Starview Property, LLC v. Stephen Y. Lee

In this acrimonious dispute between neighbors over a

driveway easement, defendants Stephen and Tracy Lee appeal

the trial court’s denial of a motion pursuant to Code of Civil

Procedure section 425.16, the anti-SLAPP statute,1 directed at

three claims plaintiff Starview Property, LLC asserted for the

first time in its first amended complaint. Although the Lees’

motion was timely filed within 60 days after the filing of the

amended complaint, the trial court denied the motion as untimely

because the new claims were based on facts alleged in the

original complaint and the motion was filed more than 60 days

after service of the original complaint. (Code Civ. Proc., § 425.16,

subd. (f) [60-day deadline to file motion after service of

“complaint”].)2



The court erred. An anti-SLAPP motion may be brought

within 60 days of service of an amended complaint “ ‘if the

amended complaint pleads new causes of action that could not

have been the target of a prior anti-SLAPP motion, or adds new

allegations that make previously pleaded causes of action subject

to an anti-SLAPP motion.’ ” (Newport Harbor Ventures, LLC v.

Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 641

(Newport Harbor II).) Starview’s three newly pled causes of

action in its amended complaint plainly could not have been the

target of a prior motion, even if they arose from protected activity

alleged in the original complaint. We reverse the court’s order.

1 SLAPP stands for “strategic lawsuits against public

participation. (Rand Resources, LLC v. City of Carson (2019)

6 Cal.5th 610, 614 (Rand).)

2 All undesignated statutory citations are to the Code of Civil

Procedure.

3

We express no views on the merits of the motion and remand for

the court to consider the merits in the first instance.

BACKGROUND

The parties own neighboring parcels of land in

Brentwood—Starview owns 816 Glenmere Way (the 816

property) and the Lees own 815 Glenmere Way (the 815

property). In 1958, the Lees’ predecessor granted an easement to

Starview’s predecessor over a driveway entirely situated on the

Lees’ property for ingress, egress, and driveway purposes. In

1959, the parties’ predecessors modified the easement with an

agreement containing this clause: “Should any further

documents be necessary to be placed of record for the purpose of

perfecting title to the matters set forth in this agreement, the

parties hereto mutually agree to execute such additional

documents.”

In 2016, Starview purchased the 816 property, and it

intended to remodel the existing home. In 2017, it submitted

architectural plans to the City of Los Angeles (the City). As a

condition of permit approval, the City required Starview to sign a

Covenant and Agreement for Community Driveway and to secure

the Lees’ signature on the document as well. The document was

required because anyone accessing one of the five required

parking spaces on Starview’s property would have to use the

driveway on the Lees’ property.

The Lees declined to sign the covenant. Starview alleged

the Lees claimed they were entitled to new consideration and to

condition their performance on extra-contractual demands for

indemnity, construction, releases, and payment of $5,000.

Starview eventually installed a vehicle lift system that was

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approved by the City, which avoided the parking problem and

avoided requiring the Lees to sign the Covenant.

Starview filed the original complaint on April 11, 2017,

alleging three contract-based claims: (1) breach of contract; (2)

specific performance; and (3) injunctive relief. All three claims

were based on the Lees’ failure to sign the covenant in breach of

the easement agreement. The Lees did not file an anti-SLAPP

motion to strike any of these causes of action.

The parties conducted some discovery and filed motions for

summary judgment/adjudication. Then, over a year after filing

the original complaint, Starview filed a first amended complaint

(FAC) on May 17, 2018. The FAC added factual detail but

alleged the same basic acts of the Lees refusing to sign the

covenant in breach of the easement agreement and making extracontractual

demands for additional concessions and

consideration. The FAC realleged causes of action for breach of

contract and injunctive relief, but added claims for breach of the

implied covenant of good faith, negligent and intentional

interference with easement, and private nuisance. The newly

added claims were based on both the Lees’ failure to sign the

covenant and on their extra-contractual demands.

On July 11, 2018—55 days after the FAC was deemed

filed—the Lees filed their anti-SLAPP motion. It sought to strike

the newly added causes of action for breach of the implied

covenant of good faith and for negligent and intentional

interference with easement. Alternatively, it sought to strike

certain factual allegations of “pre-litigation communications”

related to the Lees’ extra-contractual demands, including factual

allegations that appeared in the original complaint. In the

motion, the Lees argued their failure to sign the covenant and

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their pre-litigation communications were protected activity, and

Starview could not prevail on the three new claims.

In opposition, Starview argued the motion was untimely

because the claimed protected activity was alleged in the original

complaint and the motion was filed more than 60 days after the

original complaint was served. Starview also opposed the motion

on the merits.

