
unfounded complaints to the City for the purpose of harassing,
intimidating, and interfering with the construction.
The amended complaint also alleged that the Reeds discussed
payment of money to their neighbors to stop this behavior, but that
they did not reach an agreement. Pearlstone nevertheless started to
send invoices for “daily ‘noise’ fees.” “Soon thereafter,” Lent filed her
small claims action. Pearlstone continued to send invoices to the Reeds
for money purportedly owed to Lent.
C. Anti-SLAPP Motion
On July 30, 2020, Lent filed an anti-SLAPP motion. Plaintiffs’
opposition to the motion included declarations from Webb and Ingram.
Webb declared that during a December 2018 call, Pearlstone
“demanded that we provide him with regular written construction
schedules, updates on construction, the days we expected excessive
noise, that we not start construction before 10AM, and that we make
adjustments to our work schedules to accommodate Lent.” Pearlstone
“made it clear” that he was also speaking on behalf of Lent. Ingram
declared that he was “regularly confronted” by Pearlstone or Lent
about construction noise, and that they “rudely demanded” construction
not start until 10:00 a.m.
Webb’s declaration also attached e-mail correspondence with
Pearlstone. In July 2019, Pearlstone sent an e-mail stating that he had
not received an update on the planned construction activities as
discussed. In August 2019, Pearlstone sent an e-mail stating that he
had not received a project timeline as requested. Webb responded that
the construction schedule was not yet complete, but that Pearlstone
4
would be “the first to get it.” When Pearlstone asked if construction
was going to take 6 to 12 months or longer, Webb replied: “Yes the
project will be at least 6 months, what are your other issues?” On
September 5, 2019, Pearlstone sent another e-mail asking Webb when
he would have the construction schedule. Pearlstone also told Webb he
had received a text from Lent that construction workers “were talking
loudly at 8:30 yesterday morning and started a chain saw before 9:30.”
According to Ingram, there was an occasion where Lent “yelled”
at him to stop working and told him that she would call Pearlstone and
the police. She videotaped Ingram and shortly thereafter, a police
officer came to the property. Ingram showed the police officer his
construction permit and told him that he never entered the Pearlstone
property. Ingram’s declaration attached a police report dated October
1, 2019. It indicated that the reporting party was the “property owner”
and that the construction company was “starting work early, [coming]
on his property to complete project, parking issues, and dumping gravel
in the street.”
In November 2019, a building inspector came to the Reed
property and posted a “Stop Work” order after receiving complaints
from Pearlstone regarding the scope of work. The building inspector
subsequently sent an e-mail to defendants stating that City staff had
investigated the alleged violations, the contractor “had demonstrated
satisfactory percentages of effected floor area,” and the order had been
rescinded.
On November 15, 2019, Pearlstone e-mailed the inspector after
receiving a text from Lent that there was “loud construction” at the
5
Reed property “since well before 8 AM.” The inspector advised
Pearlstone to call the police.
According to Webb, Lent complained that construction workers
had trespassed onto the Pearlstone property on June 30, 2020. An e-
mail from the building inspector stated that he had received a
complaint from Pearlstone relaying Lent’s request that the workers not
trespass. The building inspector had directed Pearlstone to contact the
police to file a formal complaint.
D. Trial Court’s Ruling
The trial court granted Lent’s anti-SLAPP motion. As a
preliminary matter, it noted plaintiffs’ argument that the motion was
untimely, but explained that “the court has chosen to exercise its
discretion under [section] 425.16[, subdivision] (f) to examine the
special motion to strike on the merits.” On the merits of the motion,
the trial court looked first to whether Lent had made a threshold
showing that the cause of action against her (intentional interference
with the contract) arose from activity protected by the anti-SLAPP
statute. It found that the gravamen of the allegations against Lent—
including her small claims action, the complaints to the City, and the
police reports—arose from protected activity.
