Amarillas v. Campolong

Filed 10/17/08 Amarillas v. Campolong CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Hollister residents, appellants Arthur Amarillas and five family members (collectively, appellants), brought suit against an unknown entity, Oak Creek Neighborhood Watch Committee, and fictitious parties. Appellants later filed a first amended complaint (Complaint) in which they sued seven other Hollister residents, respondents Darrell Campolong, Greg Colla, Vicki Colla, Robert Anthony, Shirley Anthony, Michael Gallagher, and Erika Gallagher (collectively, respondents). Appellants alleged that respondents were involved in a campaign of intimidation and harassment that included (1) writing an anonymous letter dated April 10, 2006 (the April 10 Letter) to appellants complaining of conditions on their property and threatening to report [s]uspicious illegal activity to numerous governmental agencies and to the press if the conditions were not rectified; and (2) subsequently engag[ing] in a pattern of annoyance, harassment and intimidation directed toward [appellants].

Five of the respondents filed a motion to strike the Complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16.[1] Thereafter, the remaining two respondents filed a separate, nearly identical, anti-SLAPP motion. Respondents asserted that (1) they had no involvement in the writing or delivery of the April 10 Letter; (2) the Complaint arose out of the exercise of respondents constitutional rights of speech and petition, namely, the writing of a letter in December 2005 to the San Benito Planning Department, signed by respondents (or their spouses), expressing concerns regarding Code Enforcement with respect to appellants property; and (3) appellants could not establish a probability of prevailing on their claims. Respondents contended that the Complaint therefore should be dismissed under the anti-SLAPP statute. The court below granted both motions.

Appellants appeal from the orders granting the anti-SLAPP motions. They claim that the motions to strike should have been denied because (1) respondents failed to establish that the activity that was the subject of the Complaint was protected speech under the anti-SLAPP statute, and (2) even if respondents made such a showing, appellants met their burden of demonstrating a probability of success on their claims. After a de novo review of the record, we conclude that the Complaint arose out of constitutionally protected activity. We disagree with respondents position below that the focus for this inquiry should be their activity in sending a signed letter in December 2005 to the San Benito Planning Department. We conclude, however, that the April 10 Letter represented speech and petition activity that was potentially subject to protection under the anti-SLAPP statute. Further, because appellants made no showing that respondents were involved in any way with the writing or transmission of the April 10 Letter, they did not meet their burden under section 425.16, subdivision (b)(1) of demonstrating a probability that they would succeed on their claims. Accordingly, we affirm the orders granting the anti-SLAPP motions to strike.

PROCEDURAL HISTORY

I. The Complaint

Appellants filed suit on or about June 7, 2006, naming as defendants the Oak Creek Neighborhood Watch Committee (Committee) and fictitious parties.[2] They filed the unverified (First Amended) Complaint on June 28, 2006. Appellants alleged that they resided at 895 Enterprise in Hollister (Property). The Property contained a single family residence located across the street from a community known as the Oak Creek development. They alleged further that the Committee was an unknown entity comprised of residents of Oak Creek. Each of the respondents was an Oak Creek resident; the Complaint alleged that the Committees actions were the actions of each of the respondents and/or were committed by [him or her] in active concert with other named defendants herein, with his [or her] knowledge and ratification.

Appellants alleged further in the Complaint that the Committee prepared the April 10 Letter, which was delivered to them. In the April 10 Letter (a copy of which was attached to the Complaint), the Committee (1) complained about the existence of commercial equipment on the Property and suggested that appellants were running a business illegally out of the residentially-zoned Property; (2) expressed concern that the construction of an unsightly black fence around the Property was concealing illegal activity; (3) requested removal of the fence and some of the equipment; and (4) threatened (in the event of appellants noncompliance) that it would send letters to the local newspaper and to various governmental agencies (including the offices of the district attorney, sheriff, police department, planning and zoning department, Internal Revenue Service, Franchise Tax Board, and Immigration and Naturalization Service) to complain about assorted alleged illegal activities being conducted on the Property.[3] Appellants alleged further that after delivery of the April 10 Letter, the Committee and fictitiously named parties engaged in a pattern of annoyance, harassment and intimidation directed toward [appellants], including without limitation, watching [appellants] home from automobiles parked and/or driving nearby, making false and inflammatory complaints to government agencies regarding [appellants] home and discharging firearms at or near [appellants] home.

The Complaint contained four causes of action that were based upon the foregoing allegations. These claims were for interference with the exercise of appellants constitutional rights (Civ. Code,  52.1); stalking; intentional infliction of emotional distress; and civil conspiracy.