The trial court denied the motion as untimely because the

original complaint alleged “the same protected conduct subject to

SLAPP raised by Defendants in this motion,” which was the Lees’

refusal to sign the covenant and the Lees’ demand for additional

consideration to sign the covenant. In the court’s view, the FAC

“did not reopen the time to file a SLAPP; Defendants were

required to bring any SLAPP motion within 60 days of being

served with the original Complaint, or by July 2, 2017.” The

court did not reach the merits of the motion.

The Lees appealed the court’s order.

DISCUSSION

A. The Lees’ Anti-SLAPP Motion Was Timely

The anti-SLAPP statute creates a procedure to “resolve

quickly and relatively inexpensively meritless lawsuits that

threaten free speech on matters of public interest.” (Newport

Harbor II, supra, 4 Cal.5th at p. 639.) To that end, a court may

strike a cause of action if it “(1) arises from an act in furtherance

of the right of petition or free speech ‘in connection with a public

issue,’ and (2) the plaintiff has not established ‘a probability’ of

prevailing on the claim.” (Rand, supra, 6 Cal.5th at pp. 619–620;

see § 425.16, subd. (b)(1).) An anti-SLAPP 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.”

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(§ 425.16, subd. (f).)3 The trial court’s determination that the

Lees’ motion was untimely is a question of law we review de novo.

(Newport Harbor Ventures, LLC v. Morris Cerullo World

Evangelism (2016) 6 Cal.App.5th 1207, 1219, review granted

March 22, 2017, S239777, affirmed 4 Cal.5th 637 (Newport

Harbor I).)4

In Newport Harbor II, the California Supreme Court

interpreted section 425.16, subdivision (f), to “permit an antiSLAPP

motion against an amended complaint if it could not have

been brought earlier, but to prohibit belated motions that could

have been brought earlier (subject to the trial court’s discretion to

permit a late motion).” (Newport Harbor II, supra, 4 Cal.5th at p.

3 The 60-day clock to file an anti-SLAPP motion runs from

the service of a complaint, but the record does not reflect when

either the original or the FAC complaints were served. The

parties base their arguments on the filing dates. Since any time

difference between filing and service does not impact their

positions or our analysis, we will do the same.

4 Starview argues we must review for abuse of discretion, but

the cases it cites all involved the trial court’s exercise of statutory

discretion to permit the filing of an untimely anti-SLAPP motion.

(See Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th

1174, 1187 (Hewlett-Packard); Kunysz v. Sandler (2007) 146

Cal.App.4th 1540, 1542–1543; Morin v. Rosenthal (2004) 122

Cal.App.4th 673, 681.) Here, we are concerned with whether the

Lees’ motion was timely filed in the first instance, a legal

question about the proper interpretation and application of

section 425.16, subdivision (f). Even if we reviewed for abuse of

discretion, a court abuses its discretion if “ ‘the grounds given by

the court . . . are inconsistent with the substantive law of section

425.16.’ ” (Hewlett-Packard, supra, at p. 1187.) As we explain,

that occurred here.

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645.) An anti-SLAPP motion directed at an amended complaint

“could not have been brought earlier” if “ ‘the amended complaint

pleads new causes of action that could not have been the target of

a prior anti-SLAPP motion, or adds new allegations that make

previously pleaded causes of action subject to an anti-SLAPP

motion.’ ” (Id. at p. 641, quoting Newport Harbor I, supra, 6

Cal.App.5th at p. 1219.)

Starview defends the trial court’s ruling by arguing the

Lees’ motion could have been brought earlier because the newly

alleged claims rest on previously alleged facts. Starview’s

position, as well as the trial court’s ruling, misunderstand antiSLAPP

law and Newport Harbor II.

By its terms, the anti-SLAPP statute is directed at striking

causes of action, not merely factual allegations. (See Baral v.

Schnitt (2016) 1 Cal.5th 376, 394 (Baral) [“Allegations of

protected activity that merely provide context, without

supporting a claim for recovery, cannot be stricken under the

anti-SLAPP statute.”]; see also Rand, supra, 6 Cal.5th at p. 621

[“But to prevail on an anti-SLAPP motion, a defendant must do

more than identify some speech touching on a matter of public

interest. As we have explained, ‘ “the defendant’s act underlying

the plaintiff’s cause of action must itself have been an act in

furtherance of the right of petition or free speech.” ’ ”].) That is

why causes of action under the anti-SLAPP statute have been

defined as “claims for relief that are based on allegations of

protected activity.” (Baral, supra, at p. 396, italics added.) Here,

Starview may have asserted the alleged protected activity in the

original complaint, but it did not assert the challenged “claims for

relief” until the FAC. The Lees could not have brought a motion

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to strike those claims from the original complaint because they

did not exist to be stricken.