The trial court then turned to whether plaintiffs had shown a
substantial likelihood of success on their claim against Lent for
intentional interference with contractual relations. To prevail on this
claim, a plaintiff must plead and prove: (1) a valid contract between
the plaintiff and a third party; (2) defendant’s knowledge of that
contract; (3) defendant’s intentional acts designed to induce a breach or
disruption of the contractual relationship; (4) breach or disruption of
6
the contractual relationship; and (5) damage. (Pacific Gas & Electric
Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) The trial court
found that plaintiffs had made a strong showing on all of the elements
except (3). It concluded that, setting aside Lent’s protected activities,
the remaining alleged conduct—including requests for timelines and
plans—was not enough to support a claim for intentional interference
with contractual relations. The trial court awarded Lent $4,011.25 in
attorney fees and costs as the prevailing party on the motion.
This appeal followed.
DISCUSSION
The anti-SLAPP statute is “designed to protect defendants from
meritless lawsuits that might chill the exercise of their rights to speak
and petition on matters of public concern.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 883–884.) “[A]s subdivision (a) of
section 425.16 expressly mandates, the section ‘shall be construed
broadly.’ ” (Hecimovich v. Encinal School Parent Teacher Organization
(2012) 203 Cal.App.4th 450, 463.) Under the statute, a defendant may
file a special motion to strike claims “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 . . . .” (§ 425.16, subd. (b)(1).) The
motion “may be filed within 60 days of the service of the complaint or,
in the court’s discretion, at any later time upon terms it deems proper.”
(Id., subd. (f) (section 425.16(f)).)
Resolution of this motion requires the court to engage in the now
familiar two-step process. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of
7
action is one arising from protected activity.” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court finds a
showing has been made under the first step, “it then determines
whether the plaintiff has demonstrated a probability of prevailing on
the claim.” (Ibid.)
Here, plaintiffs argue that the order granting Lent’s anti-SLAPP
motion should be reversed for two reasons. First, they contend that the
trial court abused its discretion in even considering the motion because
it was filed late. Second, they argue that the trial court erred in its
findings under the two-step process. We address each argument in
turn.
I. Discretion to Consider Untimely Motion
There is no dispute that Lent’s anti-SLAPP motion was filed after
the statutory deadline. According to plaintiffs, COVID-19 court
closures extended that deadline to June 1, 2020,2 but Lent filed her
motion two months later on July 30. The trial court nevertheless chose
“to exercise its discretion under §425.16(f) to examine the special
motion to strike on the merits.”
Section 425.16(f) provides for the filing of an anti-SLAPP motion
“within 60 days of the service of the complaint or, in the court’s
discretion, at any later time upon terms it deems proper.” Plaintiffs
argue that this statutory language should be interpreted to mean that
2This date is based on the filing of the original complaint, not the
amended complaint. Amendment does not restart the 60-day clock for
filing a timely anti-SLAPP motion where, as here, the motion seeks to
strike a cause of action that was asserted in the original complaint with
allegations subjecting the cause of action to such a motion. (Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016)
6 Cal.App.5th 1207, 1219.)
8
the trial court lacked any discretion to consider the motion because
Lent did not first request leave to file her untimely motion and the trial
court did not explicitly grant such a request.
We are not persuaded. The plain language of section 425.16(f)
affords the trial court with broad discretion to permit a late-filed
motion “upon terms it deems proper.” Courts have agreed that this
discretion is not limited by whether or not the moving defendant sought
leave of court before filing an untimely motion. In Chitsazzadeh v.
Kramer & Kaslow (2011) 199 Cal.App.4th 676, for example, the trial
court determined that the defendants’ motion was frivolous because it
was filed after the 60-day deadline without a previous request for leave
to file. (Id. at p. 684.) Chitsazzadeh rejected that reasoning,
concluding that a court “has the discretion to consider, and grant or
deny on the merits, a special motion to strike filed after the 60-day
deadline even if the moving defendant fails to request leave of court to
file an untimely motion.” (Ibid.) Then, in deciding to exercise this
discretion, courts may look to whether consideration of the motion
serves the purposes of the anti-SLAPP statute: to allow for the
“ ‘prompt exposure and dismissal of SLAPP suits’ ” and “to permit the
defendant to test the foundation of the plaintiff’s action before having
to ‘devote its time, energy and resources to combating’ a ‘meritless’
lawsuit.” (Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679–681 [no
abuse of discretion where trial court treated oral argument on untimely
SLAPP motions “as a ‘belated request for extra time to file the
motion,’ ” but ultimately denied motions as untimely because
defendants had chosen to spend seven months trying to move the case
to federal court instead of attempting to strike the suit as a SLAPP].)