II. The Motions to Strike

On August 2, 2006, five of the respondents[4] filed a special motion to strike the Complaint under the anti-SLAPP statute. That motion was heard on September 13, 2006, and granted on September 29, 2006. Robert and Shirley Anthony filed their own, nearly identical, anti-SLAPP motion on August 29, 2006; their motion incorporated by reference all of the moving papers filed in connection with the initial anti-SLAPP motion. The Anthonys motion was heard on October 11, 2006, and was similarly granted by the court on October 25, 2006. The court in both orders made findings that the Complaint arose from respondents constitutionally-protected activities and that appellants could not establish a probability of prevailing on their claims. Appellants filed a notice of appeal from the orders granting the two motions to strike. The two orders granting the motions to strike under the anti-SLAPP statute are appealable. ( 425.16, subd. (i); Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906-907.)

DISCUSSION

I. Issues On Appeal

The overall issue on appeal is whether the trial court erred in granting the motions to strike the Complaint. Relevant questions to the disposition of this case include the following:

1. Whether the causes of action in the Complaint arose out of activity that is protected by the anti-SLAPP statute.

2. Whether appellants presented sufficient evidence to establish the probable validity of their claims.

II. Anti-SLAPP Motions to Strike

A SLAPP suit seeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Thus, a lawsuit arising from constitutionally protected speech or petitioning activity is a SLAPP if it lacks even minimal merit. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

SLAPP suits may be disposed of summarily by a special motion to strike under section 425.16, commonly known as an anti-SLAPP motion, which is a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statute provides: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. ( 425.16, subd. (b)(1).) The statute defines  act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue as including (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).) The Legislature has directed that the language of the statute be construed broadly. ( 425.16, subd. (a).)

A motion to strike under section 425.16 is analyzed and resolved by the court . . . engag[ing] in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendants] right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Thus, [o]nly a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Navellier, supra, 29 Cal.4th at p. 89.)

III. Appellate Review of Order Granting Anti-SLAPP Motion

We have previously summarized the standard for an appellate courts review of the granting of an anti-SLAPP motion. We repeat that summary here. We review de novo a trial courts ruling on a motion to strike under section 425.16 by conducting an independent review of the entire record. [Citations.] (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.) [] Thus, our review is conducted in the same manner as the trial court in considering an anti-SLAPP motion. In determining whether the defendant . . . has met its initial burden of establishing that the plaintiffs . . . action arises from protected activity, we consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2); see also City of Cotati v. Cashman [(2002)] 29 Cal.4th [69,] 79; Navellier, supra, 29 Cal.4th at p. 89.) The second prongi.e., whether the plaintiff . . . has shown a probability of prevailing on the meritsis considered under a standard similar to that employed in determining nonsuit, directed verdict or summary judgment motions. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010 [(ComputerXpress)].) [I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have stated and substantiated a legally sufficient claim. [Citations.] Put another way, the plaintiff must demonstrate that the complaint is 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. [Citations.] (Navellier, supra, at pp. 88-89.) [] As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. ([ComputerXpress], supra, 93 Cal.App.4th at p. 1010.) In reviewing the plaintiffs evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. (Ibid.) (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672-673.)

We review the courts orders here granting respondents two motions to strike appellants Complaint as a SLAPP suit with the above standard of review in mind.

IV. The Orders Granting the Motions to Strike Complaint

A. Background

1. Motions to strike

Respondents motions to strike were based upon the position that the claims asserted in the Complaint arose out of protected activity within the meaning of the anti-SLAPP statute, and that appellants could not establish a probability of prevailing on their claims. Respondents argued below that they had been sued because (1) they participated in a neighborhood watch program organized by the Sheriff; and (2) they [or their spouses] wrote a letter to the San Benito County Planning Department, complaining about illegal conduct. They asserted that the actions complained of constituted protected activity under each of the four definitions stated in section 425.16, subdivision (e).

Each of the seven respondents filed declarations in support of the motions to strike. The most lengthy declaration was submitted by Campolong. He declared that he was contacted in the late summer of 2004 by a representative of the San Benito County Sheriffs Office, requesting his involvement in establishing a neighborhood watch committee for both the Oak Creek and Quail Hollow developments in Hollister. Ultimately, a program entitled Quail Hollow/Oak Creek Neighborhood Watch Program (Watch Program) was organized with Campolongs assistance. During his involvement in the Watch Program, there was never a separate neighborhood watch program named Oak Creek Neighborhood Watch Committee. Campolong was unaware of any meetings of the Watch Program that occurred after February 2005.