Stated in the context of anti-SLAPP law, “[a] claim arises

from protected activity when that activity underlies or forms the

basis for the claim.” (Park v. Board of Trustees of California

State University (2017) 2 Cal.5th 1057, 1062 (Park).) Hence,

claims subject to the anti-SLAPP statute contain two

components: allegations of protected activity, and a legal claim

for relief arising from that protected activity. (Rand, supra, 6

Cal.5th at p. 620 [first step of anti-SLAPP analysis requires

defendant to show “the ‘conduct by which plaintiff claims to have

been injured falls within one of the four categories’ ” of protected

activity defined in the statute, and “that the plaintiff’s claims in

fact arise from that conduct”]; see Park, supra, at p. 1062.)

Starview’s argument ignores the “arising from” component.

When a plaintiff has alleged protected activity, but no

corresponding legal theory for relief, there is no claim arising

from anything, let alone one arising from protected conduct.

(Baral, supra, 1 Cal.5th at p. 394.) It is not even possible to

assess the application of the anti-SLAPP statute in that scenario.

To determine whether a claim arises from protected activity, a

court—and a defendant when considering whether to file an antiSLAPP

motion in the first instance—“should consider the

elements of the challenged claim and what actions by the

defendant supply those elements and consequently form the basis

for liability.” (Park, supra, 2 Cal.5th at p. 1063.) This analysis is

impossible when the “claim” half of that comparison is missing.

As a matter of law and common sense, an anti-SLAPP motion

cannot be brought to strike a claim until the plaintiff asserts it.

That may occur for the first time in an amended complaint, and

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an anti-SLAPP motion directed at newly asserted claims, even if

based on previously alleged facts, would be timely if filed within

60 days of service of the amended complaint.

Newport Harbor II arose in the same basic factual context

and confirms this conclusion. In that case, the plaintiff had filed

an original complaint and several amended complaints, all of

which alleged the defendants fraudulently settled an unlawful

detainer action. (Newport Harbor II, supra, 4 Cal.5th at p. 640.)

The first and subsequent complaints alleged multiple causes of

action, including breach of contract and breach of the implied

covenant of good faith. The third amended complaint continued

to allege the defendants fraudulently settled the unlawful

detainer action and realleged the two previously pled claims, but

it added two causes of action for quantum meruit and promissory

estoppel. (Id. at p. 640.) The trial court denied the defendant’s

anti-SLAPP motion directed at the third amended complaint,

noting every complaint “ ‘referenced the Settlement Agreement at

the heart of Defendants’ argument.’ ” (Ibid.)

The Court of Appeal held the motion was untimely as to the

claims alleged in prior complaints but timely as to the two new

causes of action because they “could not have been challenged by

an anti-SLAPP motion to a prior complaint.” (Newport Harbor I,

supra, 6 Cal.App.5th at p. 1212.) The Court of Appeal explained

an anti-SLAPP motion challenging the prior complaints would

not have prevented the plaintiffs “from bringing a lawsuit for

quantum meruit and promissory estoppel. That is because an

earlier anti-SLAPP motion would not necessarily have resolved

whether [the plaintiffs] could demonstrate a probability of

prevailing on their claims for quantum meruit and promissory

estoppel.” (Newport Harbor I, supra, at p. 1220.)

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The California Supreme Court affirmed, accepting the line

drawn by the Court of Appeal between an untimely motion

challenging existing claims and a timely motion challenging new

claims or allegations added in an amended complaint. (Newport

Harbor II, 4 Cal.5th at p. 646.) The high court did not mention,

and was not concerned with, whether the new claims were based

on new or existing factual allegations regarding the fraudulent

unlawful detainer settlement. The question was simply whether

the amended complaint “ ‘pleads new causes of action that could

not have been the target of a prior anti-SLAPP motion, or adds

new allegations that make previously pleaded causes of action

subject to an anti-SLAPP motion.’ ” (Id. at p. 641.)

Starview attempts to distinguish Newport Harbor II by

arguing the new claims in that case were actually based on newly

alleged facts. Starview’s reading of Newport Harbor II is

incorrect. In the Court of Appeal opinion in Newport Harbor I,

the court analyzed the merits of the plaintiffs’ new claims for

quantum meruit and promissory estoppel in the second step of

the anti-SLAPP analysis. (Newport Harbor I, supra, 6

Cal.App.5th at p. 1220.) The court found the new claims were not

barred by the applicable statutes of limitations because they

related back to prior complaints. (Id. at pp. 1222, 1224.) The

amended complaint could only relate back to earlier complaints

“if the amended complaint is based on the same general set of

facts, even if the plaintiff alleges a different legal theory or new

cause of action.” (Id. at pp. 1221–1222.) Thus, the prior

complaints necessarily alleged the same general set of facts as the

third amended complaint, and yet the anti-SLAPP motion was

timely as to the newly added claims.