9
Plaintiffs offer no authority adopting their contrary rule that a
trial court lacks any discretion to consider an untimely motion without
an explicit prior request for leave and explicit grant of that request.
Indeed, South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193
Cal.App.4th 634 flatly rejected this rule. (Id. at p. 653 [South Sutter
“argues the trial court could not hear the motion because the Miller
defendants failed to file a separate motion seeking leave to file their
anti-SLAPP motion late. . . . [¶] We disagree with South Sutter’s
arguments”].) Other cases cited by plaintiffs support the analytical
framework described in Morin v. Rosenthal, supra, 122 Cal.App.4th
673: courts’ exercise of discretion to consider an untimely motion
should be informed by the purposes of the anti-SLAPP statute.
(Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 784
[abuse of discretion to grant defendant’s application to file anti-SLAPP
motion two years late because parties had completed a substantial
amount of discovery, discovery cut-off date had already passed, and
trial was scheduled to commence in less than three months]; Hewlett-
Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1190 [no
abuse of discretion in failing to entertain anti-SLAPP motion 558 days
late because parties had engaged in extensively contested discovery
proceedings and major part of case had already been tried]; Olsen v.
Harbison (2005) 134 Cal.App.4th 278, 283–286 [no abuse of discretion
in declining to hear anti-SLAPP motion 278 days late after extensive
expensive litigation proceedings had already occurred].) At most,
plaintiffs cite cases that include failure to seek leave as part of this
analysis. (Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism, supra, 6 Cal.App.5th at pp. 1219–1220 [no abuse of
10
discretion in denying anti-SLAPP motion as untimely where defendant
filed late motion without seeking leave and parties had engaged in
extensive discovery, as well as related motion practice], Kunysz v.
Sandler (2007) 146 Cal.App.4th 1540, 1543 [no abuse of discretion in
denying anti-SLAPP motion as untimely where defendant filed late
motion without seeking leave and failed to establish why consideration
of the motion was proper].)
Even with Lent’s failure to seek prior leave, we conclude that the
trial court did not abuse its discretion in considering the motion here.
Lent filed her motion only two months late, resulting in significantly
less delay than any of the cases cited by plaintiffs. No discovery had
been conducted. Moreover, the declaration submitted by Lent’s
counsel3 shows that the parties had been discussing the anti-SLAPP
motion since at least March 2019, before the deadline had passed.
Under these circumstances, consideration of the motion advanced the
purposes of the anti-SLAPP statute by allowing prompt resolution of
Lent’s challenge to the single claim against her before the parties
expended significant resources on discovery. The court did not abuse
its discretion under section 425.16(f).
Given this conclusion, we turn to the trial court’s resolution of the
motion on its merits based on the two-step process outlined above. Our
review is de novo. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.)
3 Plaintiffs moved to strike the entirety of this declaration, but
alternatively objected to certain paragraphs and exhibits. The trial
court sustained those objections. Lent does not challenge this ruling on
appeal. We thus refer only to paragraphs of the declaration without a
specific sustained objection.
11
II. First Step: Protected Activity
The first step of the anti-SLAPP analysis requires us to decide
whether plaintiffs’ intentional interference claim against Lent arises
from protected activity. (Equilon Enterprise v. Consumer Cause, Inc.,
supra, 29 Cal.4th at p. 67.) Protected activity is defined by section
425.16, subdivision (e) (section 425.16(e)) 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,”
and “(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.” 4
On this step, the moving defendant bears the burden “to identify
what acts each challenged claim rests on and to show how those acts
are protected under a statutorily defined category of protected activity.”
(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011
(Bonni).) When plaintiffs assert a “mixed” cause of action, i.e., one
“based on allegations of both protected and unprotected activity,” the
court must look at the protected activity and disregard the unprotected
activity at this stage. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396
(Baral).) “If the court determines that relief is sought based on
allegations arising from activity protected by the statute, the second
step is reached.” (Ibid.) Courts may refer to this analysis as a
“gravamen test” to determine whether particular alleged acts supply
4 Section 425.16(e) also includes two other categories of protected
activity, but Lent concedes that neither is applicable here. We thus
need not address plaintiffs’ arguments that these other categories do
not apply.
12
the elements of a claim, or merely provide context as incidental
background. (Bonni, at p. 1012.)