Campolong declared further that in October 2005, several residents of the Oak Creek development became concerned that (1) the County had taken little or no action to address issues in the area such as parked trailers, motor homes and other vehicles not being moved for long periods of time; and (2) the new owners of the Property had allowed construction equipment to be placed on the Property in possible violation of zoning laws. On December 21, 2005, Campolong wrote a letter to the San Benito County Planning Departmentsigned by four of the other respondents (Greg Colla, Robert Anthony, and Michael Gallagher)expressing concerns regarding code enforcement issues generally and potential code violations at the Property specifically. Campolong received a letter in response in January 2006 from Stacey Watson, Code Enforcement Officer for San Benito County, indicating that the County had addressed with the Property owner the issue of the storage of construction equipment, and that the owner had requested a 90-day extension to comply with County regulations. He received a follow-up call from Watson in late March or early April 2006 in which she indicated that the [Property] owner had partially complied with the notice to remove the equipment; the owner had erected a nylon material fence around the Property that was unsightly [but] not illegal; and she did not believe that a business was being operated out of the Property. Campolong was satisfied with the Countys efforts, and he advised Greg Colla and Michael Gallagher regarding the Countys efforts; they were also satisfied with the resolution of the issue.

Each of the seven respondents in their respective declarations specifically denied having any involvement with the anonymous April 10 Letter. Each of the respondents denied stalking, intimidating, or harassing appellants and denied conducting surveillance of, or discharging firearms near, appellants Property. Further, in connection with the second motion to strike, both Robert and Shirley Anthony declared that they were not even residing in the Hollister area at the time the April 10 Letter was sentboth were staying at their second home in Peoria, Arizona between January and May 2006.

2. Oppositions to motions to strike

In opposition to the motions to strike, appellants argued, inter alia, that the alleged acts that formed the basis for the claims asserted in the Complaint were not constitutionally protected under the anti-SLAPP statute. They contended that respondents had incorrectly posited that the act for which they were sued was their writing of the signed December 2005 letter to the Planning Department complaining of the existence of code violations on the Property. To the contrary (appellants asserted), the conduct upon which the claims were based consisted of drafting and sending the anonymous April 10 Letter and the stalking of appellants and surveillance of their Property that occurred afterwardacts that were not constitutionally protected.

In opposition to the second motion to strike, appellants claimed that the April 10 Letter was not protected activity because it constitute[d] illegal harassment which is otherwise actionable under . . . section 527.6.[5] They also argued in the second opposition that the Complaint had properly alleged claims for intentional infliction of emotional distress and for interference with the enjoyment of their constitutional rights. (See Civ. Code,  52.1, subd. (b).) Appellants claimed that sending the April 10 Letter and the subsequent conduct as alleged in the Complaint constituted facially outrageous conduct, and that therefore they had demonstrated a probability of prevailing.

Appellants opposition to the initial motion to strike contained no declarations. Arthur Amarillas submitted a declaration in opposition to the Anthonys motion to dismiss. That declaration explained the circumstances surrounding the storage of equipment on the Property and appellants attempts to comply with the Countys requests. Arthur Amarillas further described the harmful impact the anonymous April 10 Letter had on his family and him and declared that after receiving the April 10 Letter, he and his family had been subjected to surveillance by unknown people who, after stopping their vehicles across from the Property, drove into the Oak Creek development.

3. Hearings on motions

At the hearing on the first motion to dismiss, the court disagreed with appellants assertion that the April 10 Letter was not protected conduct under the anti-SLAPP statute, concluding that the April 10 Letter that [appellants] complained about [was] really the same type of conduct as the December 2005 letter that respondents acknowledged that they sent. The court concluded, I think the content of the April 10 [L]etter is exactly [the type of conduct protected under the] anti-SLAPP statute . . . . Someone says, ^[]Mr. and Mrs. Amarillas, youre doing something wrong on your property. Were watching you. Were going to complain to the lawful authorities.^[] What [the property owners] do is they turn around and say, ^[]Were going to sue you, then.^[] And thats exactly whats happened. The court noted furtherapparently addressing the second anti-SLAPP prong of whether appellants demonstrated a probability of prevailing on the meritsthat respondents had also denied any involvement in sending the April 10 Letter and therefore they shouldnt be parties to this action, not because of the anti-SLAPP statutes but because theyre the wrong defendants.

The court at the hearing on the second motion concluded similarly that the activity complained of was constitutionally protected and subject to the anti-SLAPP statute. It also held that appellants had not shown a probability of prevailing because the Anthonys both declared that they had nothing to do with sending the April 10 Letter, and, indeed, were not even living in the Hollister area at the time it was sent.

