Filed 7/30/26 Skeen v. Minicilli CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES E. SKEEN, JR., et al., D086666
Plaintiffs and Appellants,
(Super. Ct. No. 25CU003643N)
v.
AMY MINICILLI et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed.
Mazzarella Law and Mark C. Mazzarella; Duckor Metzger & Wynne
and Katherine C. Fine for Plaintiffs and Appellants.
Thomas Lucas, Vanessa Catherine Whirl, Nathan E. Sawkins and
Timothy D. Lucas for Defendants and Respondents.
James E. Skeen, Jr. and Heather Skeen appeal from an order granting
in part and denying in part a Code of Civil Procedure section 425.161 anti-
SLAPP special motion to strike. The motion was filed by their neighbors,
Amy Minicilli and Michael Minicilli, in response to a complaint in which the
Skeens had alleged that uses to which the Minicillis put the Minicilli
1 All subsequent statutory references are to the Code of Civil Procedure.
property had harmed the Skeens. Resolving this matter by memorandum
opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we affirm.
So doing, we begin our analysis with the observation that the filing of
an anti-SLAPP special motion to strike triggers a two-step, burden-shifting
process. (Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 1021–1022
(Geragos.) First, the defendant must make a prima facie showing that a
cause of action alleged in the complaint “arises from” an act of that defendant
that is “in furtherance of the [defendant’s] right of petition or free speech
under the United States Constitution or the California Constitution in
connection with a public issue” (protected activity). (§ 425.16, subd. (b)(1);
see also Geragos, at pp. 1021–1022.) Second, if the defendant succeeds in
carrying this burden, then the plaintiff must establish “a probability that the
plaintiff will prevail on the claims.” (§ 425.16, subd. (b)(1); see also Geragos,
at pp. 1021–1022.) If the plaintiff cannot meet this burden, then the
protected allegations and claims reliant on them are stricken.
According to the complaint: The Minicillis hung “party lights” from
poles in their side yard and mounted a light on a wall facing the Skeens’
home. The resulting illumination penetrated the Skeens’ bedroom and living
room windows at all hours of the night. This not only caused them emotional
distress and flare-ups of Mrs. Skeen’s fibromyalgia, but it also violated the
community’s covenants, conditions restrictions, and regulations, the City of
Encinitas Municipal Code, and the California Code of Regulations. Reports
to the homeowner’s association (HOA) and to the city resulted in the
Minicillis receiving a citation. But through various means, including threats
of legal action and false claims relating to their child’s disability, the
Minicillis induced the HOA to take no action, and the city into granting them
an accommodation. Even then, the Minicillis failed to satisfy certain
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requirements the city had imposed to alleviate impacts on neighbors as a
condition of granting the accommodation.
On the basis of these and other allegations, the complaint asserted 11
causes of action: private nuisance; trespass; negligence; negligence per se;
breach of contract; aiding and abetting breach of fiduciary duty; negligent
infliction of emotional distress; intentional infliction of emotional distress;
elder abuse; declaratory relief; and injunctive relief. In response, the
Minicillis filed an anti-SLAPP special motion to strike. The trial court issued
an order granting the motion in part and denying it in part. The order struck
multiple allegations from the complaint, thereby precluding those allegations
from supplying an essential element of any cause of action. But it did not
strike any cause of action.
In their briefs on appeal neither the Skeens nor the Minicillis contested
the trial court’s step-one anti-SLAPP analysis. Nor did any of them object to
the fact that the trial court had refrained from striking any of the 11 causes
of action. Where the parties’ positions diverged was with respect to step two.
The Skeens argued that the trial court had skipped step two and that it thus
should be reversed to the extent it granted the motion. The Minicillis
countered that the trial court had not skipped step two, that it had been
correct in concluding the allegations it struck should be stricken, and that the
order should thus be affirmed.
Although the parties briefed the appeal as a step two disagreement, we
need not weigh in on step two. This is because the Skeens’ counsel conceded
at oral argument that his clients do not contest the trial court’s ruling on the
motion other than to the extent it might be interpreted as precluding the
downstream admission of evidence, relating to stricken allegations, that
might otherwise be admissible.
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As to that latter issue, simply stated, the admissibility of evidence
relating to protected activity was not before the court on the anti-SLAPP
motion; instead the admissibility of such evidence is a matter to be addressed
in future proceedings, when it is offered and objected to, such as in connection
with a summary adjudication motion or at trial. (See Graffiti Protective
Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1214–1215
[distinguishing “between (1) speech or petitioning activity that is mere evidence
related to liability and (2) liability that is based on speech or petitioning activity”
and concluding such activity “may provide evidentiary support for the
complaint without being a basis of liability”]; see also Park v. Board of Trustees
of California State University (2017) 2 Cal.5th 1057, 1060, 1062-1067
[distinguishing between “speech or petitioning activity” that “is the wrong
complained of” versus such activity that is “just evidence of liability”]; Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1019.)
In the event the trial court concludes that any such evidence relating to
protected activity is admissible at trial, one or more limiting instructions may
be appropriate to ensure the jury does not consider such evidence to
determine whether an element of a cause of action has been established. But
that is a decision for another day.
The judgment is affirmed. The Minicillis are entitled to costs on
appeal.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
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