With this framework in mind, we analyze the various allegations
asserted in the complaint that involve Lent, including: (1) the small
claims action, (2) complaints to the City, and (3) the videotaping of
construction workers and police report.
A. Small Claims Action
Plaintiffs do not dispute the general rule that the filing of a small
claims action constitutes protected activity under the anti-SLAPP
statute. (See Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1115 [constitutional right of petition includes basic act
of filing litigation].) Instead, plaintiffs argue that the general rule does
not apply here for two reasons.
First, they contend that the allegations regarding Lent’s small
claims action were “simply incidental background,” not part of their
claim. We disagree. To support their intentional interference cause of
action, plaintiffs “refer to and incorporate as though fully set forth
herein” the general allegations in their complaint. This included the
general allegation that Lent filed a small claims action against Phyllis
Reed, Webb, and Ingram.
Then, in opposition to Lent’s anti-SLAPP motion, plaintiffs
submitted a declaration from Webb stating that he was “astounded by
[Lent] filing a lawsuit and believed that this was just another arrow in
their quiver in their relentless efforts to stop construction and to have
me quit the Reed construction job completely.” Ingram’s declaration
similarly stated that he was “upset and suffered great anxiety” because
of Lent’s small claims action, and believed that Lent was using it “as [a]
13
tool to coerce me into complying with her demands to start construction
later in the mornings and stop sooner in the afternoons, as well as to
possibly scare me into quitting my position with Webb Construction,
which would delay the progress of construction.” Given this evidence
proffered by plaintiffs, we conclude that the allegations regarding
Lent’s small claims action were not merely “incidental background,”
but instead were asserted to support plaintiffs’ claim for relief. (Bonni,
supra, 11 Cal.5th at p. 1011.)
Nor are we persuaded by plaintiffs’ attempt to distance
themselves from this evidence by noting that the small claims action
did not name every plaintiff (John Reed, for example), and that there is
no evidence Ingram shared his “thoughts and feelings” with plaintiffs.
Neither point is relevant here, as the evidence (including the
declaration from plaintiff Dennis Webb) makes clear that these
allegations were used to support an element of plaintiffs’ intentional
interference claim: that Lent filed the small claims action to induce a
breach or disruption of the contractual relationship between the Reeds
and Webb Construction.
Second, plaintiffs argue that they were entitled to file this action
as a “compulsory cross-complaint” on a related cause of action5 against
Lent’s small claims action, and that compulsory cross-complaints
“rarely” qualify as SLAPP suits arising from petition activity. But the
authority cited by plaintiffs explains that a cross-complaint may be
subject to an anti-SLAPP motion when it alleges a cause of action
5 Section 426.30, subdivision (a) provides, with certain exceptions,
that a defendant must allege any related cause of action in a cross-
complaint at the time of serving his or her answer to the complaint.
14
arising from the act of filing litigation. (Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 651 [affirming grant of anti-
SLAPP motion because church’s action attacked judgment Wollersheim
had obtained in prior action]; cf. Kajima Engineering & Construction,
Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929 [affirming
denial of anti-SLAPP motion because cross-complaint alleges related
causes of action arising from Kajima’s bidding and contracting
practices, not from acts in furtherance of its right of petition or free
speech].) “The anti-SLAPP statute’s definitional focus is not the form
of the plaintiff’s cause of action but, rather, the defendant’s activity
that gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 92.) Here, as explained above, the alleged
acts asserted for plaintiffs’ intentional interference claim include Lent’s
filing of the small claims action.
Finally, to the extent that plaintiffs alleged acts related to the
invoices for “daily ‘noise’ fees” owed to Lent, which formed the basis for
her small claims action seeking payment of these invoices, plaintiffs
conceded in their briefing and at oral argument on appeal that
Pearlstone (not Lent) sent those invoices. The only alleged act by Lent
is the attachment of the invoice dated October 1, 2019, in the filing of
her small claims action. That filing is protected activity under the anti-
SLAPP statute. (Briggs v. Eden Council for Hope & Opportunity,
supra, 19 Cal.4th at p. 1115.)