B. Claims Arising Out of Protected Activity

We initially reject the argument respondents made below that the protected activity upon which the suit was based consisted of their participation in the Watch Program and their transmission of the signed December 21, 2005 letter to the San Benito County Planning Department in which they complained about possible code violations at the Property. As noted by appellants, this argument confuses the act of sending the December 21, 2005 signed letter with the act of sending the anonymous April 10 Letter. The former act merely furnished the alleged evidentiary basis for naming respondents in the suit, while the latter act was the basis for the claims alleged in the Complaint. Neither respondents involvement in the Watch Program nor their sending of the December 21, 2005 letter is therefore determinative of whether the action arose out of protected activity.

Respondents, however, make dual arguments on appeal that the action arose out of protected activity within the meaning of the anti-SLAPP statute. They assert that the anonymous April 10 Letter constituted protected speech concerning a matter of public interest under subdivision (e)(4) of section 425.16. Second, respondents claim that the April 10 Letter was a statement made in connection with an official proceeding and thus protected under subdivision (e)(2) of section 425.16. We address both of these arguments below.[6]

1. Speech concerning issue of public interest

As we have noted, one instance of protected activity under the anti-SLAPP statute is where the action arises out of 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)(4).) The definition of public interest within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.] [M]atters of public interest . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. [Citation.] (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon).)

Thus, in Damon for instance,the court concluded that public comments concerning the competence of a manager of a homeowners association involved speech connected with an issue of public interest within the meaning of section 425.16. (Damon, supra, 85 Cal.App.4th at pp. 479-480.) Further, in ComputerXpress, supra, 93 Cal.App.4th at pages 1007-1008, the court concluded that Internet postings by investors that disparaged a publicly-traded company were made in connection with an issue of public interest, thereby satisfying the investors burden in making an anti-SLAPP motion of showing that the suit arose out of protected activity. In Fontani v. Wells Fargo Investments, LLC (2005) 129 Cal.App.4th 719, 733,[7] the court held that an employers written statements to the National Association of Securities Dealers concerning reasons for terminating its broker-dealer employee were matters of public interest under the anti-SLAPP statute, because the issue concerned possible conduct capable of affecting a significant number of investors. Other cases in which the activity on which the suits were based was found to concern matters of public interest under the anti-SLAPP statute include speech involving a controversy in the mental health field about childhood repressed memory (Taus v. Loftus (2007) 40 Cal.4th 683, 712-713); the distribution of the estate of a famous movie actor, Marlon Brando (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347); and alleged unfair business practices by a viatical settlements brokerage (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 900).

Despite the breadth of the definition of public interest, it is far from true that all constitutionally-protected speech and petition activity is embraced by subdivision (e)(4) of section 425.16. And as Justice Sills has observed, case law suggests [t]he theme of a need to go beyond the parochial particulars of the given parties in order to establish that the activity is covered under the anti-SLAPP statute. (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 (Commonwealth Energy).) Thus, for example, the Commonwealth Energy court held that a telemarketing pitch for a particular service marketed to a very few number of people did not concern a matter of public interest. (Ibid.)  Likewise, in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1134, the accusations by a token collector that the plaintiff had stolen a valuable collectable was a private dispute that was not a matter of public interest for which the protections of the anti-SLAPP statute were available. And in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero), the court concluded that a unions statements concerning alleged improprieties of a supervisor of eight custodians did not involve a matter of public interest under section 425.16. (See also Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 472 [private employers investigation of sexual harassment charge against employee not in public eye not matter of public interest]; Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 [statement on union Web site that employee was terminated for mismanagement not issue of public interest].)

Thus, the First District Court of Appeal noted that, while the boundaries for determining whether a matter is of public interest under section 425.16, subdivision (e)(4), are imprecise, three patterns are discernible from the case law. It held that statements falling within the statute generally have at least one of three characteristics, namely, they concerned [1] a person or entity in the public eye [citations], [2] conduct that could directly affect a large number of people beyond the direct participants [citations] or [3] a topic of widespread, public interest [citation]. (Rivero, supra, 105 Cal.App.4th at p. 924; see also Commonwealth Energy, supra, 110 Cal.App.4th at p. 33 [Fourth District Court of Appeal citing with approval Riveros criteria for statements concerning matters of public interest].)

In this instance, the statements in the April 10 Letter out of which the action arose bore none of the Rivero earmarks of a matter of public interest. There is nothing to suggest that appellants were in the public eye. The alleged conductnamely, how the Property was maintained and the nature of the activities conducted on itwas not something that had an effect on a large number of people. And there is nothing indicating that the issues described in the April 10 Letter relative to the maintenance and use of the Property were in any way topic[s] of widespread, public interest. (Rivero, supra, 105 Cal.App.4th at p. 924.) We therefore reject respondents contention here that the anonymous April 10 Letter constituted protected speech concerning a matter of public interest under subdivision (e)(4) of section 425.16.