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Starview also argues the Lees could have brought their

anti-SLAPP motion earlier because their original breach of

contract-related claims arose from the same protected activity

that now underlies the Lees’ new claims. In its view, we should

focus on the conduct forming the basis for the claims, and not the

labels of the alleged causes of action. It cites Crossroads

Investors, L.P. v. Federal National Mortgage Assn. (2017) 13

Cal.App.5th 757 (Crossroads), which stated, “To resolve an antiSLAPP

motion, we do not rely on the form of the complaint or the

name of a cause of action. Rather, we determine the conduct

from which [the plaintiff’s] claims arose and whether that

conduct was constitutionally protected.” (Id. at pp. 780–781.)

The court was implicitly referring to Baral, in which our high

court addressed a so-called “mixed cause of action” involving both

protected and unprotected activity, holding the term “cause of

action” subject to the anti-SLAPP statute does not depend on the

form of the plaintiff’s pleadings. (Baral, supra, 1 Cal.5th at p.

395.)

The rule announced in Baral and Crossroads does not

apply here. For one thing, in Newport Harbor II, our high court

rejected the defendants’ argument that the court’s holding on

timeliness required it to overrule Baral, which “did not consider

the timeliness of any motion to strike or the proper interpretation

of section 425.16, subdivision (f).” (Newport Harbor II, supra, 4

Cal.5th at p. 646.) Further, the principle from Baral and

Crossroads only comes into play after the plaintiff has asserted a

claim for relief that could have arisen from protected activity. As

we have made clear, the defendant cannot bring an anti-SLAPP

motion strike a claim that has not yet been alleged.

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There are sound policy reasons for allowing a defendant to

challenge newly asserted claims. As Newport Harbor II noted,

permitting a defendant to challenge newly asserted causes of

action with an anti-SLAPP motion prevents a plaintiff from

“ ‘circumvent[ing] the purpose of the anti-SLAPP statute by

holding back . . . causes of action from earlier complaints.’ ”

(Newport Harbor II, supra, 4 Cal.5th at p. 641.) Accepting

Starview’s position here would lead to that very result. It would

encourage a plaintiff to plead a wide array factual allegations

amounting to protected activity, but plead very few legal claims.

Once the time to file an anti-SLAPP motion expires, the plaintiff

could then amend the complaint to add as many claims as it sees

fit arising from the previously pled protected conduct, now

immune from an anti-SLAPP motion. Allowing a defendant to

attack newly pled legal claims, whether or not based on existing

allegations of protected activity, prevents this gamesmanship.

We of course recognize the anti-SLAPP statute was

designed to “resolve quickly and relatively inexpensively

meritless lawsuits that threaten free speech on matters of public

interest.” (Newport Harbor II, supra, 4 Cal.5th at p. 639.)

Newport Harbor II understood this problem and barred late

motions that could have been brought earlier, given discovery is

stayed and the ruling on an anti-SLAPP motion is appealable,

which stays all proceedings. (Id. at p. 645; see § 425.16, subds.

(g), (i); Hewlett-Packard, supra, 239 Cal.App.4th at p. 1184

[noting anti-SLAPP motion produces “free time-out” from

litigation].) We agree that once litigation and discovery have

commenced, “[i]t is far too late for the anti-SLAPP statute to

fulfill its purpose of resolving the case promptly and

inexpensively.” (Newport Harbor II, supra, at p. 645.)

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Yet, Newport Harbor II struck a balance by allowing late

motions directed only at new causes of action to “maximize[] the

possibility the anti-SLAPP statute will fulfill its purpose while

reducing the potential for abuse.” (Newport Harbor II, supra,

4 Cal.5th at p. 645.) The parties here may yet streamline the

case if the trial court strikes Starview’s new claims on remand

and narrows the dispute between the parties. On the other hand,

if Starview was concerned with the expediency of the case, it was

the master of its own pleadings. (Id. at p. 646.) It could have

chosen to plead all claims initially or avoid adding new claims

later, “in which case no anti-SLAPP motion at all would be

permitted.” (Ibid.) Starview’s basic position on appeal is that its

new claims are the same as its old claims, so it would arguably

have lost little by not adding them to the FAC. Allowing the

Lees’ motion to move forward as to Starview’s new claims is fully

consistent with the anti-SLAPP statute.

B. We Decline to Consider the Merits of the AntiSLAPP

Motion in the First Instance

The Lees urge us to consider the merits of their motion,

including their evidentiary objections, for the first time on

appeal. We decline the invitation. We think it “advisable to

remand the matter to the trial court so that it may rule on the

outstanding evidentiary and substantive matters in the first

instance.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 286.)

The order is reversed and the matter remanded for the trial court to consider the merits of the anti-SLAPP motion. Appellants are entitled to costs on appeal.

Starview has moved to dismiss the Lees’ appeal as frivolous and requested sanctions. Having found the appeal meritorious, we deny the motion.