B. Complaints to City
Plaintiffs alleged that Pearlstone, at the “behest” of Lent, made
“baseless and unfounded complaints to the City as part of their daily
15
campaign of harassment, intimidation, interference, interrogation,
disruption, and to dissuade the construction crew from working and
performing their obligations under the construction contract with the
Reeds.” As a preliminary matter, there are no specific allegations (let
alone admissible evidence) that Lent herself took these actions.
Moreover, at oral argument on appeal, plaintiffs’ counsel denied any
argument that Pearlstone was acting as an agent for Lent (i.e., acting
at her “behest”), but instead argued that Pearlstone and Lent had acted
“in concert” with each other. Even accepting that Lent was involved to
some extent with complaints made to the City, we agree with the trial
court that this activity was protected under the anti-SLAPP statute.
First, we are not persuaded by plaintiffs’ argument that the
alleged complaints are not protected activity because there was no
“official proceeding” in progress when they were made. Section
425.16(e)(2) defines protected activity to include “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.” (Italics added.) The
cases cited by plaintiffs help clarify the scope of section 425.16(e)(2),
albeit not in their favor. In City of Industry v. City of Fillmore (2011)
198 Cal.App.4th 191 (Industry), the plaintiffs alleged that the
defendants had defrauded the State Board of Equalization by falsely
reporting certain locations as the point of sale. (Id. at p. 215.) Industry
concluded that the routine submission of tax reports to the State Board
of Equalization did not involve a “proceeding” or “an issue under
consideration or review” by an official body within the meaning of
425.16(e)(2). (Industry, at p. 217.) Similarly, in A.F. Brown Electrical
16
Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th
1118 (Brown), a subcontractor issued stop notices to the school district
based on amounts it was purportedly owed by the general contractor.
(Id. at p. 1123.) Brown concluded that the submission of these notices
did not constitute protected activity under section 425.16(e)(2) because
they essentially functioned like a lien; there was no “official proceeding”
in progress and the subcontractor “did not request the district to
commence any type of proceeding, or to make any type of
administrative or adjudicatory decision.” (Brown, at p. 1129.)
Here, unlike Industry and Brown, e-mails with the City show
that Lent had “petitioned the [Sausalito] Planning Commission for
answers to multiple concerns in writing and was told her matter would
be responded to by planning department staff.” Those e-mails also
show that complaints from Pearlstone resulted in an investigation by
City staff and a decision by the Community Development Department
that Webb Construction was working with the scope of the issued
permit. Even if there was not an “official proceeding,” the evidence is
clear that Lent or Pearlstone made writings related to “an issue under
consideration or review” by an official body under section 425.16(e)(2).
Second, we are not persuaded by plaintiffs’ argument that section
425.16(e)(2) is inapplicable here because there is no evidence that Lent
“personally communicated with the City.” As described above, this
proposition is contradicted by e-mails regarding Lent’s petition to the
Sausalito Planning Commission, as well as e-mails to and from the City
building inspector including Lent as an addressee. In any event,
plaintiffs offer no authority to support their position that Lent must
have been the direct communicator (as opposed to the person allegedly
17
directing the communications) to constitute protected activity. On the
contrary, courts have explicitly stated that the right of petition does not
protect only “those persons formally addressing the governmental
agency,” but also persons who exercise their rights “by supporting the
forceful activities of others.” (Ludwig v. Superior Court (1995) 37
Cal.App.4th 8, 17–18.)
Nor are we persuaded by plaintiffs’ alternative argument that
section 425.16(e)(2) is inapplicable here because Pearlstone’s
complaints constituted “commercial speech” exempt from anti-SLAPP
protections. Section 425.17, subdivision (c) (section 425.17(c)) provides,
in relevant part, that the anti-SLAPP statute does not apply to “any
cause of action brought against a person primarily engaged in the
business of selling or leasing goods or services . . . arising from any
statement or conduct by that person” if (1) the statement or conduct
“consists of representations of fact about that person’s or a business
competitor’s business operations, goods, or services, that is made for
the purpose of obtaining approval for, promoting, or securing sales or
leases of, or commercial transactions in, the person’s goods or services,
or the statement or conduct was made in the course of delivering the
person’s goods or services” and (2) the intended audience “is an actual
or potential buyer or customer, or a person likely to repeat the
statement to, or otherwise influence, an actual or potential buyer or
customer[.]”