2. Letter in connection with official proceeding

Respondents alternatively claim on appeal that the April 10 Letter constituted protected activity under subdivision (e)(2) of section 425.16. Under subdivision (e)(2), protected activity includes 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. ( 425.16, subd. (e)(2).) As the Supreme Court has explained, clauses (1) and (2) of section 425.16, subdivision (e)unlike clauses (3) and (4)do not have a limitation that the speech or petitioning rights concern an issue of public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.)[8] And the court has subsequently confirmed, citing Briggs, supra, at page 1115, that the protections of section 425.16 apply to prelitigation conduct. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn. 11.)

Thus, communications preparatory to lawsuits or other official proceedings have been held to constitute protected activity under section 425.16 subdivision (e)(2) in a number of different scenarios. For instance, in Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 780 (Dove Audio), various celebrities had participated in a recording under which the publisher agreed to donate percentage royalties to charities designated by the respective celebrities. The communication that ultimately resulted in the assertion of defamation and interference with economic relationship claims involved letters written by a law firm to the celebrities and designated charities; that letter charged that the publisher had not made the required royalty payments and indicated the firms intention to file a complaint with the California Attorney Generals office. (Ibid.) The court held that [j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], we hold that such statements are equally entitled to the benefits of section 425.16. [Citation.] (Id. at p. 784.) Similarly, a television providers letters to purchasers of a device capable of pirating television programming demanding that they not use the devices were found to constitute prelitigation protected activity under the anti-SLAPP statute. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918; see also Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36-37 [attorney letter claiming conspiracy to defraud and threatening appropriate action protected under anti-SLAPP statute].)

Likewise, Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, 1255-1256 arose out of a landowners informal complaints to city officials concerning the construction of a large elevated playhouse by her neighbors, the plaintiffs. The appellate court disagreed with the trial courts finding that the anti-SLAPP statute was inapplicable, concluding that the landowners act of contacting her representative and [her] act of contacting planning staff are petitions for grievances against the government protected by the First Amendment. [Citations.] (Id. at pp. 1258-1259.) And in Siam v. Kizilbash, supra, 130 Cal.App.4th at page 1570, we held that reports of suspected child abuse to parties having a duty to report or investigate those charges constituted communications preparatory to or in anticipation of the commencement of official proceedings that were thus protected under subdivision (e)(2) of section 425.16.

In this instance, the April 10 Letter must be regarded on its face as a communication preparatory to the initiation of official proceedings. (Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1570; Levy v. City of Santa Monica, supra, 114 Cal.App.4th at pp. 1255-1256.) The purported authors an anonymous group of Oak Creek homeowners living in the vicinity of appellantsclaimed a concern for the maintenance and use of the Property that they believed to have constituted, among other things, a violation of zoning laws. The authors of the letter requested that appellants take action to correct those perceived code violations and noted that the failure to do so within two weeks would result in the authors taking action by contacting appropriate governmental agencies. The fact that the letter was addressed to private citizens, and not to any official agency, did not take it outside the scope of protection under the anti-SLAPP statute as a prelitigation communication. (Dove Audio, supra, 47 Cal.App.4th at p. 784.) Further, appellants argument that the communication was not protected because any administrative proceeding resulting from respondents prior complaint to the Planning Department (as evidenced by the signed December 21, 2005 letter) had concluded is without merit; it ignores the fact that the April 10 Letter could have represented a communication preparatory to a new administrative proceeding and thus protected under section 425.16, subdivision (e)(2).

Moreover, while we acknowledge that the April 10 Letter includes threats to report appellants for crimes which are unsupported by any facts stated in the letteri.e., suspected drug activity, tax evasion, and immigration violationsthe character of the communication on its face is one entitled to protection under section 425.16.[9] It is not the defendants burden in bringing a[n anti-]SLAPP motion to establish that the challenged cause of action is constitutionally protected as a matter of law. [Citations.] Once the defendant shows that the cause of action arose from acts done in furtherance of an exercise of free speech, it becomes the plaintiffs burden to establish that the acts are not protected by the First Amendment. [Citation.] (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165; see also Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460 [with the legality of [the defendants] exercise of a constitutionally protected right in dispute in the action, the threshold element in a section 425.16 inquiry has been established and claimed illegality of the defendants conduct is considered in context of discharge of the plaintiffs burden of showing a probability it will prevail].)[10]

Furthermore, the fact that the Complaint included allegations that there were actions that occurred after the April 10 Letter that involved intimidation and harassment of appellants does not preclude the application of the anti-SLAPP statute. Essentially, the Complaint concerned mixed issues of potentially protected and unprotected activity.  [W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct. [Citations.] As one court explained, if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion. [Citation.] [Citation.] But if the allegations concerning protected activity are more than merely incidental or collateral, the cause of action is subject to a motion to strike. [Citations.] (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.) Here, the allegations related to the April 10 Letter (i.e., the protected activity) were clearly more than merely incidental or collateral.

We therefore conclude that respondents satisfied their burden of establishing that the claim alleged in the Complaint arose out of activity protected under the anti-SLAPP statute because the April 10 Letter constituted a protected prelitigation communication under section 425.16, subdivision (e)(2). Thus, although this is not by any means the prototypical SLAPP suit (Wilbanks v. Wolf, supra, 121 Cal.App.4th at p. 894)because here respondents are defending as protected activity a letter that they specifically deny having writtenthe anti-SLAPP statute is nonetheless applicable. We proceed therefore to the second prong in assessing the merits of a motion to strike: whether appellants made a prima facie showing of the probable validity of their claims.

C. Prima Facie Showing of Validity of Claims

The Complaint sets forth four causes of action, i.e., interference with the exercise of appellants constitutional rights (Civ. Code,  52.1), stalking, intentional infliction of emotional distress, and civil conspiracy. Therefore, in order to defeat respondents anti-SLAPP motions, appellants must have properly pleaded and presented competent evidence establishing each of these elements to support these claims. (Navellier, supra, 29 Cal.4th at pp. 88-89; see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District (2003) 106 Cal.App.4th 1219, 1236 [evidence establishing probability of prevailing must be competent and admissible].)

Here, appellants made no evidentiary showing that any of the respondents were involved in the preparation and sending of the April 10 Letter. And as noted above, each of the respondents submitted declarations specifically denying any such involvement. Further, appellants presented no evidence that any of the respondents participated in the post-letter acts of intimidation, stalking, and harassment of appellants alleged in the unverified Complaint. Each of the respondents denied any such actions in their respective declarations.

Appellants were required to plead and substantiate by competent, admissible evidence a probability that they would prevail. In establishing the merits of their [C]omplaint in the face of a motion to strike, [appellants] cannot rely on allegations but must present admissible evidence which demonstrates the viability of their claims. [Citations.] (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 404-405.) Their failure to present such admissible evidence supporting the allegations in their unverified Complaint here compels the conclusion that they have not met their burden of showing a probability that they will prevail. Accordingly, the motions to dismiss under section 425.16 were properly granted. (See, e.g., Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 845 [the plaintiffs failure to show that damages were caused by the defendants alleged fraud compelled granting of anti-SLAPP motion].)

DISPOSITION

The orders granting respondents special motions to strike complaint pursuant to the anti-SLAPP statute are affirmed.

Duffy, J.

I CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J., Dissenting.

Threats, intimidation and coercion which interfere with a persons peaceful enjoyment of property and right to privacy, cannot be constitutionally protected speech under Code of Civil Procedure section 425.16.[11] The April 10 Letter from the anonymous Oak Creek Neighborhood Watch Committee is exactly that the kind of harassment and intimidation historically employed by hate groups and vigilantes. Thus, I dissent.

Analysis of Special Motions to Strike under Section 425.16

My colleagues correctly describe the two-step process of analysis and resolution of a section 425.16 special motion to strike pursuant to Equilon Enterprise v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 (Equilon).

The first step involves the determination whether the cause of action arises from any act or acts in furtherance of the [defendants] right of petition or free speech under the United States or California Constitution in connection with a public issue. ( 425.16, subd. (b)(1).) It is only after that finding is made that the court considers whether the plaintiff can demonstrate a probability of prevailing on the claim. (Equilon, supra, 29 Cal.4th at p. 67.)

As tempting as it may be to consider the evidence submitted by the parties in support of and opposition to the second prong, that review is unnecessary if the moving party has not satisfied the threshold showing of protected activity.

The April 10 Letter as Protected Speech

I agree with the majoritys analysis under section 425.16, subdivision (e)(4) and its conclusion that the April 10 Letter did not concern a matter of public interest under that subdivision.

But I disagree with the conclusion that the Letter comes within the protective sphere of section 425.16, subdivision (e)(2) as a 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.[12]

Even under the broadest interpretation of this subdivision, the Watch Committee ultimatum sent to appellants is not entitled to such protection. The Letter was not sent to any legislative, executive or judicial body but directly to appellants. And, more importantly, most of the threatened governmental actions bear no relation to the corrective measures demanded by the Letter.