There is no indication that plaintiffs raised this argument in the
trial court below, and thus we deem it forfeited. (Daneshmand v. City
of San Juan Capistrano (2021) 60 Cal.App.5th 923, 936.) Even if not
forfeited, we would still reject the argument. Unlike the anti-SLAPP
18
statute, the commercial speech exception of section 425.17(c) must be
narrowly construed. (Xu v. Huang (2021) 73 Cal.App.5th 802, 813.) We
see no basis to exclude the cause of action asserted against Lent based
on Pearlstone’s status as her landlord. Nor are we persuaded that the
elements of section 425.17(c) are met here: (1) that complaints about
the Reeds’ construction constituted representations about Pearlstone’s
(or his competitor’s) “business operations, goods, or services”; or (2) that
the intended audience of these complaints—the City—was a person
likely to repeat to or otherwise influence a “buyer” or “customer.” We
thus conclude that the allegations regarding complaints to the City are
largely based on actions taken by Pearlstone, not Lent. But even
accepting Lent’s alleged involvement in those actions, they constitute
protected activity under the anti-SLAPP statute.
C. Videotaping and Police Report
Plaintiffs identify a single specific instance of alleged videotaping
and making of a police report: according to Ingram, Lent yelled at him,
demanded he stop working, and told him that she would videotape him
and call Pearlstone and the police. Ingram saw Lent videotape him and
a police officer came to the Reeds’ property, but then left. The police
report attached to Ingram’s declaration identified several complaints,
including that Webb Construction was starting work early and coming
onto the Pearlstone property.6
6The parties appear to dispute whether this incident occurred on
October 1, 2019 or June 30, 2020. The date is immaterial to our
analysis. We note, however, that the police report is dated October 1,
2019, and there is no evidence that the June 30, 2020 incident involved
videotaping or the filing of a police report. We also note that, while the
complaint included a general allegation that Pearlstone videotaped
construction workers at Lent’s “behest,” there are no specific
19
Communications with the police constitute protected activity
under section 425.16(e)(2) as statements made “in connection with” an
“official proceeding authorized by law.” (Comstock v. Aber (2012) 212
Cal.App.4th 931, 941.) Moreover, communications that are
“preparatory to or in anticipation of” such proceedings fall within the
protection of the anti-SLAPP statute. (Comstock, at p. 943.) According
to Ingram, Lent announced that she was going to videotape him and
call the police; she then videotaped him and the police were called.
Given her stated intent to perform these acts in tandem, we conclude
that the alleged videotaping was “preparatory to” or “in anticipation of”
the police report, and thus is protected activity under the statute. We
reject plaintiffs argument that Lent’s alleged videotaping does not
satisfy this definition because Pearlstone, not Lent, was the “reporting
party” who actually called the police. As explained above, plaintiffs
alleged that Lent and Pearlstone acted in concert and that Pearlstone
acted in order to further Lent’s rights. (Ludwig v. Superior Court,
supra, 37 Cal.App.4th at pp. 17–18.)7
In sum, we conclude that the trial court did not err in finding
that plaintiffs sought relief based on allegations—including the small
allegations or proffered evidence of any videotaping by Pearlstone (who,
according to plaintiffs, lives in Southern California). (See Martin v.
Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 631 [claim
must be pleaded with sufficient specificity to discern whether the
alleged acts concerned protected activity].)
7Given this conclusion, we need not address the trial court’s
alternative findings (or the parties’ related arguments) that the alleged
videotaping was (1) protected by the litigation privilege; and (2) not
actionable to support plaintiffs’ intentional interference claim.
20
claims action, complaints to the City, videotaping and police report—
that arose from protected activity.
III. Second Step: Probability of Prevailing
We thus reach the second step of the anti-SLAPP analysis to
decide whether plaintiffs have demonstrated a probability of prevailing
on their intentional interference claim. (Baral, supra, 1 Cal.5th at
p. 384.) Our determination follows a “summary-judgment-like
procedure,” where we consider the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense
is based. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 192; § 425.16, subd. (b)(2).) “We do not weigh credibility, nor do we
evaluate the weight of the evidence.” (Overstock.com, Inc. v. Gradient
Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.) While plaintiffs
need only show a “ ‘minimum level of legal sufficiency and triability,’ ”
they must demonstrate that their claim is legally sufficient and
supported by a sufficient prima facie showing made with competent
and admissible evidence. (Hecimovich v. Encinal School Parent
Teacher Organization, supra, 203 Cal.App.4th at p. 469.) Plaintiffs
must also overcome “substantive defenses” to their claim. (Comstock v.
Aber, supra, 212 Cal.App.4th at p. 953.)
Here, the trial court did not consider the allegations of protected
activity (as determined on the first step) in deciding whether plaintiffs
had satisfied their burden on the second step. Neither party challenges
this premise; plaintiffs instead simply renew their arguments that the
alleged activity was not protected. We question the trial court’s
reasoning, insofar as it suggests that allegations of protected activity in
any “mixed” cause of action should be entirely ignored on the second
21
step. (See Baral, supra, 1 Cal.5th at p. 395 [“plaintiff is required to
establish a probability of prevailing on any claim for relief based on
allegations of protected activity”].) In this case, however, we
nonetheless conclude that the allegations of protected activity do not
support plaintiffs’ showing because the right to petition is a substantive
defense to a claim for intentional interference with contract. (E.g.,
Premier Medical Management Systems, Inc. v. California Insurance
Guarantee Assn. (2006) 136 Cal.App.4th 464, 478 [immunity for those
who petition government for redress applies to “ ‘virtually any tort,
including unfair competition and interference with contract’ ”].
Plaintiffs are thus left with their allegations of unprotected
activity—that, through Pearlstone, Lent made demands regarding
construction time, updates, and schedules—and their evidence
asserting facts to support these allegations.8 Again, plaintiffs offer no
specific allegations or evidence of such actions taken by Lent herself.
According to Webb’s declaration, he had a call with Pearlstone in
December 2018, where Pearlstone “made it clear” that he was speaking
on behalf of Lent and demanded schedules, updates, and that
construction not start before 10:00 a.m. on days when “excessive noise”
was expected. Webb’s declaration also attached an e-mail from
Pearlstone in September 2019, relaying a text from Lent that
construction workers “were talking loudly at 8:30 yesterday morning
8 While the trial court also considered plaintiffs’ allegations of
“shouting” and “interrogation” by Lent, the only evidence of such
conduct cited by plaintiffs pertains to the police and videotaping
incident. As explained above, this is protected activity and a
substantive defense to plaintiffs’ claim; it does not demonstrate a
likelihood of prevailing on the claim.
22
and started a chain saw before 9:30.” Plaintiffs offered no authority, in
their opposition to the underlying motion or on appeal, that these
allegations are sufficient to demonstrate a likelihood of prevailing on
the claim. On the contrary, we are not persuaded that purported
statements made by Pearlstone can be admitted to establish the
elements required for plaintiffs’ claim against Lent, namely the element
of intent: that Lent was making demands intentionally designed to
disrupt the relationship between the Reeds and their construction
company. Moreover, at least with respect to the September 2019 e-
mail, plaintiffs concede that they had “voluntarily agreed to start at
10 a.m. on days they expected the construction noise to be a little
louder due to the use of some machinery required for the rebuilding of
the foundation.” Lent’s purported complaint that construction workers
had “started a chain saw before 9:30” violated that agreement.
“Justification for the interference is an affirmative defense and not an
element of plaintiff’s cause of action.” (Richardson v. La Rancherita
(1979) 98 Cal.App.3d 73, 80.) Lent was justified in complaining about
any non-compliance with the parties’ agreement regarding start times
for loud noise and use of machinery. Given the allegations of
unprotected activity and related evidence proffered here, we conclude
that plaintiffs failed to demonstrate a likelihood of prevailing on their
claim.
In sum, we conclude that the trial court did not err in granting
Lent’s anti-SLAPP motion.9
Plaintiffs sought reversal of both the trial court’s ruling on the
9
motion, as well as the fees and costs awarded to Lent. Both requests
were based on the same arguments, which we reject for the reasons
described above. In affirming the order, we also reject plaintiffs’
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DISPOSITION
The order is affirmed. Lent is entitled to her costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
request that they be awarded fees and costs on both the underlying
motion and the appeal.
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_________________________
Van Aken, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Miller, J.
Reed et al. v. Pearlstone et al. (A161285)
* Judge of the San Francisco Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
25