The majority claims my analysis improperly inserts a proof-of-validity requirement into respondents initial burden. (Maj. opn. p. 20, fn. 10.) Such criticism might be justified if I were relying on evidence besides the Letter itself to find no valid exercise of constitutional speech. As I have stated, threats, intimidation and coercion which interfere with a persons peaceful enjoyment of property and right to privacy, cannot be constitutionally protected speech. This offensive writing on its face contains such harassing and menacing threats. Therefore, it is my view that as a matter of law defendants have not established that the complained-of action arises from protected activity within the meaning of section 425.16.

1.The Letter as Prelitigation Communication

I acknowledge the case authority cited by the majority, which stands for the proposition that communications preparatory to lawsuits or other official proceedings have been held to constitute protected activity under section 425.16, subdivision (e)(2). (Maj. opn. p. 17.) However, those cases all involve action or threatened action appropriately related to the assertions or demands made in the communication. (See Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777[intention to file complaint with California Attorney General regarding plaintiffs failure to make charitable donations promised to celebrities and charities participating in recording project]; Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903[letters to users of pirated satellite television decryption devices citing federal law violations and demanding that they cease use and resolve without litigation]; Rohde v. Wolf (2007) 154 Cal.App.4th 28[attorneys prelitigation accusatory voice mail message threatening to take appropriate action in midst of estate dispute]; Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252[neighbors complaints about backyard structure made to city councilmember and planning staff]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563[reports of suspected child abuse made to persons with mandatory duty to report or investigate].)

According to the majority, the Letter stated that failure to take the requested corrective action would result in contact with appropriate governmental agencies. (Maj. opn. p. 18.) But my colleagues reach that conclusion without any explanation or justification why they find all of the listed agencies to be appropriate.

In my view, the Letter included threats to involve many government agencies whose function and duties were completely unrelated to the fencing or equipment or their removal. The missive warned that unless the appellants removed the fencing and equipment in the next two weeks, claims would be made to law enforcement, tax authorities and immigration officials about drugs, stolen property, tax evasion and illegal aliens.[13] The majority opinion acknowledges that the Letter includes threats to report appellants for crimes which are unsupported by any facts stated in the letter. (Maj. opn. p. 19.) No information about the basis of such claims was included. No specifics were provided to substantiate the legitimacy of the assertions. Just the bald threat: do what we want or else. My colleagues are dismissive of appellants reference to this language as a blatant attempt to extort. In spite of appellants rhetoric and even though these demands may not meet the Penal Code section 518 definition of extortion, they nevertheless involve intimidation, harassment, and an attempt to coerce the result demanded by the anonymous writers and, as such, they are not protected speech.

2. Mixed Issues of Protected and Unprotected Activity

I recognize the general concept of mixed issues as discussed by the majority. Section 425.16 has been found applicable to a cause of action alleging both protected and unprotected activity. (Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLC (2005) 133 Cal.App.4th 658.) However, for the statute to apply, the protected activity must be more than merely incidental or collateral. (Id. at p. 672.)

In this case, I concede that the threatened complaints to the city officials or a newspaper about the fencing and equipment are protected. However, in my view, those parts of the Letter are merely incidental or collateral to the unprotected portions.

Complaints of code violations concerning the use of the property were already pending before the city code enforcement officials, who were monitoring the complaints. The fencing and equipment on the property were under ongoing scrutiny. Seemingly, then, the proposed action of reporting to the city would not be especially intimidating to the appellants.

But most of the Letter involved far more serious allegations and threatened to entangle appellants with powerful state and federal agencies and local criminal investigators. The potential ramifications to appellants and the resulting intrusions into their lives resulting from the involvement of these agencies far exceeded the code enforcement process that was under way. Thus, I would find that respondents do not come within section 425.16 under the concept of mixed issues.

Conclusion

The named respondents in this matter may very well be completely innocent of any involvement in the April 10 Letter. Appellants may have no proof that any of the named respondents make up the Watch Committee or any other basis for suspecting them. However, unless a moving party can pass the first step of section 425.16, such matters must be resolved by summary judgment, sanctions or trial.

For these reasons, I conclude that respondents did not carry their burden to establish that the Letter qualifies as constitutionally protected speech. I would reverse the order granting respondents special motions to strike the complaint.

_______________________________

McAdams, J.

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[1] SLAPP is an acronym for strategic lawsuit against public participation.  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

Further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] The original complaint in this action was not included in the clerks transcript; the information concerning the initial complaint noted herein is based upon statements contained in the parties appellate briefs, which this court accepts as true representations of counsel.

[3] The April 10 Letter (excluding letterhead, date, and salutation) reads in its entirety: This letter is being sent anonymously from a group of 12 residents of Oak Creek. We were very pleased to see the improvements that were made with your residence and property when you first moved in. We are deeply saddened to say that our opinion now has changed drastically. [] The amount of commercial equipment indicates that you are running a business from this residence and as far as we can tell this location is only zoned for residential use. The black fence that was recently constructed also indicates that you have something to hide which causes us great alarm that some type of illegal activity may be being conducted besides it generally being an eye sore. [] Before reporting these issues we felt this letter should go to you first to see if you would rectify these issues on your own. If we see the fence material taken down and some of the equipment moved in the next two weeks we will conceder [sic] that you are a good neighbor and you are attempting to do the right thing. If nothing is done we have 7 letters drafted to the following organizations that will be mailed on April 24th, with additional letters to follow. [] District Attorney & City of Hollister Planning and ZoningReport of Business conducted at a primary residence. [] Hollister Police DepartmentSuspicious illegal activity report with vehicle activity log, possible drug [sic] and/or stolen property. ([T]he Police Chief lives in Oak Creek.) []Hollister Sheriff DepartmentSuspicious illegal activity report with vehicle activity log, possible drug [sic] and/or stolen property. [] State Tax Franchise BoardSuspensions of State tax evasion and State tax fraud please investigate. [Sic. ] IRSSuspensions of Federal tax evasion and Federal tax fraud please investigate. [Sic. ] ImmigrationSuspicion of illegal immigrants living and or working please investigate. [] Dispatch NewspaperLetter to the editorPublic outrage Nothing Done [Sic.] [] Please remove the black fencing and remove the commercial equipment from open site. [] Sincerely, [] Oak Creek Neighborhood Watch Committee

[4] The parties filing the August 2, 2006 motion to strike were Darrell Campolong, Greg Colla, Vicki Colla, Michael Gallagher, and Erika Gallagher.

[5] Appellants do not repeat this argument on appeal and cite no authority for the proposition that the letter was not protected activity under section 527.6. We note further that while appellants asserted below that the April 10 Letter was actionable under section 527.6, the Complaint did not allege a claim or seek injunctive relief for harassment under that statute.

[6] Appellants assert that because the motions to strike did not address the specific issue of whether the April 10 Letter constituted protected activity, the motions should have been denied since respondents failed to meet their burden under the anti-SLAPP statute. But appellants in fact argue the merits of whether the April 10 Letter was protected speech under the anti-SLAPP statute in both their opening and reply briefs. And they argued that issue below in opposition to the second motion to strike, and the issue was specifically addressed at the hearing on both motions. Under these circumstances, and since we perform an independent review of the entire record (including the hearings on the motions) in determining the correctness of the trial courts ruling on the anti-SLAPP motions (Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 672), we will address the merits of respondents contentions that the April 10 Letter was protected under subdivisions (e)(2) and (e)(4) of section 425.16.

[7] Fontani, supra, 129 Cal.App.4th 719 was disapproved on another ground in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203, footnote 5.

[8] Appellants argue that the conduct alleged in the Complaint was not protected under either clause (2) or clause (4) of subdivision (e) of section 425.16 because there was no public issue or issue of public interest. As to section 425.16, subdivision (e)(2), appellants are clearly in error, since there is no such public issue or issue of public interest requirement. (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1117.) As to subdivision (e)(4), appellants, as we have discussed, ante, are correct that the subject matter of the April 10 Letter does not involve a matter of public interest. Appellants, however, in making this argument, cite to a depublished opinion (OMeara v. Palomar-Peninsula Health System (2005) 125 Cal.App.4th 1324, review granted Apr. 27, 2005, S131874), in violation of California Rules of Court, rule 8.1115(a).

[9] In their reply, appellants argue (without elaboration) that the April 10 Letter constituted a blatant attempt to extort from appellants . . . . This is perhaps a veiled reference to the Supreme Courts holding in Flatley v. Mauro, supra, 39 Cal.4th 299, that the protections of the anti-SLAPP statute are unavailable to a defendant whose communication that is the basis for the suit constitutes extortion as a matter of law. Flatley has no application. Here, the communication does not constitute extortion or attempted extortion as a matter of law since the unknown author(s) of the April 10 Letter did not obtain or attempt to obtain property from another by threatening to contact public officials and the media if appellants did not comply with the action requested in the letter. (See Pen. Code,  518: Extortion is the obtaining of property from another, with his consent, . . . induced by a wrongful use of force or fear, or under color of official right.)

[10] As the Supreme Court has emphasized (see Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 739-740; Navellier, supra, 29 Cal.4th at pp. 94-95), the defendant need not establish conclusively that the action arose from conduct that is constitutionally protected in order to satisfy its burden under the anti-SLAPP statut